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HomeMy WebLinkAbout1982-0569.Montgomery.83-08-31, Between: Before: 560/82 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before ,1’~ THE GRIEVANCE SETTLEMENT BOARD OkSEU (John L. Montgomery),' Grievor - And - The Crown in Right of Ontario (Ministry of Health) . Employer E.B. Jolliffe, B.C. Vice Chairman W. Walsh Member P. camp Member For the Grievor: .I.,. Stevens Grievance Officer Ontario Public Service Employees Union For the Employer: P. Mooney Staff Relatiolls Officer Civil Service Commission DECISION In the summer of 1982, Mr. John L. Montgomery 'was an Ambulance Officer 2 employed by the Ministry ~of Health in the Ottawa-Carleton Regional Ambulance Service. Pursuant to the requirements of the Occupational Health and Safety Act, R.S.O. 1980, Chapter.321, Mr. Montgomery had also joined a Joint Health and Safety Committee, he being the sole member representing c employees at several different work itations maintained by the i Service in metropolitan Ottawa. Mr. Montgomery has his "Senior Matriculation“, foliowed by an lS-month course at Algonquin Community College. In 1979 and- 1980. he taught a two-year course at Algonquin in ambulance emergency work. For the past 13 years, he has" been with the Service at Ottawa, a part of the Emergency Health Services Division operated by the Ministry of Health. ! On October 4, 1982, Mr. Montgomery presented the following grievance: I ORIEVE, THE MN-PAYMENT OF HOURS SPENT IN MY PERFORMANCE AS HEAL'lH AND SAFETY RSPRESE~ATIVE ON AUGUST 5th, 1982; AND UNDER CCC'JPATION HSALTH AND SAFETY ACT 1978, SECTION 33, SUBSECTION 5A and C, I WAS HINDERED IN THE PERKX7MAF;CE OF MY DUTY AS HEALTH AND SAFETY REPRESENTATIVE ON AUGUST 6th AND AUGIST 31st' 1982. As the "s&ttlement required" the grievor sought: THAT I BE PAID FOR 'D-IS HOURS SPENT IN My PERFORMANCE ON AUGUST 5th 1982 IN ACCDRDANCE To THE OCCUPATIONAL HEALTM AND SAPSTy ACT 1978 SECTION 8, SUE%Sl?.C'IIONS 8 AND 12; AND THAT MANAGEMENT ADHERE TO SECTION 7, SUBSEcIlONS 6 AND 9, AND ANY OTHER SECTIONS AND SUBSECTIONS THAT WILL RESOLVE IN THIS CRIHVANCE. When this matter came on for hearing the employer's representative, Mr. Mooney, conceded that the claim for pay was arbitrable but submitted that the complaint based on the Occu- pational Health and Safety Act raised a separate issue which is not arbitrable. This is an objection which we think should be disposed of without delay. it It is~ said there is only one iss~ue, and that is whether the griever .is entitled to be paid as he claims. The employer' has argued in effect.that the references to the Act are irrel- evant and cannot be taken into consideration by this Board. That approach is not well-founded. The law as enacted by the Legislature, if it has any application in the circumstances of a case, is always relevant and must not be ignored by either. party or bye this Board. When considering a matter arising out of the employer-employee relationship many different statutes as well as The Crown Employees Collective Bargaining Act may have c - 4 - : a direct bearing on the issue, and the Occupational Health and Safety Act by its very nature is obviously one of them. The same may be true of Regulations adopted by Order in Council under a statute. An obvious example is the Public Service Act and the Regulations thereunder. The reason is very simple. Apart from their rights and obligations under a collective agreement, em- ployers and employees. also have rights and obligations under the law, which inevitably.affect --- directly or indirectly,- --- the employment relationship. Thus.management missed the mark in stating (as it did in Exhibit 3) that "the Health and Safety Act is legislation which is not subject to the grievance procedures provided for in the collective agreement." The disputes about Mr. Montgomery's i '. claim to be paid under provisions of the collective agreement for certain hours on August 5 arose out of the mariner,,,, which he sought to carry out his duties under the Act as a representative of employees. It was therefore pointless to assert that alleged violations of. the Act are not grievable. Before proceeding any further it may be well to quote P those passages in the Occupational Health and Safety Act to which reference was made by the grievor or his representative. ,.- - hhndalory YlCCl ion 7.