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HomeMy WebLinkAbout2018-1177.Suarez et al.23-08-02 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2018-1177; 2020-0677; 2020-1116 UNION# 2017-5112-0343; 2020-5112-0039; 2020-5112-0158 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Suarez et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Christopher Bryden Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING December 1 and 2, 2022; March 31 and April 3, 2023 -2 - Decision [1] I have three group grievances before me that were initiated by employees at the Toronto South Detention Centre (“TSDC”). The Suarez group grievance dated March 15, 2017, and the Luis group grievance dated June 15, 2020, were filed on behalf of employees in the Cleaner 2 position (“Cleaners”) who work in the Housekeeping Department. The third grievance, the Collura group grievance, is dated February 4, 2020, and was filed on behalf of a Storekeeper and two Store Clerks (“Stores employees”) who work in the Stores Department. The parties agreed to adjourn sine die the Ferreira group grievance dated June 15, 2020 that was filed on behalf of Mechanics. [2] The Suarez, Luis and Collura group grievances were initially listed with other grievances in which employees claimed entitlement to the Custodial Responsibility Allowance (“CRA”). Entitlement to the allowance of $2,500.00 per year is dependent on satisfying all of the conditions in the relevant provision. One of the conditions is that the employee is required to direct offenders engaged in beneficial labour for the major portion of their working time. There is no dispute that the employees covered by the group grievances were not entitled to the CRA when the grievances were filed, primarily because they were not directing offenders engaged in beneficial labour for the majority of their working time. The differently focused group grievances were eventually separated from the other CRA grievances because the central issue they raised was a health and safety issue based on workload. [3] The Union takes the position that the workload of the Cleaners and Stores employees at the TSDC is excessive to the extent that there is an unacceptable and unreasonable health and safety risk for them in contravention of article 9 of the Collective Agreement and the Occupational Health and Safety Act (“OHSA”). Article 9 requires the Employer to continue “to make reasonable provisions for the safety and health of its employees during the hours of their employment.” Section 25 (2) (h) of the OHSA requires an employer to “take every reasonable precaution in the circumstances for the protection of a worker.” Although the parties agreed not to address remedy at this stage of the proceeding, the grievors suggest that the excessive workload issue can -3 - be easily remedied by the Employer assigning inmate workers to assist them in the performance of their duties. Their selection of this remedial approach may also benefit them financially since their supervision of inmate workers might entitle the grievors to receive the CRA. The Employer takes the position that the workload of the Cleaners and Stores employees at the TSDC is not such that there has been a contravention of the Collective Agreement and the OHSA. The Employer notes as well that even if such contraventions could be established, the remedy that the grievors are after may not be the appropriate one in the circumstances. Apart from the time limit requirement, the parties agreed that these grievances be heard pursuant to article 22.16 of the Collective Agreement. [4] The Union called two representative witnesses. Ms. K. Collura, a Storekeeper, testified in support of the group grievance filed on behalf of the Stores employees. Ms. L. Luis, a Cleaner 2, testified on behalf of the Cleaners who had signed the Suarez and Luis group grievances. Employer counsel elected not to cross-examine these witnesses or to call any evidence. Therefore, counsel made their submissions based only on the facts established by the uncontested testimony of Ms. Collura and Ms. Luis and the documentary material filed in this proceeding. [5] As indicated by Ms. Collura and Ms. Luis, the TSDC is a very large facility. The living units are contained within three towers. Each tower has four floors, each floor has four units, each unit has twenty cells and each cell has two beds. The warehouse area is the size of two basketball courts. Other areas of the facility include the administration area, Admitting & Discharge and garage, the medical unit, the mental health unit, the special needs unit and segregation, etc. In performing their duties, the Cleaners and Stores employees will likely find it necessary to travel significant distances throughout the facility. The Stores employees and Cleaners have received Special Custodial Training to permit them to supervise inmate workers. Ms. Collura and Ms. Luis indicated that their respective job specifications accurately reflected their job functions. -4 - [6] Ms. Collura started working for the Employer in 1987. She started working at the TSDC in 2014 as a Stores Clerk and she moved into her current Storekeeper position in 2016. The Stores employees work a Monday to Friday day shift. Typically, the Stores Department consists of the Storekeeper and three or four Store Clerks. Ms. Collura explained in some detail the work performed by the Stores employees. In essence, the Stores employees receive supplies off of trucks, log the items received, store the items in the warehouse and then distribute the supplies where needed throughout the facility. These duties are performed mostly by a Stores Clerk, however the Storekeeper also performs these duties if there are a lot of items to be distributed or there is a staff shortage. The Storekeeper is responsible for ordering all of the products and ensuring that deliveries are made in a timely manner. Truckloads delivered to the warehouse can contain items loaded on 7 or 8 skids. Shipments are