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HomeMy WebLinkAbout1984-0665.Bell et al.85-05-17IN THE MAT ITRA TER OF AN AR6 UNDER STION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (R. BELL, ET AL) Grfevor - and - THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF THE SOLICITOR GENERAL) Employer BEFORE: R. L. Verity, Q.C. - Vice Chairman S. J. Dunkley Member E. J. Orsini Member FOR THE GRIEVOR: Chris Paliare Counsel Gowling & Henderson Barristers & Solicitors FOR THE EMPLOYER: Paul Mooney Senior Staff Relations Officer Civil Service Commission HEARING: i- DECISION . / .i :o 7 - 2 - In somewhat vaguely worded grievances dated Jun.e 13, 1984,' Ministry Employees, Ross Bell, Robert Sequillion and Eddie Manjoo, alleged violations by the Employer of the Health and Safety Provisions of Article 18 of the Collective Agree- ment. The Grievances do not specify the particular Article which the Employer had allegedly violated. Each Grievance simply alleges an Employer violation of Article 18. Clearly, these Grievances arise as a result of the Employer's refusal to authorize the Grievors request for the purchase of safety shoes pursuant to Article 18.3. The settle- ment requested was to the effect that the Grievors be permitted to purchase safety shoes and that ,the said purchases be subsi- dized in accordance with Ministry practice. This matter involves the interpretation of certain provisions of Article 18 generally, and Article 18.3 in partic- ular. Each of the Grievors is employed in the Ministry Print Shop, and each holds the classification of "Offset Operator". The Grievors, Sequillion and Bell, are long service Employees, and in the case of Sequillion, he has accumulated 1 - 3 - .i some 19 years-service. The Grievor, Manjoo‘has worked in the Print Shop since June of 1980. The Grievors are engaged in general printing and have associated responsibilities for ship- ping and receiving. The sole Grievor called upon to testify was Robert Sequillion, who did so in a representative capacity. ',, The Print Shop contains three medium sized printing presses, a camera, a collator, a knife, a photocopier, and mail inserting equipment. The equipment is secured at all times, and there is minimal danger that pieces of the equipment would . become detached. Approxima quired to unload at to the second floor tely twice a month, the Grievors are re- the loading dock and transport by hand cart print shop, 40 to 80 cartons of paper stock. The weight of these cartons varies from approximately 25 pounds to 66 pounds per carton, depending upon the size of the paper. The cartons of paper are then stored next to the appropriate piece of equipment and for that purpose are stacked one on top of each other to a height of some six feet. Approximately once every three months, the Grievors are required to unload and transport to the print shop, boxes containing chemicals. Each chemical carton weighs approxi- mately 25 pounds to 40 pounds. In addition, the Grievors are - 4 - required to box and wrap 60% of the finished printed product and 40% of the product is processed through the Ministry's mail room. In either 1973 or 1974, the Grievors Bell and Sequillion requested the provision of safety shoes and certain clothi,ng for on-the-job protection. Print Shop Supervisor Douglas McCaugherty granted that request and consequently, Messrs. Bell and Sequillion were issued with shirts, pants and other clothing as well as safety shoes from the Ministry's quartermaster Stores. The safety shoes provided for the Employees were a Canadian Standard Association approved leather shoe in the Oxford style with steel toe and reinforced heel, and oil proof sole and heel. There was no charge to either Employee for the apparel supplied. Both Grievors found the safety shoes uncomfortable in the sense of being "too heavy", "very stiff 'I and "too hot". After a brief initial trial period, the Gri evors discarded the safety shoes and'reverted to wearing their own shoes. In 1981 or 1982, safety shoes were again issued from the Quartermaster Store, this time for all three Grievors. The safety shoes provided were similar, if not identical, to the shoes issued in 1973. The provision of safety shoes on this occasion was no more successful than it had been some 8 years previously. In fact;the Grievor Manjoo who had a size 5 foot ,. ! : :.. .-. 