HomeMy WebLinkAbout1989-1277.Welsh.90-07-06 Ob r,~ ,~tO EM~'[ OcES DE LA CO UR O,~,'E
C~OWf,t EMP~.O~'EES DE ~. 'ON r,~lO
GRIEVANCE COMMISSION DE
SETrLEMENT REGLEMENT
BOARD DES GRIEFS
1277/89
iN THE MATTER OF AN A~BITBATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN:
OPSEU (Welsh)
Grievors
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
- and -
BEFORE: M.V. Watters Vice-Chairperson J. McManus Member
A. Stapleton Member
FOR T~E A. Ryder
GRIEVOR: Counsel
- Ryder, whitaker, Wright and Chapman
Barristers & Solicitors
FOR T~E M. Galway
EMPLOYER: Staff Relations Officer
Minist£y of Correctional Services
HEARINGS: February 22, 1990
T'nl.S Droceedi:ig arises from the gr~eva,'~c.e ,of v,r-. Ne]!c. weiah
Dated September 20, 1989 wherein he c~a~med tha~ "~/anagement has
~!Fu:l>' applied s~ress by its d~scr'~m;natory practices, con~rar;,,
~o a,~b~c~.e ~8.1 of t, he CollectS'ye Agreement."
&% al~ ma~er~al ~imes, the 9rievor was employed as a
C.3rrec~iona! Officer ab %he Toronto East Detention Centre. He
has ~or'ked a% %~a% faci!i~y since 1984. For pur¢oses of %his
dispute, ~he work done a~ the Centre may be divided in~o %wo (2)
categories, %hese being general duties and specific assignments.
The former ~nvolves ~he Corr.ectional Officers in-t~e day to day
care and control of inmates within the celi blocks. The ~a~%er
refers %0 more ~art~cularized assignments within specific units
such as Admitting and Discharge (hereinafter referred %o. as ~.
and D.). Twelve (12) Correctional Officers are assigned ~o A.&
D., ~o (2) o¢ ~hom are responsible for %he Property.Room. The
officers work~n9 in ~hat room are required ~o receive and secure
the personal property of the inmates within the ins~i~uti9n.
There are a ~oLa] of one hundred and %wen~y-four (124)
Correc%iona] Officers working a~ ~he Toronto East Deben~ion
Centre. We were ]ed ~o believe that specific assignments, such
as .those w~hin A. and D., are considered ~o be "preferred"
assignments.
When %he grievor first arrived at the institution ~n 1984,
he was assigned to general duties. At that time, ~he Properby
t
Room was staffed by two (2~ senior and e:~Der~.enced CofFee-_lC. fha'
Officers, Mr, David Fir~lay and Mr. ¥ony Puchalowsky. In 1~,
%h~._ grievor learned than these qe~tlemen~ . were leaving their .oosss
~n the Property Room. He therefore elected ~o aDp]y, ouFs~an~ to
an informal posting, for one of these s~ots. A grievance was
subsequently f~led when %his ampi:cad,on proved unsdccessfui. [5
Nas the grievor's belief that, as the.senior Correcti'onal
Orf~cer, he ~hould h~ve been accorded one (11 of these preferred
pc. si%ions. H4s complaint was settled early on ia %he grievance
mrocedur~ on the basis that he wou~d be placed in the Proper~:¢
Room. The notice of %his ass¢gnment, which was %o commence on
~ay 2, 1988, was signed a V. Parish. It s. pec~¢ically ~ndica~ed
that "the term of this assignment is not ~o exceed 1 year." The
grievor ~estified bhab he was aware of this sta~ed restriction.
in January 1989, an occurrence report, containing a numoer
of cr'itical comments as to t.he grievor's level of performance,
was submitted to managemedt by the Supervisor in the A.and D.
unit. The filing of this report was grieved and it was
ultimately withdrawn by way of a Memorandum of Settlement'dated
April 6, 1989. Thereafter, the grievor continued to work in the
Property Room without receiving any further complaints of a
similar nature. He was subsequently advised by Mr. A.C. Dvorak
in August, 1989 that he was being transferred out of that area.
