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HomeMy WebLinkAbout1989-1763.Goedhuis.92-02-14 ONTARIO EMPL OY~$ DE LA COURONNE ~_~. CROWN EMPLOYEES OE L 'ONTARIO ~ GRIEVANCE C,OMMISSION DE SETTLEMENT *REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. SUtTE 2?O0, TORONTO, ONTARtO. M5G ~IZ$ TELEPHONE/TELEPHONE: (4~6) ~26-~388 180, RUE DUNE)AS OUEST, BUREAU 2~00, TORONTO (ONTARtOL MSG 1Z8 FACSIMtLE/T~J~COPlE : (4~6) 326-t396 1763/89 IN THE MATTER OF AN ARBITRATION Under TH~ CROWN ~PLOYEES COLLECTIVE BARGAINING ACT Before THE .GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Goedhuis) Grlevor - and - The Crown in Right of Ontario (Ministry of Correctional. Services) Employer BEFORE: B. Eirkwood Vice-Chairperson I. Thomson Member R. Scott Member FOR THE K. Whitaker GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE J. Ravenscroft EMPLOYER Grievance Officer Ministry of Correctional Services HEARING April 2, 1991 July 29, 1991 Page 2 The grievor was an Industrial Officer 1 at the Millbrook Correctional Centre. He held the position title of Production Control Officer. He worked in the Industrial Shop supervising inmates in the fabrication of metal products for other correctional institutions and for Provincial Parks. Mr. Kolorz, the Maintenance Manager, was responsible for providing the' grievor his annual appraisal on his work performance. Mr. Kolorz prepared a written report, the Performance Planning and Review (PPR) for the period from October 1988 to September 30, 1989,.after consulting Mr. Heard, the senior Industrial Officer. Mr. Heard, although in the bargaining unit, supervised the Industrial Shop and was the grievor's immediate supervisor. Mr. Heard saw the grievor's work daily and advised the grievor of any problems. Mr. Heard maintained notes in a fact file on the grievor's performance, as he did with other employees. These notes formed the basis of his discussions with Mr. Kolorz. In December 1989, Mr. Kolorz met the grievor to give him his annual appraisal on his work performance. Mr. Kolorz presented the grievor with the PPR. Only two areas needed improvement. The grievor needed to have closer inspection of each facet of the inmates' work during construction of products to prevent excessive reworking of the resulting products, and the grievor needed to provide more instruction and supervision in the operation of welding equipment and in the proper set up of the operations. The grievor testified that Mr. Kolorz told him in the meeting that he was not watching the inmates closely enough and that he had to make a greater effort in that area. The grievor disputed Mr. Kolorz's assessment that his s~pervision needed improvement. He argued that all targets had been met. The grievor explained to Mr. Kolorz that he was often called out to union meetings. The grievor had the impression from his discussions with Mr. Kolorz that Mr. Kolorz resented his involvement with the Union and the PPR was a reflection of that attitude, The grievor alleged that the employer was using the PPR to cause him to reduce his participation in the Union. The grievor subsequently decided to curtail his union activities. Union's counsel alleged that the grievor was appraised contrary to governing principles and standards pursuant to section 18(2) (b) of the Crown ~mp]oyees' Collective R~r~ninq ~ct (CECBA). He argued that the Ministry had not been objective in its review as required by the Ministry's governing standards, He also alleged that the complaints were not properly brought to the grievor's attention during the review period. Finally he argued that. the PPR was an attempt by Mr, Kolorz to compel the grievor to decrease his involvement in union meetings. He argued that the authority to. appraise an employee pursuant to section 18(1) (b) of CECBA cannot be exercised in a manner inconsistent with the Act. To prevent the grievor from exercising his rights in the collective bargaining system is contrary to section 29 of CECBA, and constitutes unfair labour practice. The Union sought the removal of the offending portions of the PPR. Employer's counsel argued that the grievor had been fairly appraised in accordance with the governing standards. The onus was on the Union to show that the PPR was manifestly wrong or that the grievor was appraised contrary to governing standards. Employer's counsel'argued that the employer was Page 4 not concerned with the grievor's absences. The grievor had always been allowed time off for union business. The Employer was concerned with his work while he was in the Industrial shop. He had been told on several occasions that more supervision was necessary to prevent unnecessary reworking of the product. The Employer was concerned with the quality of the products produced while under the grievor's supervision. The Employer has the power to appraise an employee's work performance pursuant to.section 18(1)(b) of CECBA, subject to the employee's right to grieve according to section 18 (2) (b) of CECBA. Sections 18(1) (b) and 18 (2) (b) 'of CECBA state: 18(1)Every.collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine,... (b) merit system, ~training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. (2) In addition to any other rights of grievance under a collective agreement, an employee claiming,... (b) that he has been appraised contrary to governing principles and standards; or... may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19. Page 5 The appraisal also must be consistent with the rights provided to the employee by CECBA. Section 29(1) and (2) of CECBA provide the employee with freedom to participate in union activities. Sections 29(1) and (2) state: 29(1) No person who is acting on behalf ~f the , employer s.hall participate in or interfere with the selection, formation,administration' ' ' ' of an employee organization OrI' the representation of