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HomeMy WebLinkAbout1982-0339.Gillies.82-10-18Between: THE GRIEVANCE SETTLEMENT BOARD ,Before: For the Grievor: !?or the Empl?4l_er: - Hearing: August 25, 1983 ., IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before OPSEU (William Gillies) - and - Grievor The Crown in Right of Ontario '(Ministry of Correctional Services) Employer M. K. Saltman L. Robinson P. H. Coupey Vice Chairman Member Member S. Laycock Gr~ievance Officer Ontario Public Service.Employees Union R. B. Itenson Senior Staff Relations Officer Staff Relations Division Civil Service Commission _. - . -2- DECISION In this case, the Grievor, Bill Gillies, claims that the Employer violated the collective agreement by failing to provide him with "adequate protective clothing". More par- .ticularly, .the Griever claims that the Employer failed to .~ provide him with felt-lined safety boots suitable for use in inclement weather. At the outset of the hearing, the Employer claimed that the grievance was inarbitrable since it did not arise from the interpretation, application, administration or alleged contravention of the collective agreement. The Board has dealt with the preliminary objection and merits of the case together. At the time of the grievance, the Grievor was employed at Maplehurst Cqrrectional Centre in Milton as a Correctional Officer 2. Maplehurst Correctional Centre is a correctional institution and adult training centre for approximately 400 inmates. The inmates are about equally divided between the adult training centre and the correctional institution, which consists oft two living units of approximately equal size. In September, 1981, the Grievor was assigned to Unit 4, which is one of these living units. His particular work assignment was determined according.to a master schedule which covered a 21-week.period and which was posted in advance. According to . 1 A, ._.a -3- the master schedule, the Grievor was assigned to outside work gang supervision for one week commencing December 14th. According to the Grievor, the assignment involved supervising inmates in woodcutting. According to a witness for the Employer, there was no woodcutting involved. Since the Grievor appeared to recall the assignment more clearly than the Employer!s witness, the Board accepts the Griever's evidence on this matter. Correctional Officers at Maplehurst are issued clothing to be worn in the performance of their duties. Those Officers who perform outside gang supervision may also request additional items including, in particular, felt-lined safety boots. According to then uncontradicted evidence, the tern- perature for the week of December 14, 1981 was below freezing. When the Grievor rehorted for duty on December 14th, he asked his immediate Supervisor, Jim Arrindell, for felt-lined safety boots., Although Mr. Arrindell checked for the boots, none were available in the Griever's size (although leather safety boots, which the Griever had been issued previously, were available). The next day, the Griever was given the boots ha requested but no liners. The liners were in fact not provided until December 17th, one-day before completion of the outside work assignment. At no time on December 14th, 15th or 16th did the Grievor refuse to perform his outdoor work -4 - assignment. During this period of time, the Grievor wore = his own boots, which were evidently warmer than the ones he requested from the Employer. The Union claimed that the Employer violated the collective agreement by failing to provide the Grievor with felt-lined safety boots at the outset of the outdoor work assignment on December 14th. The Employer submitted that it fulfilled its contractual obligation by providing the Grievor with steel-toed safety boots. However, he apparently required warmer boots. "Nevertheless, since the Grievor did not request these boots in advance (notwith- standing that he was aware for some time of the requirement for such boots), there was no violation of the collective agreement since the Employer provided the boots as soon as _, possible after the request was made. The issue is whether the Employer violated the collective agreement by failing to provide felt-lined safety boots' at the outset of the outdoor work assignment. In order to determine this issue, it is necessary to consider the following~provisions of.the collective agreement: 18.1 The mloyer shall continue to mske reasonable provisicxls for the safety and health of its employees during the hours of their employment. It.is agreed that both the mloyer and the Mien shallco-operate to the fullest .~ -5- extentpossible in the prevention of accidents and in the reascmableproaoticnofsafety andhealth of all 18.2 Ihe mloyer shall provide safetyequimt andprotec- tive clothinghere it requires that such shallbewxn by its employees. 18.3 Ihe purchase of safety shoes or boots foron-the-job protection of the purchasershallbe subsidizedas per the applicable practice in each ministry. 18.4 The current practices relating to the supply and maintenance of apparel for employees shall continue duringthetermofthi.sAgreemen t, subject to any changeswhichmybe enteredintobew the parties at the local or ministry level. Article 18.1 is a general provision which requires the Employer to continue to make "reasonable provisions for the health and safety" of its employees.' The collective agreement gives no guidance as to the meaning of "reasonable provisions for the health and safety". It'would appear, however,.that Article 18.1 requires at a minimum compli,ance with the provisions of the Occupational Health and Safety Act, R.S.O. 1980, c. 321 dealing with the Employer.'s obligations to provide for the health and safety of its employees. As a corollary, it seems that the Employer would be in violation of ..