it was the 9rievor's belief that management was "trying to §et
him out of A. & D.", and that the earlier occurrence report was.
s~bm~%ted w~th bha~ objective in m~nd. The gr'-evcr advised
Dvorak that he wished to be treated like the other senior
officers before him who had spent a considerable number .of years
in the Property Room. Mr. Dvorak ~nformed him that i~ was the
Emp~oyer-'s ~ntent to rotate these posStions on a yearly bas~s
order to give a~ Correctional Officers an ODDortur~lty tO ]earn
the work'. 4n that area. He further mentioned tr:at some ne~
off~cers, them ~n genera~ duties, would be moving into A. and B.
pursuant to th~s practice. Mr. Dvorak advised the gr~evor that
this change in approach to the staff~ng of A. and D. was as a
consequence of a Union request for rotation cf preferred
posit~ons. The grie¥o¢ had not observed this practice being
consistent]y applied in the past. He believed, rather, that he
was being discriminated against. It was his assertion %hat the
reassignment was a~so rac~aq]y motivated as he was not being
treated like the white officers ~n the unit. The grievor advised
that, at this ~uncture, he ~as the sole black o¢¢icer in A. and
The grievor ~estified that he experienced stress, stomach
pains and an inability ~o sleep ¢o~owing the above-mentioned
meetin9 with Hr. Dvorak. He vis~%ed his physician on August 28,
1989. The report of Dr. M. Ingber dated February 19, 1990.
stated that the grievor was then in an "agitated state" and
"felt extremely upset as a result'of the change in job", These
same symptoms were also noted in respect of a fo]Iow-up visit of
3
Se:otember 1.3, ;989. It was made c~ea¢ ~r~ cross-e:.aml~at:or~ [:~an
the back a~d ~eck cor~ditions oocur-¢i~.9 .~¢te¢ 'that date were
caused by an unrelateC fall at work.
The Un,or; also ca;led upon Hr. A. CruZ, Nr. T. Brown, arid
~r. B~ Bradley to give evidence in su0port of the grievance.
These %hree (3) gentlemen are all Correctional Officers at the'
Toronto East Detention Centre. It was the thrust of the Un~on's
position h~at their evidence was inconsistent with the practice
described by Mr. Dvorak.
Mr. Cruz has been employed at the Centre since ~981. When
he started work ~t ~he facSlity, he was assigned %o general
duties. He was subsequently moved ~o A. and D. for a %wp (2)
year beriod between 1982 and t984. Thereafter, he served as an
acting supervisor of 9eneral duty officers for approximately
three (3) months following which he returned to general duties.
'Mr. Cruz returned to A. and D. in 1987 for a per4od in excess of
one (1) year, after which he was reassigned to general duties.
He returned to A. and D. for a third time in October, 1989. It
would appe&r, from all of the evidence presented, that Mr. Cruz
did not enjoy working a permanent nightshirt. He made his
complaints known to the Scheduling Officer some months prior %o
~he grievor's departure from the Property Room. Specifically,
Mr. Cru~ had informed the officer of his wish to return to A.and
D. if an opening should arise. When an opening subseeuentty
4
mater-~a~ized in ~ate August 1989, he was approached Lo pu~ ~,..: .;~
written request for transfer, lle ther; went to the Admitting area
bo de~erm~ne ho~ th~s s!nou]d'be done. The gr~e,,,or was
to. his inqu~r:/. He was surprised by th~s deveTopmer~ g~ven .~r.
E~vorak's ear,;er staSement about wanting ~o ¢~]] the~
w~th ,ne,~ of,=ice~s who readired exposut.e to the unit.
Nr. T. Brown has been emp}oyed a~ ~he Cen%re si'nce 1979.
worked ab 9ene¢a~ du%ies from ~ha% pofin~ ~n %~me unti~ Nay, 1989
when he was assigned %o ~he A. and B. Area. He worked as an
Admitting OfFicer in %hat.un~: un~il September, 1989. He
~hen reassigned ~o the Proper~y Room to rep]ace ~he §r:evor.