1 - 5 - was given a si'ze 6 leather safety shoe ( the-smallest size available at the Quartermaster Stores). On May 31 a memorandum to the ibit 5); rded , 1984., the Grievors prepared and forwa ir Supervisor Douglas McCaugherty as fo llows (Exh "Re: Safety Shoes The safety shoes provided to us from Quartermaster Stores Branch are very uncom- fortable to wear. They are too heavy and very stiff. May consideration please be given for us to be provided with the same type of safety shoe as Transport Branch and Properties Branch have." On June 4, 1984, Mr. McCaugherty provided the follow- ing written reply: "In response to your request for safety shoes, I must still come to the same con- clusion as that of Superintendent R. M. Waddell's in his memorandum dated October. 19th. 1983. If you will recall, at that time an extensive survey was conducted with reference to the issuance of uniforms and shoes. As you have already been issued with safety shoes and an abundant supply of smocks, coveralls, etc., I find your request un- reasonable, therefore, I am denying same." Clearly, the Memorandum and the reply resulted in the filing of three identical Grievances. - 6 - Thrie witnesses testified at the hearing on behalf of the Grievor. Mrs. Isabelle Rodzinski is a Cleaner 2 who is employed with the Caretaking Section of the Ministry's Property Branch. In 1977, she purchased a pair of safety shoes from Eatons, who in turn invoiced the Quartermaster Stores. Subsequently, she was issued with policewoman's shoes, which proved to be "unsatisfactoryU. Mrs. Rodzinski then purchased safety shoes from a privately owned "Seco" safety van and was cost. Since 1982, she has fety van. Mrs. Rodzinski is authorizes the purchase of reimbursed by the Ministry for the purchased safety shoes from the sa aware that current Ministry policy safety shoes not exceed i ng $55.00. Mrs. Giovanna DeGrossi testified that she was a Cleaner 2 and that her safety shoes are purchased from the safety van by Mrs. Rodzinski. Dominic Dimeo gave evidence that he,is employed as a Mechanic-Electrician with the Ministry's Transport Branch. He purchases safety shoes from the safety van and is reimbursed for the price paid to a maximum of $55.00. Mr.'Dimeo testified that he has worn heavy leather safety shoes similar in weight to those issued to the Grievors, but found them to be uncom- fortab 1 e and as a result now wears much lighter safety shoes. For the Employer, five witnesses were called upon to present evidence. Staff Sergeant Thomas Dube, second in com- mand in the Quartermaster Stores, testified that the stores - 7 - . . supplied articles of equipment and material; for the Ontario Provincial Police, auxiliary equipment for Auxiliary Units, together with security staff at Government buildings. In addition, the Quartermaster Stores provide shirts, trousers and shoes for caretakers and supply clerks. He stated that the stores did not equip female caretakers with sa f ety shoes. Staff Serge a the Prop,erties Branch taking staff are'outf i clothing on an annual female caretakers who nt Russell Clark, seco n of the Ministry testif i tted with safety shoes basis, with the except i in command of d ed that all care- and designated on of the three obtain safety shoes from the safety van. In addition, he testified that certain male caretakers com- plained that the safety shoes issued from the Quartermaster Stores were "too heavy" and "too hot". To alleviate the com- plaint, three male caretakers were allowed to select safety shoes from the safety van some four years ago on an experimen- tal basis. Results of the experiment convinced the caretakers to continue with the use of safety shoes provided by the Quartermaster Stores. Superintendent Casey Kotwa, Director of the Minis- try's Transport Branch, testified that the function of the Branch was to provide for the supply and maintenance of motor vehicles to meet the transportation needs of the Ontario Provincial Police. He stated that all shop personnel in the Ministry's three garages in Toronto and Thunder Bay were re- quired to wear iafety shoes. He stated that the practice of - 8 - the Branch in"effect since May 1977, entitled an employee to purchase semi-annually two pair of shoes or boots from the safety van or from a retail outlet of the employee's choice, up to a maximum purchase price per pair of $55.00. The practice requires the purchase of C.S.A. approved safety shoes and the employee is required to pay upon purchase and submit an invoice to the Employer verifying, the purchase. The