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HomeMy WebLinkAbout1989-1437.Jostman & Cargill-Sim.90-07-06 ONTARIO EMPLOYES DE LA COURONNE CROWN EMP£OYEE$ OE GRIEVANCE C,OMMISSION DE SE'I'FLEMENT REGLEMENT BOARD DES GRIEFS 750 DUNDAS STREET WEST, SUITE 2700, TORONTO, ONTAR,ro, MSG 180, RUE OuNOA$ OUEST~ BUREAU 2tO0, TOF~ONTO (ONTARIO]. M5G 1437/89, 1440/89 IN THE HATTER OF AN A/~ITP~%TION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOAKD BETWEEN: OPSEU {Jostman, Cargill-Sim) Grievor - and - The Crown in Right of Ontario (Ministry of Citizenship~ Employer - and - BEFORE: M.V. Watters Vice-Chairperson J. McManus Member D. Montrose Member FOR THE B. Hanson GRIEVOK: Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors FOR THE C. Peterson EMPLOYER: Counsel Winkler, Filion and Wakely Barristers & Solicitors HEARING: March 16, 1990 S. JosCman and Ms. F. Car9111 S;m. Tiae:r grievar~'ces dated Seo~ember 13, 1989, wt~ch were ~dent~ca]l/ worded, read as Cc]lows; Grievances 89E720, 89E722 STATEMENT OF GRIEVANCE I grieve %hat my emoloyer nas ra~]ec to make DrOviS~OR ¢O¢ my health and sa¢et¥ and that of my feiiow emu]oyees tn contravention of Artic]e 18.1 of the Agreement by ¢aittng to provide us with reasonaU3e working space, requiring us to work at home or in public ptaces (sucm as L1Orar~es) %o %he detr-lment o¢ our health, family l~Fe, and work quality. Further, at our of¢ice, we are Forced to work ~n a dan.ge¢ously crowded and host~e environment under continuing' harassment by Ministry o¢ Labour employees and without apor.opr~te off,ce services or facilities, preventing us from providing good service to our client groups, and producing health-threatening s~ress and anxiety. SETTLEMENT BESIRED We asr only %hat we be relocated immemiately ~n our own Human Rights Offices (separate from the Ministry of Labour) with appropriate 'staff and office services sufficient to prov~Oe prompt and efficient service to all cl-ient groups in our geographical location. Grievances 89E72~, 89E723 STATEMENT OF GRIEVANCE " Z grieve that my emotoyer mas fa~ied to follow.tOe reculremenHs of Article ¢ of %he CollecH~ve agreement (Post~n~ and ~f ii,rig of Vacancies and New Pos~t~on$ by neglecting ~o s~aff e=]st~9 vacancies and new ~osqt]oHs wltn~n Che Ontario Human ~ghZs Comm~ss;on and par~cuiarly in ~he HamllbOn/N~agara Region, resulting in an unreasonable and unworkable workioau be~mg imposed on present Officers and support SETTLEMENT DESIRED [ ask that the Commission take immediate action Co hire permanent employees through ~he regular competition process to replace Officers who have left the Commission ~n the past year in ~he Hamilton/Niagara Region, and also. to hire (and train] new employees as provided for in %he Commission's new budget, bring the Region up to projected strength and lower each Officer's caseload to a manageable level." A~ all,material times, the grievorslwere emoloyed as Human Rights Officers in the St. Catherines office of the Ontario Human Rights Comm.~ssion. At ~he outse~ of the hearing, counsel for the Employer raised preliminary objections to the arbitrabili~y of both sets of grievances. It was the Employer's position that the ~nitial grievances did not on their face speak to legiti.mate health and 2 or'ore,sen .on ar~ l~dl'..'