This was done pursuan~ to ~r. Dvorak's direction. Hr. Dvorak
~es%~¢~ed ~hat he placed Hr. Brown ~n ~he Proper~y Room on ~he
recommendation o¢ ~he A.and D. supervisor who' ¢e1~ ~ha~ he could
responsibiy handle ~he demands of ~he job. The reassrgnmen%
effected by Hr. Dvorak ~ook place after his meeting ~i~h ~he
9rievor 5n Augus%, 1989.
~r. B.. Bradtey has been emptoyed at the Centre since 1978 at
~hich ~ime he was assigned ~o general du%ies. He con%inued %o
perform ~hose ~asks un~il h~s assignmen~ ~o. A. and D. in 1986.
He worked in ~ha~ uni~ as an AdmiS~ing Officer un~il February,
1988. He was ~hen asked ~o move ~o ~he Property Deoartmen~ where
he remained un~il February, 1989. At tha~ point, he re&urne¢ %0
9eneral duties. Hr. Bradley was subsequen%]y reassigned ~o
Admitting in September, 1989.
The 9rie'vor also stated that Mr. A. Simm3o~ and Mr. H.
HcLeod had spent three (3) %o four (4) >'ears i r~ A. and D. as of
the time of his re!oca*~';on. He conceded %ha% ~heir service
there:n might have been broker~ by oeriods of general duties.
Mr, Dvorak was the sole witness called on behalf'of
Emo!oyer. At the time relevant to this ~roceedin9, he was in t~e
position of Acting Senior Assistant Superintendent-Services. tn
th, a~ cafacity, he was responsible for assignments to A. and
It was his decision to remove the grievor from the Property Room
that led to the filing of the grievance now before us.
Mr. Dvorak acknowledged that both Mr. Finlay and Mr.
Puchalowskx had soent considerable time in the A. and D. unit and
that their long tenure in such area was based on their seniority.
He stated, however, that this oractice ceased ]~ or around 1988
o.n the urging of the Union. It was his evidence that the former
Officers of the Union Local wanted the preferred jobs to be
r~tated amongst all of the Correctional Officers, Indeed, his
compliance with this request led to Mr. Finlay and Mr.
Puchalowsky leaving A. and D. Hr. Dvorak stated that in the
period August - September, 1989 the practice was to rotate
employees i'nto A. and D.. on a yearly basis, that is, their stay
would be limited to periods approximating a year. This practice,
or understanding, had not been reduced to writing.
M,'. Dvorak testified Chat he removed ghe gr;evor from the
Properby Room in order to glve other officers a: Ohe Centre some
ez. 2er~ence in the A. and O. unit. He was aware %hat Correc:~ona'
O~¢~cers Ga]li~a, tarocaue, and Merrick wished to gair~ e;<oosu're
%o the ~r:~. On a review, of the oersonne] files o'f aT]. officers
~n A. arid D., Mr. Dvorak determined that the 9rievor had bee~
the dn~ for- the ]cngest uninterrupted period cf %~me. At that
.Suncture, he had been ~n the Property Room for approximately
fifteen (15) months. He ~herefore elected to remove the
Fir. Dvorak was not concerned with the extent of oast time spent
~n A. and D. Rather, he concentrated on the length of time of
the most recent assignment. Mr. D. Bruce was a]so reassigned
the same time for reasons re~ated to sick time. Mr. Dvorak
emohasized that his decision was premised on the objective
providing reqevant experience to new officers, In this regard,
he noted that both Mr. Ga~]~na and Mr. Larocque were selected
f~] the two (2) vacanc4es in the unit. He denied that the
grievor's leve] of performance while in A. and D. was factored
into his decision. Indeed, Mr. Dvorak testified that there was
" nothing in the grrevor's file indicating he was unsuitable for
and D. work. He also objected to the suggestion that the
decision was racially motivated.
