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HomeMy WebLinkAbout1985-1630.Letniowski.87-08-19163OfZ.5 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTiVE BARGAINING ACT Befofe THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Mike Letniowski) and Crievor The Crown in Right of Ontario (Ministry of Community and Social Services) Employer D. Kate- Vice-Chairman 3. Ahderson ‘\, Member q/Roberts Member .’ For the Crievor: ,. S. Murray Grievance Officer Ontario Public Service Employees Union For the Employer: C. Slater Solicitor Legal Services Branch IMinistry of Community and Social Services Hearing: July 16, 1987 - l- The issue raised in thie.caee pertains. to whether the employer failed to comply with its alleged "practice" of subsidizing the griever for an appropriate arount in nonfee towards the purchase of esfety ehoer aa contemplated by Article 18.3 .of the iollective agreement. It is common ground that the ieeue turns on th.e approptiate characterization of the employer'8 policy with respect to the rubeidization of safety ehoo purchase,e and whether, in any event, there ha6 occurred non-compliance with that policy. Article 18.3 of the collective. agreement read8 ae follows: The purchaee of aafety ehdea or boots for on-the-Job protection of the purchaser ehsll be subsidized aa per the applicable practice in each Ministry. The fscte should be summarized. Mr. Letniouski ie employed aa a.cleaner in the Hourekae#ing Department at the Oxford Regianal Centre, Woodetock, Ontario. The Oxford Regional Centre is a facility for the handicapped opersted by the Niniatry of Community and Social Services. Ur. Letnioweki described in detail the cleaning duties he~diechargee at the facility. It suffices to say that he operates a floor cleaner for a majority of the~time requiring him from tine to time to lift, push, and move furniture and other equipment in order to accomplish these taeke. While doing so the floors are often wet thereby cawing concern about slipping and falling while in the course of moving furniture. It is also common ground that it may occur spproxinataly -2- one time a week where the griever will hove to aeeist his eollesguer in the Housekeeping Deportment in moving furniture and other equipment from done ore8 of the facility to another. In the grievor'e view the functione he prrforrr warronted the precautionary measure of wearing safety ahoes. He therefore purchased a pair. ,Indeed, eince the filing of his grievance on December 31, 1985, he hoe purchseed two pairs. After these purchaees were made he aubmittad the receipta to the employer for payment of the appropriate aubeidy towarde the purchaee price. The employer h.ae refused that requeet thereby precipitating the parties' dispute. It ia.conmon ground that the focai point of this diepute turna on the interpretation we will,secribe to a' document doted Narch 11; 1981, issued by the Ministry of Community and Social Servicea entitled "Sefety Clothing and Equipment" <i.e.. Exhibit 6). It is o rother lengthy docurent and therefore only portione relevant to the eubsidization of the purchaee of safety boots will be referred to: 'POLICY Management is responsible for: - identifying potentislly hs&rdoue eituatione and cond,itiona - ieeuing esfety clothing and equipment - eneuring.workers uee or weor it. SAFETY FOOTWEAR For chart showing specific safety equipment and clothing neede by occupation eee page 5. Coneiete of: ssfety toe caps, shoes/boots with eafety toes and/or puncture reeietant inao1ee. slip resietsnt treads or other protective footwear appropriate to potential hazard. Shall be issued snd worn when work entaile: : -3- - equipment, building or grounds msintenance - loading/unloading heavy aateriala - being in wet or slippery areas. Chart on page 5 provides details for maximum issue according to occupational neede. Lesser issue nsy be based on local working conditions by Branch Director or loco1 Adminiotration. For occupations not on chart, provisions ore determined.at local level. They ore based on the type,frequency and duration of potential hazards faced. PROVISION OF OF SAFETY CLOTHING AND EPUIPHENT Where full-tine, claesified employees are responaible for purchase of shoes/boots thst meet specifications set by employer. Employees Mayo select shoes us boots provided they are in the supervisor's opinion suitable for the JO+. PURCHASE OF SAFETY .FOOTWEAR REIMBURSEhENT Worker present8 footwear and itemized proof of purchose to Deportment Head/Manager/ Supervisor. He/she ensures footwear confo'rae to required standard8 and srranges reimbursement as follows. 