HomeMy WebLinkAbout1985-1630.Letniowski.87-08-19163OfZ.5
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTiVE BARGAINING ACT
Befofe
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
OPSEU (Mike Letniowski)
and
Crievor
The Crown in Right of Ontario
(Ministry of Community and Social Services) Employer
D. Kate- Vice-Chairman
3. Ahderson ‘\, Member
q/Roberts Member
.’
For the Crievor: ,. S. Murray
Grievance Officer
Ontario Public Service Employees Union
For the Employer: C. Slater
Solicitor Legal Services Branch
IMinistry of Community and Social Services
Hearing: July 16, 1987
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The issue raised in thie.caee pertains. to whether the
employer failed to comply with its alleged "practice" of
subsidizing the griever for an appropriate arount in nonfee
towards the purchase of esfety ehoer aa contemplated by Article
18.3 .of the iollective agreement. It is common ground that the
ieeue turns on th.e approptiate characterization of the
employer'8 policy with respect to the rubeidization of safety
ehoo purchase,e and whether, in any event, there ha6 occurred
non-compliance with that policy. Article 18.3 of the collective.
agreement read8 ae follows:
The purchaee of aafety ehdea or boots for on-the-Job
protection of the purchaser ehsll be subsidized aa per the
applicable practice in each Ministry.
The fscte should be summarized. Mr. Letniouski ie employed
aa a.cleaner in the Hourekae#ing Department at the Oxford
Regianal Centre, Woodetock, Ontario. The Oxford Regional Centre
is a facility for the handicapped opersted by the Niniatry of
Community and Social Services. Ur. Letnioweki described in
detail the cleaning duties he~diechargee at the facility. It
suffices to say that he operates a floor cleaner for a majority
of the~time requiring him from tine to time to lift, push, and
move furniture and other equipment in order to accomplish these
taeke. While doing so the floors are often wet thereby cawing
concern about slipping and falling while in the course of moving
furniture.
It is also common ground that it may occur spproxinataly
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one time a week where the griever will hove to aeeist his
eollesguer in the Housekeeping Deportment in moving furniture
and other equipment from done ore8 of the facility to another.
In the grievor'e view the functione he prrforrr warronted
the precautionary measure of wearing safety ahoes. He therefore
purchased a pair. ,Indeed, eince the filing of his grievance on
December 31, 1985, he hoe purchseed two pairs. After these
purchaees were made he aubmittad the receipta to the employer
for payment of the appropriate aubeidy towarde the purchaee
price. The employer h.ae refused that requeet thereby
precipitating the parties' dispute.
It ia.conmon ground that the focai point of this diepute
turna on the interpretation we will,secribe to a' document doted
Narch 11; 1981, issued by the Ministry of Community and Social
Servicea entitled "Sefety Clothing and Equipment" <i.e.. Exhibit
6). It is o rother lengthy docurent and therefore only portione
relevant to the eubsidization of the purchaee of safety boots
will be referred to:
'POLICY Management is responsible for:
- identifying potentislly hs&rdoue eituatione
and cond,itiona
- ieeuing esfety clothing and equipment
- eneuring.workers uee or weor it.
SAFETY
FOOTWEAR
For chart showing specific safety equipment
and clothing neede by occupation eee page 5.
Coneiete of: ssfety toe caps, shoes/boots
with eafety toes and/or puncture reeietant
inao1ee. slip resietsnt treads or other
protective footwear appropriate to potential
hazard.
Shall be issued snd worn when work entaile:
:
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- equipment, building or grounds msintenance
- loading/unloading heavy aateriala
- being in wet or slippery areas.
Chart on page 5 provides details for maximum
issue according to occupational neede.
Lesser issue nsy be based on local working
conditions by Branch Director or loco1
Adminiotration.
For occupations not on chart, provisions ore
determined.at local level. They ore based on
the type,frequency and duration of potential
hazards faced.
PROVISION OF
OF SAFETY
CLOTHING
AND
EPUIPHENT
Where full-tine, claesified employees are
responaible for purchase of shoes/boots thst
meet specifications set by employer.
Employees Mayo select shoes us boots provided
they are in the supervisor's opinion suitable
for the JO+.
