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HomeMy WebLinkAbout1988-1170.Hurley.89-04-04~ '~ ONTARIO EMPLOY£$ DE LA COURONNE ~ CROWN EMPLOYEES DE L'ONTAR/O ~" GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1~0 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G tZ$- SUtTE 2100 7'ELEPHONE/T£!..~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8- BUREAU 2t00 (416) 5~8-06E8 1170/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Hurley) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer Before: N.V. Dissanayake - Vice-Chairperson S. Nicholson - Member D. Andersen - Member APPEARING FOR H. Law THE GRX~VOR: Grievance Officer Ontario Public Service Employees union APPEARING FOR M.A. Smeaton THE EHPLOYER: Manager, Staff Relations Human Resources Branch Ministry of Transportation HEARING: March 28, 1989 2 AWARD These are three grievances filed by ~he grievor, PaT Huriey~ a survey 5echnician 3, employed by ~he Ministry of Transportation. Two of the grievances are dated OcTober 3, i985 and reiaue to his re-assignment from one survey crew to another. The third grievance dated October 5 is an allegation of contravention of article i2 (rest periods) and/or article 18 (health and safety} of the collective agreement. At the ou~se[ the parties agreed that the two grievances relating to the crew change should be heard together. It was further agreed that evidence adduced in ~ne crew change grievances would be applied 5o the third grievance. Counsel for the Employer took the position ~hat ~he Board lacked jurisdiction to hear any of the three grievances. The. Board first heard evidence and submissions on uhe preliminary objection to the crew change grievances and then heard evidence and submissions on the preliminary objection and the merits of the rest period/health and safety grievance. The crew change Grievance The grievor had been for most of ~he spring and summer of 1988 working _ at sites in the Trenton/Campbellford area. During the week ending 3 September 23, 1988 he was on a job in Trenton as a member of a crew under party chief, Mr. R. Lidsnone. At the end cf that jOD On September 23, the grievor was re-assigned to a crew supervised by party chief, Mr. L. Farreii, aL a sine on Highway 400. 2n the two grievances the grievor alleges respec~iveiy that this crew change consti~u~e~ discrimination and harassment and amounted to unjust discipline. The Employer contends that the crew change is a manner of job assignment which is clearly within the exclusive management functions stipulated under section i8(i) (a) of the Crown Employees Collective Bargaining Act. He submits that the union bears the onus of establishing that the job assignment in fact constituted discipline as would give the Board jurisdiction under section i8(2) {c). The union did not disagree with this position as to onus. The union's position is that the change of crew is in fact discipline disguised as a job re-assignment. Counsel for the union points to the evidence tha~ during %he grievor's previous job in Trenton, the Employer had written a letter to ~he grievor alleging poor work performance. The crew change followed shortly thereafter. The grievor testified that the re-assignment penalized 4 him by reducing his enti~iement 5o 5ravei expenses by some 60 percent. The government policy includes a rule nha~ ~ravei expenses will be paid on the basis of ~he distance between an einpioyee's work site, and the employee's designated headquarters or hozae, whichever' is lesser. When this rule is applied to 5he grievor, he had a greate.r claim for ~ravei if he worked in Trenton than if he worked on the Highway 400 site. Another government rule required that employees must share the travel (e.g. by a car pooling arrangement) if two or more are travelling to' a job siUe from the same locality. Since there was another employee travelling to the Highway 400 job from the Oshawa area where the grievor lived, he was obliged 5o share the travel. The grievor testified 5hat he preferred to drive his car' no work rather than car pool. Therefore he claims that the crew change penalized him by requiring him to share the driving. The evidence establishes that there has been a history of bad-blood between the grievor and ~he Highway 400 par~y chief, Mr. Farrell. it is %bus contended that the grievor was deliberately re-assigned to Mr. Farrell's crew, knowing that ~he latter would give the grievor "a hard ~ime" The Board agrees with Counsel for the union that the Employer cannot avoid the grievance procedure and arbitration by disguising an act of disci, pline as an exercise of an exclusive management right. Neverth~iess0 %he Act has specifically excluded certain management functions fro~ the scrutiny of the Board. Where a union is claiming, as beret that what is clearly an exercise of an exciusive management