--(l) \\‘hcrc the number of workers al a project rcgularl) 01 hhh and vk,y exceeds ,u’enty. the constiuctor shall cause the \r~rkers to r,prrvnrl,ir, select al least one hcalrh and safety rcp:esentatiw from among the workers on the project who do not exercise managerial functions. . . * . . . (5) The selection of a health and safety representative~~‘~c”~’ shall be made by those workers who do not exercise managerial ;;f;z*-r*. functions and who will be represented by the health and safety representative in the work place, or the part or parts thereof. as the case may be, or, where there is a trade union or trade unions representing such rvorkers. by the trade union or trade unions. (6) A health and safety representative may inspect the;;;::& physical condition of the work place or the part. or parts UV* ,. thereof for which he has been selected. as the case may be, not more often t$an once a month or at such intervals as a Director may direct, and it ‘is the duty of the employer and the workers to afford the health and safety representative such information and assistance as may be required for the purpose of carrying out the inspection. (7) A”health and safety representative has power to *darn identify’situations that may be a source of danger or.harard ’ to workers and to make recommendations or report his findings thereon to the employer, the workers and the trade union or trade unions representing the workers. . . . . . . (9) A health and safety representative is entitled to take E;;F; such time from his work as is necessary to tarry ou1 his,duties z$rrnm under subsections (6) and (8) and the time so @ent shall 8. 0) Notwithstanding subsections (I) and f2), the Minist~er ~:?$~:lrt’* may, by order in writing, require a constructor or an em- ployer to establish and maintain one or more jaint health and safety committees for a work place or a part thereof, and may, in such order, provide for the composition. practice and procedure of any committcr sq establisheci, . . . . . . - 6 - i- (5) A committee shall consist of at least two per& of ;f;w~Bl- whom at least half shall be workers who, do not e.yercise ~omm!~~ managerial, functions to be selected by the workers they are to represent or, where there is a trade U&&I or trade unions representing such workers, by the trade union oi trade unions. (6) It is the function of a committee and it has power to, [,~,;~:;,b (a) identify situations. that may be a source of, dangPr or hazard to workers; . (6) make recommendations to the constructor or em- ployer and the workers for the improvement of the health and safety of. workers; (c) recomniend to the constructor or employer and the workers the establishment, maintenance and moni- toring of programs. measures and procedures respect- ing the.health or safety of workers; and . ‘(~3) @ain inforn@on fro& the constructor or employer respecting, I the identification of potential or existing .hazards of materials, prqcesses or’equipment, and . (ii) health and safety experience and work prac- tices and standards in similar or other indus- tries of which the constructor or employer has knowledge. 7t:zt P (7) A committee shall maintain and keep minutes of its Da- proceedings and make the same available for examination and review by an inspector. (8) The members oi’a committee who represent workers~ shall designate one of the members representing workers to: inspect the physical condition.of the work place, not more often than once a month or at such ititervals as a Director may direct, and it is the duty of the employer and the workers to afford that member such information and assistance as may be required for the purpose of carrying out the in- spectipn. . . . . . . tAecnr,rs (11) A committee shall meet at least once every three months at the work pi& ,and may be required 10 meet by. order of the hlinister. -Enltl,,- men, LO 112) A member 01 a committee is cnlitled to such time from !%““” his work as is nere%ary to attend meetings ol the corn- mittce and to rarry out his duties under subsec,!ions (8) and (9) and the time so s,xnt shall br dcrmcd to be work time for i - 7 - which he shall bc paid by his employer at his reguhr pr premium rate as may be praprr. . . . . . , Exhibit 12 in this case is a memorandum issued to,“All Divisions, Branches and.Facilities" on February 27, 1980, by Mr. Tom Campbell, Deputy Minister of Health. It referred to the Occupational Health and Safety Act and directed.that joint committees be established immediately to carry out the purposes of the Act. It also outlined the "Functions and Responsibilities c of the Committees, I' the first of, which was defined in the following words: "To .identify situations that may be a source of danger or h'azard to workers.",. Many specific instructions were given by the Deputy Minister. Among these was the following: Issues which cannot be resolved locally shall