1. Maximum reinbureenent rate is: - $30 for each pair of shoes - 860 for each pair of boots The chart referred to on page S of the above document speclficelly provides with respect to subsidizing cleaners towards the purchase of asfety ahoes (and we are sumaarizingl the following: Cleaners shall be entitled to subsidisstion for one pair of safety.shoes per snnua "only where furniture/eauioment aovina is 0 freauent aaeisnnent". The trsde union'8 position with respect to this dispute is clear snd etraightforwsrd. It argued that the griever is 8 clesner who on o frequent basis is required to move furniture, often on wet snd slippery flqora,, in performing hi8 tasks. He, -4- accordingly, wae entitled to-and should have born paid the nubrid+ provided in the Rinietry'e polky etateeent contained in the above document. The employer having refused payment wae thereby in breach of Article 18.3 of the collective agrement. The enployer’e couneel argued that the above document doer. not constitute or reprerent the HinLstryJe policy or practice. Rather, it ie a document that aervee the purpoee of a guideline (authored in part by the Aaeietant Adrinietrator of the Oxford Facility, Hr. Peter Anetead) that wae available to managerent of each facility under the Miniatr~*.s euperviaion io apply at ita discretion. And in that light eanageaent of the Oxford Centre relied upon the advice.and .reconnendation of itr Health and Safety Committee as to whether the duties and' reeponeibilitiea of a cleaner represent a sufficient rick or potentials hazard to health and eafety eo de to warrant payaent of the eubeidy towards the purchaee of safety shore. At the material time the griever filed his grievance the Health and Safety Committee had'not formed the required consensus to Justify granting the aubaidy to employees in the grievor'e occupational circunatance. Accordingly, the employer eubnitted that management had complied with the Riniatry'e policy insofar aa the latter had repoaed in management of the Oxford Facility the reeponsibility of determining at ite discretion whether or not to implement the guideline. Management had simply not been convinced of the justification for the aubeidy until euch time ea it might secure the .Health end Sefety Committee's positive recommendatibn. Incidentally, - 5 - the Board waa advised that on the eve of the inatant hearing the Health and Safety Committee had endorsed the aubaidy in the grievor'a circuaatance. Uanagement, accordingly, haa undertaken, ae of that date to aubaidize the grievor'a future purchaaea of safety ahoea. I+ refuaea, however, ~to pay the. griever the aubaidy with respect to previous purchaaea because it insists that it haa complied with the Miniatry'a practice of applying the guideline for the aubaidy in accordance with local needa. In any event, the enployer argued, that the grievor'a.work situation, deapite the Health and Safety Committee's moat recent reconnendation, doea not conetitute the nec,eaeary riak. to warrant the aubeidy. In that regard the evidence diaclaaed that there haa been no change in job duties of a cleaner al&e December 31, 1989 (when the grievance wae filed) and July, 1987 when nanagement endorsed the payhent of the iubaidy. Aa a result ue are at .some loaa ae to the logic or the coneiatency of the enployer'a position that ita previous -practice of refusing to psy the subsidy did not reprraent a deviation of the Niniatry'a policy of covering a potential aafety hazard. .I+ aufficea to may, that the &ployer during the course of argument insisted that the puahing and lifting of furniture during the performance of cleaning duties d4.d not'conatitute "a potential hazard" aa contemplated by the Ninimtry guildelinea to justify the eubeidy. lforeover , it wae suggested that in order to Justify the eubeidy under the guideline by reaeon of the movement of i ., .” -6- furniture the griever would have to engage on a frequent basis in the movement (i.e., carrying) of furniture from one physical location to another. Although the griever did in fact engage in this activity (at least once a week) it was not frequent enough in the eaployer'a view to warrant payment of the subsidy. There la no merit in either of the eaployer'a poaitiona. Firstly, we- are