HomeMy WebLinkAbout1980-0015.Garlock.81-10-30IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTiVE BARGAINING ACT
THE GRIEVANCE SETTLEMENT SOARD
5etsrean : -- Mr. Irvin Ga~rlock Griever
- And -
The Crown in Right of Ontario
(Ministry of Correctional
Services) ElIlplOper
Before: -- Prof. R. H. aYcLa.ren Vice Chairman
Ms. M. h!. ?errin LYember
Mr. A. Fortier ,U.ember
For the Griever: Wr . R. Nabi, Grievance Officer - Ontario Public Service Employees Union
For the Employer: Ms. J. Fitzgerald
Staff Relations Division
Civil Service Connissicn
Hearinq: -- July 3, 19e1
2:
A w A R D --_--
Mr. Irvin Garlock grieves the loss of his position as
"Acting Sergeant" and seeks compensation for the loss of that
position.
The facts are not in dispute and can be summarized as
follows. Mr. Garlock ,is employed as a Corrections Officer II
at the Monteith Correctional Centre in Northwestern Ontario.
He .has been employed with the Employer since July of 1975 and
on one previous occasion was stepped up to the position of
"Acting Sergeant". IIe was again stepped up to that position
on November 5, 1979, becaus,e the person who normally held that
position was stepped ug to *+e position of Lieutenant while the
person who normally occupied that position was recuperating from
injuries- suffered in an automobile accident. The need to fill
the position on ancacting basis ceased in October of 1980 upon
the return of the person occupying the position oft Lieutenant.
Accordingly, the only remedy which the Grievor might be able to
obtain from this Soard would be compensation in the form of
damages.
On November 27, 19,79, the Grisvor had a conversztion
with Mr. Hazelton, at that time the Senior Assistant Superintendent
of the Monteith Correctional Centre.
3.
The Acting Sergeant position in+olves duties as an
Assistant Shift Supervisor and Mr. Hazelton expressed his concerns
at the November meeting about having a person who was in a
management position on a picket line should a strike arise.
This conversation was because of turmoil-existing in the Xinistq
of Correctional Services at that time over the issue of ?ay and
other matters. Eventually, an unlawful strike did occur on
December 3, 1979. Mr. Garlock participated in that strike as he
indicated he would to ?lr. iIazelton on the occasion of their con-
versation in November.
Mr. Garlock testifies that during the period leading up
to the official waLkout he actively participated in the planning
and meetings which ultimately led to k&e illegal walkout.
Mr. Hazelton testifies that on the occurrence of the
illegal strike, he had expected at least 11 correctional officers
would have reported to work. Quite to the contrary, on the first
day of the stri!<e only 3 employees crossed the picket line and
entered the Correctional Centre. One of those was a Kr.,aeaulne,
another only had two days to go until his employment with the
Employer would be discontinued and the third had gone into work
across the picket lines because of his religious beliefs. LMr.
Harelton elected to appoint Mr. Beaulne as an Acting Sergeant,
in effect returning the Grievor to his position of Co:iectional
Officer Ii, although he was not informed of this until the
cessation of the stri:ke and his return to work on December 7th.
4.
It is from this action or ,clr. Hazelton that the present grievance
ensues.
., Counsel for the Employer raised an objection concerning
the arbitrability of this matter. The Board rul,ed that it would
hear a11 the evidence but only hear argument on the preliminary .
objection. The matter of argument on the merits to be Left until
after this award, on the preliminary objection, has been issued.
It is the Employer's contention that once the Grievor
was upgraded to the position of "Acting Sergeant", that being an
excluded position from the bargaining unit, any person occupying
that position could not maintain a grievance under the collective.
agreement. This assertion is made although at all times the
person was a member -of the bargaining unit. Secondly, it was
argued that the extended jurisdiction to bring a matter before
the Grievance Settlement Board by operation of s. 17(2) and 18
of The Crown Emoloyees Collective Bargaining Act, (1972) C~. 67
as amended did not apply in this case,. The only slause which
could apply would be s. 17(2) (c) and there: had been no discipline
applied to the Griever within ~the meaning of *hat clause;
in response to the objektion by the 3mployer it was
argued on behalf of the Union that the assignment of an employee
to "an.acting position", which might be an excl-uded one,as it is
in this case, does not mean that the individual is not an employeeP
He remains a member of the bargaining unit and of the Unicn
and, therefore, is covered under the terms of the collective
agreement and entitled to grieve. In connection with this arTxzent,
reference was made to Artick 6.3 of the collective agreement
which r~eads as follows:
"6~.5 Fiere an employee is temporarily assigned
to perfo,rm tie duties and responsibilities of
a position not covered by this Collective
Agreement, he shall retain his rights and
obligations under the Collective Agreement."
The alternative answer to the Employer's objection, it is argued is
that'he suffered a disciplinary demotion for his participation
in the illegal stri!ce. .Therefore, if there was a demotion and
it was discrplinary then s. 17!2) (c) of The Crown Cmolovees
Collective Bargaining Act, suora, and in turn its reference to -
s. 18 would permit the Griever to bring his grievance before the
aoard: Section 17(2) reads as follows:
"(2) In addition to any other rights of grievance
'under a collective agreement, an employee claiming,
(a) that his position has been improperly classified;
(b) that he has been appraised contrary to the
governing principles and standards; or
(c) that he has been disciplined or dismissed or
suspended from his employment witnout just
cause,
may process such .matter in accordance with the
grievance procedure provided in the collective
agreement, and failing final determination under
such procedure, the matter may be processed in
accordance jrith the procedure for final determina-
tion applicable under section 18. 1971, c. 135,
s. 9, part."
;. =‘.
6.