be referred to the Ministry Employee Relations Committee..... (~. Attached to the memorandum as Appendix; *'A" was a list of facilities, showing approximate staff numbers and the size of each committee to. be created. Under "Ambulance Stations" Ottawa (including Smith Falls and Renfrew) is said to have a staff of 78 and the Committee size was to be “2 + 2” --- i.e. two representatives of management and two of the employees. These figures were consistent with the “Committee Formula” (also appearing in Appendix “A”) which call,ed for “2 + 2” Where - i ( - Q - : staff numbered between 30 and ZOO. Nevertheless, so far as Ottawa itself is concerned, it appears that in the summer of 1982 the Committee consisted of only~two persons: the grievor and Manager J.B. McEwen, aithough the latter withdrew from the Committee in July and delegated the -. function to Assistant Manager Brian Thomson. The grievor had recently assumed his role and that of interim Steward at the (' #request of Local Union President J. Bernard when the previous incumbent resigned. This was said to be a temporary arrange- ment, pending local union elections~ to be held later. The Regional Ambulance Service has its headquarters at 1181 Parisien Street, which is in~the Township of Gloucester, a suburb just east of the 'City of Ottawa. There are other stations at 71 LeBreton Street and the Queensway-Carlton Hospital. In January of this year a new station was opened in Kanata, but of 6ourse it is not involved~ in this case. The qrievor is an amubulance ariver and attendant, classified A02. On assuming his safety role in June he and M; . &Ewen attended a regional meeting at Smith's Falls. In 'July, there was an inspection of three stations --- or "bases," - i -9- i* : as they are sometimes known. The grievor recalls being accomp- (- anied by Mr. McEwen to only one station; at the others his McEwen's office a report with recommendations was adopted; the griever says he wrote it. Controversy arose, however, about inspections made by Messrs. Montgomery and Thomson in August. The griever states there was "concern!' about fire precautions at 1181 Parisien and 71 LeBreton. He Andy Mr. Thomson were trouble& by an abundance of paper and garbage in areas frequented by smokers: also about entrances and exits. The grievor asked for inspections by the Gloucester and Ottawa Fire Departments. The grievor has .testified --- and~M‘r. McEwen agrees e-m that a dispute arose about the August recommendations. Mr. McEwen thought a fire inspection at 1181 Parisien was not needed because one had been done in 1981. He did not agree that urinals and toilets were inadequate; he had already asked for "more stations, which would relieve the overcrowding," and the Only immediate remedy,would be to transfer .the females from one place to another. colleague was Assistant Manager Thomson. On returning to Mr. I i - 10 - Mr. McEwen says that while he was present (for about an hour and.a half) there was a "heated discussion." The grievor demanded a fire inspection, which was at first rejected, but Mr. McEwen eventually acquiesced and had Mr. Thomson call the Gloucester Fire Chief, who mentioned 10 o'clock the next morning, August 5. The grievor thought he should attend, but according to Mr. McEwen "1 made clear I was not requiring his presence." The next morning the grievor went to 118L Parisien .B and awaited the Fire Chief. On being noticed by Mr. McEwen, .he pointed to the exit signs in the garage, but Mr. McEwen did not agree with his suggestion that they should be lowered. The Gloucester Fire Department inspection was made on August 6, and the inspector's report is in evidence as part of Exhibit 8. Numbered "FP4728," it is hand-written and in part illegible. However, it appears to recommend that “in the garage part the 2 emergency exit lights could be lower for better view. " This seems the same as the suggestion previously made by the grievor and rejected by the Manager. A second recommend- ation is not fully legible but appears to relate to fire extinguishers in stora~ge. A third asked "check exit-door, & panic-bar." A fourth is not clear but possibly refers to the 1 - 11 - _- kitchen area. The signature is not legible. Mr. McEwen promptly summoned the griever to a meeting and gave him a copy of the Gloucester report, which did not satisfy the grievor. He was allowed call-in pay that day but Mr. McEwen said he would not be paid for his time at 1181 Parisien on August 5 , .when the fire inspection had been expected. This refusal gave rise to the grievance. Since the grievor had Bbeen scheduled to start a,l2-hour shift at 7.30 p.m. on