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HomeMy WebLinkAbout1987-1152.Warden.88-05-17 Decision ~ HEADNOTE GSB # 1152/87 OPSEU # 87M34 OPSEU LOCAL: 252 ARTICLES: CECBA, 18.1 WARDEN, BLAINE (OPSEU) vs. Ministry of " the Correctional Services Award Dated Mav 17, 1988 (N. Dissanavake) Grievor alleges that it is unduly stressful to work more than one shift during a scheduled tour of duty, with responsibility for two or more work areas of the institution. Grievance is based on Article 18.1 of the Collective Agreement which in part states "the employer shall continue to make reasonable provisions for the health and safety of it's employees during the hours of their emploYment". Employer contends that the issue is inarbi trable as it doesn't violate an article of the Agreement or CECBA. It relates more to staff complEtment and job assignment which are management rights under Section 18.1 of the Act. Board rules that the issue of "health ~nd safety" was not raised until the arbitration hearing and is therefore not a central issue of complaint during the grievance procedure. As such the focus of the grievance before it, is not a health and safety issue. Grievance inarbitrable and hearing dismissed. ""' J 1111 ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD LP-(:) TELEPHONE' 416/598- 0688 &1 H 3 cf 1152/CJ7 180 DUNDAS STREET WEST. TORONTO. O.~ARIO. M5G lZ8 -SUITE 2100 Be1:.ween: Before: IN THE MATTErl OB AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Blaine Warden) Grievor and The Crown in Right of Ontario (Minis1:.ry of Correctional Services) Emi>loyer N.V. Dissanayake F. Taylor P. Cami> Vice-Chairman Nember i"lember I. Roland Counsel Gowling & Henderson Barriscers & Solicitors for The Grievor: B. Thomas Personnel Administrator Ministry of Correctional Services ~~E_~~~_~~~!~I~E: ~~~E~E:..<1: l"iarch 21. 1 ~CJCJ , . . - 1 - This is a grievance of Mr. Blaine Warden, Correctional Officer 2, which was set out in the grievance form dated April 18, 1987, as follows. "Due to severe staff shortage, I am being expected to work more than one (1) post during a scheduled tour of duty, as well as being held respon- sible for 2 or more work areas of the institution causing me undue stress. The settlement desired was described aSI "Management must come up witn a new and more viable staff posting clearly defining work area job posting duties to alleviate stress caused by multiple postings in one scheduled tour of duty." At the commencement of the hearing, the counsel for the employer took the position that the grievance is not arbitrable and that the Board had no jurisdiction to deal with the same. In essence his position was that the grievance does not allege the breach of any provision of the collective agreement or the Crown Employees Collec- tive Bar~ainin~ Act as would give the Board jurisdiction to entertain it. He submitted that the grievance is an attempt to challenge the employer's conduct relating to staff complement and job assignment which pursuant to section 18 (1) of the Act are clearly exclusive management rights which are not subject to collective bargaining or to the jurisdiction of this Board. - 2 - Counsel for the grievor on the other hand submitted that the grievance is based on article 18.1 of the collective agreement, which in part states that "The employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment." He contended that the focus of the grievance is the stress suffered by the grievor and this relates to health and safety. He argued that if the central issue raised in the grievance relates to an arbitrable matter, the fact that issues relating to exclusive management rights may incidentally be involved does not make the grievance inarbitrable. After recessing to consider the submissions of counsel with respect to this preliminary matter the Board returned to deliver the following oral ruling. "This is a grievance dated April 18, 1987. It is not disputed by the parties that the Board's jurisdiction to entertain this grievance must be derived from the collective agreement or the Crown Employees Collective Bargainin? Act. While the employer claims that the grievance is not referable to either source of juris- diction, the grievor contends that the grievance arises out of article 18.1 of the collective agreement relating to health and safety. The Board agrees with counsel for the - 3 grievor that it is not essential that the grievance refer specifically to a particular article in the collective agreement or provision in the Act before it becomes arbitrable. Nor are we unduly concerned that the grievance did not use the phrase "health and safety" and did not articulate a health and safety issue precisely. In that we recognize that grievances are not written necessarily by legally trained persons, the Board will not refuse to accept a grievance merely because of technical defects or imprecise language. All that is required is that the true nature of the grievance must be communicated to the employer. = The Board does not agree with the employer that in all cases the employer has an unfettered right to exercise its management rights in any manner it sees fit. These management rights may be restricted expressly or impliedly by other provisions of the agreement. Specifically, we find that the employer may not exercise a management right in such a manner as would put at risk the employees' health and safety, because that would be contrary to article 18.1. If the thrust of a grievance isa health and safety issue under article 18.1, then in our respect- ful view that grievance is arbitrable despite the fact that the resolution of that grievance may necessitate an inquiry relating to the employer's exercise of management rights. The issue here then is, does the thrust or the central issue in the grievance before us relate to a health and safety issue. On a . - 4 plain reading of the grievance, the complaint appears to be that the grievor finds it unduly stressful to have to work more than one post during a scheduled tour duty. That language is not indicative of a health and safety issue at all. Rather it is a complaint that the grievor is being assigned too much work which he finds stressful. However, as indicated earlier, the wording of the grievance is not determinative. If the employer was made aware that the concern was with regard to the grievor's health and safety the employer cannot be heard to complain about the wording of the grievance. However, a health and safety concern was not raised by the grievor until the arbitration hearing. The Board is concerned that the grievor failed to raise what he now claims to be the central issue of his complaint at any time during the grievance procedure. The grievance procedure set out in the collective agreement is designed to encourage discussion relating to the real issues in dispute in the hope that the parties may be able to resolve them. The Board does not encourage parties to rai.se issues at arbitration, when such issues have not been raised in the grievance procedure. = Considering the wording of the grievance in light of the fact that no health B.nd safety concern was raised at any time during the grievance procedure, we are driven to the conclusion that the focus of the grievance before us is not a h~alth and safety issue. We note that our conc]~sion in this regard is further reinforced by the covering letter dated June 23, 1987, by which this grievance - 5 - was referred to the Board, in that it refers to the grievance as a workload grievance. The Board therefore finds that the grievance does not arise out of the collective agree- ment and that moreover its substance relates to an area of management rights, stated by the Act to be a matter exclusively within the authority of the employer. Consequently we find the grievance to be inarbitrable and the same is hereby dismissed. The foregoing oral ruling delivered by the Board at the hearing on March 21, 1988, is hereby confirmed. Dated at Toronto, Ontario this 17th day of Iflay, 1988. ~-_..~~ Nimal V. Dissanayake, Vice-Chairman C"7S- F. Taylor, Member ~J>. Q,~, \ P. Camp. Member