HomeMy WebLinkAbout1984-1091.Spencer.85-08-14IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
Between:
Before:
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (R. Spencer) Grievor
- and -
The Crown in Right of Ontario (Ministry of Correctional Services) Employer
R. J. Roberts Vice-Chairman
I. Thomson Member'
F. Collict Member
For the Grievor: M. Wysocki Grievance Officer Ontario Public Service Employees Union
For the Employer: J. Benedict Manager Staff Relations Personnel Branch Ministry of Correctional Services .
\ Hearing: Wednesday, May 15, 1985
2.
DECISION
The present arbitration arises out of a griev-
ance filed by Mr. B. Changoor on 25 May 1984. In this
document, Mr.'Changoor takes the position that the Employer
was in violation of the collective agreement by failing to
pay for the replacement of certain eyeglasses owned by him
which were destroyed during the course of. his employment.
This matter was not settled to the satisfaction of the
i griever and so the present arbitration was necessitated. A
hearing in relation to this grievance was held in Toronto,
Ontario, on 13 December 1984. At that time the Employer
raised an issue relating to the Board's jurisdiction to
hear this matter. To that issue we now turn.
The facts upon which the argument on this point
was based is not in dispute. Thus, it would seem that the
griever works on Emergency Patrol, i..e., he assists
distressed motorists on.Ontario's highways. While engaged
in this work on the 401 highway, the grievar saw a piece
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of metal lying on the highway which he considered to
constitute a danger to passing motorists. Hence, he left
the vehicle in which he was driving and ran across the
highway Tao where the object was lying. He bent down to
pick it up and his prescription eyeglasses fell from his
pocket.Because of oncoming traffic, he could not wait to
pick them op. Therefore, he returned to the side of the
.
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him that thenceforth, his attendance record would be reviewed monthly.
The letter concluded with a statement that management was looking for
a decided improvement in the months ahead. Both letters were standard
form letters which apparently were.adapted to be sent to all employees
with absenteeism records similar to the grievor's.
Mr. Randell~testified that in the meeting in July, 1984,
it was decided that the following form letter should be sent to all
employees whose records showed 10 days or more of illness in a six-
month period and a fair amount of overtime:
To: Correctional Officer, Toronto East Detention Centre
From: Mr. B. Randell, Chairman, Attendance Review Committee Toronto East Detention Centre
Subject OVERTIME RESTRICTION
The following action is a result of this committee's
concern over the high level of sickness that you have incurred
between January1984 and June 19E4.
We do not wish to aggravate this situation by allowing you to work more than your normal shift schedule.
It has therefore been decided that you will be restricted
from working overtime, except in extreme situations and
only after you have been ordered to remain on duty by a member of staff at the level of Shift Supervisor or above.
This restriction will remain in effect for a.period of three months, at which time you'can apply to the Attendance Review Committee to have your status changed. This would
only occur if it can be determined that a significant improvement in attendance has been achievea.
B. Randell
4.
The letter indicated that for a period of 3 months, the recipient '
would be restricted from working overtime, except in extreme
situations. It was indicated that at the end of the.three-month
period the restriction would only be lifted if the recipient achieved
a significant improvement in attendance.
On August 9, 1984, Mr. Randell sent copies of the above
form letter to the grievor and about 8 other Correctional Officers.
On August 13, he followed up with a memorandum to all Shift Super-
visors advising that these employees were restricted from working
overtime for a period of 3 months,.except in cases of extreme
.emergency . Some who were restricted like the griever went, to the
Committee and, after making satisfactory assurances, were removed
from the restricted list. The grievor, however, filed the grievances
leading to the present arbitration.
In his testimony at the hearing, Mr. Randell
insisted that the Committee imposed the three-month overtime restriction
solely out of concern for health and safety at the Institution. He
denied that the restriction was a sanction which was imposed to induce
recipients to improve their attendance records. He said that he
believed that working a fair'amount of overtime was connected to the
grievor's absenteeism because of the stressful environment that he
and other Correctional Officers must work in. He said that individuals
have gotten mentally~and physically ill as a result of this environment,
and that it made good business sense to watch for staff who seemed to
be unable to make it in for a regular shift but could work overtime.
In such circumstances,he testified, there was a. basis for believing
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that by allowing overtime, the Institution might be contributing to
a situation where the employees' health was adversely affected.