As noted previously, the grievor's assignment to ~he
Property Room stated that "the term of this assignment is not to
exceed 1 year." Mr. Dvorak could not recall if all transfers
7
they were "uS} to an ~ndef-n',%e DerioJ of time. W~tncu% lcok'ng
a h~s records~ he ,~as unable 50 sa/ Jf he ha~ usec ~ne latter
'ins~aae, ~ _ ~n rose. est of ass,gomerts %o A . &n{ ~n'. ~n ~eDl}', Doth
un~ ~ -.:: '~'-tober~,~ ~ arc 5es. tembe~, , 1989 respectively, were fc~. ~n
;r, de¢ir,~%e, peri'-'vc. Hr. Browr, ,recaP, led that, ~,n' his case. ~he
memo was authored D'.¢ ~r, Dvorak,
it was the pc. sit,on of the Uniom Chat the transfer .of the
gFie¢or out Of the Property Room was done on a' discriminatory
basi's and that such resulted in a breach of article 18.l of the
collective agFeement. Counsei conceded that a breach of the
latter ar%~c~e had to be demonst'rated before a remedy could be
fashioned for %he mlsapmlicatiem of a management right. The
Union d,d not d{smute that i% was management's right ~o assign
pursuant %o section tS {1) o.f the Crown Employees Collective
Sar~ainimq Ac~, ~.S.O. 1980, Chapter t08, as amended. It
~ubmitted that, in this instance, the ri.ght was not exercised in
a bona fide manner. In this regard, counsel stressed that the
practice described by Mr. Dvorak was amplied only to the griever.
He meted that the Employer did qot lead evidence of other
employees subject to the "one 7ear rule" and that Mr. Dvorak
himself had not foTlowed same v{s a vis the assignment of Mr.
Brown to the Property Rbom. Additional]y, reference was made to
Correctional Officecs Cruz, Bradley, Simpson and McLeod whO,
8
t!~e~ u,,~'~L while the griever w~th ~,essor et, lerner, ce
'::'a-'~sfe;-red out of same. For these reasc.:~s, the Board was urged
t,:: : ~-,d that the ~m~lo',,er had acted in a
,~ .... ~a~, ~ ct-,, evor w&s lastly s~bm~sced bha~ the nt:.~ca.
lr"=='~n~ =,~d the symptoms o¢ stress exDer:er:~ed by
Co~cse' argued %hat article ~8.1 had ~nereFore been ..,io~ated.
The Uq, on asked %hat we resc i Fad the transfer and pl ace the
,gcievor back rn %he :to,ertl Room, I% did mot pursue other
c~a~s for' re~ ieE refer-Fed to on the face of t~e grievance form.
The Bcard ,was prov'ided with the following awards in suppcr~ of
the Union's posi~on' OPSEU (Union Grievance), 1631/87
,'.Samuels); Smider-Vandekerckhove, 10~t/85. (Gorsky).
in r'esoonse, it was submitted by the Em0toyer that the
suCstance of the 9rievor's compiaint related to job assignment
rather than to health and safety. Zt was therefore argued that
we'were without jurisdiction to provide a remedy as matters
concer,~ing assignment are exclusively within management's domain
pursuant to section 18.1 of the Crown EmploYees Collective
Ba¢gainin~ Act. Counsel further submitted that %he collective
agreement does not require the Employer to reduce its management
practices into writing or to continue them for specified periods
of time. While denying the allegation of discrimination, counsel
asserted that the collective agreement did not compe'i the
9
ar,gued that d,[scrim, i,:at,c.p, alone could no~-~ be ,,~ewed as ~ o:e.ack:
.~' the ~greement un~ess suc'n ..~as a~so cot. necked to the
of a specific right fcL~r~d the~e~n, it was tRe Emplc'/e~'s
=..~cm ss~,:'r~ ,.,-;at ,..~ ..... ~en had f.a~led Lo esta~l]sh a sausa '~.~
bet,~.een ._r,= reass~gnmer~i. ~nm ~he s.ymptoms e>tper:enm~ by'
a~e...,:.~ ard that. f~ ~n~, e',.en~, ~ts actfior~s had n~,--~ beep, s
therefore asked ~c. dism:ss the grievance, we were referrec
~r,e fo~]ov.,ing author:t~es in support, of this position'
K. oun'.are]as, 3996/88 (D~ssanayake); Warden, 1152/87 (D~ssanayake ;
Van Der Akker, 2542/'87 (F~sher); Aqaksa et al., 1130, 1136,
!137/84 (Bren~}.
