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HomeMy WebLinkAbout1989-1893.Ford.91-01-04 ONTARIO EMPLOY~'$ DE LA COURONNE .~' ~ CROWN EMPLOYEES, . DE L'ONTARIO GRIEVANCE C,C)MMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG ~ZS-,SUtTE,2~,30' TELEPHONE/T~'L~-PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G ;Z$- BUREAU 2100 (416) 598-0688 1893/89 IN THE ~ATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Ford) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer B. Keller Vice-Chairperson E. Seymour Member Do Daugharty Member FOR THE J. Hayes GRIEVOR Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors FOR TEE M. Failes EMPLOYER Counsel Winkler, Filion & Wakely Barristers&.Solicitors HEARING: June 19, 29, 1990 This decision deals with three inter-related grievances. One concerns a written reprimand, the second a one-day suspension, the third claims a failure to make reasonable provision for the health and safety of employees. The grievor has been an employee of the Ministry since 1973. From 1982 he has been a bridge repairer. The position provides that during the winter months he operates a 5-6 ton truck, mount- ed with plow and wing for the removal of snow from the highway system° He has done so out of patrol 7 of the Huntsville Dis- trict for the past two years, has been President of the Union local, is President of the area council, is on the local work- place committee and participates in Provincial bargaining. Until 1982 all plows with wings were manned by two persons. In 1982, the Ministry's Strategies Policy Committee directed the limited use of one-person plow with wings. Until 1988 that operation was on a voluntary basis. A new policy was promulgated in 1988 providing that "one person will be the basis for staffing MTO plows with experienced operator". The policy provided that a wing person would be provided during high winging operations and allowed some discretionary exemptions. The griever first became aware of the policy in September .1988 when a draft was given to him by another union member in Torotnto. The griever testified that after reading the policy he decide'd it was unsafe and that he would refuse to perform the work. In December 1988 the griever refused to operate a plow with wing I when asked, claiming the work was dangerous. A safety ~nspector from the Ministry of Labour investigated and filed a report. The inspector found that: "The job of driving . and operating the plow and wing at the ~a~e time on the section of highway 11 as assigned, was likely to endanger Mr. Ford or another person". No order was issued. The griever was next asked to drive the plow with wing on January 12, 1989. He refused again and an inspector was called, investi- gated and filed a report. This time the inspector found tha~ the duties assigned were not likely to endanger the griever bdt he commented that the road conditions at the time of his inspection had varied from earlier in the day. He also made a recommenda- tion regarding the relocation of the front lever control unit. The recommendation was followed for the vehicle in question and later all other such vehicles. The inspector returned a week later to meet with interested parties, including the grievor, to hear his concerns. As a result, specialists from the Ergonomics Unit of the Ministry of Labour visited patrol 7 to conduct an ergonomics assessment. Following his second refusal, the grievor was assigned to work in the sign shop. On April 3 a further meeting was held with the Ministry of Labour Inspector. The grievor was not present although union repre- sentatives on the Health and Safety Committee were. The purpose was to deliver the ergonomics report and issue an order based on the report. The report stated, inter alia, that: "It is therefore concluded that the assign- ment of one operator at the time of the refusal was likely to endanger the worker". The order provided that: ". . . the Joint Health and Safety Committee shall devise, implement and utilize a set of clear cut criteria and provide training when assigning single operation to the wing plowing operation . . .". Within one month of the order, a committee was formed. -There was no union involvement at the area level but there may have been · some at the Ministry committee level. A consultant was engaged to meet with employees selected by the employer to seek their input. The grievor was not consulted as he had not driven a plow with wing on his own the previous winter. A revised policy was drafted and reviewed with the Ministry of Labour. They determined that the MTO policy was in conformity in the Order issued in April. The new policy was issued early in October. it contained some significant changes from the previous policy, but the basic purpose was the same - one person opera- tion except in unique circumstances° The concerns expressed earlier by the grievor, including the need for operator qualify- ing procedures were addressed. Discretionary exemptions were provided for in the new policy as they had been in the previous one. However, their emphasis had been changed from the geome- trics of the road to the operation of the snow plow. The policy provided that the routes would be reviewed with the operators on patrol to seek their input regarding discretionary exemption. Also included was a provision where a shift supervisor could provide a wing person for specific instances or conditions. Starting in October 1988 a number of meetings were conducted between local management and the operators of Patrol 7. The first was in early October when the operators were consulted about discretionary exemption. The grievor, who was going to be assigned a patrol, was not consulted because he was then on a bridge crew. In November and December 1988 operators were consulted about the policy. The grievor attended a meeting on December 12. He raised a number of concerns and stated that he would not drive ~ one person plow under any condition. At the beginning of the 1989/1990 plowing season, the grievor was still working on the sign crew although it was known that he would be doing winter plowing. He was the only operator