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Home My WebLink About1988-0224.Reed.88-10-20~' . · ONTAR/O EMPLOYES DE LA COURONNE '? CROWN EMPLOYEE.~ DE L'ONTARIO GRiE¥~NCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DIJNDA3 STREET WEST, TORONTO, ONTAR;O, MSG 1Z$- SUITE 2100 ~'E£EPHONE/T~eL~'PHONE 180. RUE DUNOA$ OUEST, TORONTO, (ONTARIO)' MSG ~Z8 - BUREAU 21~0 (416) 598-0888 224/88 IN THE MATTER OF AN ARBITRATION' Under THE-CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: ! OPSEU (Dave Reed) ~ .. Grievor and The Crown in Righ~ of Ontario (Ministry of Correctional Services) Employer Before: D*H. Kates Vice Chairperson T. Kearney Member G. Milley Member For the Grievor: P. Chapman Counse! Gowling & Henderson Barristers and Solicitor~ For the Employer: G. Lee Senior Staff ~elations Officer Minls~ry of Correctional Services Hearing: September.2, 1988 Dec i -~ i o n By grievance dated January 7, 1988, the trade union referred the following complaint to the ~SB fur de~.ermination: STATE,SENT OF GRIEVANCE: "I am submit~i~g ~his grlevan~e because I believe ~hat ~he managemen~ at ~he M.T.E.D.C., are exercising ~l~eir managemen~ rights under C.E.C.B.A. both unfairly and ~ith discrimination" · ' SETTLEMENT DESIRED: "l)'That COs are equally rotated thru all posts. 2) The' p~actice of gel,'eral averaging of sick time cease until staff are trea~ed equal. 3) }lanagement acknowledge that some staff work ~reas of timber stress more often than other staff. 4) That management design a fairer sick time assessment system. ~) That P.P.R.'s indicate w~'y staff are not being rotated". In repiy, to the grievance at both levels of the grievance procedure the employer took the followin~ position: After carefully reviewin~ ~ou~.arguments, I must advise you that it is the exclusive function of the employer to manage, including the right to determine assignme~ts and as you provided no evidence that management is exercising its rights unfairly and with discrimination, I am denying your grievance, Mowever, as I advised you durin~ the hearing, you concerns will be raised at the Employee Relations Committee with a view to determining if ~he presen~ procedures of assigning staff can be improved upon. In this regard, I wou%d encourage-you'to submit your ideas ~o your local union executives. At the outset of the hearing scheduled for this matter the employer made a preliminary motion challenging the jurisdiction of this Board.to pro'ced with tl~e grievor'm complaint for the reasons set out in its reply. In essence the employer argued that Section 18(1) of the CECBA precluded the Board from' asserting jurisdiction to entertain any ~:omplai~,L relating to the assignment of dut'ies a,~d responsibil~ities to employees and, moreover, such assignments "will not be the subject of collective bargai~ing t.~or come within tile jurisdiction of the Board" . Sectio~ 18(1) reads as follows: 18..-(1) Every collective provide that it is the 'exclusive functio~ or the employer to . mal~ge, which function, withou~ limitin~ the ~enera!ity ~he foregoing, includes .(a) employment, ~ppointment, complement, methods and p~ocedures, kinds and locations of equipment, and classification of positions; and (b) merit system, trainin~ and devel6pmen~,, appraisal and superannuation, the governing principles of 'which are subject to review by the employe~ with the bsrgaining agent, and such ~atter~ will not be the. subject of collective bar~aini~ no~- oome .ithi. the .jurisdiction of a board. Several GSB Oases were referred to this Board in support of the empl6yer's preliminary motion. They included Re OPSEU and The Crown in Right of Ontario iMinistry of Health) decision dated January 9, i~85 (Kenned~; Re OPSEU (CriDDs) and The Crown in Right of Ontario. (Ministry of Correctional Services) decision dated February 2, 1988 {Verity); Re OP~EU {Tsiang) ~nd The Crown in Hight of Ontario (Ministry of Industry and Tour/sm} de6ision dated February 15, 1982 (Jolliffe). The trade union did not dispute the correctness and the prudence of the jurisprudence relied upon by the employer support of its jurisdictional challenge. ~athei- the trade u~io. submitted that notwitl)standi.~ tBe ostensible language used in the text oF the grievance the griever's complaint related to a matter of health and safety- affecting oorrectional officers generally and the griever particularly. The underlying health and safety component of the complaint was expressed in the remedial relief requested in the event o'f success in the merits of'the grievance. · It therefore followed that since health and sa£e~y is a legitimate matter that is relevant ~o colleCtive'bargaining and therefore within the jurisdictional authority'of the GSB we ought to find that we are properly seized of jurisdt¢:i0n - .to entertain this grievance. In support of itl mesponse"%o the employer's ~urisdictional challenge' we were referred %o a decision of the GSB authored b~ Mr. Jolliffe (%he ~otu~l text of the o~se was'not submit%ed) where he seized ~urisdietion "on · hem/th and safe~ grounds~ to review an "assignment" m~de. b~ ~he employe~ at the Mfllbrook Correctional Facility. Hmving found there was a health mhd smfet~ "oonoe~" the Board directed'that 'the parties meet with a view to finding a remedy to resolve that con~ern. The impugned "assignmen~''~ was ~ot nullified as that would have been'~utside the Board's ~urisdic~ion. After the completio~ of the' parties' argument on the employer's preliminar~ motiou the Board recessed .~nd upon its return made the Following ruling: Im dealing with the employer's p~el~minary motion with respect to our jurisdiction to entertain this grievar;ce we are of tJ~e opinion that the grievance expressly raises in pith ~nd substance s work assignment complaint. Accordingly we ~re precluded b~ Section 18(1) of the Act from asserting jurisdiction. It may very well be that ther~ are health and safety considerations that underlie the grievor's complaint. 'There is mothing suggested herein to prevent a gr.ievance being presented where the appropriate provisions of the collective agreement alleged to have been violated are expressed. In that regard the parties might'deal with the health and safety issue aa the main complaint and if the complaint has any substance, might raise remedies that do not infringe upon the governing statute, Accordingly the proceedings are terminated'fo~ want of jurisdiction. ' The Board reaffirms its decision acceding the employer's · preliminary motion, David H. Kates - Vice-Chairperson Kearney - Member G. Milley - Member