Article 18.1 of the collective agreement and section 18.~ of
ti~e Crown Employees Collective Bargainina Act read as follows:
ARTICLE 18 - HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS
The Employer shall continue to make reasonable
provisions for the safety and health of its employees
during the hours of their employment, it is
agreed.that both the Employer and the Union shall
co-operate to the fullest extent.possible in the
prevention of accidents and in the reasonable
promotion of safety ~nd health of ali employees.
18 (1) Every collective agreement shall be deemed to
provide that it is the exclusive functlon of the
employer to manage, which function, without
limited .%he generality of the foregoing, includes
the right to determine,
(a) employment, appointment, complement,
organization, assignment, discipline, dismissal,
suspension, work methods and procedures, kinds and
locations of equipment and classification of
positions; and
10
,appraise.: and $~y~pera..'~nuat:o;', +'...n=~ govern:r,u
princ-'..p~es of wk,~.oh are sub~ec~ ~..~ re,.,ie~ by
emp~ro)'er w-~h t~i~e barga~¢~:-.,g ~genr_,
and such matters ~ii~ not be ~he su~ec~ of
cc,~]e,'c%~ve oarga~r~pg nor come w~r~hin
j ....... ,.~cn o¢a board
The e.o.~.¢d has now had ~he opportun~':.' ,~o fg]".,' consider-
e., ~"C~ ~S~ ....
p _ _n~ed by %he p~r%~es. Z% 4s c~ear ~.3 us Pr,Dm SUCr~
¢~a~ ¢_ .o~ationa~ practice desc¢~bed, by ~r. a~,
no~ ¢~rn'~), roo~ed ~n ~he ~ork place as of the da~e o¢ %he
gr'ie,,,ance. A.s s%a~ed above, the practice '~as le¢~ unwr~.t:~en
d~d nob a2pear %o have been ¢u]i~ oommunicated to a~ o¢ the
Corres~iona] Officers at ~he =~c~]i~y. Add~%ional]y, the
practice or
p~,~ic7 was inconsistently applied. No% all officers
received notices of reassignment expressly limited to a one
year period, =ur%her, in applying ~he proc%ice, ~he Employer
cot seem to consider an officer's prior tenure in A. and D. Zt
~'as more c'oncerned w~h t~e length of ~ime that an officer nad
fac% been in the unit as of the da~e of %he decision to reassign.
Notwithstanding these shortcomings, this Board has no% been
persuaded tha~ the policy was designed to 8iscrimina%e against
%his particular grievor. We are satisfied Chat the removal of
Mr, Finlay and Mr. Puchalowsky from %he Property Room signalled
cha~ge in approach %o the s~affing'of the pr'eferred positions.
'We also accepb that thereafter the Employer intended tO rotate
officers in and out of A, and D. with greaCer frequency than had
previously been Che case so as ~o expose new officers to ~he work
11
r'et~ss~gned, as Correctional Off;rets Gallira an~ Larocque were
t>,e:', ~]~-.,en an ODPOrtun~y to wDr;, 'q ~. and ~, ~.~ ~ha~ ~me, ~.he
gr'ie','c,~' had already scen~ some f:fteen (15) months :n the
:rooer'z) ~ooff. and had ~he ~c, qges~ Der']~d of uninterrupted .serv4ce
' ~' Seen
'Fr-om amoqgs~ ~he group ~hen s~a~ri~,g ~he unit. . . _
:cnGe.,.%, we are unable ~o ddjudge ~,na,, the reassignmer.~ was
discr:mina~ory in nc%ute. Ra%her, ~he Board
,,~r %he reBssignmen% read%ed ~o ~egi~ima~e concerns or,
~he [:ar% of management, ~e have a]so been unable ~o ~so]a~e any
h .... : ' . Dvorak towards the grievor
~4¢. Dvorak, as no~ed above, simply se]ecCed Hr. ~e]sh for
teassignmen~ as he Chert had Che ]onges~ sCay in A. and D.