function was in fact a disciplinary act on %he part of the empioyer~ the Board must be satisfied by.cogent evidence 5hat that in ~ac5 is the case. The Board must, in the absence of such cogent evidence, be loath ~o interfere with the right of the Employer 5o manage, a right decreed by 5he legislature [o be an exclusive management function. On th= basis of the evidence before us, we cannot be satisfied that the union has met its onus. ~he evidence is that re-assignments of crews do happen from time 5o gime. Employees may have advantages, real or perceived, depending on the location of a particular job site. The fact that ~he grievor found ~hat ~he ~ighway 400 location was less profitable and desirable, does not by itself establish that he has been penalized by the re- assignment. Furthermore, ~he evidence indicates that while the ill-feeling was between the grievor and Mr. Parrell, Mr. Farrell had nothing to do with the impugned management conduct, i.e. the crew change, in fact, Mr. Farreii was quite upset about the grievor being re- assigned to his crew. He was told that he had no choice 6 in the matter. While evident= indicates that Mr. Farreil was told than he can report any problems he may encounter with the grievor, we do not accept the union's position that this is evidence that the grievor was being ~'se~ up" for discipline. When seen in context, what the evidence shows is that when Mr. Parreii displayed anger upon being advised that the grievor was joining his crew, he was simply assured that if there are problems with the grievor ~here are ways of dealing with them. Mr. Lids5one did write to the grievor alleging poor work performance on the Trenton job. A grievance followed and in the grievance procedure 5he grievor was given a written assurance that the Employer did hoc consider the letter as disciplinary and that it is not part of the grievor's employment record. When the matter came before this Board, ~he Employer gave further assurances that the contents of the letter will not be relied on in nhe future for any purpose. On the basis of these assurances, which are now recorded in a decision of the Board (1170/$$, 1189/88 Hurlev and Meszaros~, the grievor withdrew his grievance. On the basis of all of the evidence before us, ~he Board cannot conclude ~hat the change in crew assignment in question was an act of 7 discipline on the part of ~he Employer. Accordingly, the Board is without jurisdiction to entertain these grievances, .and the same are hereby dismissed. The rest period/heaish and safet~ crievance The employees engaged in she field as par% of a survey crew do not have any washroom facilities of their own. The practice is to use public washrooms such as those in services sta5ions or restaurants. The employees usually have to wait for their breaks in order ~o use a washroom. They had a morning break at around i0:00 a.m. and another at around 3:00 p.m. The practice is for the crew chief to pick up the employees in the Ministry truck and drive [hem to a nearby public facility where they can use a washroom and buy a coffee. On Oc=ober 3, 1988, the grievor was working on Mr. Farrell's crew near Highway 400. Highway 400 is a major highway with 3 northbound and $ southbound lanes divided by a steel guard-rail. That day the crew had been working on a field adjacent to the south-bound lanes of the highway. Around 1~:00 a.m. the grievor and the ~wo other crew members came on ~o ~he shoulder of the highway on the South-bound side expecsing ~o be picked up by Mr. Farreii for their mid-morning break. However, Mr. Farreil was in nhe Ministry truck parked on the shoulder of the north-bound lanes across the highway. The griever did not Lear any yelling by Mr. Farrell, but he assumed that Mr. Farreil expecned ~he ~hree employees no cross the highway no board ~he vehicle. The ember employees ran across Highway 400 and got in to ~he ~ruck. However, ~he griever decided i~ was no~ safe to do so and remained where he was. Mr. Farreii drove off nornh-bound winh ~he two employees ~o the nex~ intersection and stopped to pick up some coffee. Then Mr. Farreil turned around and headed south-bound on Highway 400 back to where the grievor was. When Mr. Farrell arrived, he expected the employees to ge~ back ~o work and ~he 2 employees who had accompanied him got off the vehicle and were ready .