employee is then reimbursed in cash for the exact purchase price up to a maximum of $55.00. In cross-examination, Superintendent Kotwa acknow- ledged that the Branch is not concerned with the type of safety shoe purchased by an employee, as long as it is C.S.A. ap- proved. It was the Superintendent's evidence that all Trans- port Branch personnel wear C.S.A. approved safety boots, with the exception of wh The print te co pal w lar personnel. t.ness for the Employer was acting Corporal Douglas-McCaugherty, now Supervisor, Administrative Registry, Mail and Printing Services, of the Records Management Branch of the Ministry's Supply Division. The Print Shop at 90 Harbour Street in Toront o is part of Mr. McCaugherty's respon- sibilities. That Print Shop is responsible for all print re- quirements of the Ontari o Provincial Police, and the balance of the Ministry generally. Mr. McCaugherty was Supervisor of the Print Shop for a three year period. He agreed generally With the description of the Printer's duties as given, in evidence by , - 9 - : Mr. Sequ chemical pounds. illlo; wi th the sole exception of tfie weight of the cartons, which he guessed would weigh approximately 25 Mr. McCaugherty's evidence was to the effect that there was no hazard in the Print Shop that could justify the Grievors' demands. He described the three Grievors as careful and responsible Employees who were both honest and straight- forward. Mr. McCaugherty explained that he acceded to the Grtevors' request for safety shoes on two occasions, not because he felt that they were needed, but merely as a con- cession to the Employees. According to his testimony, he agreed to the issuance of safety shoes from the Quartermaster Stores because there would be no cost to his budget, and no cost to the Employees. Mr. McCaugher,ty testified that he did not bring the Employees' request to the attention of his immediate Supervisor, nor did he make any budgetary provision to accommodate the re- quest, because in his opinion, the Employees "were not so much interested in the aspect of safety as they were in style and appearance". Mr. McCaugherty candidly admitted that the quan- tum of stock in the Quartermaster Stores has been drastically reduced in recent years and that eventually .the stores. would be responsible solely for the equipment and wearing apparel of uniformed members. The final witness for the Employer was John MacPherson, Chief Superintendent of the Ontario Provincial - lo- Police, now Division Head of the Ministry'sPlanning and Technology Division. Chief Superintendent MacPherson was not questioned extensively after the Board made a ruling that a report which was to have been introduced through this witness was inadmissable. The report in question purportedly dealt with the need for safety boots by Print Shop personnel, and was prepared by an Inspector of th.e Ministry of Labour. The Board ruled in favour of the Union's objection that the report was inadmissable because the inspection and report were made subse- quent to the filing of the Grievances, and that the report dealt with the very issue the Board was called upon to deter- mine, and finally that it was clearly heresay in the hands of Mr. MacPherson. In addition, there was no agreement that the _~ results of the inspection would be binding upon the Parties. The Union argued that Article 18.3.obligated the Employer to reimburse an Employee upon purchase of safety shoes up to a maximum of $55.00, where an Employee believed that there was a need for on-the-job foot protection. It was argued that it was immaterial whether the Emp'loyer had deter- mined the requirement for foot protection. Alternatively, Union Counsel Paliare contended that if the Employer must first determine the requirement for safety shoes, that requirement had been established by the conduct of the Employer in provid- ing safety footwear for the Grievorson two separate occasions. Mr. Paliare argued that the evidence established that where an Employee was not satisfied with safety footwear provided by the - ll- i- Employer, the Employee was allowed to select safety shoes and be reimbursed upon purchase up to a maximum of $55.00.. The Employer contended that the evidence of Acting Corporal McCaugherty established that there was no recognized need for safety shoes. It was Mr. Mooney's position that the Grievors were not exposed to a sufficient hazard in the work place to justify the issuance of