received every day from Monday to Friday. In performing their duties, the Stores employees utilize pump trucks, forklift trucks, little flat beds and carts. They are certified to operate the pump and forklift trucks. [7] Wednesdays of each week are when supplies such as toilet paper, paper towels and shampoo are distributed to each of the floors in the towers where the living units are located. Once the units advise what supplies are required, carts are loaded and the items are taken to the living unit areas. To prepare a cart and to deliver the items to a floor and to return to the warehouse might take a Stores Clerk up to 25 minutes, given the distance to the living unit areas. This process is repeated for the four floors in each of the three towers. A cart that is filled with supplies could weigh as much as 75 pounds. On the other four days of the week, deliveries of supplies from the warehouse are made to different areas of the facility, such as administration, operations, programs, records and healthcare. Since medications are not stored in the warehouse, every day there are deliveries made to healthcare, sometimes up to three times a day. [8] Ms. Collura’s testimony demonstrates that the quantity of supplies received and stored at the TSDC and distributed over long distances given the size of the facility results in a significant workload for the Stores employees. Since her arrival at the -5 - TSDC, Ms. Collura has requested the Employer, mostly through the Union, to provide the Stores Department with inmate workers on a regular basis to assist the Stores employees with their duties. There have been occasions since 2014 when inmate workers were assigned to assist in the Stores Department. When they were so assigned, it would usually be just one or sometimes two inmate workers to assist on Wednesdays when deliveries were made to the living unit areas. Since 2018, the Employer has created an area in the warehouse where Defensive Tactics Training (“DT Training”) takes place for Correctional Officers. DT Training takes place at least three times a week and inmates are not allowed in the area when the training occurs. The presence of DT Training has limited the occasions when inmate workers can be assigned to the Stores Department. With DT Training taking place in the warehouse, the norm is for one inmate worker to be assigned for a day every two weeks. It appears from the materials that the Employer is not opposed to assigning inmate workers to the Stores Department and other departments at the TSDC, but that it is not able to do so because of a shortage of trained inmate workers. [9] When asked why she wanted inmate workers assigned to the Stores Department, Ms. Collura indicated that she felt they were needed because of the excessive amount of work and the distances that the Stores employees are required to travel when distributing supplies in such a large facility. She also noted that the Stores employees do have the training to supervise inmate workers and that Stores employees at other correctional institutions do supervise inmate workers and are paid the CRA. [10] Ms. Collura had been receiving the CRA up until February of 2020. By letter dated January 29, 2020, the Deputy Superintendent Services (“DSS”) advised Ms. Collura that she was not eligible to receive the CRA, that she had been receiving it in error and that she would cease receiving the CRA effective February 10, 2020. It was about a week after receipt of this notice from the DSS that the Collura group grievance was filed. -6 - [11] Ms. Luis began working for the Employer as a Cleaner on January 5, 2009. She moved to the TSDC in November of 2014. When the Suarez group grievance was filed in 2017, the Cleaners were scheduled to work 80 hours in a two week period on 12 hour shifts, one shift starting at 7:00 a.m. and the other starting at 11:00 a.m. By the time the Luis group grievance was filed in 2020, the only change in scheduling is that the Cleaners only worked on one shift from 7:00 a.m. to 7:00 p.m. There are approximately fourteen Cleaners at the TSDC. [12] In describing their duties, Ms. Luis indicated that the Cleaners performed cleaning functions throughout the entire facility, including the living units. The Cleaners utilize PPE suites, power washers, auto scrubbers (floor care machines), scrappers, carts to hold brooms, mops, etc., and blue bins. The auto scrubbers are about three feet high. The blue bins have four wheels and are used to load material destined for a compactor located some distance away near the loading dock. [13] A biohazard clean up consists of removing bodily fluids and material from an area. Such clean ups commonly occur in living units, segregation and the mental health unit. They can occur almost every day and often many times a day. It takes about 2-3 hours to complete a cell biohazard cleanup. Biohazard cleanups can involve removing mattresses from a cell which can weigh as much as 50 pounds when wet. The mattresses are disposed of by placing them in the blue bin for transport to the compactor. Cleaners can get assistance from others to lift heavy mattresses. [14] The Cleaners are responsible for collecting garbage from the offices and living units. After every meal in the living units, the garbage is full. The individual garbage bags can weigh between 30-40 pounds. The individual bags are placed in the blue bin for removal to the compactor. The blue bin can weigh as much as 200 pounds when filled with garbage bags. The tasks engaged in by Cleaners require a considerable amount of bending, lifting and walking, given the size of the facility. Ms. Luis indicated that the Cleaner job can be stressful and that many Cleaners become exhausted from performing their duties. -7 - [15] Ms. Luis completed her 5-day mandatory Special Custodial Training course in April of 2015. She indicated that as of 2017, inmate workers were rarely assigned to assist Cleaners and since 2020, inmate workers have not been assigned to assist