HomeMy WebLinkAbout2002-2441.Union Grievance.03-06-27 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
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Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 2441/02
UNION# 2002-0999-0018 [02UI20]
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Umon Gnevance) Grievor
- and -
The Crown In RIght of Ontano
(Management Board Secretanat) Employer
BEFORE Ken Petryshen Vice-Chair
FOR THE UNION RIchard Blair
Ryder Wnght Blair & Doyle
Barnsters and SOlICItorS
FOR THE EMPLOYER Mary Pat Moore
Counsel
Management Board Secretanat
HEARING June 9 2003
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DECISION
In a gnevance dated June 10 2002, the Umon alleges that "the employer IS
vIOlatIng the CollectIve Agreement by emploYIng Agency Staff, Fee for ServIce Staff and
Consultants to perform bargaInIng umt work" In essence, the Umon claims that the
Employer IS utIlIZIng the servIces of persons outsIde of the bargaInIng umt to perform
bargaInIng umt work. In part, the Umon seeks an order dIrectIng the Employer to cease
and desIst from USIng such persons to perform bargaInIng umt work and also an order
dIrectIng the Employer to post a relevant number of bargaInIng umt posItIOns For ease
of reference I wIll refer to thIS gnevance as the BargaInIng Umt Integnty gnevance ("the
BUI gnevance") The Umon has IndIcated that there are at least 190 work areas covered
by thIS gnevance
When thIS matter came on for heanng on Apnl 29 2003 the partIes, recogmzIng
the consIderable task ahead of them, commenced the process of develoPIng a procedural
protocol for lItIgatIng the BUI gnevance ThIS process contInued on May 22 and June 9
2003 Through theIr efforts, and but for one Issue, the partIes were able to reach
agreement on a complex, yet workable procedural protocol The Issue the partIes could
not resolve IS how many medIatIOn/arbItratIOn dates ("med/arb dates") should be
scheduled each month. After agreeIng that I have the jUnSdIctIOn to decIde thIS matter
the partIes made submIssIOns on thIS Issue at the heanng on June 9 2003
In arguIng for 8 med/arb dates per month, the Umon referred to the nature of the
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CollectIve Agreement vIOlatIOn, the Impact of such a vIOlatIOn on the bargaInIng umt and
the number of work areas Involved. It submItted that It was prepared to allocate the
resources necessary for thIS number of heanng dates, SInce thIS number was reqUIred to
effectIvely address what It perceIves to be a senous sItuatIOn. The Umon submItted that a
hIgher number should be selected ImtIally and only changed If expenence under the
protocol demonstrates that a change IS warranted.
The Employer emphasIzed that the burden of the dIsclosure oblIgatIOn rested wIth
the Employer and that each med/arb date was preceded by a medIatIOn date HavIng
regard to ItS resources and ItS concern about bUIldIng a backlog of other gnevances, the
Employer submItted that 2 med/arb dates per month were appropnate The Employer
argued that It was best to begIn wIth a manageable number whIch could be Increased
later If cIrcumstances demonstrated that the partIes could handle more heanng dates per
month.
HavIng consIdered the submIssIOns of the partIes and theIr respectIve Interests, It
IS my conclusIOn that 5 med/arb dates be scheduled each month, commenCIng In
November 2003 More than 2 med/arb dates per month are needed to deal wIth the
number of work areas covered by the gnevance On the other hand, the dIsclosure
oblIgatIOns on the Employer and the legItImate concern about creatIng a backlog of other
gnevances suggest that 8 med/arb dates per month IS too many In my VIew 5 med/arb
dates per month IS a workable compromIse at thIS stage of the process GIven the lead
tIme needed for each med/arb date, the number of med/arb dates scheduled pnor to
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November 2003 and the fact that the summer vacatIOn months wIll soon be upon us, It IS
reasonable to commence schedulIng the 5 med/arb dates In November 2003 The
procedural protocol under the headIng "Procedural Matters" provIdes that eIther party
may make representatIOns to me concermng the need for changes to the protocol as the
lItIgatIOn progresses After some expenence wIth the protocol It may be appropnate for
eIther party to make representatIOns concermng the number of med/arb dates scheduled
per month.
I have attached the procedural protocol for the BUI gnevance as AppendIx "A" to
thIS decIsIOn. The partIes agreed that the protocol be Issued as an Intenm order of the
Gnevance Settlement Board. HavIng regard to thIS agreement, I dIrect The Crown In
RIght of Ontano and the Ontano PublIc ServIce Employees Umon, to comply wIth
AppendIx "A" the procedural protocol for the BUI gnevance
APPENDIX "A"
Procedural Protocol Concerning Union Grievance 02U120
The partIes have wIth the assIstance of the Gnevance Settlement Board, agreed upon a
protocol for the areas under dIspute In thIS gnevance to be brought before the Gnevance
Settlement Board, save for the questIOn of the number of medIatIOn/arbItratIOn dates (and
assocIated medIatIOn dates) per month. That protocol IS set out below and IS to be Issued
as an Intenm order of the Gnevance Settlement Board. The partIes agree to meet every
SIX months to reVIew the operatIOn of thIS protocol and dISCUSS any Issues they may wIsh
to raise related to It.