safety shoes, and that there was no violation of the provisions of Article 18.1 of the Collective Agreement. Alternatively, Mr. Mooney argued that Article 18.3 did not confer upon an Employee a right to pur- chase safety footwear. Mr. Mooney alleged that Article 18.3 had no application to the instant facts. It was also contended that the Grievors were not purchasers as described in the Article., and all that the Union had established was a Branch practice rather than the Ministry practice. In short, it was argued that the Union failed to establish that the Ministry's Transport Branch practice was the Ministry practice. At the outset of the Hearing, the Union alleged that it based its claim upon the wording of Article 18.3 of the Collective Agreement. The Union made it clear that it did not rely upon the provisions of Article 18.1. In a determination of the matter, the Board is called upon to consider and interpret the following provisions of the Collective Agreement: - 1 i- .2- "18.1 The Employer shall continue to make 'reasonable provisions for the safety and health oft its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the pre,- vention of accidents and in the reasonable promotion of safety and health of all employees.' "18.2 The Employer shall provide safety equipment and protective clothing where it requires that such shall be worn by its employees." "18.3 The purchase of,safety shoes or boots for on-the-job protection of the purchaser shall be subsidized as per the applicable practice in each ministry." Article 18.1 is a generals provision which requires that "the Employer shall continue to make reasonable provisions for the safety and health of its employees". There is of course, no definition for the words "reasonable provisions". The Board agrees with the rationale of Vice-Chairman Saltman in Gillies and Ministry of Correctional Services, 339/82 where she states at pages 5 and 6: "It would appear. however, that Article 18.1 requires at' a minimum compliance with the provisions of the Occupational Health and S$:;t:,2ctE, R.S.O. 1980, c. 321 dealing mployer's obliqations to provide for the heaith-and safeti of its embloy- ees. As a corollarv. it seems that the Employer would be in'violation of Article 18.1 if it contravened the Occupational Health and Safety Act: see Davidson, . . . ie 9182. (Article 18.1 also imposes obliaations which are not covered by'the Occupational Health and Safet see Gonneau, G.S.B. File 227/81'+' i- Under Sect Safety Act, there is ion 14(2)(g) Of the Occupational Health and an obligation on the Employer to "take every precaution reasonable in the circumstances for the pro- tection of a worker". Similarly, under Section 86 of the Reou- lations to that @, there is a requirement that "where a worker is exposed to the hazard of foot injury he shall wear foot protection appropriate in the circumstances". - 13 - There appears to be no contractual obligation, either under Article 18.1 of the Collec~tive Agreement or under the Occupational Health and Safety Act and Regulations which re- quires the Employer to provide safety shoes or safety boots of any description. However, in contrast to the general provisions of Article 18.1, Articles 18.2 and 18.3 are specific provisions which obligate the Employer to take certain action. Article 18.2 requires the Employer to provide "safety equipment and protective clothing" where it makes the decision that such equipment and clothing are requirements of the job. Where the‘Employer makes that decision, it i's obligated to pro- vide and pay the cost o-f the safety equipment and clothing. As Vice-Chairman Saltman noted in the Gillies Decision (supra), the provision of safety shoes or safety boots have been found in private sector arbitration awards to be included in the . . - 14- wordi n9 "protective devices", "equipment", and "safety cloth- ing": See Re Automobile Workers, Local 456 and Mueller Ltd. (1965), 15 L.A.C. (Palmer); Re United Electrical Workers, Local 412 and Delamere and Williams Co. Ltd. (1972), 23 L.A.C. 56 (Johnston); and Re Hydro-Electric Commission oft the Township of Nepean and Canadian Union of Public Employees, Local 983 (1973), 1 L.A.C. (2d) 264 (Brown). This Board is boots are included with equipment" and "protect 18.2. We are supported of the opinion that safety in the meaning of the words "safety ive clothing" as set forth in Article in that finding by the evidence that the Ministry, in certain