~ Article 18.1 if it contravened the Occupational Health and -6- Safety *ctl: see Davidson, G.S.B. File 339/82. (Article 18.1 also imposes obligations which are not covered by the Occupational Health and Safety Act: see Gonneau, G.S.B. File 227/81.) Under the Occupational Health and Safety Act, the Employer is obliged, in general terms, to ensure that the "equipment, materials and protective devices" prescribed by regulation are provided and maintained in good condition and used in a manner prescribed by the regulations (Para. 14(l) (a); Ss. l(22)). Although there are detailed regulations which apply to various workplaces or industries, including industrial establishments'; construction projects 3; and mines, 4 mining plants and mining developments , there are no regulations which apply to correctional institutions in general. Furthermore, in the Board's view, the supervisory function whic,h was performed by the Grievor 1 The Occupational Health and Safety Act places respon- sibility for health and safety not just on the Employer, but on the Supervisor, the employee and anyone else - involved with the work being performed. For the purposes of this case, however, it is necessary to examine only the Employer's obligations. 2 Regulations for Industrial Establishments, R.R.O. 1980, Reg. 692, as amended. 3 Regulations for Construction Projects, 0. Reg. 659/79, as amended. 4 Regulations for Mines, Mining Plants and Mining Developments, R.R.O. 1980, Reg. 694, as amended. .- -7- )' during the week in question is not covered by the regulations5. Therefore, the obligation contained in Paragraph 14'(l)(a) of the Occupational Health and Safety Act to provide "equipment, materials and protective devices" as prescribed by regulation does not arise. Nevertheless, the general obligation under the Occupational Health and Safety Act to "take every precaution reasonable in the circumstances for the, protection Of a~worker" would apply (Para. 14(2)(g)). In determining what constitutes reasonable precaution, it is instructive.as a general guideline6 to con- sider the regulations to the Occupational Health and Safety Act. In general terms, these regulations require a worker who - is exposed to the hazard of foot injury to wear "foot protec- tion appropriate in the circumstances" (Regulations for Industrial Establishments, Ss. 86) or "adequate safety footwear" (Regulations for Construction Projects, Ss. 31). .. Consistent with the spirit and.intent of this requirement, it 5 The Board recognizes that another panel of the Grievance, Settlement Board has found that the regulations do apply to the performance Of work in a workplace under the Ministry of Natural Resources: see Davidson, supr'a. Since there was no description in the award ofeither the workplace or of the work performed, this decision is not particularly helpful to the Board's determination in the instant.case. 6 The Board has considered the regulations as a guideline rather than as a matter of law since the Board.has found that the regulations do not apply in the circumstances of this case: see supra, pp. 6-7. would appear that the Employer is required as a reasonable precaution to ensure that safety footwear is worn by an ,. employee whenever the employee is exposed to the hazard of foot injury. This does not mean that the Employer must actually provide the footwear; indeed, there would appear to be no statutory obligation on the Employer to actually provide (i.e. pay for) safety footwear of any sort (including felt-lined safety boots): see Davidson, supra. Nevertheless, it has been the Employer's practice for some time to provide leather safety boots free of charge: There would also appear to be no contractual obligation on the Employer to provide safety boots (including felt-lined safety boots). As previously stated, Article 18.1 obliges the Employer to make "reasonable provisions for the health and safety of its employees", which imports the relevant provisions of the Occupational Health and Safety Act which, it seems, do not oblige the Employer to provide safety boots of any description. .There follows an enumeration of specific obligations on the Employer with respect to health and'safety, i.e. provision of "safety 'equipment a,nd protective clothing" in circumstances where the Employer requires that these be worn (Article 18.2); subsidizati.on of the cost of safety shoes or boots (Article 18.3); and maintenance of c~urrent practices relating to the supply and maintenance of apparel (Article 18;4). In the Board's view, none of these specific obligations - 9 - would require the Employer to provide safety boots of any description. In particular, there is no such obligation imposed by either Article 18.2 or Article 18.3. Article 18.2 requires the Employer to provide "safety equipment and protective clothing". Although arbitrators under other collective agreements have held that safety shoes ,(or safety boots, which are us~ed synonymously) come within the meaning of either "protective devices", "equipment" or "safety clothing"', it seems clear that the parties to this collective agreement have distinguished between "safety shoes or boots", which are sub- sidized~(Article 18.3), and "safety equipment and protective clothing" (Article 18.2), which are provided for (i.e. paid for) by the Employer. The instant case deals with the provision of a type of safety boot, i.e. felt-lined safety boots. It would appear ,i that the Employer's only obligation under the collective agreement is to subsidize "safety shoes or boots", which are not described. Notwithstanding this limited obligation, the 7 In Re Automobile Workers, Local 456, and Mueller Ltd. (1965), 15' L.A.C:~ 20~8 (Palmer), the arbitrator considered the phrase. "protective devices and equipment" and concluded that safety shoes fell within the meaning of "protective devices" but not "equipment". An opposite result was reached in thee case of Re' United Steelworkers~of America and Diebold of Canada Ltd. (1966), 16 L.A.C. 412 (Little), wherein the same phrase was under consideration. It has' also bee~n held that safety shoes come within the meaning of "protective devices" in the case of Re United'Electrical Workers, Local 412, and Delamere and Williams co. Ltd. (1972); 23 L.A.C. 56 (Johnston).and within the ambit of "safety clothing" in the case of Re Bydro-Electric Commission of the, Township Of NT;; and Canadian Union of Public Employees, Local 983 ( 1, 1 _L.A.C.