not invited to the October meeting to discuss discretionary exemp- tions. According to the employer, the grievor was not consulted because of a lack of time. On November 21, 1989 the grievor was instructed to report to undergo testing on a plow with wing on November 27. He wrote his supervisor, Mr. Pat Reid, the next day reiterating h%.s position that one person plowing is unsafe and asking that his test be canceled. Mr Reid replied two days later directing him again to report on November 27. The letter indicated that discipline could result if he failed to comply. On November 27 the grievor proceeded to take the oral part of the test but refused to drive the plow even .with the instructor in the seat next to him. ~e testified that the instructor had told him to pretend he was not there. The grievor invoked A. 24 of the Health and Safety Act as grounds for his refusal to take the test. An inspecto= was called who investigated and issued a report. The inspector concluded that as the grievor was accompa- nied by the instructor during the test it was not likely that the operation of the snow plow would be a danger. Additional ments were made about the placement Of the radio and height indicators on the wing. The inspector indicated no problem with the radio and the employer agreed it would have height indicators installed. The grievor was next scheduled to take his test on December 5. He showed UP for it but refused to take it. A letter of repri- mand was given to him. He was again scheduled for the test later in the month. He again refused. This refusal resulted in the .one-day suspension. He was assigned to drive alone the rest of the winter and he did, saying he did so because he was afraid of being fired° In analyzing the facts in the instant case, there are two con- stants. The first is the grievor's continued opposition to one- person operation. The second is that virtually every time the grievor is able to raise the matter in some official way - usualt ly before a safety inspector - some change in policy and/or procedure results. This was so even in the safety inspector's report following the November 27, 1989 refusal. The refusal of the grievor to take the driving test which result- ed in the discipline being imposed, and his grievance alleging failure'to make reasonable provisions for the health and safety of employees are inter-related. The disposition of the matter requires the board to make a judgment on the issues together. There has never been any question of the grievor's opposition - for safety reasons - to the one-person plow policy. That opposi- tion was at all times known to management in Huntsville. There was equally no question in anyone's mind that the grievor, be- cause of the nature of his employment, was going to be required to take the test and if successful drive a one-person plow. In light of that it is, at the least, interesting that when input is sought from operators in October 1989 - as required in the em- ployer's own policy - about what exemption might be required to one-person plow routes that summer, the only operator not con- sulted was the grievor. It was argued on behalf of the employer that the grievor had ample opportunity because of his previous position to comment on the policy and this plus the time con- straints the employer considered itself to be under, obviated the requirement to canvass the grievor as they had all the other operators. With respect, we disagree. The employer promulgated a policy cmlling for consulting with operators with regard to the subse- quent winter operation. That policy was followed with the nota- hie exception that the grievor, who had had the most influence on causing the new policy to be formulated, was ignored. He should not have been. He should have been accorded the same rights as the other operators in Patrol 7 and had input into management's determination of what routes should be exempted from one person plowing, if any. To that extent the health and safety grievance succeeds. The employer should have consulted the grievor in October 1989 when the other operators were. If the grievor is to be assigned to plowing operation for the winter of 1990/1991 the Board orders that he be consulted prior to management making any determination regarding route exemptions. The evidence is incontrovertible that the grievor refused to take his one person plow driving ~est even after a safety inspector determined that there was no danger because of the presence of the instructor in the cab of the truck with the grievor. In our view there was no longer any reason for the grievor, on an objec- tive basis, to continue to refuse to take the driving test. But he did and as a result he was disciplined. In.our view disci- pline was warranted. The question to be then determined is whether the letter of reprimand followed by the one-day suspen- sion for the subsequent refusal was justified. We are satisfied that the letter of reprimand should not be disturbed and that grievance is denied. With regard to the one-day suspension, we are not satisfied that the employer has acted with completely clean hands in this' whole affair. However, that does not excuse the second refusal of the grievor. Consequently it is our determination that the suspen- sion of the grievor is to be suspended, ab initio, and that suspension is to remain in effect for a period of three months following the issuance of this decision. If no further incidents arise with regard to this issue which would warrant disciplinary action for the three month period, all reference to the suspen- sion is to be expunged from the grievor's file and he is to be reimbursed the days wages. If a further incident arises with regard to this issue which would warrant disciplinary action, the one-day suspension will be confirmed and remain on the grie- vet's file. The Board remains seized of all matters arising from this deci- sion including the.question, should it arise, of w~ether the one-day suspension will ultimately be expunged or maintained. Nepean this 4th day of January 1991. M. Brian Keller, Vice'chairperson Ed Seymour, Member Dave D augharty, Member