August 5, pay for~that morning (if he was entitled to it) would be at overtime rates. The Gloucester Fire Department made a.second inSpeCtion on August 17: The grievor himself arranged it and he was present.. The report, Exhibit 9 is numbered "FP4027" ---.a lower number than the previous report. Much of this remarkable hand-written document is illegible, but it appears to have.been signed by one Lemieux in the capacity of "Chef". It also seems to say that the premises at 1181, P,arisien meet with requirements of the "concerned" (?) codes and that the recommendations in the previous report (F.P.4728) "still hold as recommendations." Mr. McEwen says, however, that the inspector was not much concerned about the building because it is concret~e. f - 12 - : : It was not made clear at the hearing of this case whether the Gloucester Fire Department recommendations have been implemented. The first part of Mr. Montgomery's grievance'relates to non-payment for his time at 1181 Parisien on August 5. He also complains, however, of being "hindered in the performance of my duty as health and safety repr,ese&tative on August 6th and August 31st, 1982." The Employer's view is that such a .i claim is not grievable or arbitrable. The definition of "corn- plaints or differences" in Article 27 of the collective agree- ment is very broad and 27.2.3 makes clear that if,any complaint or difference is not "satisfactorily settled by the supervisor," it may be carried further through the grievance procedure, including.a.reference to fhe Grievance Settlement Board. The power to determine whether the matter is arbitrable has been given to the Board by ,the Crown Employees Collec'tive Bargaining i Act and also by Article 27 of the.collective agreement. Having regard to Article 18 of the agreement, the matter is clearly arbitrable. The following provision of 18.1 leaves no room for doubt: , ( - 13 - : 18.1 'B-e Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Baployer end the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. In effect the grievor alleges that the Employer has failed to "co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of i safety and health of all employees," and the grievor cites the .relevant requirements in the Occupational Health .and Safety Act. l The allegation is arbitrable, but of course it must be decided on the facts established by the evidence. If proved, yet another question would arise, and that is what available remedy, if any, would,be appropriate in the circumstances. It.must not be overlooked that by Section 19(l) of The Crown Employees Collective Bargaining Act, a,difference arising from the "administration" of a collective agreement is c made arbitrable. Management is charged with "administration" and all the functions set out in Section 18(l) of the same Act. In discharging those functions management is entitled to expect that employees perform their duties in a lawful manner: for - 14 - example that employees will not operate a vehicle or other equipment in any way contrary to the'requirements of such statutes as the Highway Traffic Act. By the, same token, employees are entitled to expect that management will manage the undertaking in accordance with the requirements of law, including for example the Occupational Health and Safety Act. This is another consideration which confirms the arbitrability of Mr. Montgomery's ~complaint. For the above-stated reasons evidence of events subsequent to August 5 became relevant. The Gloucester Fire Department inspections on August 6 and 17 have already been described. In their report of August 5 Messrs. Montgomery and Thomson had recommended, among other things, that the Ottawa Fire Department inspect the Station at 71 LeBreton Street. 'This was done on August 31 and resulted in the. following letter, Exhibit 11, on that date from Chief Inspector R~.P. Trudel to "Ottawa Carleton Regional Ambulance Service" --- referring of course to 71 LeBreton: Inspector R. Hayes of our Department has inspected the above mentioned premises and in the interest of fire prevention and f&r-e safety, the following adjustments are required: 1. A fire dampx is to be provided for the opening at the top and bttom of the entrance door to the water tank room. Same is to bz eguipped with a fusible link. 2.' A self-closing device is to be provided for the fire door mentioned in item #l. 