The IntentIOn of thIS protocol IS to provIde a framework for the proceedIngs, and It IS
understood that there must be some fleXIbIlIty In the manner that the protocol IS applIed
and admInIstered as the matters proceed. Where Issues anse concermng the applIcatIOn
of the protocol, the partIes wIll dISCUSS the Issues and endeavour to resolve them, faIlIng
resolutIOn, Issues can be brought forward by eIther party to one of the appoInted Vice
Chairs for resolutIOn.
The tImelInes set out In the protocol may be extended by mutual agreement, faIlIng
whIch, If a party reqUIres an extensIOn of a tImelIne, the partIes may make representatIOns
to Vice Chair Ken Petryshen or by agreement, to the Vice Chair who IS seIzed wIth
respect to the area In questIOn, who may grant an extensIOn where It IS reasonable to do
so
There shall be four Vice Chairs of the Gnevance Settlement Board assIgned to hear the
matter In medIatIOn/arbItratIOn, as follows
Ken Petryshen, Barry FIsher RandI Abramsky Bram HerlIch
The process for IdentIfYIng the areas (i e umts, branches, departments, or offices, or
groups thereof) to be medIated/arbItrated shall be as follows
The partIes, In consultatIOn wIth the Gnevance Settlement Board, wIll IdentIfy heanng
dates, 5 per month commenCIng In November 2003 (as decIded by Vice Chair Petryshen
In a decIsIOn date June 27 2003) on whIch medIatIOn/arbItratIOn wIll take place
SchedulIng of the dates, IncludIng mediatIOn dates (as dIStInCt from medIatIOn/arbItratIOn
heanng dates) wIll take place at JOInt FIle RevIew Each JOInt FIle RevIew wIll
commence wIth the schedulIng of dates for thIS matter before mOVIng to the schedulIng of
dates for other matters
The Umon wIll advIse the Employer wIth a lIst and proposed schedule of whIch areas
(i e umt, branch, department or office, or group thereof) the Umon wIshes to proceed to
medIatIOn/arbItratIOn on the IdentIfied heanng dates The proposed schedule wIll be In
the nature of a "rollIng" lIst at least four months In advance Where the Employer has a
concern regardIng the proposed schedule of areas, that concern may be raised and dealt
wIth as set out below first through dIscussIOns between the partIes to attempt to resolve
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the Issue and, faIlIng that, by puttIng that Issue expedItIOusly to Vice Chair Petryshen for
hIS resolutIOn.
SIxty days pnor to the IdentIfied heanng day the Employer wIll provIde to the Umon
dIsclosure of InformatIOn relatIng to that area as set out below under "DISCLOSURE"
The "cut off' or "snapshot" date to be used In determInIng the InformatIOn shall be the
date mnety days pnor to the IdentIfied heanng date relatIng to that area.
Where Issues anse concermng the applIcatIOn of the above process, IncludIng, for
example, the Umon' s chOIce of area to be dealt wIth for a partIcular date or the dIsclosure
deadlInes, the partIes wIll dISCUSS and attempt to resolve the Issues, or faIlIng thIS, put the
Issue expedItIOusly before Vice Chair Petryshen for resolutIOn.
DISCLOSURE
In respect of each non-Mimstry employee (agency employee fee-for-servIce consultant,
consultant employee, transfer payment agency employee, contractor partner volunteer)
In the IdentIfied umt, branch, department, or office (or group of umts, branches,
departments, or offices, as the case may be) and for each unclassIfied employee In the
IdentIfied umt, branch, department, or office (or group ofumts, branches, departments, or
offices, as the case may be) the Employer wIll provIde the folloWIng dIsclosure at least
SIxty days pnor to the heanng date scheduled In respect of the IdentIfied umt, branch,
department, or office (or group of umts, branches, departments, or offices, as the case
may be)
1 Name of IndIVIdual
2 Name of current posItIOn, or If there IS no specIfied posItIOn name, InformatIOn as to
the nature of the work performed (for example, ajob descnptIOn, or a task descnptIOn
or lIst) and name of the project (if applIcable)
3 The first date on whIch thIS IndIVIdual was employed In respect of or worked on the
task or tasks In questIOn.
4 If the task or tasks have been performed by more than one IndIVIdual In succeSSIOn,
the first date on whIch the task or tasks were performed, and the name of the
IndIVIdual or IndIVIduals who performed the work, and the dates on whIch s/he or
they commenced performance of the work In questIOn.
5 Method of payment - hourly dally weekly on a project basIs, or any other
compensatIOn arrangement.
