HomeMy WebLinkAbout2006-2210.Bertolo et al.11-05-16 Decision
Commission de
Crown Employees
Grievance
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Settlement Board
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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 7pO
Fax (416) 326-1396 7pOpF
GSB#2006-2210, 2010-0149, 2010-0150, 2010-0151, 2010-2243
UNION#2006-0605-0005, 2009-0605-0005, 2009-0605-0007, 2009-0605-0006,
2010-0605-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Bertolo et al)
Union
- and -
The Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
BEFORENimal Dissanayake Vice-Chair
FOR THE UNIONMark Barclay
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYEROmar Shahab
Ministry of Government Services
Labour Practice Group
Counsel
HEARING
May 10, 2011.
- 2 -
Decision
[1]The following grievances were scheduled for arbitration before the Board on May 10,
2011;
File No. 2006-2210, Bertolo et al
File No. 2010-0149, Boudreau
File No. 2010-0150, Gagnon
File No. 2010-0151, Blanchard
File No. 2010-2243, Parker et al
[2] At the commencement of the hearing, the parties agreed to deal with an issue common to
all grievances under the mediation/arbitration provisions of article 22.16, in a
preliminary way. Since mediation was unsuccessful, submissions were received on this
issue.
[3] Article UN 8 of the collective agreement sets out a number of provisions relating to
overtime. Article UN 8.2.1 reads:
In the assignment of overtime, the Employer agrees to develop methods of
distributing overtime at the local workplace that are fair and equitable after
having ensured that all its operational requirements are met.
The issue put to the Board for ruling was, whether article UN 8.2.1 is satisfied merely by
developing methods of distributing overtime that are fair and equitable, or whether there
is an additional obligation on the employer, when overtime is assigned, to make its
records and documentation available for review by the union and its members, so that
they can satisfy themselves that the employer had in fact complied.
[4] The union submits that in the absence of information as to how a particular overtime
opportunity was assigned the way it was, employees are unable to confirm whether or
not the employer had distributed overtime fairly and equitably. Distribution of overtime
is a discretionary act on the part of the employer. The employer may well have
legitimate explanations for the manner it distributed overtime, even though on paper
significant disparity is evident in the amount of overtime performed by individual
employees. However, there is no way for employees to verify that, unless the employer
provides information that will explain that apparent disparity. That would leave
employees no choice but to grieve in order to obtain disclosure as to why a certain
overtime opportunity was assigned in the manner it was done. It was submitted that
interpreting the duty to develop fair and equitable methods for distribution of overtime
broadly, to include a duty to provide that information would avoid the filing of
grievances, because in many cases the employees may well be satisfied with the
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[5] The employer submits that article UN 8.2.1 imposes only a duty to develop fair and
equitable methods for distribution of overWLPH7KHXQLRQ¶VSRVLWLRQLIDFFHSWHGZRXOG
add a further obligation on the employer to take affirmative action to furnish information
to the union and employees every time overtime is assigned. That would be to add to
and expand the provision of the collective agreement. Citing a provision from a
- 3 -
collective agreement between other parties which explicitly imposes an obligation of the
type sought here by the union, counsel submitted that if the parties here intended to
create such an obligation, they would have negotiated a similar provision. Counsel
argued that there was nothing unique about article UN 8.2.1. There are numerous other
provisions in the collective agreement which require the employer to act in a certain
manner. For example, article 6.3 imposes an obligation to adhere to the principle of
³UHODWLYHHTXDOLW\´LQjob competitions. It has not been suggested that the employer
must, on an on-going basis, provide documentation to demonstrate that it had complied.
The union would be entitled to disclosure of that information, but only if and when a
grievance is filed.
>@,ILQGWKHXQLRQ¶VVXEPLVVLRQVTXLWHDSSHDOLng in that its goal and potential result is the
avoidance of the filing of unnecessary grievances. However, upon closer review, I have
concluded that such initial appeal must give way to the fundamental principle that the
Board is not entitled to add to or expand the terms agreed to by the parties. I find the
HPSOR\HU¶VVXEPLVVLRQVFRPSHOOLQJWKDWDUWLcle UN 8.2.1 cannot reasonably be read as
including, explicitly or implicitly, a duty to provide the information the union seeks.
[7] As a matter of good labour relations practice, however, I urge the employer, where the
union or an employee makes specific inquiry relating to what appears on its face to be an
unequal distribution of overtime, to provide explanation without the need for filing of a
formal grievance, unless there is good reason why that cannot be done. Needless to say,
both parties stand to benefit in more than one way, by resolving concerns informally and
at the earliest possible time.
[8] Having ruled on the issue put to me, I remain seized with all of the grievances. The
parties are to consider what grievances/issues, if any, remain outstanding in light of this
ruling.
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Dated at Toronto this 16 day of May 2011.
Nimal Dissanayake, Vice-Chair