At the same time, Mr. Randell conceded that at the time
the Committee decided to restrict the griever's overtime, the
Committee did not have any direct information from the grievor re-
garding his medical condition. There wa.s no interview with the grievor
The connection between illness and overtime was not made on a case-by-
case basis. Regardless of any individual factors that might or might
not have existed, every employee who had more than ten days of illness
in a.six-month period and a fair amount of overtime received the same
three-month overtime restriction.
It was upon the ground that the overtime restriction did
not constitute discipline that the Ministry objected to jurisdiction
of the Board. It was submitted that in impos,ing this restriction,
management was acting within its exclusive management rights under
Section 18 (1) (a) of the Crown Employees Collective Bargaining Act,
R.S.O. 1980, c. 108. This provision reads in pertinent part, as.
follows:
18 (1) Every Collective Agreement shall be deemed
to provide that .it is the exclusive function of the Employer to manage, which function, without limiting the generality of the fore-
going, includes the right to determine,
(a) employment, appointment, complement, organization, assignment, . . .
and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board.
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Because this provision of the statute incorporated into the
Collective Agreement an exclusive right in management to organize
and assign the work force, it was submitted that it was beyond the
jurisdiction of the Board to review the actions of management in
this case. (Citing Re Metropolitan Toronto Board of Commissioners of
Police and Metropolitan Toronto Police Association (1981), 124 D.L.R.
(3d) 684 (Ont. C.A.), and cases following this decision.)
The Board finds, however, that it does have jurisdiction
to review the actions of management in this case. The Metro-Police
case, above, does not stand for the proposition that all actions
of management which might be characterized as coming under the aevis
of an exclusive management rights clause are unreviewable at arbitra-
tion. In the wake of Metro-Police, it was generally acknowledged
that arbitrators still retained the right to review for genuineness
or good faith a claim of exercise of an exclusive management right,
in the sense of ensuring that the claim of management did not mask,
inter alia, an attempt to circumvent or suppress other provisions
of the Collective Agreement. See M.R. Gorsky, Manaqement Riqhts
Revisited (19841, 19 Valparaiso University L.R. 123, at p. 143.
Recently, doubts have been expressed about the necessity
to construe Metro-Police as narrowing even to the above degree the
jurisdiction of this Board to review the exercise of a management
right. At least one Vice-Chairman of the Grievance Settlement Board
has suggested in a recent award that this Board retains a broad
power of review based upon administrative law concepts. Re -
7. i ;
Kuyntjes and Ministry of Transportation and Communications (19851,
G.S.B. #513/84 (Verity), at 16-17. Perhaps this decision was
influenced by the fact that the management rights clause being re-
viewed was statutory and hence was seen as-susceptible to interpre-
tation through the rule of administrative law that a statutory dis-
cretion must be exercised in a reasonable manner.
j, However, even
in the area of private arbitral jurisprudence, one arbitrator, Professor 1~
D. M. Beatty, has concluded that by virtue of the subsequent decision 1
of the Ontario Court of Appeal in Re Council of Printing Industries !
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of Canada and Toronto Printinq Pressmen and Assistants' Union No.
g (19831, 149 D.L.R. (3d) 53 (Ont. C.A.), Metro-Police was con-
structively overruled and arbitrators may now review the exercise
of any discretion by management, whether or not under a management
rights clause, for fairness and reasonableness. Re McKellar General
Hospital and Ontario Nurses' Association (19841, 15 L.A.C. (3d)
(Beatty). This view has yet to,gain.general acceptance among
arbitrators.
In order to deal with the submissions of management in .
this case, however, it is not necessary for this panel of the Board
to consider adopting.either of these broader jurisdictional approaches.
For despite Mr. Randell's insistence to the contrary, it must be
concluded that the overtime restriction which was applied to the
grievor in this case was disciplinary in nature, and hence, subject
to review by this Board. It was a punitive action, involving the
withdrawal of a privilege from the grievor for a period of three
months. For this length of time, the grievor was taken out of the
pool of employees who were eligible to be considered for overtime.
8.
This action was taken in the face of knowledge that overtime shifts
almost certainly would be available and that, based upon his past
record, the grievor had grown to rely upon working some of these shifts i .
