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HomeMy WebLinkAbout1988-0311.Union.88-11-22'IN THE MATTER OF AN ARRITRATION :-~ ..( ; -.A .- .- Before: ~. and I. i. _-.. (Ministry of.Correctional Seryi’ce!).’ i ,-. Employer. ~_---- - -- .-... _,_~_ _~__ __~ -----:--- --~.~-__-~-_- .___ ~._ M.Q. Watters . Vice-Chaiyperson F. Taylor Member " D. Wallace Member For the Grievor: For the Employer: Gowling & Henderson Barristers and Solicitors J.F: Benedict Manager Staff Relation's & Compensation Ministry of Correctional Services Hearing: -- ' This proceeding arise8 from a union grievance dated Harch 30, 1988; the m.steri.sl pert of which ‘.resds as follovs: ?XAiEF!ENT OF GRIEVANCE: The Union grieves Chat the employer is in violation of Articles 4 and 18 of the collective agreement, : .,2 not .exclusively.~. These vio1stioa.r arise 8s a resulJ;of, butt are not lioited to,.t,he employer’s failure to staff the’ Seult’ Sti. Xeria jail’ with. the appropri’at~e trained/ classified Correctionrl Officers. ...- ,, SETTLEMENT DESIRED: “..,~ ., .i ,’ .‘. 1 ~That ‘the Board orders the employer to decl~are- thit“the’:c’. ~. ” actions as,,dee.cribed above are contrary to, the .) .,“y.’ ” ,~ : - _ classified service. The remaining twenty five vere appointed to the unclassified service. The jail operates on a three shift basis, seven deys per vegk. The c.omposition of each shift vaties in respect of the ratio between classified and unclassified staff. It vould seem, hovever, that ~there is gene,relly 8 mix of these tvo categories of employees on any given shift. -I- 1 . . . ’ The complaint of the union focuses on theratio of unclaseified to classified staff. Specifically, it alleged that there are ‘en insufficient number of elaseified staff to meet.rhe “permanent’! demonda of the institution. In the estimation of the union, come tan CO eixteen additional classified employees are required for this purpose. In this regard, the union submitted . ., -. ‘r”. -; 1 that ma.nagement at the Sault Stc. Marie jail ,had relied ~~.. -- ,. . “exceesiv’ely” on unclassified staff, especially in the .per,j’b’d ‘, .; .;,,- .A. subsequent to Hay, 1986.. Indeed, the thrust of, its posit:~,~~ vas ,, ~“f..+ . ,;!.; . ‘~ that, auc< staff had beea.utilized to fill what shoqld, be :, , ,‘,, .-:,-.. .,: If, I permanent position-s in the cl,aesified service. ‘Ihe ;di&~(~~rgued :, 1, II ,;,., s-, -- y.&i ._ the-t .__ t-pie prsctice ,violated the collective. eE;e~~~~t-~ij+vo’ -_L_ ,, _: ,’ ,,,~,;c!: ., -,--; -.,-. .~.-- --_ -__. ,._ _, ...._ _” ~ -A -7 L. respects. Piratly, as the positions being filled were -. -.‘i( .: -i .- ~~~--~~_ l ,- .’ t :.; .---‘-.T-;-..-.--;‘-; A....... - .._ -. __. ,.. “permanent” ins nature, they should,be filled ~b,y clasalf,aed .~~. :. .--.+7?~,--~.~~i--L;- ‘_ ._ .~~‘.,~ ~.I ,-I,Le ;‘... ; :’ ,. “7. 1 ..! employees puts&at to a compet’ition under.., qCticaeLq.~~S~e~;:Otier:~~;--_~..- _. .~ ..L;‘,’ ., thee-excessive-use of-unclassified stafffcreated a ligitimaie ~~--~. --~ . ~.~.. healrh and safety concern vitbin the parametersSof: Articl.e-!_8_(_1_)_-., Counsel for the union noted that.unclasaified staff did not receive the same level of training a’s did the Correctional Officers who were part of the classified service. Further, .the Board was advised that such personnel ware restricted in t’erms of the functions that they could perform.- It was the position of the union that the use of a large number of unclassified Correctional Officers at the facility in question served to expose all staff to sn unreasonable risk of harm. At the outset of the hearing, and be~fore any ividence was. presented, the employer raised a prel’iminary objection ~tu the arbitrebility of the grievanceti It was initially-aubaitted~ chat the wording of the grievance.ua~s “abstract” and lacking in particulars. It war further argued that the statement of particulars provided -to the employer,by letter date~d September . 16, 1988 (Exhibit ‘A’) did not advance the unioa’s.case in thet .’ _. ,ylt~demoasttated that the grievance was itrsubstance directed LO _. .;, i .' : inarbitrable matters relating tO~SppGintm@nt,~ F.omPle?-t,’ (_ :. organisation and assignment. “Specifically, it.vas submitted chat -.