Zndeed, he had remained in bhe unit several mon%hs longer ~han
had been originaqly in~ended. Hr. Dvorak's decision ~as
premised on :he grievor's ~ork herded. Zn %his regard,
see~ ~ha% he was unaware o¢ %he ear]iec occurrence repo¢~ as trhe
.¢n._n~ had been removed from ~he grievor s fi~e.
Dvorak's ~es~imony ~ha~ ~he 9¢ievor was a suibab]e employee in
respec; ~o ~ork ~n A. and'D, ~n summary, ~h~s Board is unable
~o adjudge ~ba~ %he Employer discrimina%ed cumins% ~he 9rievor
%brough ~he application of 1Os ro~a~iona~ policy. Ra~her, ~e
~i~nk ~ ~c~ed proper~y pursuan~ ~o an exc~us.ive mana9e~en%
right. The rac~ ~ha~ ~his 8oard may have reservations concerning
certain aspec%s of ~he practice is irrelevant. Counse~ Cdr bhe
Union did no% pursue ~he claim o¢ racial discrimination
12
o= ..a~e'~ ~ i n fha%
s:;~je'-- o¢ 3. ~scf~mlna~or7 practice, it is unnecessary
the he~th and safety issue raised. Zn ~he absence
e:-:per:enced b>' ~he ge,avarice. Such evidence bi,'
i,~suffqc;en% foundation for a finding tha% article
beer~
In Un,on Gr3eva~ce, the Board had to consider an altegati, o~
that the Employer was manipulating %he schedule so as to ~vo~c
· 'the contractual obligation Co pay O.H.I.P. benefits to an
u,,classi¢ied employee. It sta~ed at page seven (7) of the award:
"Zf management was scheduling in order to defeac --..
%he employee's right %0 the OHZP benefit, this
would be administering the contract in bad faith
and an appropriate remedy could be fashioned by a
Board of Arbitration."
While we agree ~ith this observation, we. think i% inapplicable bo
the ma~er now before us, The Board is unable to conclude, from
the facts presented, ~ha% the Em2~o?er here ~ntended to interfere
with this grievor's contractual r~ghts, AS previously stated, we
~ere' not persuaded that the Employer acted in bad faith fin
reassigning the grievor back %o general duties pursuant to a
legitimate exercise of a management right.
13
in 3n~der-Vandekercki~ove, the 'o"~e,,.'or c]~:~e] -ha~ a
~ransfe~ to the swing shift constituted an ac~ cf d~scip!-~ne or
-"'".~=- co~,, of the Employer.. G~ven, the n.at,~re ~: ..... ~,~ a~legat~on,
t?,e 8~ard was compelled to assess ~he Emoi~>.er's ~sserm~on
';~ ~£~d [l,~rS~,~ttO a ~on~ stand~.~o pra.a~i.c~ tn t;~at :nsnance
~t .ce. nc]uteri the historical evidence ~,,as consistent with
E~',p]c','er"s posit~on. In this case, the Onion d~d not asser~
Mt. '..,ie's~' had been.d~sc~plined, we therefore f~r~d the present
set 0.~ facts to be distinguishable.
in k:oumare]as, the grievance read'
"~ gr~e,~e under section 18 that management b'/ :ts
d~scr~m~natory, harassing and stress creating
practices has failed to ~rov:de a healthy
environment."