'Irusting you will give these matters your immediate attention, I remain Ycurs truly, It is apparent that the request for an inspection had been justified. The griever complains that he was not advised ! of the inspection until later and of course was not presen.t when it occurred:d He says that the Joint Committee had fiv.e concerns about conditions at 71 LeBreton, only one of which was responded to in the report quoted above (given to him about September 7) which he attributes~to the fact that he was not given a chance to attend the inspection. As previously stated, the grievor was not satisfied with the Gloucester~ Fire Department's inspection on August 6. He has testified that he telephoned directly to the Department, which resulted in Mr. Lemieux' inspection of August 17. Mr. Lemieux made another inspection some weeks later, accompanied i - 16 - by the griever and Mr. Lyle Massenger, an assistant manager. The fire chief agreed with some of the griever's suggestions and disagreed with others. The griever has also testified that he had explained to Mr. McEwen the reasons he believed his presence at inspections was essential.. According to him, the Manager's attitude was hostile. When he complained about inadequate toilet facilities, Mr. McEwen threatened to transfer all female employees from the j i Queensway Hospital to 1181 Parisien, where there were separate faciiities. This ,.the grievor said, would mean they would have to work day shifts only and.would lose'certain privileges. He also spoke of transferring the grievor himself. In his words: "Mr. McEwen said if I persisted I'd be brought back to 0311181 Parisien) where I'd be on top of everything." ' These remarks the grievor interpreted as "retaliation." Nevertheless, in his memorandum.issued to members of Local 413 on August 20, (Exhibit 10) Mr. Montgomery made no mention of management's attitude. It was as follows: Monthly report on inspection of bases. Please revue the enclosed reports of my inspection done on August 4th. 1982 with Mr. B. 'lbmpson at all bases. - 17 - If I have omitted any issues that you wish to be looked into, please let me know. Cn August 6th, 1982 Tha Gloucester Fire Cepartement (sic) did an inspection on 03 base; also on the 17th,.l982 to which I was present. It is apparent that the Gloucester Fire Dept. and to management there is in existence, potential hazards mrking out of 03 base. However, in accordance with the Building code and the Gloucester Fire Dapt.'inspectors there is no requirement for management to do anything about them. . Note, some of the hazards have been fcurd to be a monetary (sic1 matter. Any questions, further to the above contact ma I will be more than please to help you (sic). Working to make O.C.R.A.S. a safer place to work in.. According to the grievor, Messrs. McEwen, Thomson and Massenger were all aware he thought it necessary to,attend at fire inspections. The Manager.thought otherwise. This was part of the "heated discussion" (as Mr. McEwen described it) on August 4. The next day, not being onduty; the grievor went to 1181 Parisien at 9.30 a.m. and remained, he states, until about 2.30 p.m. He spent some time writing reports and engaged in ( a brief argument with Mr. McEwen. The fire inspector did not appear that day. He must have arrived early the next morning because at 9.30 a.m. the grievor was summoned to Mr. McEwen's office to receive a copy of the inspector's report. The procedure was quite different when the Ottawa Fire Department - -18- ,, : : did its inspection of 71 LeBreton on August 31. . The griever knew nothing about it and did not see the report until about a week later. J This case must be considered in the light of the principles stated by Article 18.1 of the collective agreement and also by the Occupational Health and Safety Act. The scheme 1 of things therein contemplated calls for co-operation "to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees." The Act provided 'a mechanism --- ins the form of Joint Health and .' Safety Committees --- for the purpose of translqting these princ- iples into actual practice. Further, since most people are not familiar with the requirements of new legislation, the Deputy Minister of Health ~issued.the memorandum (which has already been quoted) providing.very specific guidelines to management to assure compliance with the Act. Apart from those guidelines (which are important) it is clear that to be effective the scheme requiresboth employee representatives and management representatives to act co- operatively in the "responsible and reasonable manner" referred . - 19 - to by the Deputy Minister. Needless to say, this is not possible unless the scheme is accepted as having~the importance attached to it by the Legislature when the statute was enacted. Further, the'scheme cannot work satisfactorily unless both sides have considerable