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HomeMy WebLinkAbout1980-0015.Garlock.81-10-30IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTiVE BARGAINING ACT THE GRIEVANCE SETTLEMENT SOARD 5etsrean : -- Mr. Irvin Ga~rlock Griever - And - The Crown in Right of Ontario (Ministry of Correctional Services) ElIlplOper Before: -- Prof. R. H. aYcLa.ren Vice Chairman Ms. M. h!. ?errin LYember Mr. A. Fortier ,U.ember For the Griever: Wr . R. Nabi, Grievance Officer - Ontario Public Service Employees Union For the Employer: Ms. J. Fitzgerald Staff Relations Division Civil Service Connissicn Hearinq: -- July 3, 19e1 2: A w A R D --_-- Mr. Irvin Garlock grieves the loss of his position as "Acting Sergeant" and seeks compensation for the loss of that position. The facts are not in dispute and can be summarized as follows. Mr. Garlock ,is employed as a Corrections Officer II at the Monteith Correctional Centre in Northwestern Ontario. He .has been employed with the Employer since July of 1975 and on one previous occasion was stepped up to the position of "Acting Sergeant". IIe was again stepped up to that position on November 5, 1979, becaus,e the person who normally held that position was stepped ug to *+e position of Lieutenant while the person who normally occupied that position was recuperating from injuries- suffered in an automobile accident. The need to fill the position on ancacting basis ceased in October of 1980 upon the return of the person occupying the position oft Lieutenant. Accordingly, the only remedy which the Grievor might be able to obtain from this Soard would be compensation in the form of damages. On November 27, 19,79, the Grisvor had a conversztion with Mr. Hazelton, at that time the Senior Assistant Superintendent of the Monteith Correctional Centre. 3. The Acting Sergeant position in+olves duties as an Assistant Shift Supervisor and Mr. Hazelton expressed his concerns at the November meeting about having a person who was in a management position on a picket line should a strike arise. This conversation was because of turmoil-existing in the Xinistq of Correctional Services at that time over the issue of ?ay and other matters. Eventually, an unlawful strike did occur on December 3, 1979. Mr. Garlock participated in that strike as he indicated he would to ?lr. iIazelton on the occasion of their con- versation in November. Mr. Garlock testifies that during the period leading up to the official waLkout he actively participated in the planning and meetings which ultimately led to k&e illegal walkout. Mr. Hazelton testifies that on the occurrence of the illegal strike, he had expected at least 11 correctional officers would have reported to work. Quite to the contrary, on the first day of the stri!<e only 3 employees crossed the picket line and entered the Correctional Centre. One of those was a Kr.,aeaulne, another only had two days to go until his employment with the Employer would be discontinued and the third had gone into work across the picket lines because of his religious beliefs. LMr. Harelton elected to appoint Mr. Beaulne as an Acting Sergeant, in effect returning the Grievor to his position of Co:iectional Officer Ii, although he was not informed of this until the cessation of the stri:ke and his return to work on December 7th. 4. It is from this action or ,clr. Hazelton that the present grievance ensues. ., Counsel for the Employer raised an objection concerning the arbitrability of this matter. The Board rul,ed that it would hear a11 the evidence but only hear argument on the preliminary . objection. The matter of argument on the merits to be Left until after this award, on the preliminary objection, has been issued. It is the Employer's contention that once the Grievor was upgraded to the position of "Acting Sergeant", that being an excluded position from the bargaining unit, any person occupying that position could not maintain a grievance under the collective. agreement. This assertion is made although at all times the person was a member -of the bargaining unit. Secondly, it was argued that the extended jurisdiction to bring a matter before the Grievance Settlement Board by operation of s. 17(2) and 18 of The Crown Emoloyees Collective Bargaining Act, (1972) C~. 67 as amended did not apply in this case,. The only slause which could apply would be s. 17(2) (c) and there: had been no discipline applied to the Griever within ~the meaning of *hat clause; in response to the objektion by the 3mployer it was argued on behalf of the Union that the assignment of an employee to "an.acting position", which might be an excl-uded one,as it is in this case, does not mean that the individual is not an employeeP He remains a member of the bargaining unit and of the Unicn and, therefore, is covered under the terms of the collective agreement and entitled to grieve. In connection with this arTxzent, reference was made to Artick 6.3 of the collective agreement which r~eads as follows: "6~.5 Fiere an employee is temporarily assigned to perfo,rm tie duties and responsibilities of a position not covered by this Collective Agreement, he shall retain his rights and obligations under the Collective Agreement." The alternative answer to the Employer's objection, it is argued is that'he suffered a disciplinary demotion for his participation in the illegal stri!ce. .Therefore, if there was a demotion and it was discrplinary then s. 17!2) (c) of The Crown Cmolovees Collective Bargaining Act, suora, and in turn its reference to - s. 18 would permit the Griever to bring his grievance before the aoard: Section 17(2) reads as follows: "(2) In addition to any other rights of grievance 'under a collective agreement, an employee claiming, (a) that his position has been improperly classified; (b) that he has been appraised contrary to the governing principles and standards; or (c) that he has been disciplined or dismissed or suspended from his employment witnout just cause, 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 jrith the procedure for final determina- tion applicable under section 18. 1971, c. 135, s. 9, part." ;. =‘. 