Loading...
HomeMy WebLinkAbout2003-3774.Union Grievance.04-12-17 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2003-3774 UNION# 2004-0999-0002 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 Grievance) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Stephen Giles Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Greg Gledhill Staff Relations Officer Ministry of Community Safety and Correctional Services HEARING July 22, 2004. 2 Decision From March 13th to May 6th 2002, the Union and its members were engaged in a legal strike. Prior to the beginning of this action the parties had negotiated a Memorandum of Agreement regarding the conditions of work in the event of a strike or a lockout (hereinafter referred to as the “Conditions Document”). In that agreement it was provided that “all collective agreement provisions apply to essential and emergency workers without interruption, save only that Appendix 9 and Appendix 18 shall not apply”. The Conditions Document also expressly provided the Union continued right under Article 22.13 of the Collective Agreement to file Union grievances on behalf of employees who were performing essential and emergency services. During the course of the strike approximately 5000 grievances were filed by Union members across the Ontario Public Service. As part of the negotiations that ended the work stoppage, the parties negotiated a Return to Work Protocol. That agreement contemplated various provisions including how continuous service, pension, credits and seniority would be affected as a result of the strike. Additionally, the parties addressed other issues such as reprisal, discipline and the mechanics of the actual return of the bargaining unit members to the workplace. It was further agreed these “strike related” grievances would be treated separately and litigated in an efficient manner. To that end, on June 27, 2002, OPSEU and the Ministry of Public Safety and Security (hereinafter referred to as “MPSS”) met to discuss a process in order to resolve the outstanding strike related grievances. Following that meeting a letter, dated October 11, 2002, confirmed the agreement that: 3 In order to deal with the strike related grievances in a proactive, expeditious and effective manner, the parties have agreed to the following: • No stage 2 hearings • No filing of strike related grievances at GSB, until agreed otherwise • Waiving of time limits • Respectively assigning dedicated resources to deal with the volume Approximately 4500 grievances were filed by members employed by the MPSS. The parties agreed to a Dispute Resolution Protocol for MPSS that included Terms of Reference. It is not necessary to provide all of that agreement. It is sufficient to say that the parties agreed to an expedited process wherein each party provides to the Vice Chair written submissions which include the facts, provisions of the Collective Agreement, the Essential Services Agreement, legislation or any other document alleged to have been violated, arguments and requested remedy. Oral evidence would not be called although it was allowed that I could request further clarification if necessary. In the event of any confusion regarding the facts of the matter or the underlying rationale, I will direct the parties to speak again with their principles. Notwithstanding that some grievors might wish to attend and provide oral evidence, this process has been efficient and has allowed for a thorough canvassing of the facts and arguments with respect to the various issues. Other procedural issues were addressed to ensure that grievances would be dealt with in a timely fashion. The Terms of Reference also provided that I would remain seized of all outstanding strike related grievances filed by members working in MPSS. This process was developed in consideration of Article 22.16.2 of the collective agreement. It states: The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The 4 mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise. The majority of the 4500 grievances dealt with one of the following issues: • An allegation of delayed retroactive payments with a request for interest owing; • An allegation of failure to pay appropriate holiday pay for Good Friday and Easter Monday; • Entitlement to call back; • On-Call and Standby issues for emergency workers. Those matters were separately litigated at the Grievance Settlement Board and decisions either have been issued or are pending. In accordance with the agreement of the parties a number of hearing days were scheduled to hear and determine the outstanding strike related grievances. Many of the grievances have been resolved through mediation. This is a further decision dealing with those matters. Approximately sixteen individual grievances were filed by Correctional Officers at the North Bay Jail. At the hearing held into this matter, there was some dispute regarding the facts. However, for reasons that will become clear those differences are not relevant to my determination in this matter. On April 10, 2002, there was a work refusal due to health and safety concerns. On April 17, 2002, the parties agreed to a Return to Work Agreement. Unfortunately, there was some dispute about a provision in that agreement and a hearing was held before Vice Chair McLean at the Ontario Labour Relations Board. He issued a decision with a clarification and further ordered the essential workers to attend at work at 0800 hours April 24, 2002. 5 According to the Union, the grievors appeared at work at the appointed hour but two or three employees who had been previously suspended were barred from entering. A new dispute then arose as to whether it was a violation of the Return to Work Agreement for the Employer to disallow the suspended employees from reporting to work with other Correctional Officers. When the Employer refused to alter its position, the local Union representatives verbalized that the deal was broken and that all the employees would return or none of the employees would report for work. The Employer did not change its view. The grievors left and did not work. They now grieve that they should have received pay for that whole period because they were not allowed to work by the Employer. According to the Employer, the Superintendent wrote to the afternoon shift employees after this confrontation and told them to report for work at 1400 hours in accordance with the decision of Vice Chair McLean or they would not be paid. No Correctional Officers reported for work until after the conclusion of the strike. I am not convinced that the Employer insisting that suspended employees were not permitted to return to work was a violation of the Return to Work agreement or the order of Vice Chair McLean. But even if it was, the local Union and the grievors were not entitled to issue an ultimatum to the Employer that ultimately resulted in no one returning to the workplace and then expect to be paid for those hours not worked. If there was a bona fide dispute about the Return to Work agreement the Union could have returned to the Labour Board for clarification or the Union could have filed a grievance alleging that the Employer violated the Return to Work agreement. There is no question that during a strike certain concerted activities are taken by both sides. Obviously, these Correctional Officers felt strongly that the Employer 6 was wrong in this instance. I am not convinced that it was, but even if the grievors were right that there was a violation of the agreement, I cannot order the Employer to pay these grievors for work not performed when their non-performance was entirely of their own making. I understand that some of the grievors suggested that a new work refusal began on April 24, 2002, and therefore the grievances should be upheld. I cannot accept that view. There was no dispute between the parties that on April 24, 2002, none of the grievors entered the secure area of the facility or reported to their posts. Accordingly, it is difficult to understand how the Union representatives determined on April 24, 2002 that the workplace was unsafe. For those reasons, the grievance is denied. Dated in Toronto this 17th day of December, 2004. Felicity D. Briggs