tact, discretion and.common sense. This Board is of the opinion that the problems which arose in this case might have been avoided if the Deputy Min- ister's guidelines had been followed. To give only two examples: B (1) The Deputy Minister directed that "recommendations of the local Joint Health and Safety Committee shall be presented to the Branch Director or Hospital Administrator for appropriate action." This was not done: the recommendations were not presented to the Directorof the Ambulance‘Services Branch (whose office is in Toronto) but merely given to the local manager, who had himself been the management representative on the committee until the previous month. They did not even reach the Regional Manager., Mr. R.B. Forsyth, who very much later signed the letter of November 3 rejecting Mr. Montgomery's grievance at the second level and asserting that."co-operation existed to the fullest extent possible." - 20 - .- 12) Secondly, the Deputy Minister had directed that "issues which cannot be resolved locally shall be referred to the Ministry Employee Relations 'Committee." This of course was not done. Instead the matter has been dragged through the grievance procedure and as far as arbitration. The issue ought to.have been settled locally, and, if that proved impossible, then by the Employee Relations Committee. The real issue which had arisen was not merely whether the grievor was entitled to a few hours' pay on August 5: it was whether he should beg allowed to attend fire inspections as part of his duties --- oreven be notified when they were to occur, and at least immediately after receipt of a report. Generally,. and speaking more broadly, the issue also was whether the local Joint Health and Safety Committee was being taken as seriously as it deserved to be. In view of the failure to follow closely the Deputy .Minister's guide-lines, we cannot agree with the Regional Manager's statement that "co-operation existed to the fullest extent possible." On this aspect of the matter, all we can do ieexpress : the hope that both sides in this dispute will make a greater effort to comply with the spirit of Article 18 and specifically to comply with the directives given by. the Deputy Minister for the purpose of meeting the objectives spelled out in the Occupational Health and Safety Act. Turning to the merits of the griever's claim for over- time pay our view is that Mr. Montgomery and Mr. McEwen were not sufficiently co-operative or tactful in their discussions on August 4,5 and 6. From the Manager's point of view;the grievor was being aggressive and over-zealous in pressing for fire inspections and other measures. We make no findings on the recommendations put forward, except that the request for fire inspections at two stations was fully justified. Mr. McEwen --- very reluctantly --- agreed to that request,'but expressed his irritation and explicitly stated it was not necessary for the grievor to attend. On his part the grievor thought it important for himself (as well as management) to be there so that he could explain his concerns. Having regard to the rather superficial character of the inspection reports, it seems in retrospect that -.- it would have been reasonable --- and co-operative --- to encourage the griever's attendance. By his conduct and also by i f - 22 - his testimony the Manager gave the impression that he regarded the activity of the Joint Health and Safety Committee as an unwelcome intrusion into management prerogatives. It may be that on the one hand the grievor was unduly aggressive and on the other hand the Manager was unduly stubborn. If so, neither aggressivity nor stubborness could characterize "co-operation to the fullest extent possible." c On balance, our.view is that it.was not unreasonable 0 for the grievor to insist on attending the Gloucester fire inspection which was 'to have been held on August 5. It could be cdnsidered the logical sequel to the work he had done'with Mr. Thomson the previous day. We are also of the opinion that it was a mistake to ignore him when the Ottawa fire inspection I at 71 LeBreton was arranged to occur on August 31. While the grievor was justified in attending at 1181 Parisien on the morning of August 5, we think it must have been possible for him to ascertain by noon that the inspector would not be coming that day. Our decision therefore is that he be paid at overtime rates for the two hours between . - 23 - 10 a.m. and 12.00. To that extent, his grievance iS upheld. Dated at Toronto this 3&t, &Y of August, 1983 W. Walsh Member "1 dissent" (Dissent to follw) P. camp Member I EBJ:sol 8:2100 2:llOO