HomeMy WebLinkAbout1996-2779UNION97_09_29
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, " .. ' GRIEVANCE COMMISSION DE
1111 SETTLEMENT ,
REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416)
180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (41~)
GSB # 2779/96, 141/97
OPSEU # 97UOO8, 97U056
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Union Grievance)
Grievor
- and -
the Crown in Right of ontario
(Ministry of Community & social Services)
Employex
BEFORE W Kaplan Vice-Chair
FOR THE G Leeb
UNION Grievance Officer
ontario Public Service Employees Union
FOR THE B Loewen
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING September 23, 25, 1997
I
I
2
Introduction
In a decIsIon dated June 2, 1997, J found that the employer was In vIolatIon
- of the reasonable efforts provIsion of the collective agreement In the
result, an extensive remedial order was "given As part of that order, I
dIrected the parties to meet and discuss how best to manage closure of the
facilities beanng in mind the employer's obligations under the collective
agreement and the requirement that employees be surplused on the baSIS of
seniority I specifically retained jUrisdiction to determine this Issue should
the parties prove unable to agree The parties were unable to agree and it
was necessary to reconvene On July 31, 1997, a consent order was issued
This order suspended further transfers of residents from designated
facilities for a period of six weeks. A process was put into place, and was,
in fact, employed, to deal with exceptional circumstances which arose in i
I
the mtenm
On August 15, 1997, following mediation, the parties entered into a
Memorandum of Understanding setting out a protocol to be followed, one
that was directed at ensuring that reasonable efforts were being made and
that employees were beIng surplused on the basis of senlonty At the
request of the parties, thiS Memorandum of UnderstandIng was Issued as an
order of the Board
On September 23, 1997, and then again on September 25, 1997, the matter
agam proceeded to a hearing before the Board A number of Issues were
addressed at thiS time most particularly the unIon's request that the Board
Iss:Je an order staying both further surpluslng of employees and resident
movement out of the facilities pending a hearing on the union's claim that
3
( the employer contmued to be m breach of Its reasonable efforts obligations
In bnef, the union took the position that any other order, pending a decIsion
on the merits, would result in irreparable damage to the union and its
members as the opportunity to enJoy a substantive remedy would have
passed given all of the surplusing and resident movement that would have
taken place
For its part, the employer took the position that the scheduled surplusing
should occur, and that the union and its members could, should the union
prove successful In demonstrating that no reasonable efforts had beerl made
- a claim which the employer contested - be made whole through the
provision of damages Moreover, the employer argued that the Board was
without jurisdiction to stay or postpone the movement of any residents
fram any of the facilities without those residents having been first
notified of the umon's request, and without those residents, or their
guardians, having been given an opportunity to participate in these
proceedings
Decision
At tre request Of the parties, I issued an oral decISion Immediately
following the corrciusion of the hearing In bnef, having regard to the
position of the parties, and to an appropriate balancing of Interests I
denied the union's request that an oraer be Issued terminating any further
sU~p'USlflg of errployees pending the resolution of the case on the merits
HOW8"er I directed that the erlp10yer not initiate any plans of care or
tra;-,~te~ arrangeMents tor any residents of any of the facIlities subject to
tillS award where the initiation of such activity had not begun at the tIme
4
of this award Put another way I the employer could continue with transfer
arrangements for resIdents of the facilitIes w~ere a substantIve step other
than the Initial notification of facility closure or transfer has been given
This order will remain In effect until the issue of the award on the ments,
or until vaned by the Vice-Chair assigned to hear the ments
In that regard. and thiS provides another baSIS for my ooclsion, the parties
have agreed that this matter should proceed on an expedited baSIS It is
anticipated that the case will proceed almost immediately to a heanng and
a deCIsion will be Issued before thA end of the year The Registrar of the
Board has been so Informed, and will 30 schedule the case
DA TED at Toronto this 29th day of September 1997
1/1 / t-----
WillIam Kaplan
Vice-Chairperson