(2d)264 (Brown). - 10 - Employer currently provides employees with leather safety boots free of charge in full satisfaction of its responsibili~ty under Article 18.3. Nevertheless, the Union claims that the Employer violated Article 18.4 qf the collective agreement which obliges the Employer to maintain current practices relating to the supply and maintenance of "apparel". The evidence is that, as a matter of practice, the Employer provides leather safety boots to ~a11 Correctional Officers. The Employer's practice with respect to felt-lined safety boots is to provide them if they are requested. (It is also acceptable for employees to wear their own safety boots, felt-lined or otherwise.) Accordingly, even if the term "apparel" can be construed to include safety boots, which is not entirely clear, the Employer maintained its "current" practice, i.e. the practice in effect immediately prior'to the signing of the collective agreement: see Re Rockwell International of Canada Ltd. and United Automobile Workers, Local 127 (19831, 6'L.A.C.(3d)304 (Rayner) , by providing leather safety boots to all Correctional Officers and felt-lined safety boots to those who requested them. In the instant case, the Grievor was in possession off leather safety boots (as are all Correctional Officers). Evidently, he preferred warmer footwear and, therefore, - 11 - requested felt-lined safety boots. The request, however, was not made until the assignment had actually begun notwithstanding that the Grievor was aware of the assignment and could have made the request weeks in advance. In these circumstances, the Grievor can hardly complain that the Employer did not have boots in his size immediately available. In fact, the boots were made~ available the next day although liners were not provided until two days later. Although the Employer was somewhat dilatory in providing the liners (since it is expected that the Employer will. maintain a stock of footwear and liners to accommodate al,,_,.~, employee requests), the Board finds that the Grievor was the author of hi.s own misfortune in failing to make a timely request and so the Employer is not in breach of its obli.gation, if any, under Article 18.4. .: For all of the above reasons, the.grievance is dismissed. DATED AT TORONTO.,this 11th day of July, 1984. < ---------- (see addendum) H.L. Robinson, Member P.H. Coupey, Member , . ADDENDDM I agree with the conclusion of the award in this case. However, the award contains a substantial discussion of the implications of the Occupational Health and Safety Act and its regulations in relatiqn to Article 18 of the Collective Agreement. There are two statements in this discussion on which I wish to reserve my opinion. The first statement is on page 6: "This does not meant that.the employer must actually provide the footwear; indeed, there would appear to.,be no statutory obligation on the employer to actually provide (i.e. pay for) safety footwear of any sort (including felt-lined safety boots)." I have not had occasion to study the Occupational Health and Safety Act, and have therefore not had the opportunity of forming an opinion on the above statement. This does not mean that I disagree with the statement, merely that I am not in a position to say whether I agree with it or not. The second statement is on page.9: "It seems clear that the parties to this Collective Agreement bave distinguished between 'safety shoes or boots', which are subsidized (Article 18.3), and 'safety equipment and protective clothing' (Article 18.2), which are provided -. . . -2- for (i.e. paid for) by the employer." This~ statement should not, I think, be taken to mean that safety shoes or boots under Article 18.3 do not come under the general heading of safety equip- ment and protective clothing under Article 18.2. In other words, in the context of Article 13, I agree with the conclusion reached in Re Automobile Workers, Local 453, and Mueller Ltd. (1965) 13 LAC.203 (Palmer), and disagree with the opposite conclusion stated in Re United Steelworkers of America and Die old of Canada Ltd. (1963) 16 LAC 412 (Little). It seems to me that the distinction to be made refers solely to the difference in the monetary obligation of the employer. When under.Article lS.2 safety equipment and protective. clothing must be worn, the employer is obliged to provide them and pay'for their cost in full, whereas under Article 18.3, when safety shoes or boots are required for on-the-job protection, the employer is required only to pay their cost in part, i.e. to subsidize them. Any distinction going beyond this would,in my view,be un- warranted: . “H.L. Robinson" H .L. Robinson, Member /lbw 341/82 CROWN EMF'LOYEES COLLECTIVE BARGAINING ACT GRIEVANCE SETTLEMENT BOARD ARBITRATION Between: Before: OPSEU (David L. B. Gilders, et al) kievor - And - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer J. F. w. Weatheril 1 - Chairman : M. Perrin - Member A. Stapleton - Member For the Grievor: L. Stevens Grievance/Classification Officer Ontario Public Service Employees Union For the Employer: A. S: Mitch611, Manager Com$ensation & Pcrsonn&l Services Personnel Branch Ministry of Transportation and Communications Hearing: 18, 1982 DECISION At the commencement of the hearing of this matter, the parties advised the Board that they had arrived at a settlement of the matter. The terms of that settlement are attached as an appendix to this decision. The parties requested that the attached settlement be adopted by the Board as its decision in this matter. In accordance with the parties' request, the attached settlement is adopted as the Board's decision in this matter. Dated at Toronto, Ontario, this 18th day of October, 1982. /ch Attachment