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HomeMy WebLinkAbout1984-1347.Polfer.86-05-30IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Polfer) - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Before: R.J. Delisle Vice-Chairman I.J. Thomson Member P. Camp Member For the Grievor: T. Moore Staff Representative OPSEU For the Employer: W.J. Gorchinsky Director Staff Relations Branch Civil Service Commission Hearing: August 21st, 1985 October.30th, 1985 1347184 Grievor Employer The facts dispute though their in this matter do not appear to be in cha'racterization is. The grievor is a Security Officer 2 with the Ontario DECISION Government Protective Service. Ihe' Service was formed in 1973 to provide security for government buildings as an alternative to using regular officers of the Ontario Provincial Police. The Security Officers are sworn special constables pursuant to the Ontario Police Act and are designated as guards under the Public Works Protection Act. All Security Officers are issued a uniform and dr.ess as prescribed in Standing Orders. According to Standing Orders (Exhibit 4) improper dress includes "decorative jewellery" and any "article of civilian dress". Of the 159 members of the O.G.P.S. 134 are members of the union. There are 11 stewards and the grievor is one. On .June 13, 1984, the grievor was on duty at Queen's Park. 'Ihe grievor was wearing the prescribed uniform but on her shirt she had affixed her steward's pin. The pin is triangular in shape, one inch to the side, silver in colour and displays the trillium and the word STEWARD. The grievor was confronted by her superior who told her that she was a "disgrace to the uniform". The supervisor demanded that she hand over the pin and surrender her warrant card and handcuffs. The grievor handed over the latter two but kept the pin as it was her property. Tne grievor testified that she was i -2- humiliated and embaras.sed. The supervisor advised her that she was suspended for three days and ordered her' escorted off the property. Later in the day the grievor reoaived a telephone call from W.C. Craig, Superintendent, O.P.P., Director, Security Branch. The grievor was advised that the discipline was being rescinded and she was asked to attend a meeting to discuss the issue and to report for work asscheduled. In the result the grievor suffered no f.inancial loss. The grievor filed four grievances concerning this matter. As the result of a mediation hearing on May 31, 1985 a Memorandum of Understanding (Exhibit 2, Appendix 1) was entered into by the parties. By that Memorandum the grievor withdrew three grievances, the parties agreed to postpone the date of hearing of the remaining grievance and agreed that, failing results of continued mediation the grievance would be put to arbitration: "with the only question to be decided by the Grievance Settlement Board is whether the rule which prohibits Union Stewards who are officers with the O.G.P.S. from wearing pins; while on duty/is a fairand reasonable rule". The agreed Statement of Fact (Exhibit 2) filed by the parties recited, inter alia: The Parties are in agreement concerning the following .facts: 1. l'he Grievance Settlement Board has jurisdiction to hear the above-captioned grievance pursuant to the attached Memorandum of Settlement dated May 31, 1985. -3- After the close of evidence, and was the counsel for the grievor began his argument, the Vice-Chairman asked, innocently, whether it tias agreed by the parties that what occurred to the grievor on'June 13, 1984, was discipline. Counsel for the Ministry would not .agree. The Board took the position that unless there'was discipline involved the Board had no jurisdiction to determine whether the impugned rule was a fair and reasonable rule. lhe Board considered that the justness of "discipline" could be determined by evaluating the reasonableness of the rule; if the rule was not justified ne~ither was the "discipline". It is important to recognize that counsel for the Ministry did not raise this issue in seeming contradiction to the earlier agreements. The Board raised the issue and counsel for the Ministry could not agree that discipline was imposed. He, accordingly, objected to the Board's jurisdiction. Counsel for the Ministry notes that after the grievor was sent home the matter was referred to senior officers who investigated the matter that day and decided to rescind the discipline. In the result the grievor suffered no monetary penalty and we were assured her record discloses nothing ~of the incident. Counsel notes that the grievance was not filed until June 20, one week after the matter was "resolved". Counsel argues that there is no lasting effect from the actions of the griever's supervisor and therefore no discipline was imposed. In maintaining his position he argued that even if the grievor -4- served the entire three days suspension, there would not be discipline if she was paid for the three days and her work reoord was sileht. In arguing- the necessity of a lasting effect, counsel relied on a number of awards of this board. The awards of Cloutier 20/76 , Hamblin 63/82, O'Keefe 111/82 and Naik 108/77 are clearly distinguishable: each of those awards involved the characterization by the