~QUal Has~s, assuming ~here was cJmplaTr;%s, as these gr~evors were not "affected' Dy against POSting ~n respect of existing vacancies. In regarQ, counsel empnas!zed ~at %he gr~evor~ woe;ia nc~ ha.,e a. m&~er~a! in~eres~ in appi¥~ng for jobs which were ~aen%~cai their gresent positions. He suggested that any concerning such vacancies should have been proceeded w:%h by way of a U~qon grievance. We were urged to rind ~hat both sets grievances were ~n "pith and subssance" directed towards matters ,encompassed gy section 18(1) o¢ ~he Crown Employees Barqa~n]nq Ac~, R.S,O. 1980, Chapter 108, as amended, and were for that reason rnarbitraOle. The Board was referred to fc]lowl.qg au%morit]es in support of t~is posit~on. Katchau, 35&/'83 (Samuels); Re Tobacco Workers Internationa~ Un,on, 323~ and Imoerial Tobacco Co. (Ontario) Ltd, 2~ L.A.C. 417 {Brown, June 197.2); Re Stanley Works Ltd. And International Association of Machinists. Local ~226, 24 L.A.C. (2d) 395 (Hinnegan, December t979); Moulton, 023~/88 (Watters); (Elhadad Union), 1508/84 (Delisle); Hawley, 2592/87 (Dissamayake); OPSEU (Union Grievance), 0311/88 (War,ers); Van Ste¢~, 333/81 (Draper); Tsianq, 352/81 (dolliffe); OPSEU (Union), 455/80 (Palmer). 9~evqrs ~ntendea to rd:se legitimate heaven and -~,~ their gr]e,/.ances and %hdc evidence ShOulC ge hearC cc, e..'~,ted ~n %t,e con,e×% o~ article a of the col%ect~¥e agreement. Cod¢se] fo? %ne Union argued that these grievers were enter}ed gr~e-,.e ~ncer =urn article as the alleged failure affected their 1r~terest. He noted that the Dositlons were no% restricted to those :n the St. Ca%~erlnes Office as 5he grievance referred Darticdlar]y 5o the "HamJ]%on-Niagra Region" He also argued fha% the "unreasonable and. unworkable workload" al)uded therein demonstrated that the grievors mad a material interest the filling of any vacancies that might be found to ex]st. The Board was referred to the fol]ow~ng awards in support argument that we possessed the authority to enterta:n · And grievances on the merits Re P~k~nqtom Brothers Ca~ada Uni%ed Glass and Ceramic Workers, 13 L.A.C. (.2d) 287 (BurKett, November 1976); Re Omtario Hydro And Canadian Un]on of Operatinq Enq]~eers, Local 110N 12 L.A.C. (2d3 143 (S~ime, June 1978); Re City of Edmo6ton And Internat]oFa~ Brotherhood of Electrical Workers, Local 1007, 30 L.A.C. t3d) 353 (Jones, july 1987); Re PetFo-Ca~ada Inc. and Enerqy Amc Cbemica? Workers' Union, Loca7 593, t L.A.C, (4th) 404 (Mitcmm]ck. October 1988); McNamara, 272/81 (Roberts). The ~elevant or©v'is~ons from the co! !active ag~eemenC 4RT[CLE 4-'POSTZNG AND Fi~LING OF ,VACANCIES OR NEW ~OSIT!C;~S When a vacancy occurs :n One C]ass:fied Service for a Dar.gaining Uml~ DoSi~lOn or a ~ew classified position is crea~em ~n cmo bargaqning unit, ~% shall 0e advertised for a~ ieasZ sen work mg days prior bo %he escaof~shed closing da~e when advertised w~tn~n a m~pls~ry, or snal be acvertised for aC toast ¢~f~een working days or,or to ~he estaOllsmed Cate wqeR adverCised serv~ce-w~de. Alt apsi~cas~ons w~ll Be acknowledged, where oract~caOie, no&ice cf vacancies shall be oos~ed on builesin boards. SRTZCLE 16- HEALTH AND SAFETY AND VZDEO DZS~LAY TERMZNALS The Embioyer small continue ~o make reasonable prov s~ons for the safety and mealCh of employees during the hours of emoloymen~. ~t ss agreed tma~ both ~he £mp}oyer and the Un?on shall co-orera~e ~o %he fullest exten~ possible ~n %he prevention of accidents and ~n the reasonable of safe~y and h~alth of all employees. ARTZCLE 27- GR2EVANCE PROCEDURE. 