cases, does provide safety footwear at no cost to the Employee from the Quartermaster Stores where the Ministry determines a requirement for safety footwear. shoes or Article 18.3 is a separate specific provision which is concerned with the purchase and subsidization according to Ministry practice of designated protective devices, namely "safety shoes or boots for on-the-job protection". Clearly, Article 18.2 does not deal with an employee purchase of either safety equipment or protective clothing. In our opinion, both Articles stand on their own merit. The Board accep s the Union's argument that under Article 18.3, it is quite immaterial whether or not the Employ- er agrees that the safety shoes are a requirement of the job as . - 15- . long as the Eiployee can demonstrate a need*for safety foot- wear. Simply stated, an Employee is given a right to purchase safety shoes in the eve,nt that he can establish a need for on- the-job protecti on. Had the Parties contemplated that the Employer must fi rst determine that safety boots were a require- ment of the job, the Article would have so stated. Similarly, the provisions of Article 18.3 afford,the Employer the procedural option to chose between authorizing an Employee to purchase safety boots or providing safety boots under Article 18.2. Under Article 18.2, the Employer pays 100% of the cost of the safety boots, while under Article 18.3, the Employer oractice pays an allowance, which according to this Ministry's is to a maximu'm of $55.00. differs i accept Mr were not While it might appear that this Board's rationale n some respects from the rational in Gillies, we . Paliare's statement that the Union's submissions identical in the two cases. In addition, the two cases are clearly distinguishab let on the facts. In the instant matter , for the.Union to succeed, it must establish a need for Employees to wear safety shoes in the work environment. On the evidence, the Board cannot find that the Grievors perform their duties in a hazardous or potentially hazardous work environment. The mere fact that Employees work in an environment where foot injury is a possibility, does not _. Y. * - lb- . establish neeid. Here, the risk of injury is minimal at best. We are supported in that finding by the evidence that there has F been no Employee foot injury during the Grievor Sequillion's 19 year tenure at the Print Shop. Admittedly, the Grievors handle cartons of paper on a daily basis. However, careful handling of. those cartons would reduce the potential for foot injury to a negligible degree. There is no evidence that the Grievors perform their duties other than in a careful and responsible, manner. The Board does not agree with the Union's argument that the provision of safety shoes from the Quartermaster Stores on two separate occasions establishes either.a Ministry requirement or a need. At no time did the Employer insist upon the Grievors' use of safety shoes after the initial trial period. We have no hesitation in accepting Acting Corporal McCaugherty's testimony that the safety shoes were provided by the, Ministry as a concession to the Employees. One final point merits consideration. Arbitration Boa:rds, are generally reluctant to engage in gratuitous comments by iway of obiter dicta. In certain cases, Boards of Arbitra- tio'n have been known to stray from that general policy. We bel'ieve that this is the appropriate case to offer some general comments for the Employer's consideration. In spite of the results, and in the interests of good industrial relations, and in view of the small number of Employees involved, the Employer ,- _ - 17 - i- . might give consideration in this case to its method of handling . a similar problem involving male caretakers on a one time experimental basis. If this procedure is deemed appropriate by the Employer, it should be made clear to the Employees that the safety shoes must be worn during hours of employment. Any such experiment, if deemed appropriate, would be applicable only to the three Employees and must not be deemed to create a precedent. In summary, the Board finds that the Union has failed to establish an Employer violation of the provisions of Article 18.3 in its refu~sal to authorize the purchases of safety shoes. Accordjngly, these Grievances must be dismissed. DATED at Brantford, Ontario, this 17th day of May, A.D., 1985. -- ,j-w-L J* 4;’ ~; t R. L. Verity, Q.C. - Vice-Chairman E. J. Orsini - Member