~o do so. However, the grievor told Mr. Farreii that he had to use a washroom. Everyone 5hen'gou back into the ~ruck and Mr. Farreii drove souuhbound Highway 400 about 5 miles ~o a service station/Burger King. The grievor used uhe washroom at ~he Burger King, and purchased a coffee and drank i= in the truck. The next day, the crew was on the same job, but uhe crew was on the north bound side of the highway a5 5he ~ime of the morning break. Mr. Farrell picked up employees and drove them northbound to a Beckers store located on a side streeu. The grievor had Lo use the 9 toilet. He went to ch= back oE the store and down some stairs where he fo~lnd a washroom, i~ was dark in chere and was unde~ conscr'uczion. The grievor ~estified ~ha~ he found the washroom jus~ too dir~y and ~hat he turned back without using it. When h= went t~ the ~ruck he complained ~o ~4r. Farreii that the Beckers s~ore was not a good place to come for Uheir break and suggested that ~hey go ~o another place. Mr. Farreli refused, stating that the BecEers Store was "OK" for h~m and that the other 2 employees had not complained. That afternoon the employees were driven to the same Beckers Store again despite the grievor~s protests ~hat he wished to go to so~e other place. Articles 12.1 and 18(i; read as follows: 12.i The present practice for rest periods i~ each shift shall be maintained. 18.1 The Employer shall continue to make reasonable provisions for the safety and. health of its employees during nhe hours of their employment, i5 is agreed tha~ both the Employer and the Union shall co-operate to the fullest extent possible in nhe prevention of accidents and in the reasonable promotion of safety and health of ali employees. Under cross examination, Mr. Farrell agreed that since employees only get an opportunity to use a washroom during their breaks, it was important to have i0 access to a washroom during their breaks. He also agreed 5hat it is reasonable for an employee to expec% ~nat the washroom is reasonaDiy clean. However, Mr. Farreil took the position that the Beckers store was [he closest available place and 5hat even if Lhe grievor had specifically complained abo~]t 5he Beckets washroom being too dirty, he would still have taken him there. He testified that while the Beckers washroom was not the cleanest washroom, i% was s%ili "usable". However, he conceded that he had non seen the condition of the washroom on %he day in question, although he though5 he may have used iT 5he day before. From the evidence, the Board concludes that for purposes of article 12.1, it is the practice of the Empioy~r to provide employees doing field work as members of a survey crew access to a washroom during Eheir res% breaks. The Employer's ~'preiiminary objection" is to the effect that the Board shouid~ no% seize jurisdiction to decide this issue, because it will lead to a flood of complaints about unclean washroom facilities, it is further argued that the cleanliness of washrooms is a matter beyond %he control of %he Employer because by the very nature of the work, 5he Employer mus~ rely on public washrooms in the area. Counsel submits that the Ministry of Health has the ii authority go supez-vise cleanliness of public washrooms and ~ha% %herefore if a public washroom is not clean a co~.plain~t should be lodged wiuh chat Minisnry. He urges %he Board non nc. under5ake %he nask of determining whether public washrooms around the province are clean enough. From ~he evidence, we conclude tha%, when ~he grievor refused ~o cross Highway 400 on October 3, Mr. Farrell's initial position was that by so refusing, the grievor had waived his rest period. The evidence is clear tha~ if 5he grievor had not stood up for his righ5s, Mr. Farreli expeczed him to get back ~o work because as far as he was concerned the break was over. in our view, it is contrary to the Employer's practice to make an employee's right to a rest period be made conditional on his willingness to cross a major highway, which we find below is a risk ~o which no employee should be exposed to. By this conduct the Employer failed to maintain its prac%ice relating to rest periods and thus contravened ar5icle 12. We make this finding notwithstandirtg that Mr. Farreli gave the grievor his break after he specifically requested that he had to use a washroom. It is reasonable Eo expect a~d ~he 12 established practice enui~ied the grievor to a break as a mat~er of rou%ine, without having to demand his rights. We= :urther find %hat The Employer failed to p~'ovid~ the grievor adequate washroom facilities. I% was the p~ac[ice to provide access ~o a washroom and in our view the failure to provide access %o a clean washroom where one is reasonably available is not consisten% wiuh that practice. Mr. Farrell had no personal knowledge of the condition of the Beckets washroom. Even if he had used i5 in the past he was in no posi=ion 5o deny that on the day in question it was extremely dirty. In any even~, i~ was apparen~ from Mr. Farrell's testimony that he was no~ concerned about the grievor's feelihgs about using an unclean washroom. He expected ~he grievor to use that washroom (a) because the o~her employees used ic and (b) because Beckers was the closest washroom %o the work site. In our view (a) above is not an appropriaue way 5o measure the suitability of a washroom. The employment relationship is such 5hat some employees are reluctant to protest against their supervisor's decisions. The lack of protest by two employees is no indication %hat ~he washroom was up 5o accep~abie standards. Besides, ~here is no evidence uha~ either of ~he other two empioy~es used the Becker's washroom 13 %hat day. There was some dispute as to the distances between the work sm~e a.