The grfevor, ~n that ~nstance, had been assigned to the intake
function a,t~r requesting a per~od of 'vacation t~me on short
nct~ce. ~he a~]e~ed that th~s ass gnment ~as, ~n essence, a
penalty for exercising a r~ght or benefit under the collective
agreement which was bee)th and safety related, Counsel there
submitted that "such reta]~at~o'n for exercising a health and
safety r~ght ~s a v~o]at~on of article 18,t". The Board, on the
facts presented, ~as unable to conclude that the grievor's
reassignment was mot~v'ated by management's desire to penalize the
gr~evor for taken§, the vacation, tn reaching that conclusion the
Board stated'
" On a careful review of the tota)~ty of
evidence the Board cannot f~nd that the union's
pos~t~on ~s supportable. There ~s no ev~dence to
indicate that Ns. Judson ~as ~n any way upset or
angry about the gr~evor's de.c~s~on to ~ake
14
sect, ion 1.9, ('.,) ~a) o+' ~he C,~ow~? E.,mp]o~'ees
Collective Bar_q.~nipq AC5 t~o assign, wor~ to the
employees. The ~niake work ~s c~earqy w~sh~n %he
job c~ass3ficat~on of iHO. Ever, ~f' we assume t. hat
the gr~e~or is correc: i:~ asserting r~hat the
assignment, of one of ~he most e~mer~ence~ Z:MO's
~,-.~aFe ~s.r~ot the way ~o eFf~c~erT~y use
res)';r",$eS, t~at c',oes not~ assist ~P.e grievor s
oase. Ir effec~ ghe Board is be:r:9 ~skec ~o in*'er
a mor~!.,.e ~o penalize ~he 9rievcr from ~P.e fact.
that ~here was A departure from practice of ,~o~
reassigning a .vacationing employee's caseload a~}d
appoin~ an experienced ZHO ~o %he intake
have set out above the Emoio/er's exo~anat:on as
bo why ~hose' decisions were taken. 'Whether or no%
this Board
~. ess %ha~ ~hose were wise dec:sions,
we are sa~isF~ed that %hose dec~s¢ons were no~
motivated by a desire %o penalize %he grievor for
~ak~r~9 vacation. (page 7-8)
gfven bhis find4ng,' ~he Board did no% have ~o dec~de whether
a~eged conduct ~outd have constituted a con,raven%ion o¢ article
18.t. ;~ is readily apparen~ ~ha~ %he reasoning expressed !n bhe
above-cited passage is cons~sben~ w.i%h bhe approach we have
chosen %o adopt in respec~ o¢ ~his dispute.
in Warden, the Board sustained a preliminary objection
raised by the Employer with respect to the arbitrability of the
grievance. While the grievance in tha~ award referred to $~ress,
it was submitted by the Employer ~hat, in substance, the
complaint related to staff complement and job assignment which
'were matters falling within the management rights provision. For
that reason', ~he Employer asserted the grievance was not
arbitrable. The Board, after considering the objection, accepted
the Employer's submission. A reading of the award discloses that
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g.-;e~'ance arc on the gr~evor's fas ].Jr'e ~o ast~erc a r~ea] ~ti-~
s.a'~e~_y comolair:S prior ~o .... she hea~sng. Z~., ~',~-'~,:., ....:r~g the]r
'~':e Board does not agree w:th -he e~'o]oye~
:n al] cases ~he employer has an ~nfe~ered
to exer,c~se ~ts managemen~ r~ghts ~n any manner
sees fut.. Tflese managemen~ ..... t~gh~s e~'~ be
r'eskr,~ed expressly or ~mp]~ed]y by other
provisions of agreement. Spec~f~ca]17, ~e
.~na.. ~he employer may not exercise a managemen~
r~ght in such a manner as ~ou]d pus at r~sk the
employees' hca]Ch and safety, Oecause t~at
be contrary to art~c]e 18,! If t~e thrust of a
grievance ~s a heat~h and saEety issue under
article ]8. 1 , then in our respec~fw~, v~ew ~'~r,a~
crievance is arbitrable despice ~h~ fact that %he
resolution of that grievance may necessitate an
~nquiry feinting to the employer's e:<erc:se of
management rights."