aatiafied that the document iaaued by the Niniatry insofar aa its intent represents an effort by the Hinietry;+towarde th? reaovelpf "potentiai hasarda" fron the work place by encouraging the use and wearing of appropriate safety equipment and apparel, la in substance Niniatry policy. Nori specifically, ineofar aa the chart on page 5 of the policy statement delineatea the very circumstancea in which aafety shoes or boots are to be 'used (thereby entitling a cleaner td the aubaidy), the policy, it aeeaa to ua, la not auaceptible to any deviation at the local level. Iti that regard the docuaent only anticipates the exercise of discretion at the local level with reape&to the adoption of aeaaurea designed to remove potential hazards from the work place are with reap-et to circunatancea that are not specifically dealt with in the Min%atry'a policy statement. For example it la worth repeating the reference in the l4infatry'e policy statement d'irectAng management of the facility to those matters that nay be dealt with at the local level: For occupations not on chart, provisions are determined at local level. They are baaed on the type,.frequency and duration of the potential hazard faced. -7- : There la a common aenae. buaineaa purpose as to why the Hiniatry'a policy cannot be meen to be subject to the discretion of management at the local level. It appears to ua that the chart on page 5 of the policy atatement itemizea studied .exanplea of potential. hazarda'at the work place that are not intended to be the subJoe+ matter of further dircuaaion or debate. Whether or not thoae aituationa truly represent potential hazards or warrant payment of the aubaidy or attract the aupport of either local management, the trade union, or the employees concerned is irrelevant to the'irplementation of the Niniatry'a policy and the achievement of ita'ob~ectivea. And it would not aerve.the ~iniatry'.a~obJectivea, in leaving.the discretion to implement. as <ha emplover argued, to asnagemetyat at the local level and thereby reault in having management at one facility decide to inpleaen~ the.policy while in similar circuaatancea management of another facility decide not to implement. In other uorda, the I4iniatry"a docuient repreaenta a centrally pronounced policy directive.deaigned'to be applied uniformly at all fscilitiea under its supervision and reeponaibility. Finally, we see no merit in the employer's aubmiaaion that the grievor was not entitled to the subsidy because he did not engage in the movement of furniture, at least on a sufficiently frequent basis, to constitute a potential safety hazard. In this regard, the employer relied upon Mr. Anatead!a statement at the hearing to the effect that the interpretation of the tern "'movement" was intended to mean the movement of furniture from i. -8- one, physical location to another. In that regard, we find the trade union's response to that aublaiaaion to be decisive. Surely, there was absolutely no justification for making any reference to "cleanera" on the chart of the Pliniatry'a policy statement if the frequent movement of furniture was, not intended to be linked to or connected with their cleaning functions. And,'in that regard, the potential hazard to the cleaner’s welfare, inaofar aa the wearing of safety boota providea aome protection, la the moving of furniture while.in the course of performing their dutiea.on wet and slippery floora. Moreover, in our view, should a cleaner fail to we~ar safety shoes. that potential hazard would remain irrespective of whether the novement of furniture la restricted to one particular physical a&a of the facility or la involved in the movement fior one physical area to another. In short. payment of the auheidy in the grievor'a work environment la designed to encourage the purchase of safety shore ao fhat'the potential hazard referred to in the Miniatry'a policy etatement is removed. For all the foregoing reasons the employer was in violation of the Uinietry'a policy and practice with respect to removing e potential~hazard froh the work place and thereby la directed to pay the griever hia entitled subsidy towards the purchase or purchases of safety boota in accordancg, with Article 18.3 of the collective agreement. We shall remain seized for the purpoee of implementation. I ‘. . !’ -9- DATED this 19th day of August, 1987. &$I(&:. David H. Kates Vice-Chairman I .I. Anderson Member Ii. Roberts Member