27.2.1 An emD!oyee who believes he has a complain% Ur a d~¢ference Shall f~rs% discuss ~he complain% or difference Wl~h h~s supervisor within ~wen~y (20) days of f.i,rst becoming aware of the complaint Or differeHCe'. -' 27.2,2 Zf any complaint or difference ~s no~ satisfac%oratx..seb%led by the surervisor w~hin seven (7) days of ~he discussion, may be processed within an additional (10) days in the .following manner. 27.12.1 Where any difference between ~he Employer and tme Union arises from ~he ~n~erpre~at~on, application, administration or alleged contravention of the Agreement, %he Union shall be entitled to file a grievance at %he second stage of the grievance procedure provided it does so within ~hirty (30) days following ~he occurrence or origi-nation of the circumstances giving rise ~o the grievance. Sec%ion 18 ( ! ) of The Crowq E.mDloyees Co! ]eC~lve states: Every co!]ect~ve agreement provide that it Is 5be exclusive funcZ~on cf the emo!oyer to manage, which without ]]m~t]ng the §eneca]ity of the foregoing, includes %ne (a) employment, appointment, comp]ement, organization, assignment, dlscJpt:ne, dismissal, suspension, work me%hods and procedures, k~nds and ]oca%~ons of and c%as$~f~oatqo~ of posfi%!o~s; and (D) me¢";t system, tra~n;ng asd deve;o3ment, aspra~sa} asd superannuation, the gcvern~ng ar~nc~oles of wh]cn are suO3ec% to %he employer with the bargaining agent. an~ such ma%%ers Wl]] not be the suD3ect of cc]lecture bargaining nor come w~thin the 3ur]sa]cc~on of a board. The Board has now had the ooportunity to fully consider t~e re~ect~ve suPmlss]ons. In our 3udgmem%, we have the autmcr~ty to entertain the merits of the "health and safety" grievances. These grievances, on their' fa~e, assert a contravenS~on of article 18.1 of t~e collective agreement. Further they refer to certain working condi%1ons which could potentially result i'm adverse heaICh and safety consequences. We do not think It essential that grievances of this nature isolate particular threats o¢ physical encounters which have occurred, as ~rt~cle 18.1 appears to contemp}ate situations wherein grlevamces cam De pursued to prevent a risk from arisimg. In this respect, we have Deem persuaded that the thrust of the grievances are health and safety related. The fact that the resolution of those issues, may ccmsla]n%' see Warden !152/87 ~C:ssa?:a)'a;e; ~r-.d OPSEU fUn~on G~;e,,,ance) 0211,,'58 {',,13tiers). We are ~ci ~oor..o~,l~ atop%ed Dy' t.i~e 8oa,-d ~ n tine I aZcer o awards. The 2resent Cna]rserson 5here s%amed: %he argumen5s raised Dy %he employer 5o %he effec~ that questions of staffing, comp;emen% .