-w- - - ,. . . .: --I ------ --.~ .-..._ ._ _~ _._... ~,. __ --. ; the area of staffing and, more particularly, the u.se:::of -‘. +&L- .~. -~~. ..-----_I: .L-- --. --..---L _...& .._ ,’ unclasrified personnel at the ‘facilitY,~,was .an exelusVe~ 4, management rig,ht under Sectiqn 18 of The ‘Crown EmploYees _- -2: “. _~ ,T-~.. ...-~.---- ‘. _ ___ I.~., L 1 _... __ R:S.;O;‘lggO,~ Chapter .108,-,as--am~nded,~-_-._1.~ Collective' Bargaining Act; - __~~ and was- therefora note v.ichin .t.h.e_.jur.isdiction_o~~~ this Board- Its_ .. .-- ~. _-. uae-~imilar1y.srgued that we were-vCih6ut JuriSdiCciOqlto-~V5e1)1,..._ sp~poiatmenta to the unclassified service made pursuant to Section 8 of The Public Zervice Act, R.S;O. 1980, Chapter 418, as amended. The employer lastly suggested that the grievance did not r’eiee legitimate health and safety concerns. Rather, we were urged to find that the inclusion of such matters in the grievance vas done simply :o persuade this Board to assume jurisdiction vhich it did not otherwise possess. The following authorities were relied on in support of the employer’s posi:.ion: -3- - ’ , . ’ I: . . ,,.. ga kaladay and The Ministry of Industry. ii’lourism, 94/7g; Aubin and The Winistrj of Correctional Servicer, 1044/85; Crippa and Tha Winietry of Correctional ScrViCeS, 660186; Bond and The Hidiatry of Natural Resources, 173/?g;. Johnnon and Szpakowski and The Ministry of Culture and Recreation, 72176; Skale#ky and The Ministry of NatU’ral ReSOUCCeS, 429!,81; I Mouaeeau’and The Ministry.of Correctional ScrviceoL~11g2/8S;. Simpson and The Ministry of Correctional Services,~691/gS; .~ .I. ., ,: _.. Warden and The Ministry of CorrectionPl ~e?Vi~Caa, 1.152/87.-,~ -’ I~~. ‘, ,a.;.’ i I*. :, 1.n response; the union argued that th.is Board ‘did pdsses_jl_l::‘~-,‘L_-;. . :;-ths=t-e.s.u.ioi~er~~~V~- to review the:.proprie.~y~of.~app.~.j~t~eots .,:li, .‘~ ’ ‘” ..,. to the unclassifi’ed ee.rviCe: In this regard, it relied .o’o~‘~.t.~a:‘,.‘~~~ : -.,i. ,j~.;~~_.L.,_avards issued in Beresford and The Winistry.of Government gerviees,~ 1429/86 and Willey ‘and The Ministry . .--I.A.L&~~ -y+;*LL _. _ ; :~. : I I_ -- of Revenue, I,. ..;‘: ,. ;: -_~~ 1972187. In bothvinstence8, the Board concluded that it c’ould-::---- reviev au appointment purportedly made purauant to Section 8 .-1 of, The Public Service Act. As part of their inquiry, the Board ‘sought to determine vhether the specific appointment was to a position which fell vithin one of the three groups comprising the unclassified service as contained in Section 6 of Regulation 881 enected.pursoant to The Public Service Act. It wa.9 also submitted that the differential treatment accorded CO uocIassified employees could constitute a breach of Section. lS(1.1 -L- : .,,... j..- : ;. * c of The Canadian Charter of Rights and Freedome, if ouch employebs were not in fact temporary and performed in the same fashion aa “permanenta”. Lastly, the union denied the euggertion of the employer that the health and safety issue had been advanced merely to. persuade the Boar,d to asauma jurisdiction. .To the contrary, it asserted a real health and safety concern and -, ~., ..:? I, requested anopportunity to present-. evidence in respect of sam’e. _ ., ._.,!, ,.,.I ,:~ By way, of reply, the employer submitted’that the auards in ‘_ ‘~ ?; ‘y: Beresford, and Nillee were incor,rectly decided and. should not be I .- .‘-- -. .-:~fotlouedi We were informed that, the-former avard~‘was subject to ‘. - .I::...an~ appJication for judicial rev,,iev. i _._ - -- .--__ I_ -- The representative f%?-Fhe ,. ,, -__--.-____ employer futther indicated that’ th,eee cases. did not. ConaLder Eha ,,--,;.- , -- -. -.,, -L-_ ._~. -:._ .__. effect of Sect’ion 30(3.) of The Public Service Act.~ This section -.:.* - :+ --l;..L&.:.-- _ _ ^ ., !. : ,:. serves t,o render’ the co.~llecti~<e’.iagreeuent~ paramount- in any’- -+-r_ -------,conflict vith.-ci. provi~sion~.in._th~_,rcgul,afi~~n, It~~“~-tha~-p~~~~~,~~e_~_ of’ tka~ employer that. Section 6:of .-Regulation. 88l..~.waa~x~~~~- .