The URL can be used to link to this page

Home My WebLink About1996-0803HUMPHREYS97_01_04 - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1ZS TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 803/96 OPSEU # 96B841 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Humphreys) Grievor - and - The Crown in Right of ontario (ontario Science Centre) Employer BEFORE R J. Roberts Vice-Chairperson FOR THE G. Leeb GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE 0 Chiro EMPLOYER Coordinator, C A Negotiaions Management Board Secretariat HEARING November 19, 1996 - 1 AWARD In the present case, the gnevor gneved that he had been retahated agamst by the employer m breach of the "No Repnsals" prOVlSlons of ArtIcle 10 ofthe Return to Work Protocol negotIated between the partIes at the end of the 1996 strike For reasons WhICh follow the gnevance IS dIsmIssed. The gnevor was employed at the Ontano SCIence Centre. For the past ten years, hIS dutIes mvolved spendmg half of hIS time teachmg a hIgh school course to grade 13 students for academIc credIt. He taught the course m a classroom at the SCIence Centre The other half of hIS time was spent hasmg WIth groups of students who were brought on educatIOnal VISItS to the SCIence Centre Apparently the teachmg responsibIhtIes of the gnever were part of a longstandmg program at the SCIence Centre Over the past fourteen years, the Centre had been mvolved m hostmg such courses. Some were taught by secondan school teachers seconded to the Centre by their vanous school boards. Others were taught by non-Board teachers such as the gnevor Accordmg to the eVidence over the entlre penod of the program, there had been a total of 6 non-Board teachers who taught alongside those ",ho were seconded from the seeondar) school system Three of _. 2 these were management personnel from the SCIence Centre and three were members of the bargaInIng umt. As tIme went on, fewer and fewer non-Board teachers were supplIed by the SCIence Centre By the tIme of the events leadmg to thIS arbItratIOn, only one non-Board teacher remamed. That was the gnevor The other four mcumbents m the gnevor's posItIon dId not perform any teachmg dutIes. In early 1996, as a strike by the umon became more and more likely, both the SCIence Centre and the school boards that had students m the gnevor's course became concerned about what to do m the event that the gnevor, as a member of the bargammg umt, WIthdrew hi"s serVIces dunng the stnke There was also concern about retammg the other classes at the SCIence Centre because the secondary school teachers who had been seconded to teach there were unlIkely to cross a pIcket Ime. The latter problem was solved by movmg the three classes taught by secondary school teachers to Don Mllls CollegIate dUrIng the strIke The umon dId not take Issue WIth thIS because the secondary school teachers were not members of the bargammg UnIt. The class taught by the gnevor, however had to be canceled. t\pparently toward the end of the stnke the SCIence Centre sought to establIsh a replacement course for that taught by the gnevor, thIS tIme taught by a secondary st:hool teacher on 3 sccondment Just as m the other three courses Accordmg to the eVIdence of the umon, the gnevor became actIve m takmg steps to ensure that thIS replacement course was not conducted. There was no elaboratIOn of the steps that the gnevor took m pursumg thIS effort. When the stnke ended, the SCIence Centre arranged for the gnevor to provIde students m hIS course an extra four to five hours a week of structured classllaboratory tIme The Centre also arranged for the gnevor to be aVailable to students for mdIvIdual help m small group tutonals at any tIme durmg the day Two weeks later, on Apnl 17, 1996, the gnevor became aware that the Centre was seekmg to obtam a fourth seconded teacher to take over hIS course. The Centre succeeded m thIS effort and as a result, the gnevor was reheved of hIS teachmg responSIbIhtIes and reassIgned to full tIme hason work. Accordmg to the Centre, thIS was the same type of work that was performed by the other four mcumbents m the gnevor's pOSItIOn. There was no Impact upon the gnevor's classIficatIOn nor the level of hIS remuneratIOn. At the heanng, It was claimed on behalf of the gnevor that thIS move by the Centre was taken m retahatIon for hIS actIOns 111 ensunng that a replacement course would not be taught dunng the stnke As such, It was submItted, It constItuted a breach of the "No Repnsals" provISIons of ArtIcle 1 0 of the Return to N ork Protocol It was asserted by the SCIence Centre, however that management could not have acted m - " 4 retalIatIOn as alleged because until the day of the heanng management dId not even know about the gnevor's partICIpatiOn m preventmg the teachmg of a replacement course dunng the stnke In the course of the heanng, It was submItted, management was learmng for the first tIme of the actions of the gnevor In reply, It was submItted on behalf of the gnevor that management at the SCIence Centre must have known of the gnevor's actIOns. Reference was made to an address that the gnevor's superVIsor, Ms. Pamela Kay, gave to students WhICh, It was saId, seemed to be cntIcal of the support that the students had gIven the strike and also of the support they had gIven the gnevor m rearrangmg hIS classes Reference was also made to the tImmg of the move by management, commg as It dId so soon after the end of the stnke It would seem, however, that these references do httle to damage the Impact of management's assertiOn that at the tIme of the deCISIOn to replace the gnevor WIth a seconded secondary school teacher It dId not know of the grIevor's actIOns dUrIng the strIke The brIef reference to the address of Ms. Kay, msofar as It mIght be conSIdered m an expedIted proceedmg of thIS type, would at Its hIghest support an mference that she was not pleased that the stnke had occurred. The timmg of the move by management taken at Its heIght would only support an mference that management deCIded to complete a process that they had started dunng the stnke, i e replacmg the gnevor WIth a seconded secondary school teacher The references do not support the more senous mference that management was mIsleadmg or worse 111 ItS assertiOn that It was hearIng for the fir~t tIme of the actIons of the gne\ or dunng the stnke - 5 As a result, the assertiOn of management must be allowed to stand. It would seem to go wIthout saymg that thIs effectIvely undermmes the claim of retalIatiOn alleged m the gnevance at hand. You can't retalIate agamst actiOns you don't know about. It cannot be concluded herem that management was retalIatmg agamst the gnevor when hIS teachmg responsibIlItIes were removed. Before leavmg thIS matter, It must be said that one can certamly understand the SuspIciOns that the gnevor must have entertamed when hIS teachmg responsibIlItIes were removed. The gnevor ObvIOusly loved thIS aspect of hIS work and had performed It for a consIderable penod of tIme Immediately after the end of the stnke, the work enVIronment lIkely was uncomfortable and tense leadmg to consIderable mIstrust of management's motIves GIven the gnevor's own knowledge of hIS actIOns dunng the stnke, It would have been understandable for hIm to mfer that management's motIve m makmg thIS change was to pUnIsh or retalIate agamst hIm. On the eVIdence, however, thIS was not the case The gnevance IS dISITIlSsed Dated at Toronto Ontano, thIS 4th day of January, 1997 --"L