6. This jurisdiction under the Act is in addition to any rights which exist under the collective agreement. DECISION The Grievor alleges that he has been given a disciplinary demotion. The first preliminary matter is whether this Soard can hear the qrievance under the provisions of the collective agreement. The position to which the Grievor was temporarily assigned was not one within the barqaininq unit. Therefore, a person occupying that position on a full-tirre basis, not temporarily assigned, would not be able to grieve under tkne collective agreement between the parties. What is different in this case is that on temporary assignments an employee remains Seth a member of the bargaining unit and a member of the tinion. That would entitle the employee to grieve matters involving the temporary assignment such as the items referred to in Articie _ 6.of the collective agreement. Eoweve r , while '-he employee is occupying the excluded position he must do so on the same basis as those who fill thn _ Fosition on a regular basis. That m,eans that disciplina-T matters, -Ihich arise :ghile occupying the exclud.ed position are not grievable under the collective agreement. :3 owe ve r , it may be possible to'grieve under statutory provisions extending the 3oard's jurisdiction. 7. This Board has no jurisdiction over excluded positions. What transpires in respect of employees occu?yinq excluded positions by way of temporary assignment ii beyond tie purview of this Board, UniPSS it involves Article 6 of the collective agreement. The fact &chat an employee remains a member of tkke Union and the bargaining unit, while a peculiarity of the nature of temporary assignments, is~ of no relevance in detemni.n,inq jurisdiction. It is, therefore, concluded that the 3oard has no jurisdiction to hear the grievance under the provisions of the collective agreement. ly TOM conclude otherwise would mean that persons tenporari assigned to positions excluded from the 'bargaining unit would have rights to grieve under a collective agreement. Whereas. those occupying -he position not by way of temporary assignment, who might have an identical complaint, would not have access to this aoard. Other avenues are available to the Grievor to see!< a remedy in this matter. Those avenues are also available to persons excluded from the provisions of the collective bargaining agreement between the parties. Therefore, the Board has no jurisdiction to hear the grievance under We terms of the collective agreement. It is argued that it is possible for Xr. Garlock to maintain a grievance before this aoard pursuant to the srsvisions of the Crown Employees Collective 3araaining Act, as previously set out. On this question of jurisdiction under the Act it was not argued by the oarties, but a process of parallel reasoning >.‘r, 3. to that of this 3oard in determining that it has no jurisdiction to deal with the ma- tter under t;he collective agreement can arise under the Crown Employees Collective Barqaininq Act. It COIlid be argued that while the-Grievor occupias the position of "Acting Sargeant" by temporary assignment, he is within the exclusion of 5. l(g) (iii) of the Act, - being a person employed in a managerial capacity. The parties did not argue the point and it is, therefore, not possible for the Soard to rule on it. In view of this aoard's decision on the characterization of the action taken by management and whether it is siithin s. 17(2)(c), it is unnecessary to deal with the foregoing point. However, nothing in this award should be taken as establishing that the Board did in fact have jurisdiction under s. :7(2) to 'hear this grievance. Bearing in mind the foregoing caution., if this aoard is to have jurisdiction in this matter it would have to be because it had made a determination that the action of management was disciplinary in nature pursuant to clause (c) of subsection (2) of 5. 17 of the Act. - it is this Board's view t:hat the aepropriate characteri.zation of the action taken by management in this case .was not disci?lina,T. The evidence of the senior Assistant Superintendent does not establish a disciplinary action. He 'had an eslanation for his conduct .dhich,' although perhaps not acceptable to the Union, 9. did establish that he was acting for reasons wnrch were not of a disciplinary nature. The fact that the action could be viewed as retaliatory leaves the Union to argue from t-e point of inference and supposition that what occurred -das a disciolinaq act. Thers is, however, no proof that the action was disciplinary. The Grievor had an extremely difficult choice to make. ~Giv2n that his position tias an "acting'~on2" he had, in reality, Only one choice to make. He mad2 the choice to join his colleagues in 'an illegal work stoppage. The tinion argues that the Employer could have relieved him of his position before the stri!<e. Such action would have been inappropriate and unfair to him if there never was a strike or he made the opposit2 choice to the one he in fact made. If the Zmployer was to treat the man fairly it had to wait until a strilce occurred and he participated in it. On the testimony of the Assistant Superintendent, it was not the Grievor's unavailability for work which subjected him to re-assignment from the "?.cting Sargeant" position; if that had been the reason it might well have been disciplinary- However, the reason ?ut forcard ~was that the Assistant Superintendent found it somewhat abhorrent that a management person should be on the pick2.t line, particularly when ';ne work stoppage was not legal. While that reason for re-assignment may not be particularly acceptable from,the Union's point of view, it does not amount to proof that the action was a disciplinary demotion. The onus was upon the Union to establish that the 10. action of the Employer .was disciplinary in nature. The absence of such proof must lead one to the inference that the appropriate characterization of the action of management was that it xas not disciplinary in nature and,, therefore, could not have been within s. L7(2) (c) of the Crown Employees Collective Bargaining Act. Therefore, even if the Board had jurisdiction of a general nature the particular matter placed before it would not fall wi'&in its jurisdiction. For all the foregoing reasons, it is concluded that the matter is not arbitrable and the aoard has no jurisdiction to hear the dispute. DATED AT LONDON, ONTARIO, this.30th day of October, i?81. !::“I. Per*in” (Dissent to -fclk;I) M. Perrin, Member Fortier, Member