PURCHASE OF
SAFETY
.FOOTWEAR
REIMBURSEhENT Worker present8 footwear and itemized proof
of purchose to Deportment Head/Manager/
Supervisor. He/she ensures footwear confo'rae
to required standard8 and srranges
reimbursement as follows.
1. Maximum reinbureenent rate is:
- $30 for each pair of shoes
- 860 for each pair of boots
The chart referred to on page S of the above document
speclficelly provides with respect to subsidizing cleaners
towards the purchase of asfety ahoes (and we are sumaarizingl
the following:
Cleaners shall be entitled to subsidisstion for one pair of
safety.shoes per snnua "only where furniture/eauioment
aovina is 0 freauent aaeisnnent".
The trsde union'8 position with respect to this dispute is
clear snd etraightforwsrd. It argued that the griever is 8
clesner who on o frequent basis is required to move furniture,
often on wet snd slippery flqora,, in performing hi8 tasks. He,
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accordingly, wae entitled to-and should have born paid the
nubrid+ provided in the Rinietry'e polky etateeent contained in
the above document. The employer having refused payment wae
thereby in breach of Article 18.3 of the collective agrement.
The enployer’e couneel argued that the above document doer.
not constitute or reprerent the HinLstryJe policy or practice.
Rather, it ie a document that aervee the purpoee of a guideline
(authored in part by the Aaeietant Adrinietrator of the Oxford
Facility, Hr. Peter Anetead) that wae available to managerent of
each facility under the Miniatr~*.s euperviaion io apply at ita
discretion. And in that light eanageaent of the Oxford Centre
relied upon the advice.and .reconnendation of itr Health and
Safety Committee as to whether the duties and' reeponeibilitiea
of a cleaner represent a sufficient rick or potentials hazard to
health and eafety eo de to warrant payaent of the eubeidy
towards the purchaee of safety shore.
At the material time the griever filed his grievance the
Health and Safety Committee had'not formed the required
consensus to Justify granting the aubaidy to employees in the
grievor'e occupational circunatance. Accordingly, the employer
eubnitted that management had complied with the Riniatry'e
policy insofar aa the latter had repoaed in management of the
Oxford Facility the reeponsibility of determining at ite
discretion whether or not to implement the guideline.
Management had simply not been convinced of the justification
for the aubeidy until euch time ea it might secure the .Health
end Sefety Committee's positive recommendatibn. Incidentally,
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the Board waa advised that on the eve of the inatant hearing the
Health and Safety Committee had endorsed the aubaidy in the
grievor'a circuaatance. Uanagement, accordingly, haa
undertaken, ae of that date to aubaidize the grievor'a future
purchaaea of safety ahoea. I+ refuaea, however, ~to pay the.
griever the aubaidy with respect to previous purchaaea because
it insists that it haa complied with the Miniatry'a practice of
applying the guideline for the aubaidy in accordance with local
needa.
In any event, the enployer argued, that the grievor'a.work
situation, deapite the Health and Safety Committee's moat recent
reconnendation, doea not conetitute the nec,eaeary riak. to
warrant the aubeidy. In that regard the evidence diaclaaed that
there haa been no change in job duties of a cleaner al&e
December 31, 1989 (when the grievance wae filed) and July, 1987
when nanagement endorsed the payhent of the iubaidy. Aa a
result ue are at .some loaa ae to the logic or the coneiatency of
the enployer'a position that ita previous -practice of refusing
to psy the subsidy did not reprraent a deviation of the
Niniatry'a policy of covering a potential aafety hazard. .I+
aufficea to may, that the &ployer during the course of argument
insisted that the puahing and lifting of furniture during the
performance of cleaning duties d4.d not'conatitute "a potential
hazard" aa contemplated by the Ninimtry guildelinea to justify
the eubeidy.
lforeover , it wae suggested that in order to Justify the
eubeidy under the guideline by reaeon of the movement of
i .,
.”
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furniture the griever would have to engage on a frequent basis
in the movement (i.e., carrying) of furniture from one physical
location to another. Although the griever did in fact engage in
this activity (at least once a week) it was not frequent enough
in the eaployer'a view to warrant payment of the subsidy.