This jurisdiction under the Act is in addition to any rights
which exist under the collective agreement.
DECISION
The Grievor alleges that he has been given a disciplinary
demotion. The first preliminary matter is whether this Soard
can hear the qrievance under the provisions of the collective
agreement.
The position to which the Grievor was temporarily assigned
was not one within the barqaininq unit. Therefore, a person
occupying that position on a full-tirre basis, not temporarily
assigned, would not be able to grieve under tkne collective
agreement between the parties. What is different in this case
is that on temporary assignments an employee remains Seth a
member of the bargaining unit and a member of the tinion. That
would entitle the employee to grieve matters involving the
temporary assignment such as the items referred to in Articie _
6.of the collective agreement. Eoweve r , while '-he employee is
occupying the excluded position he must do so on the same basis
as those who fill thn _ Fosition on a regular basis. That m,eans
that disciplina-T matters, -Ihich arise :ghile occupying the exclud.ed
position are not grievable under the collective agreement. :3 owe ve r ,
it may be possible to'grieve under statutory provisions extending the
3oard's jurisdiction.
7.
This Board has no jurisdiction over excluded positions.
What transpires in respect of employees occu?yinq excluded
positions by way of temporary assignment ii beyond tie purview
of this Board, UniPSS it involves Article 6 of the collective
agreement. The fact &chat an employee remains a member of tkke
Union and the bargaining unit, while a peculiarity of the nature
of temporary assignments, is~ of no relevance in detemni.n,inq
jurisdiction. It is, therefore, concluded that the 3oard has
no jurisdiction to hear the grievance under the provisions of
the collective agreement.
ly TOM conclude otherwise would mean that persons tenporari
assigned to positions excluded from the 'bargaining unit would have
rights to grieve under a collective agreement. Whereas. those
occupying -he position not by way of temporary assignment, who
might have an identical complaint, would not have access to this
aoard. Other avenues are available to the Grievor to see!< a
remedy in this matter. Those avenues are also available to persons
excluded from the provisions of the collective bargaining agreement
between the parties. Therefore, the Board has no jurisdiction to
hear the grievance under We terms of the collective agreement.
It is argued that it is possible for Xr. Garlock to
maintain a grievance before this aoard pursuant to the srsvisions
of the Crown Employees Collective 3araaining Act, as previously
set out.
On this question of jurisdiction under the Act it was
not argued by the oarties, but a process of parallel reasoning
>.‘r,
3.
to that of this 3oard in determining that it has no jurisdiction
to deal with the ma- tter under t;he collective agreement can arise
under the Crown Employees Collective Barqaininq Act. It COIlid
be argued that while the-Grievor occupias the position of
"Acting Sargeant" by temporary assignment, he is within the
exclusion of 5. l(g) (iii) of the Act, - being a person employed
in a managerial capacity. The parties did not argue the point
and it is, therefore, not possible for the Soard to rule on it.
In view of this aoard's decision on the characterization of the
action taken by management and whether it is siithin s. 17(2)(c),
it is unnecessary to deal with the foregoing point. However,
nothing in this award should be taken as establishing that the
Board did in fact have jurisdiction under s. :7(2) to 'hear
this grievance.
Bearing in mind the foregoing caution., if this aoard is
to have jurisdiction in this matter it would have to be because
it had made a determination that the action of management
was disciplinary in nature pursuant to clause (c) of subsection
(2) of 5. 17 of the Act. -
it is this Board's view t:hat the aepropriate characteri.zation
of the action taken by management in this case .was not disci?lina,T.
The evidence of the senior Assistant Superintendent does not
establish a disciplinary action. He 'had an eslanation for his
conduct .dhich,' although perhaps not acceptable to the Union,
9.
did establish that he was acting for reasons wnrch were not of
a disciplinary nature. The fact that the action could be viewed
as retaliatory leaves the Union to argue from t-e point of inference
and supposition that what occurred -das a disciolinaq act. Thers
is, however, no proof that the action was disciplinary.
The Grievor had an extremely difficult choice to make.
~Giv2n that his position tias an "acting'~on2" he had, in reality,
Only one choice to make. He mad2 the choice to join his colleagues
in 'an illegal work stoppage. The tinion argues that the Employer
could have relieved him of his position before the stri!<e. Such
action would have been inappropriate and unfair to him if there
never was a strike or he made the opposit2 choice to the one he
in fact made. If the Zmployer was to treat the man fairly it
had to wait until a strilce occurred and he participated in it.
On the testimony of the Assistant Superintendent, it was
not the Grievor's unavailability for work which subjected him to
re-assignment from the "?.cting Sargeant" position; if that had
been the reason it might well have been disciplinary- However,
the reason ?ut forcard ~was that the Assistant Superintendent
found it somewhat abhorrent that a management person should
be on the pick2.t line, particularly when ';ne work stoppage was
not legal. While that reason for re-assignment may not be
particularly acceptable from,the Union's point of view, it
does not amount to proof that the action was a disciplinary
demotion. The onus was upon the Union to establish that the
10.
action of the Employer .was disciplinary in nature. The absence
of such proof must lead one to the inference that the appropriate
characterization of the action of management was that it xas not
disciplinary in nature and,, therefore, could not have been within
s. L7(2) (c) of the Crown Employees Collective Bargaining Act.
Therefore, even if the Board had jurisdiction of a general nature
the particular matter placed before it would not fall wi'&in its
jurisdiction.
For all the foregoing reasons, it is concluded that the
matter is not arbitrable and the aoard has no jurisdiction to
hear the dispute.
DATED AT LONDON, ONTARIO, this.30th day of October, i?81.
!::“I. Per*in” (Dissent to -fclk;I)
M. Perrin, Member
Fortier, Member