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HomeMy WebLinkAbout2002-2441.Union.08-11-28 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2002-2441 UNION#2002-0999-0018 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 Grievances) Union - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFOREVice-Chair Ken Petryshen FOR THE UNION Richard Blair Ryder Wright Blair & Holmes Barristers and Solicitors FOR THE EMPLOYER David Strang Senior Counsel Ministry of Government Services HEARING November 17, 2008. 2 Decision [1]The Union filed twenty-three Union grievances pursuant to the Bargaining Unit Integrity (?BUI?) Protocol dated August 8, 2006 (?the Protocol?). This Protocol is an amendment to the original procedural protocol that was developed in 2003. The Union grievances were filed in September of 2008 and each grievance names a different Ministry. The Employer has taken the position that the Union cannot file a grievance against a Ministry under the Protocol. This issue was addressed at a hearing on November 17, 2008. [2]The Union filed what is referred to as the BUI grievance on June 10, 2002. The BUI grievance essentially challenges the Employer?s practice of using persons not in the bargaining unit to perform bargaining unit work. With the assistance of the GSB, the parties developed a procedural protocol for dealing with the numerous disputes that were likely to arise under the BUI grievance. In a decision dated June 27, 2003, I directed the parties to comply with the procedural protocol, which was attached to the decision as Appendix ?A?. [3]I will refer only to some of the provisions of the original procedural protocol which are relevant for our purposes. Five dates per month were scheduled for mediation/arbitration. The parties also scheduled mediation dates. The Union was to advise the Employer with a list and proposed schedule of ?which areas (i.e. unit, branch, department or office, or group thereof) the Union wishes to proceed to mediation/ arbitration on the identified hearing dates?. If the parties were unable to resolve a dispute about the areas proposed by the Union, the dispute would be referred to me for resolution. The Employer is required to provide extensive disclosure to the Union sixty days prior to the hearing date scheduled in respect of ?the 3 identified unit, branch, department, or office (or group of units, branches, departments, or offices, as the case may be)?. [4]The parties agree that the procedural protocol has worked well. I note that the individuals on both sides who have been involved with BUI issues have been committed to making the process work. This commitment has made the process very successful. With few exceptions, the disputes relating to the BUI grievance have been resolved under the procedural protocol by the parties at mediation. Neither party felt the need to exercise their right to give thirty days notice in writing to terminate the protocol. [5]The parties met on June 15, 2006, to review the procedural protocol as originally ordered. Given the progress that had been made over the previous three years, the parties amended Appendix ?A?, which now contains the Protocol referred to previously dated August 8, 2006. A significant change under the Protocol is that the parties will now schedule one day per month for arbitration. The process for identifying the BUI issue ?as defined in this protocol? is the filing of a policy grievance by the Union. This is the process for identifying ?the areas (i.e. units, branches, departments, or offices, or groups thereof) to be mediated/arbitrated??, rather than the filing of a list of areas etc. The matter will be referred to me for resolution if the parties are not able to resolve a dispute about the Union?s choice of an area. The Employer is required to provide the extensive disclosure within six weeks of receiving the policy grievance. The disclosure obligation is ?in respect of the identified unit, branch, department, or office (or group of units, branches, departments, or offices, as the case may be.? [6]By filing each of the twenty-three Union grievances against a Ministry, the Union 4 is identifying the BUI issue as Ministry wide. The Employer argues that the Protocol does not contemplate that the Union will identify a BUI issue so broadly. It submits that the time it will take to satisfy its disclosure obligation for a grievance framed so broadly will be considerable and well beyond the time contemplated by the parties when they agreed to the Protocol. The Union argues that there in nothing in the Protocol which prevents it from filing a Union grievance against a Ministry under the Protocol. It submits for a number of reasons that it is increasingly difficult for it to identify areas where there is a BUI issue. It maintains that Ministry wide disclosure will assist the parties in identifying areas where they should focus their attention. The Union also notes that BUI issues are arising again in areas that previously had been the subject of a BUI dispute and a settlement. [7]Although each side expressed some legitimate concerns during their submissions, the result in this instance must be governed by the intention of the parties, as evidenced by the words they used in the Protocol. In examining the relevant language used by the parties in the context of the entire Protocol, it is my view that the Employer?s position best reflects the objectives of the parties when they created the Protocol. [8]The Union is now obliged to file a policy grievance to identify ?the areas (i.e. units, branches, departments, or offices, or groups thereof? to be mediated/arbitrated and the Employer is obliged to provide disclosure within six weeks of receiving the policy grievance. As counsel for the Employer emphasized, the parties did not specifically include the word ?Ministry? as one of the areas for identification. Although it is unnecessary to define with precision the meaning of ?units, branches, departments, or offices, or groups thereof?, it is clear from references to these kinds of areas that an area as broad as a Ministry is not included. In my view, it is apparent from the language in the original procedural protocol and in the revised 5 Protocol that the Union would identify an area that is smaller than a Ministry in order that the process could be managed efficiently. By virtue of relatively small areas being identified, the Employer can meet its disclosure obligations in a timely fashion. The identification of a Ministry as a BUI area would likely require a lengthy delay in providing detailed disclosure. The Union has been accommodating in extending the time for the Employer to provide disclosure and counsel indicated that it would continue to be flexible if the circumstances warranted such an approach. However, a continuing need for the Employer to request an extension in order to satisfy its disclosure obligations, which would invariably be the case with grievances that name a Ministry, illustrates that the Protocol does not contemplate that the Union would identify an entire Ministry for BUI treatment. [9]For the foregoing reasons, it is my conclusion that the Protocol does not permit the Union to file a policy grievance that names a Ministry. Accordingly, the grievances that gave rise to this proceeding are dismissed. th Dated at Toronto, this 28 day of November, 2008. Ken Petryshen, Vice-Chair