6 The number of hours bIlled to the Crown by or In relatIOn to the IndIVIdual In
questIOn (where applIcable)
7 Work locatIOn (unless the Employer specIfies, It wIll be assumed that the person
works on Employer premIses)
8 EqUIpment/tools - whether supplIed by Employer and what supplIed (unless the
Employer specIfies, It wIll be assumed that the tools of the trade utIlIzed by the
IndIVIdual are owned by the Employer
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9 Name ofMimstry "contact" person and/or supervIsor where applIcable
10 The IdentIty of the agency transfer payment agency or firm through whIch the
IndIVIdual or the work IS supplIed, as applIcable
11 In the case of unclassIfied employees, In addItIOn to any of the applIcable InformatIOn
outlIned above whether the IndIVIdual IS full-tIme or part-tIme and the reason for the
IndIVIdual's appoIntment to the unclassIfied servIce
It IS understood that an Inadvertent faIlure to dIsclose InformatIOn wIll not preclude the
Employer from callIng eVIdence concermng a partIcular area, subject to the Umon havIng
an opportumty to adequately respond to the eVIdence IncludIng, for example, seekIng
further dIsclosure or adjournIng the matter as necessary to reVIew eVIdence not prevIOusly
dIsclosed.
MEDIA TION
ApproxImately thIrty days pnor to the heanng date scheduled In respect of a partIcular
area, on the date scheduled for medIatIOn at the JOInt FIle RevIew as noted above (unless
otherwIse agreed) the partIes wIll meet to medIate In an effort to resolve the Issues In that
area, or faIlIng resolutIOn of the area to narrow the Issues between them wIth respect to an
area. If the area under consIderatIOn IS not fully resolved, the aspects remaInIng wIll then
proceed to medIatIOn/arbItratIOn before one of the Vice Chairs of the Gnevance
Settlement Board selected as set out above
The partIes agree that It IS desIrable that these medIatIOns be scheduled to take place on
the same scheduled date as medIatIOns/arbItratIOns so that where practIcable the
assIstance, In medIatIOn, of a Vice Chair may be obtaIned If the partIes so wIsh.
MEDIATION/ARBITRATION
FaIlIng resolutIOn at the medIatIOn stage, Issues remaInIng between the partIes WIth
respect to the area under consIderatIOn for that heanng day wIll be the subject of
medIatIOn/arbItratIOn before one of the selected Vice Chairs of the Gnevance Settlement
Board.
PROCEDURAL MATTERS
In respect of procedural matters generally govermng the manner In whIch the lItIgatIOn of
the gnevance (as dIStInct from procedural matters affectIng only the lItIgatIOn In respect
of an area or areas) proceeds before the Board, the partIes are agreed that such matters
should be referred to Vice Chair Petryshen, who may determIne the manner In whIch the
Issue IS to be determIned (includIng, for example telephone conference heanngs or
wntten submIssIOns) In addItIOn, an allegatIOn that thIS protocol has not been complIed
wIth wIll also be brought before arbItrator Petryshen.
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Where, dunng the process descnbed above, any Issue anses whIch bears on the
applIcatIOn of the protocol, IncludIng, wIthout lImItatIOn, Issues concermng the
IdentIficatIOn of an area for dIsclosure, medIatIOn and/or medIatIOn/arbItratIOn, the Issues
to be determIned, or the scope relevance or necessIty of dIsclosure of InformatIOn, the
need for addItIOn or concermng the abIlIty of eIther party to meet the tImelIness set out In
the protocol, the partIes may dISCUSS the Issue and, faIlIng resolutIOn, refer the Issue to
Vice Chair Petryshen or by agreement, one of the other appoInted Vice Chairs for
determInatIOn. Where such Issues anse and reqUIre dIscussIOn or determInatIOn, the
partIes wIll endeavour to have the Issues dealt wIth expedItIOusly
With respect to thIS protocol, at any tIme dunng the process, eIther party may make
representatIOns to Vice Chair Petryshen concermng the need for changes to the protocol
as the lItIgatIOn progresses and he may amend the protocol as he deems appropnate and
necessary based on the representatIOns of the partIes
Where a determInatIOn of a Vice Chair concernIng the protocol IS necessary the Issue
may be determIned by heanng, by telephone conference, by wntten submIssIOn, or any
method whIch IS agreeable to the partIes FaIlIng agreement on the method, the Vice
Chair may determIne the method by whIch the Issue wIll be dealt wIth.
It IS understood that the IntentIOn and agreement of the partIes IS that, wIth the exceptIOn
of matters already scheduled or where heanngs have commenced and the matters are
ongOIng, or as otherwIse agreed by the partIes, gnevances concermng the Issues raised In
gnevance 02U120 wIll be consolIdated wIth 02U120 and dealt wIth through thIS process,
subJect In each case to dIscussIOn by the partIes
TERMINA TION
ThIS protocol may be termInated by eIther party on thIrty days notIce In wntIng to the
other party Pnor to termInatIOn, where eIther party has gIven notIce to termInate, the
partIes wIll meet wIth Vice Chair Petryshen for dIscussIOn of the Issues gIVIng nse to the
notIce or Issues ansIng from the termInatIOn to attempt to resolve the Issues