employer to the employee. lhe searching for characteristics to dist f written communications Boards were there nguish counselling from discipline. Riemann 303/81 involved simply a request of the grievor to provide a sample of her handwriting to assist in an investigation. Taking phrases from these awards appears persuasive at the outset but when read in their context the awards are not helpful to our case. It is a mistake to equate non-punitive with non-disciplinary: See Goodyear Canada Inc. (1981) 30 L.A.C. (2d) 100, 103 (Kennedy). The supervisor sought to correct the grievor in this case by sending her home. He sought to educate her to the importance of the Standing Orders and to deter her and others from breaching the same. It is noteworthy that his discipline had had the desired, and long-lasting, effect since none of the stewards in O.G.P.S. have worn a steward's pin since the incident On-June 13, 1984. All await the outcome of this arbitration. Discipline was imposed by the supervisor and we are called on to evaluate its justness as of the time when it was imposed. The fact that the employer has later wiped the slate clean does -5- not oust our jurisdiction to determine the reasonableness of the work rule and so the justness of the discipline. Is the rule forbidding the wearing of a steward's pin reasonable? In Re DuPont of Canada, (1982) 8 L.A.C. (3d) 24, 29 (Burkett) it was noted: We start with an acceptance of the general proposition that, absent express contractual language to the contrary, an employer is not entitled under his general management rights to require his employees to adhere to a unilaterally imposed dress or grooming ade. . . . The two exceptions to the general proposition are firstly, the imposition of a dress or grooming code for reasons of health and safety and secondly, the imposition of a dress or grooming code for reasons related to the legitimate business interest of the employer including the employer's public image. In deciding if the imposition of a dress or grooming code for reasons of legitimate business interest is reasonable, arbitrators, recognizing the competing interest of the employee to dress and groom as he sees fit, have required the employer to provide cogent evidenoa of real business loss in order to support the reasonablene,ss of the code or rule. There is an onus on the Ministry here to satisfy that some real interest will be impaired if this dress variation is permitted. If a real interest is ide,ntified we must also ask whether the Ministry has gone any further than is necessary to protect that interest. Ihe dress code was not a matter of contract between the parties, but rather was unilaterally imposed. In Re McKellar General Hospital (1984) 15 L.A.C. (3d) 353, 362, Professor Beatty writes: -6- . . . a test of, reasonableness entails some element of proportionality between the objectives which are sought Andy the means by which those purposes are accomplished. Simply having 'some reason or rationale relevant to the employment relationship will not justify an employer's decision or policy if the competing claims and interest of the employee which it denies is, on some objective standard, more substantial and fundamental. A.N. Chaddock, Chief Superintendent, Ontario Provincial Police, testified to the role of security officers in O.G.P.S. He described the necessity for insisting on a uniform to prevent variety of dress. A supervisor wears a badge indicating his status. In addition, badges indicating proficiency in first aid and in firearms are also allowed. He allowed that a strict reading of the Standing Orders would prohibit the wearing of rings but allowed that rings are permitted. Masonic rings, in his ,view, would be permissible. Indeed he allowed that a ring with an O.P.S.E.U. badge would not be objectionable! Chaddock testified that they were concerned that these offioars deal with the public and that their effectiveness may be impaired by the wearing of a steward pin particularly in dealing with labour demonstrations. There was no suggestion at the hearing that union members of O.G.P.S. had ever been less than vigilant in dealing with such labour demonstrations; indeed the evidence was all the other way. Matt O'Brien, President of the lotal testified that this concern was first voiced to the'union during the mediation hearings conducted into the instant grievance. O'Brien, though disagreeing that the concern was legitimate, wrote to the -7- Ministry on .June 7, 1985 (Exhibit 2, Appendix Z), of the union's wish to co-operate: We remgnize that the employer has concerns about the effect the wearing of the steward pin might have in situaticns such as the controlling of demonstrations by other unionized employees outside of the O.G.P.S. We would agree that there may he circumstanes such as this where the pin ought to be removed in order to avoid any problems arising. I am confident that we could arrive at a mutually acceptable policy to cover the wearing of the steward pin once the principle has been agreed to. I believe that a positive decision on this issue would go some distance towards improving the labour relations climate within the Ontario Government Protective Service and I look forward to hearing from you in the near