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HomeMy WebLinkAbout2021-3092.Union.24-07-05 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-3092 UNION# 2022-0617-0001 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) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brian Sheehan Arbitrator FOR THE UNION Gregg Gray Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Justin O’Gorman Treasury Board Secretariat Employee Relations & Negotiations Team Lead HEARING June 19, 2024 -2 - Decision [1] The Employer and the Union at the Sudbury Jail agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, and it is without prejudice or precedent. [2] This award relates to a Union policy grievance asserting a violation of Articles 1,2, and 9 of the collective agreement. [3] The facts associated with this matter are not substantively in dispute. [4] During the COVID-19 pandemic, the Employer assigned bargaining unit personnel to perform temperature checks on staff coming into work at the front door of the institution. [5] Initially, this work was performed by two Correctional Officers (COs) as part of their regular working assignment. [6] The Employer subsequently adopted the practice of utilizing overtime assignments to complete the work in question. Those overtime opportunities were not exclusively restricted to COs, as bargaining unit employees in other classifications also performed the work in question on an overtime basis. [7] The Secretary to the Superintendent is a position excluded from the bargaining unit. At some point, while the overtime assignments regarding the temperature checks were ongoing, the name of the incumbent in that position was added to the list of those willing to perform the temperature check duties on an overtime basis, and that individual was subsequently assigned to such overtime opportunities. [8] While appreciating the Employer’s perspective that the work in question was not traditional work performed by members of the bargaining unit, it has been concluded that allowing an employee who is not part of the bargaining unit to perform work that had been performed regularly by members of the bargaining unit represents an attack on the integrity of the bargaining unit; and as such, violated the accepted implied restriction on non-bargaining unit personnel performing bargaining unit work (see OPSEU (Pilon et. al) Ministry of Community and Social Services (Brown) GSB File # 0573/99 decision dated June 2, 2003). Moreover, that assignment also breached COR 8 of the collective agreement and the -3 - Provincial Overtime Protocol, as the individual involved should not have been offered overtime opportunities that properly constituted available overtime assignments for members of the bargaining unit. [9] A remedy that the Union is seeking is that those employees who would have otherwise been offered the overtime in question be made whole in terms of lost wages. The position of the Employer is that if a violation were to be found, the appropriate penalty is payment to the Union an amount equal to the loss of union dues experienced by the Union as a result of the work in question not being performed by members of the bargaining unit. [10] The parties advised that there was ongoing litigation at the GSB, wherein the issue regarding the appropriate remedy in the context of the restriction on non- bargaining unit personnel performing bargaining unit work is currently being litigated. [11] In light of the above, the grievance is upheld, and it is hereby declared that the Employer violated the collective agreement by having the Secretary to the Superintendent perform the work in dispute. The issue as to the nature of further remedial relief that is appropriate in the circumstances is remitted back to the parties. If the parties have failed to resolve this particular issue after six months, either party can request that the GSB schedule a conference call be held with me to address any remaining outstanding disputes regarding the appropriate remedy. Dated at Toronto, Ontario this 5th day of July 2024. “Brian Sheehan” Brian Sheehan, Arbitrator