HomeMy WebLinkAbout2003-3774.Union Grievance.04-12-17 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2003-3774
UNION# 2004-0999-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union Grievance) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Felicity D. Briggs Vice-Chair
FOR THE UNION Stephen Giles
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER Greg Gledhill
Staff Relations Officer
Ministry of Community Safety and
Correctional Services
HEARING July 22, 2004.
2
Decision
From March 13th to May 6th 2002, the Union and its members were engaged in a
legal strike. Prior to the beginning of this action the parties had negotiated a
Memorandum of Agreement regarding the conditions of work in the event of a
strike or a lockout (hereinafter referred to as the “Conditions Document”). In that
agreement it was provided that “all collective agreement provisions apply to
essential and emergency workers without interruption, save only that Appendix 9
and Appendix 18 shall not apply”. The Conditions Document also expressly
provided the Union continued right under Article 22.13 of the Collective
Agreement to file Union grievances on behalf of employees who were performing
essential and emergency services.
During the course of the strike approximately 5000 grievances were filed by Union
members across the Ontario Public Service. As part of the negotiations that ended
the work stoppage, the parties negotiated a Return to Work Protocol. That
agreement contemplated various provisions including how continuous service,
pension, credits and seniority would be affected as a result of the strike.
Additionally, the parties addressed other issues such as reprisal, discipline and the
mechanics of the actual return of the bargaining unit members to the workplace.
It was further agreed these “strike related” grievances would be treated separately
and litigated in an efficient manner. To that end, on June 27, 2002, OPSEU and the
Ministry of Public Safety and Security (hereinafter referred to as “MPSS”) met to
discuss a process in order to resolve the outstanding strike related grievances.
Following that meeting a letter, dated October 11, 2002, confirmed the agreement
that:
3
In order to deal with the strike related grievances in a proactive, expeditious
and effective manner, the parties have agreed to the following:
• No stage 2 hearings
• No filing of strike related grievances at GSB, until agreed otherwise
• Waiving of time limits
• Respectively assigning dedicated resources to deal with the volume
Approximately 4500 grievances were filed by members employed by the MPSS.
The parties agreed to a Dispute Resolution Protocol for MPSS that included Terms
of Reference. It is not necessary to provide all of that agreement. It is sufficient to
say that the parties agreed to an expedited process wherein each party provides to
the Vice Chair written submissions which include the facts, provisions of the
Collective Agreement, the Essential Services Agreement, legislation or any other
document alleged to have been violated, arguments and requested remedy. Oral
evidence would not be called although it was allowed that I could request further
clarification if necessary. In the event of any confusion regarding the facts of the
matter or the underlying rationale, I will direct the parties to speak again with their
principles. Notwithstanding that some grievors might wish to attend and provide
oral evidence, this process has been efficient and has allowed for a thorough
canvassing of the facts and arguments with respect to the various issues. Other
procedural issues were addressed to ensure that grievances would be dealt with in a
timely fashion. The Terms of Reference also provided that I would remain seized
of all outstanding strike related grievances filed by members working in MPSS.
This process was developed in consideration of Article 22.16.2 of the collective
agreement. It states:
The mediator/arbitrator shall endeavour to assist the parties to settle the
grievance by mediation. If the parties are unable to settle the grievance by
mediation, the mediator/arbitrator shall determine the grievance by
arbitration. When determining the grievance by arbitration, the
mediator/arbitrator may limit the nature and extent of the evidence and may
impose such conditions as he or she considers appropriate. The
4
mediator/arbitrator shall give a succinct decision within five (5) days after
completing proceedings, unless the parties agree otherwise.
The majority of the 4500 grievances dealt with one of the following issues:
• An allegation of delayed retroactive payments with a request for interest
owing;
• An allegation of failure to pay appropriate holiday pay for Good Friday and
Easter Monday;
• Entitlement to call back;
• On-Call and Standby issues for emergency workers.
Those matters were separately litigated at the Grievance Settlement Board and
decisions either have been issued or are pending.
In accordance with the agreement of the parties a number of hearing days were
scheduled to hear and determine the outstanding strike related grievances. Many of
the grievances have been resolved through mediation. This is a further decision
dealing with those matters.
Approximately sixteen individual grievances were filed by Correctional Officers at
the North Bay Jail. At the hearing held into this matter, there was some dispute
regarding the facts. However, for reasons that will become clear those differences
are not relevant to my determination in this matter.
On April 10, 2002, there was a work refusal due to health and safety concerns. On
April 17, 2002, the parties agreed to a Return to Work Agreement. Unfortunately,
there was some dispute about a provision in that agreement and a hearing was held
before Vice Chair McLean at the Ontario Labour Relations Board. He issued a
decision with a clarification and further ordered the essential workers to attend at
work at 0800 hours April 24, 2002.
5
According to the Union, the grievors appeared at work at the appointed hour but
two or three employees who had been previously suspended were barred from
entering. A new dispute then arose as to whether it was a violation of the Return to
Work Agreement for the Employer to disallow the suspended employees from
reporting to work with other Correctional Officers. When the Employer refused to
alter its position, the local Union representatives verbalized that the deal was
broken and that all the employees would return or none of the employees would
report for work. The Employer did not change its view. The grievors left and did
not work. They now grieve that they should have received pay for that whole
period because they were not allowed to work by the Employer.
According to the Employer, the Superintendent wrote to the afternoon shift
employees after this confrontation and told them to report for work at 1400 hours
in accordance with the decision of Vice Chair McLean or they would not be paid.
No Correctional Officers reported for work until after the conclusion of the strike.
I am not convinced that the Employer insisting that suspended employees were not
permitted to return to work was a violation of the Return to Work agreement or the
order of Vice Chair McLean. But even if it was, the local Union and the grievors
were not entitled to issue an ultimatum to the Employer that ultimately resulted in
no one returning to the workplace and then expect to be paid for those hours not
worked. If there was a bona fide dispute about the Return to Work agreement the
Union could have returned to the Labour Board for clarification or the Union could
have filed a grievance alleging that the Employer violated the Return to Work
agreement.
There is no question that during a strike certain concerted activities are taken by
both sides. Obviously, these Correctional Officers felt strongly that the Employer
6
was wrong in this instance. I am not convinced that it was, but even if the grievors
were right that there was a violation of the agreement, I cannot order the Employer
to pay these grievors for work not performed when their non-performance was
entirely of their own making.
I understand that some of the grievors suggested that a new work refusal began on
April 24, 2002, and therefore the grievances should be upheld. I cannot accept that
view. There was no dispute between the parties that on April 24, 2002, none of the
grievors entered the secure area of the facility or reported to their posts.
Accordingly, it is difficult to understand how the Union representatives determined
on April 24, 2002 that the workplace was unsafe.
For those reasons, the grievance is denied.
Dated in Toronto this 17th day of December, 2004.
Felicity D. Briggs