future. In Burns, 292/82 the Grievance Settlement Board felt unable to deal with the reasonableness of this rule prohibiting an O.P.S.E.U. pin in the case of a Correctional Officer at the Don .Jail. In that case the grievor was simply told to remove the pin and he promptly complied. While therefore dismissing the grievana on the basis of lack of jurisdiction, the Board wrote: Although, for the reasons given above, the instant grievance must be dismissed, we have a comment to make. We do not consider that the Employer had convincing reasons for prohi~biting the OPSEU pin. Mr. Main conceded it is not objectionable but seemed to discover guilt by association with other pins thought to be "blatantly offensive." No evidence was put forward that it detracts from the image.of a peaoa offioar. There were merely vague assertions that there must be a limit to the decorations worn. Exactly why the line should be drawn against the Union's pin has not been explained. -8-. The Employer, after all, does have a special relationship with the Union, probably a closer relationship than it has with the St. -John's organization. To discriminate against the OPSEU pin tends to give the impression that the Employer is reluctant or unwilling to give the Union recognition beyond that strictly required by law. That would be an unfortunate impression Andy--- it is hoped --- the wrong impression. In our view, senior officers of the Ministry would be wise to reconsider the formula adopted in 'June, 1982. It is noteworthy that.following that award the policy at the Don 'Jail changed. Michael Scott, a Correctional Officer at the Don 'Jail testified that he.now wears the pin and does not believe that his performance has thereby been impaired. He testified to the positive results which flow from wearing the pin since other union members are thus enabled to identify their steward. We cannot find that the Ministry has satisfied its obligation of justifying this unilaterally imposed restriction on dress. A blanket rule which forbids its wearing at all times just because the officers come into contact with the public cannot be seen as reasonable. It goes much further than is necessary to further its interests. We declare that this blanket rule is unreasonable and hence the discipline imposed unjustified and therefore the grievance succeeds. The union appears to agree that in some instances it would be inappropriate to wear the pin and.we assume the parites can together arrive at a mutually acceptable policy. -9- Dated at Kingston this 30th day of May,1986 . . “I dissent” (dissent attached) P. camp . . . . I . DISSENT 1374/84 DPSEU (Polfar) and Crown/Ontario (Ministry of the Solicitor General) I have reviewed the award in this matter and find that I cannot concur with the findings. The Board's position was that unless there was discipline involved the Board would have no jurisdiction to determine whether the infringed rule was a fair and reasonable rule. Mr. Gorchinsky, for the Ministry objected to the Board's- jurisdiction on the basis that no discipline had been imposed. To return to the Board's jurisdiction as previously outlined it can be stated that the order of consideration required two steps: Step #l To determine whether the July 14, 1984 incident was in fact discipline. Step #I This step to consider whether the rule was reasonable can only come within the Board's jurisdiction if in fact discipline was the result of the June 14, 1984 incident. In reviewing the Board's conclusion it is obvious that the agreed approach by the Board has unfortunately been reversed. The conclusion of the award as set out on Page 8 obviously violates the agreed jurisdiction, in fact it turns such jurisdiction on its head. "We cannot find that the Ministry has satisfied it's obligation of justifying this unilaterally imposed restriction on dress. A'blanket rule which forbids it's wearing at all times just because the officers come into contact with the public cannot be seen as reasonable. It goes much,further than is necessary to further its interests. We declare that this blanket rules is unreasonable and hence the discipline imposed is unjustified and therefore the grievance succeeds. The union appears to agree that in some instances it would be inappropriate to wear the pin and we assume, the parties can together arrive at a mutually acceptable policy". Returning to what should have been the Board's jurisdiction - the question of whether what happened on June 14. 1984, was it discipline? Or was it a very unfortunate incident ? This Bbard member is convinced to the latter as the results of the incident were corrected within hours on the day of occurance. This member wonders why the grievor worked a week until June 20, 1984 to file the grievance when there was nothing to be corrected as a result of the incident. This left nothing for this Board to correct, it could not set aside ~the results and penalty resulting from the incident - there were none. . .. : - 2 - Since no discipline was imposed, the Board is without jurisdiction to make a finding on a matter not contained in the Collective Agreement or the Crown Employees Collective Bargaining Act, Section lE(2). ~The grievance should be dismissed for lack of jurisdiction. P.D. Camp