~nd appo~R%ment fa]] w~th~n the exclusive domain of management rights. We have determined abo~e rna% these matters do depr~ve us' of jurisdiction to learn more abodt %he alleged bsa]th and safety concerns, Further, we hold the op]n~or~ t~at they bear d~rect]¥ on the question as to what would be an appropriate, and legal, remedy shou!d we ultimately find-merit to tme comp!aint. The 8bard w.]]] need to : further argument on our remedial suOsequent to ~ne presentation of the evidence." (pages 7-8) In summary, we have been persuaded that the hea]t~ a~d safety 9r*evances ace arbitrable. Ultimately, the Board dete'rm~ne whether they have merit, and if so, whether ~e cap provide' an appropriate remedy. The Employer will them be accorded a further opportunity %o argue as to %he ex~stence of any constraints on our femedia] jurisdiction. Z~ would appear, from the commen~s of counsel, and from some of the documen%s filed, that the office in quest]on was relocated subsequent to the date of the grievance. The Employer alleged this corrected any perceived oro'blems. The Union, in contrast, aot'n counsel agcee~ Chat ] ~ ~he ma%cer were %o De hea.r~, ~ho:~lc De reso]veO on 5he Oas]~ of the faCtS 5qen Cc,.:nse I 'fOr ~.he Un ~on un~ercook' ~ % ' ~ ~,~ provide fur%net Dar the ~moicyer ]t~ respec~ of the ~e~a]-Is of the ~rle~'OF'S comp % a ~ nfs. t:qe arLicle ~ grievances. Both counsel were ~n agreement Eha~ we could oroperly Ce%erm~ne ~f a vacancy existed uneer that ir appropriate circums%ances. AS noted, however, it was the Employer's submission 5nat this could not be achieved ny way cf an indi'v~dua] g~ievance given %he s~tua%ion in this case. we ~c ~o% agree that the Employer had waived the right to ma~e such ap argument, The Board notes both grievors were adv%sed on Deoembe¢ !, ~989 that the Employer would Oe ta~ng the Posit}on 9¢~evances were inaroitraO]e. Such statement suffic;en%'[>.' of %he approach tha% the Employer In%ended to adopt, particulars could have been requested if {here was uncertainty, on %he part of %he Union, as %o wha% position the Employer take at the hearing. We have no doubt, therefore, as %o the Employer's ability.to acvance a 3urisd]c%~ona~ argument orem~sed on %he form of the grievance. After revlewing the language found in %he grievances relating to article 4, we have been persuaded that the ~ssues 8 ~r'evors ',~e~e deor;veo c~ an oo(}cF~.jq~ %,/ io a~C. '.. for' icdee.s, .~ ~e~'~n9 o+ ~ne '~e~e~eot C'es~eo c~ea'','.' tr':e .giseioa.2 o-f e,lsi~ng :C'fe~cers ~2 a ma,qageaD%e "nwon*,able ~'(:.~'. load De:~g ]moosed on PreSen% Of'?~ceFs a~d suopon~ s~.~ff. ~ln~ }e %~?ese concerns are c}ear)y of ~mpo~ ~c. ~,he emo}oyees ]n ~ues:~on, ~he Boe¢o ~s u~auie :o concluce %ha~ ~he 9r~e'.,'o,-s nave a persona1 S:ake ~n :he SdDjeC% ma%%er cf ~he grievance %ha% )s re,at, ed %0 %he purpose of ar%:cle 4 ef co~'}ec~ve agreement. Our 'oec~s]on would be o~erwise ~ere we convinced ~bat %~ese grlevors nad Peen den;e~ the r~gn~ ~o .~P:7' eof possE. Ions w~Chln the barga?n~n~ un]~, Add~.C~ona]qy, ~% .~Ou';d a¢oea~ :d"' ~he ~oard ~ha~ %~e spec}f]c work}oad ~ssues w~th~n %he grievances fall w~%n~r, %ne ree]m of excius}ve management r]ghts conta~nec w:%h~rl section 18 1) of %he Crown Employees Co~ective 8arqa~r:~n~ :s~. More spec~fica]}/, we conclude that,-in subsSance, E~e 9¢~evor's comp]a]n%s re~ace mat%ers o¢ employmen%, apooln%ment, complement, or'gan~zat~on and assignment, all of ~h~cb fail our. s~de of %he purview o¢ 8oard. For %his ¢eason, we ]ack tbe requfsiSe 3u~sd~c~on near %hese grievances on their me¢i%s. 9 ~,-:evar~ces of Ms. Jos~mar~ ant ds, Ca'Fg: i ~ S?'m a~e Cared a% w~r~dso¢, .~,,.tarlo . is 6th da)' of July M.v. wa%%ers, vlce-Chal,cpersun J. MoManus, Memoe~' .D. Montrose, Member 10