employees by such organization, but nothing in this section shall be deemed to deprive the ~mploye~ or a person acting on behalf of the employer of his freedom to express his views so long as ~he does not use coercion, intimidation, threats, promises or undue influence. (2) The employer or any person acting on~ehalf of the employer shall not, '(a) refuse t~ employee or continue to employ or discriminate against any person with regard to employment or to any term or condition of employment because the per~on is exercising any right under this Act or is not a member of an employee organization. Therefore the Employer cannot as the Union suggested discriminate against~ the grievor by attributing any negative connotation to his participation in union bus~ness. The Union has the onus to prove that the governing principles and standards have.been contravened and that section 29 of CECBA has been violated. In determining whether the Union has discharged its burden of proof, as stated in R.J. Sco~t and M~n~s~ry of Tr~nsDo~tat~on ~nd Communications G.S.B. 23/76 (Swa~), we must not substitute our decision for'the Employer's, who has the benefit of first hand observation of the empIoyee, but we must interfere if the conclusions reached by managemen[ were unreasonable, manifestly wrong or were made dishonestly! with discrimination or in bad faith. ? Page 6. We do not find that the employer discriminated against the grievor in any manner for his active involvement in union matters. We do not find that section 29 of CECBA was violated and that the grievor's absence's from work to attend to union business was held against him. The grievor had been on the union executive since 1972, and held the position of President for two terms, and the position of treasurer for one term. He has also been Chief Steward' and was on the Employee Relations Committee. Both parties recognized the grievor's value and expertise. He was called upon by both bargaining unit members and management staff to assist in the resolution of grievances and complaints. On occasion, Mr. Kolorz, and Mr. Preston, the Superintendent at the time, called upon him for assistance. It would be inconsistent that management would call upon the grievor for his help and then criticize him for his absence. It would require compelling evidence, which we do not have, to find that the employer had acted in such a manner. There was evidence to the contrary. The grievor's freedom to participate in union activities was protected by management. When Mr. Heard complained that the grievor's absence was creating scheduling problems for him, he was told by management that the grievor was to be allowed to participate and that Mr. Heard had to accommodate his absences. The Union suggested that in the appraisal meeting, Mr. Kolorz attributed the grievor's problems to his frequent absences for union business. The grievor was not direct in his accusation. In his direct examination, the grievor said that he tried to explain that he was called away on union business, that employees had the right to ask for him. He Page 7 had a 'feeling' that Mr. Kolorz resented his involvement. On cross-examination, he said that it was more than a feeling. Mr. Kolorz could not recall such a comment, but did not think that he would have made the comment as union matters were important. In the context of the grievor's evidence, we find that the matter of attending union business arose as the grievor's defence to the 'criticism. There was no evidence that leads us to find that Mr. Kolorz attributed the lack of supervision to the grievor's absences. There were occasions which Mr. Kolorz relied upon, which will be reviewed later in this decision that supported his position that some supervision was lacking while the grievor was in the Industrial Shop. There were two annotations on the grievor's fact file that the grievor had been absent to attend union business. The.Union alleged that the employer emphasized the grievor's absence for "Union Business" on its fact file to use these absences against the grievor at a later time. We do not find that the demarcation of "Union business" was made for any improper purpose. The notations were not made in a vacuum. On the two days where the grievor's absenc~ was noted, there had been a complaint about the grievor's work. The first time absence for union business was noted, it related to Mr. Heard advising the grievor that he had to let him know when he was leaving. The grievor did so from that Jpoint on and there was no other entry in that regard. The second time occurred when there was a complaint about the grievor's work. In light of the grievor's evidence that he was absent from two to four times a week and for as much as four hours a week, we do not find that two notations during a year, which had a bearing on the grievor's work performance at those times, support a finding Page 8 ~ that the employer was acting in bad faith or saw the grievor's absences negatively. The employer showed that there were incidents, which Mr. Heard had recorded, when the grievor was on the work floor when the resulting product made under his supervision was not satisfactory. These incidents formed the basis of the Employer's criticism in the grievor's PPR. The areas that the employer focussed on in the PPR related to two incidents, where the workmanship was faulty. The Employer relied on the grievor's performance while he was present in the Industrial shop and not while he was absent or attending to union business. The Employer did not expect the grievor to be present at all times, but at stages during the production. In January 1989, the grievor's lack of supervision resulted in poor workmanship by the inmates. The grievor was' responsible for the construction of certain doors. The construction of doors takes several days and passes through several stages. In this case