There la no merit in either of the eaployer'a poaitiona.
Firstly, we- are aatiafied that the document iaaued by the
Niniatry insofar aa its intent represents an effort by the
Hinietry;+towarde th? reaovelpf "potentiai hasarda" fron the
work place by encouraging the use and wearing of appropriate
safety equipment and apparel, la in substance Niniatry policy.
Nori specifically, ineofar aa the chart on page 5 of the policy
statement delineatea the very circumstancea in which aafety
shoes or boots are to be 'used (thereby entitling a cleaner td
the aubaidy), the policy, it aeeaa to ua, la not auaceptible to
any deviation at the local level. Iti that regard the docuaent
only anticipates the exercise of discretion at the local level
with reape&to the adoption of aeaaurea designed to remove
potential hazards from the work place are with reap-et to
circunatancea that are not specifically dealt with in the
Min%atry'a policy statement. For example it la worth repeating
the reference in the l4infatry'e policy statement d'irectAng
management of the facility to those matters that nay be dealt
with at the local level:
For occupations not on chart, provisions are determined at
local level. They are baaed on the type,.frequency and
duration of the potential hazard faced.
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There la a common aenae. buaineaa purpose as to why the
Hiniatry'a policy cannot be meen to be subject to the discretion
of management at the local level. It appears to ua that the
chart on page 5 of the policy atatement itemizea studied
.exanplea of potential. hazarda'at the work place that are not
intended to be the subJoe+ matter of further dircuaaion or
debate. Whether or not thoae aituationa truly represent
potential hazards or warrant payment of the aubaidy or attract
the aupport of either local management, the trade union, or the
employees concerned is irrelevant to the'irplementation of the
Niniatry'a policy and the achievement of ita'ob~ectivea. And it
would not aerve.the ~iniatry'.a~obJectivea, in leaving.the
discretion to implement. as <ha emplover argued, to asnagemetyat
at the local level and thereby reault in having management at
one facility decide to inpleaen~ the.policy while in similar
circuaatancea management of another facility decide not to
implement. In other uorda, the I4iniatry"a docuient repreaenta a
centrally pronounced policy directive.deaigned'to be applied
uniformly at all fscilitiea under its supervision and
reeponaibility.
Finally, we see no merit in the employer's aubmiaaion that
the grievor was not entitled to the subsidy because he did not
engage in the movement of furniture, at least on a sufficiently
frequent basis, to constitute a potential safety hazard. In
this regard, the employer relied upon Mr. Anatead!a statement at
the hearing to the effect that the interpretation of the tern
"'movement" was intended to mean the movement of furniture from
i.
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one, physical location to another. In that regard, we find the
trade union's response to that aublaiaaion to be decisive.
Surely, there was absolutely no justification for making any
reference to "cleanera" on the chart of the Pliniatry'a policy
statement if the frequent movement of furniture was, not intended
to be linked to or connected with their cleaning functions.
And,'in that regard, the potential hazard to the cleaner’s
welfare, inaofar aa the wearing of safety boota providea aome
protection, la the moving of furniture while.in the course of
performing their dutiea.on wet and slippery floora. Moreover,
in our view, should a cleaner fail to we~ar safety shoes. that
potential hazard would remain irrespective of whether the
novement of furniture la restricted to one particular physical
a&a of the facility or la involved in the movement fior one
physical area to another. In short. payment of the auheidy in
the grievor'a work environment la designed to encourage the
purchase of safety shore ao fhat'the potential hazard referred
to in the Miniatry'a policy etatement is removed.
For all the foregoing reasons the employer was in violation
of the Uinietry'a policy and practice with respect to removing e
potential~hazard froh the work place and thereby la directed to
pay the griever hia entitled subsidy towards the purchase or
purchases of safety boota in accordancg, with Article 18.3 of the
collective agreement.
We shall remain seized for the purpoee of implementation.
I
‘. .
!’
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DATED this 19th day of August, 1987.
&$I(&:.
David H. Kates Vice-Chairman I
.I. Anderson
Member
Ii. Roberts Member