- irreconcilable vith Article 3 of the col,lective agreement and wao for that reason inapplicable;, Perguson and The Ministry of Industry and Tohrism, 35176 was relied on in Support Of this argument. It was lastly su,bmitted that the Charter did not ~ap?ly in this instance ‘as the employees in the classified and’ unclassified services could not be considered as being “Simi,larlY situated”. I I, -5- : : .- I .,- A.ftar consideri~ng all of the submissions and euthoritiea presented to UI, the Board finds that we do have the jurisdiction to proceed with a hearing in this instance. The pertiee have directed their attention co health and erfety matter8 in Article 18. Article 18(l) reads a~ followa:’ “The Employer ahall continue to make reasonable provision8 for the safcty,end health of its employees during the hour8 of their empl~oyment. Ic is l greed that both the Employer and the Union shall co-operate to the fullest extent posaible,in the prevention of accidents and in the rearonable promotion of safety and health o,f all employees’.” : Ue have not been persuaded that this,artfcle of~tbe nollentika agreement is enti;el’y~ i-tia~pplic-able- to’~the;preeent dispute.-~~~he----~-~---~.~-- -v-~- .-.. __L _~~ _ _ .,:;, : union ha8 ae 8e.r tad chat the s~~-ff+ag-prarr~~-~o-f-t-h~e~~~~~I~~-y:e.r~-- --. ---- -~ !i: ‘threate’n the health and safet~y 6f~ emplk~yias ,at the’ Saulf Ste-.- ~-1 --.‘-._ ~“Harie .jail-.-' We-- therefore think.lit...proper. to hear..e.v-iden~ee in ;r-f‘ . .-. -respect of the .allegation in order to determine if there ir merit to it. This ir a quest~ion..u_hi.ch_ ,-., in .our, ,Bt,im’atiqn~--ca_nnot be answered without the presentation and coneideration of relevant evidence. The fact that staffing and complement may be part of management rights under Section 18 of The Crown Employees Collective Bargaining Act is not e bar to the assessment of the health and safety complaint. In this respect, we concur with the folloviag comment of the Board in Warden: -6- I ,‘, ‘IIf the Jhrust of a grievance is a health ‘and safety issue under Article 16.1, then in our respectful view that grievance is arbitrable despite the fact chat the rcsolotion of that grievance may necessitate an inquiry relating to the employer’s exercise of management r,ighte.” (Page 3). In that case, the Board d,eclinad to hear the grievance because the wording of same was not indicative of a health and safety issue; Further, the health and safety~concern was not raised by the grievor, until the arbitration hearing; That situation is .clearly distiaguiihable ,froc the matter now before .ns. ‘ger,e, the health and safely provision of the collective agreement ‘+a~s L- - -.. --- ,._.. -~ ~-- -~----~~~. - _-_. _ _^_ specifically refi'rre? to in the’body of the grievance* Also, the .-i_-- --._ ------ --.- 2..- -,-~-.----- ,..;~.v’i;~’ ge&ral nature of the compla’int v58 d,escribed priot.~to tF.9~ ‘.: ~., ---L-_: .._ ~__ ii’, hee’ring through the particulara provided io the employer.: . . ., ::’ -.~_. ~. . _, For all df’the above rease,ns, the Board concludes that it ,.~_L. - -:- may properly proceed to ‘hear- -evidence and argument on. the_hea~lth.~.-- .and safety complaint. Ue are ineliaed to reserve our opinion on the arguments raised by the employer to the effect that quee:ions of staffing., complement and appointment fall vithin the exclusive domain of management’ rights. :We have determined above that these matters do not deprive us of jurisdiction to learn more about the alleged health and safety concerns. further, ve hold the opinion that they bear directly OR the question as to what would be an appropriate, and legs!., reardy should CL’ ul:inately find 3er.i: to the union’s complaint. Tk,e loerd will r.ec?d to entertain furzhrr argument on our remedial jurirdiction eubsequen~r LO thi presentation of the evidence. Additiontilly, it woyld be imprudent to 8dd to the debate over the Board’s authority to review appointments to the unclassified service.vhile the issue is preaently before the Divisional Court. We there’fore think it is advisable to delay the ieecheduling of the hearing until after the court hash- given it6 ‘decisicn. DA?ED at Wind’sor, Ontario, this ,22nd day of sove~ber , i9ea. >-,,: .T >:J L’ LA& , . w. v. Watters, ~Vice.ChairperSon D. Wallace; Member -a-