Cleaners. She also indicated that the Employer had retained the services of an outside cleaning contractor to clean the inmate shower areas. Ms. Luis has not been paid the CRA while working as a Cleaner at the TSDC. [16] Ms. Luis provided similar answers when asked why the group grievances in 2017 and 2020 were filed. She indicated that the TSDC is a large facility and that the Cleaners needed help from inmate workers because their work involved a lot of bending, walking and heavy lifting. She specifically mentioned needing help to perform biohazard cleanups which are physically demanding. Ms. Luis noted that the Cleaners were busier in 2020 and after because during COVID the TSDC had received inmates from other institutions. Ms. Luis also indicated that the grievances were filed because the Cleaners had completed the Special Custodial Training and they were told that they would be assigned inmate workers to supervise and be paid the CRA. [17] Union counsel submitted that the testimony of Ms. Collura and Ms. Luis about the workload of the Cleaners and the Stores employees at the TSDC and their characterization of the workload as excessive demonstrates that the workload of the grievors is excessive to the extent that it exposes them to unreasonable health and safety risks contrary to article 9 of the Collective Agreement and the OSHA. Counsel emphasized that the absence of evidence of the grievors experiencing actual or real harm is not fatal to the grievances. Counsel referred me to the following decisions: OPSEU (Union) and Ministry of Community and Social Services (1990), GSB No. 1190/89 (Stewart); and, Ontario (Ministry of Community Safety & Correctional Services) and OPSEU (2005), 140 L.A.C. (4th) 176 (Gray). [18] Employer counsel submitted that the testimony of the Union witnesses did not establish that the workload for the Cleaners and the Stores employees was excessive at the TSDC. Counsel also argued that there was no evidence called by the Union to demonstrate that the workload of the grievors resulted in any unreasonable -8 - risks to their health and safety. In requesting that the grievances be dismissed, counsel relied on the following decisions: OPSEU (Sager, Shelley et al.) and Ministry of Transportation (2004), GSB No. 2000-0377 (Mikus); OPSEU (McFadzean et al.) and Ministry of Community Safety & Correctional Services (2019), GSB Nos. 2017-1603 et al. (Petryshen); and, OPSEU (J. Alaksa, B. Polfer, R. Brown) and Ministry of the Solicitor General (1985), GSB Nos. 1130/84 et al. (Brent). [19] The evidence on the workload for the Cleaners and the Stores employees at the TSDC establishes that these are demanding jobs taking into account the nature of the duties, the quantity of work and the distances the grievors are required to walk when performing their duties. The physical demands of both jobs are not insignificant. It is not particularly surprising that the grievors would want some assistance from inmate workers. However, the fact the grievors are in demanding jobs is not by itself a basis for concluding that their workload is excessive. An excessive workload is one in which there is too much work to perform within a certain period of time, and/or when the physical demands of the job are unreasonable. To establish there is an excessive workload requires more than simply showing that there is a lot of work to perform. While it is fair to say that the Cleaners and the Store employees have a significant workload, there is no indication in the evidence that the grievors have any difficulty in completing their work on time. There are no deadlines they have to meet or quotas they have to satisfy. The Employer has not been critical of them for failing to perform their duties in a timely fashion. There was also no indication that the physical demands of the jobs were unreasonable and therefore excessive. Although there was evidence of the weights of the loads the Store employees and the Cleaners are required to transport, there was no suggestion that these loads were unmanageable or unreasonably heavy. The Cleaners can get help if necessary to deal with the wet heavy mattresses. It is my view therefore that the Employer’s contention that the workload of the Cleaners and Stores employees is not excessive has considerable merit. [20] GSB decisions have held that article 9 of the Collective Agreement and the OSHA does not guarantee employees against every possible health and safety risk. The focus of the protections afforded to employees is on unreasonable and -9 - unnecessary risks in light of the nature of the employment. Although it can be a relevant factor, there is no dispute that the Union is not required to establish that the workload of the Cleaners and Stores employees has resulted in some actual harm to the grievors in order prove a contravention of article 9 or of the OSHA. However, the Union is obliged to establish at least that the nature of their workload presents unreasonable health and safety risks that could result in the potential harm to the grievors. The work of the Cleaners and Stores employees do have some inherent health and safety risks. Both jobs involve lifting items and the movement of heavy loads. The Cleaners, in particular, engage in a lot of bending and lifting and it would not be unusual that some Cleaners would experience some level of exhaustion when performing their duties on twelve hour shifts. However, what the evidence in this case does not demonstrate is that the workload of the Cleaners and the Stores employees has unreasonable health and safety risks that require some action from the Employer. [21] For the foregoing reasons, I find that it has not been demonstrated that the workload of the Cleaners and the Stores employees has resulted in a contravention of article 9 of the Collective Agreement and the OHSA. Accordingly, the Suarez, Luis and Collura group grievances are hereby dismissed. Dated at Toronto, Ontario this 2nd day of August 2023. “Ken Petryshen” Ken Petryshen, Arbitrator