Moreover, on any realistic view of the action taken by
management in this case, it can only be concluded that the dominant
concern of management was not for health and safety but for inducing
the grievor and other employees with similar attendance records to
correct their patterns of absenteeism. So, for example, the form
letter dated August 9, 1984, advised .the grievor that the' only way
.in which he could,have the restriction 1ifte.d after the initial period
of three months was to demonstrate a significant improvement in
attendance. No concern was expressed for any improvement in the
grievor's health. And, as the evidence indicated, when the restriction
was initially imposed, the Committee displayed no interest in making
a direct link between the working of overtime and the griever's health
problems. The entire focus' of management was to use this withdrawal
of privileges to induce the grievor and others like him to improve.
The punitive, corrective and deterrent aspects of management'r
program which have been described above~, constitute all of the ear-
marks of discipline. As was stated in a not dissimilar case in-
volving the review of an absenteeism control program, "Traditionally,
in arbitral authorities, discipline has been viewed from the varying
perspectives of punishment, rehabilitation and deterrent to other
employees. The company's programme would appear to be...clearly
aimed at uncovering causes of absenteeism and in correcting those
causes where possible and, in that sense, I feel that the proqramne
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must clearly be categorized as being one of a disciplinary nature
in the sense of being a structure of corrective actions which are
taken to resolve a problem." Re Goodyear Canada Inc. and United
Rubber Workers, Local 232 (19811, 30 L.A.C. (2d) 100, at 103 (Kennedy).
Because, as has been found by this Board, management took
disciplinary action in this case, it could not claim to be protected
by the management rights clause set forth in section 18 (1) (a) of
the Crown Employees' Collective Bargaining Act, supra. To permit
such a claim to succeed would be to countenance baa faith, in
the sense that management would be permitted to mask as one,of its
exclusive functions an action which falls to be governed by Section
18 (2) (c) of the Act, which, inter alia, permits an employee to
grieve that he was disciplined without just cause. Under Section 19
(1) of the Act, this Board has jurisdiction to .determine on the merits
whether jus't cause existed.
In the present case, it must be concluded that management
did not have just cause to discipline the grievor. It was conceded
that all of the incidents of absenteeism upon which management acted
were ,innocent, in the sense of there being no allegation of culpability
According, it is evident that in the circumstances of the present case,
the grievor was disciplined without just cause.
I’
This brings the Board to the final issue which was raised
by management. It seems that in the present case, the grievor filed
two grievances. The first grieved receipt of the letter of August
9, 1984 and requested as a settlement that the letter be removed
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from the grievor's file and that the grievor receive a written
apology. The second grievance, which was filed on the same date,
August 20, 1984, grieved the loss of.overfime as a result of the
issuance of this letter and requested as a settlement compensation
in the form of payment of the wages that he would have earned in
working a total of 9 overtime shifts, based upon the supposition
that if the'grievor had not been restricted he would have worked
three overtime shifts per month in the three-month period covered
by the letter. After the step 2 meeting on both grievances, the
Ministry withdrew the letter from the grievor's file. No apology,
however, was issued.
It was the submission of the Ministry that when it removed
the letter from the grievor's file, the first grievance was settled.
This then destroyed a necessary predicate for the second grievance
it was submitted, because the second merely claimed that management
took away a right to overtime when it was clear that under the
Collective Agreement, no employee has such a right.
While we might regard the position of the Ministry upon
the second grievance to be unduly technical in nature, it does not
seem to be necessary to make any ruling with respect thereto. This
is so because there was no evidence before the Board to indicate
that any settlement of the first grievance actually took place.
The Union denied that there was any agreement to withdraw the first
grievance in response to management's action. No Memorandum of
Settlement was entered into evidence. Moreoever, there was no viva
vote evidence showing that the grievor or the Union had promised
to withdraw the grievance in return for management's action.
Accordingly, the issue of remedy is properly before this
Board. At the hearing, however, the Board indicated to the parties
that as a first step to an appropriate resolution, it would be
considered advisable to remit the matter ta the parties. Certainly,
the grievor is entitled to some remedy, either in the form of wages
or compensating overtime for.overtime shifts which would have been
worked but for the restriction. The Board will retain jurisdiction
of the matter pending consideration by the parties.
DATED at London, Ontario, this 14thday of August, 1,985.
I. T&&on-, Member
F. CollictL-;lembir