~:d ~ke washrooms at th~ Beckers Smote .and B~rger King. Nevertheless, the ~oard is satisfied tha% if there was a difference in disnaace was not significant to justify forcing an employee using an unclean washroom. The Board recognizes 5ha~ survey crew employees who work in ~he field canno~ reasonably expect the same washroom facilities as, for example, employees working in an office environmen[. If the oec~=rs washroom was the o~liy one available in the area, 5he Board would have been more receptive to the Employer's position cleanliness of public washrooms is beyond its control. However, %he fact is that ~here was a clean washroor: available at the Burger King. The difference in distance was minimal, in ~he way he conducted himself on nhe day in question and during his testimony before ~he Board, Mr. Farrelt displayed a totally non-cariag attitude towards the grievor's concerns about having access to a clean washroom. The Board finds that his conduct contravened article 12, by failing to maintain the Employer's practice relating ~o rest periods. The Board furnher finds that the failure to give access to 14 a clean washroom which was available also contravened the obligation in article i8.i no provide reasonable proviszons for the h~a~i-~ of -'--~= grievo¥. The Board further finds that the contravened article i~.i on October 13 by i~'~ effect s'~aking ~he grievor choose between crossing the Highway ~.>z foregoing' his rest period. We are satisfied nhat Farreil had no intention of picking up the grievor, when he drove off with the other two employees, if he did, 5here was no need to stop for coffee for 5he other two employees. While it is true ~hat the grievor was not directed to cross the highway, it is clear tha~ ~hat was wl~at was expected. Tile o~her two employees complied. The grievor did not. In his ~esnimony, Mr. Farreil made it clear that he expected the grievor 5o cross the highway. Thus he testified that at I0:00 a.m. [he highway was not busy and that it was safe to cross' Highway 400. He relied on the fac5 tha~ ~wo employees did cross. His position was that if it was not safe to do so the two employees would not have crossed. On the other hand the grievor testified that the highway was very busy, and that he felt it was ',~nsafe to cross The question of whether a highway is busy at a given time is a matter of degree. In our view~ unless 15 there is absolutely ne ozh~r alternative, it is not reasonable for zhe Employer ~o expec% employees to cross a major 6 lane high~ay such as Highway 400 aE any At the time ~he highwa~ had ne signs posted ~o cauuion motorists ~ha~ survey crews were present. The fdc~ ~ha~ 2 employees complied and made i% across safely in our view is ~otaiiy irrelevant. Once again ~he Board emphasizes, 5hat employees are by the very nasuze of 5he relationship reluctant to challenge a s~pervisor's direcuicns or expecta5ions. While no specific order was given ~o ~he griever to cross the highway, by parking across 5he highway and expecting him ~o cross, Mr. Farreli was putting pressure on him to %aka the risk. it is significanE to note, tha5 in his evidence ~4r. Farreli offered no explanation as ~o why he did not drive around to the south-bound lanes when he knew Uhat that was where the employees were. in our view, he demonstrated a 5oral lack of concern for the employee's safety. He highlighted this attisude during his testimony when he was so casual in asserting %hat it was perfectly safe to run across Highway 400 at 10:00 in 5he morning. The Board rejects ~hat assertion and finds that by his conduct, Mr. Farrell failed to make reasonable provision for ~he griever's safety in contraven5ion of article 18.1. 1.6 With regard to the preliminary objection, th= Board merely makes '"~=' following observation. The Board has no au~nsrlay ~o regk~la ~=- [he cieaniin~ss of public washrocx:s and w= do not purpcFn zo do se here. However it is within this Board's j~risdiction to int=rpre~ and apply articles 12 and i6 of the collective agreement the evidence before ii in each case. We have done here, and hay= found that the Employer contra%ened the collective agreement as described above. In summary, the Board declares for reasons set out above, thac the Employer 'has contravened artlc~e' ' - 12.1 and 18.1 of the coiiecsive agreement. Dated this 4£W-. day of ~.-.cMay, 1989 at Hamilton Ontario Nimal V. D±ssanayake Vice-Chairperson $. N±cho~son Member D. ~derse~ Member