This statement was implicitly accepted by bo%h counsel ],: the
iqsta,~t pr'oceeding as they seemed to agree that a vi.m]
a~t~cle ~8.I .would have to Oe establ.qsmem in order for us
fashion a remedy flowing from the exercise of a management right.
In Van Der Akker, the work location of the 9rievor was
changed without notice as a result of which he became ~.~]. Tile
grievor alleged that the change'in work assignment was a form of
harassment and claimed compensation for the shift ~ha% he missed
due to his illness. The Board sustained a prelimi, nary objection
brought by ti~e Employer and ruled that it lacked the requisite
juri.sdiction to entertain the grievance, In so doing, i% adcpted
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:_o, ,, { ffe) '
"~m'e h,?.ve PoE ~',:~" ,~fe~ ,~J '~" ],fr'r"u ""~,~, F'"
wh:.ch ,~;3uid r'eau:,re :he emc'oxer .tc, ass~g,* to a
r ..... ir £hare cf the ,~orc p'ocess':ng
,-~ E.<~::~ t.s ~l. a:~d ~a nc-r' do ~,'e ~',c a,':. S. _,~s .
cc~l '~ ~ -ee Lc- such, a reas'remer:C
The aCS ~;:ec~sca~')' reserves to :.he emo?.oyer'~
~_.ertc,',n e,,:c'ss,ve r~ghts seS c.b~ ir, sus-aect~on 1
cf ':~.-~{o,'. i'S c.f the Ors'~n Employees .3.s~ lec~ive
aargasn~-~g Ac~... !n ass-~gned bo Ms. ~s~ang ]ess
,~.~,r-o Crocess{qg tPan ~ha% ~s assigned
Cunct:on o~ 'organ{zatsor~, assignment...
me~hods and procedures, k{nds and 1ocatsons
equipment... ~.rasn~ng and development" referred to
~n Serif an !8 .(t). Hox these thanes are done max
often be regarded by some as arb~trar'/,
~nequ~tab~e, bu~ the./ are ~n ~ax and ~n ~cacslce
pact of a managemen~ ~unct~on. (page
The Board found that the content of x6rk ss also an exclusjve
man~-=~,.~,_m~n~ e~ functior~ insofar as it properly ~ormed part o~ the job
descr~cLSon of the pos~t~on, it further concSuded that an
a3~egat~on of harassmen~ could not ~tself form the Oas~s o~ a
. , a~on of the
grsevance unless there 'was esso a specific v~o]
Col, .' .
~ec~ave Agreement upon which a grievance was based There
no reference ~n Van Der Akker to article t8.1 of the co]!ect~ve
agreement. We therefore, assume that the Unfion d~ not make a
cia~m s~m~lak to the one advanced ~n th~s case. The questSon was
therefore dec~ded on an ~nterpretat~on of the management r~ghts
clause w~thout reference to health and safety. !n th~s respect,
that grievance ~s d~st~ngu~shabqe from the one presently being
considered. The Board does agree, however, that the approach
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~e~a%~o~shi~ ~e~een the shift schedule and ce~%a:n
s?mctoms exhibited by the 9r,evors. in th~s case, we are
prepared to accept %hat a causa} relationship ex~stec Ce%ween
~e~ssignmen% aaa the stress experienced by the 9r~evor. The
medica~ evidence presented ~s supportive of such a re]at,c,'sh'3,
ti~e reined? claimed as they flcw, Ja our assessment, from a
ez, erg]se o~ management's r~ghts.
For all of the above reasons, the grievance is dJsm~ssed,
DateC at Windsor, Ontario this 6th day of July , 1990.
M. '~:. Watteau, Vice-Chairperson
/~i S%apl'eton, ~ember
J. McManus, ~lember
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