the doors had to be reworked at four stages. On the first occasion the doors were made too large. The second time, the finish on the front frames was poor. The corners were edged off and too short to finish the corners and had to be redone. Then the rear tube buck f=ames were twisted and again had to be reworked. Finally the primer was not properly applied. The doors were painted before the welds were completed. There was poor finish on the welded corners, The blow holes at the welded corners were not filled in and ground. Nor were the seams caulked and finished before the paint was applied. Page 9 Although lack of supervision was not specifically referred to in the fact file on this occasion, the nature of the defects supports the Employer's conclusion that the grievor was not supervising the inmates closely and was not supervising each stage attentively. In September 1989 a similar situation arose. Four doors that were to be sent to the Peterborough jail were· improperly made and had to be reworked more than once. The doors had to'be cut, welded and primed. The grievor said he was away on union business when the doors were cut. Roger Heard said that the grievor was away at the beginning of the operation and he set up the cutting process for cutting one angle. He told the grievor that he was to prepare the other angleS. In this case the doors were first cut to the wrong size. All the corners were then cut at the same angle instead of being cut so that the corners could meet properly. The ·doors had been improperly clamped, so that when the frames were welded, they bent. The grievor was counselled on this occasion. The construction of the doors again took several days. Even accepting that the initial error may have occurred during the grievor's absence, there were still sufficient opportunities for the grievor to supervise and monitor the inmates to produce doors that did not have to be reworked several times. We aqcept the evidence of Roger Heard and Mr. Kolorz that the unsatisfactory product was a result of the grievor's lack of supervision of the inmates. We do not accept the Union's contention that the poor skills of the inmates result in reworking products. If the grievor had found that an inmate was not capable of Page 10 performing a task or would not perform a task, the grievor , had the authority to reassign the inmate. Therefore we cannot accept the general contention that the inmates' lack of skills or co-operation is a basis for the poor workmanship. On the contrary, if an inmate lacked skill, closer scrutiny of the inmates' work would be required. There had been a suggestion by Mr. KolorZ that the grievor had spent time inappropriately at the vending machines. We do not accept that there is any basis for this suggestion. The grievor had not been spoken to nor disciplined for any undue time spent there. Although we do not accept this contention as a basis for supporting the PPR, we do not find that its inclusion, is significant to vitiate the comments made on the PPR. Therefore unlike the OPSRU CHaw]ey) add The R~h~ of the Crown {M~n~stry of N~tur~l Re~Qurce~) G.$.B.0051, 0389/88 (N. Dissanayake) decision where the Board found that there was no factual'basis to support the assertions of management, we find that in this case, the facts support management's conclusions. The Un'ion did not establish that the assessment was wrong or even unreasonable. The purpose of the PPR is to provide the employee with feedback on the employee's performance during a period of time. The principles and governing standards against which the process must be considered are set out in the Personnel Policy and Procedure Manual. Under the governing standards and procedures, it is the responsibility of the supervisor to: - ensure that employees know how they will meet their major job responsibilities through on- going discussions with employees during the Page 11 review phase, and through formalized appraisal at the end of the review period. The grievor's job specification described his responsibilities as "Instructing inmates assigned in welding and machine operation. Assigning projects to assigned inmate helpers according to aptitude, ability and manual dexterity; exercising strict economy of operations, checking waste, tracing and correcting faults, referring difficult or obscure problems to supervisor...". We accept the evidence from Roger Heard that he told the grievor on more than on occasion that the inmates needed better direction in order to make the products of the required standard. The fact file represented thOse occasions when the whole job had to be reworked and not a singular item. When the problem became apparent again in September, the problem was again discussed. We find that the employer did not contravene the governing standards and principles by failing to make and keep the' grievor aware of his problems. The grievor knew from the outset that his primary responsibility was to supervise the inmates' work. The grievor was told in January 1989 that his work did not conform to the employer's standards, and again in September. We do not find that the obligation to' have ongoing discussions is one to review problems that do not continue to exist. However, if the problem continues the employee must be ~made aware of the problem. Mr. Heard satisfied this obligation. Furthermore we find that the Employer was objective in its analysis of the grievor's work. We are satisfied that the PPR was addressing the performance of the grievor while Page 12 he was at the work site and that it is not criticizing him nor prejudicing him for his union work. We find that the Employer did not appraise the grievor contrary to the governing standards and procedures. Therefore this grievance is dismissed. Dated at Toronto, this I4 day of February, 1992. B. A. Kirkwood, Vice-Chairperson ~mber J.Scott, Employer Nominee