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HomeMy WebLinkAbout1996-0822COUSINS96_07_23 ~./ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 118 FA8~fLEtVE1iC~~~/9~16) 326-1396 OPSEU # 96FI06 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Cousins) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE R J. Roberts Vice-Chairperson FOR THE G. Leeb GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE B Loewen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING July 18, 1996 ,,- 1 AWARD ThIS arbItratIon arose out of CIrcumstances that occurred dunng the recent strike Pnor to commencement of the stnke, the gnevor was among a number of persons selected to perform emergency servIces work. Essentially, thIS meant that the gnevor's name appeared on a lIst of personnel to be called m to replace any essential workers who were away from work dunng the stnke due to Illness, etc Bemg on thIS lIst dId not guarantee that an employee would be called m to perform emergency serVIces durmg the stnke As It was, however the grIevor was scheduled to work for five days dunng the stnke ThIS schedule was created by the employer on March 20, 1996 It showed that the gnevor was desIgnated to work on March 30 31 & Apnl 1, 2, & 5 ThIS was toward the end of the stnke Members of the gnevor's famllv, her son Aaron and her husband Robert, Incurred dental expenses dunng the penod of the stnke Aaron receIved dental serVIces on March 7 1996 Robert receIved dental servIces on March 26, 1996 The umon dId not contmue at Its own expense the dental benefit plan for employees dunng the stnke Nevertheless, the gnevor claimed that these dental expenses should be covered by the employer under the collectIve agreement because ImmedIately pnor to the stnke she was placed on the lIst of personnel to perform emergency servIces dunng the stnke ~ 2 This claIm was founded upon an agreement between the partIes entItled CondItIons for the 1994/1995 0 P S/O P S E U EssentIal SerVIces and CollectIve Agreement NegotIatIOns, dated June 29, 1995 The agreement proVided, m pertment part, as follows Coverage by CollectIve Agreement For employees who are on stnke, the collective agreement does not apply For those employees who are used to perform emergency serVIces as provIded m the emergency serVIces part of the essentIal servIces agreements and as reqUIred by the employer, the collectIve agreement apphes After determmmg that an employee IS to be used to perform emergency serVICes work, the proVIsIons of the collectIve agreement WIll apply It was claImed on behalf of the gnevor that when her name was placed upon the lIst of personnel to perform emergency servIces, she had been "determmed " by the employer to be used to perform emergency serVIces work wlthm the meamng of the above prOVision, and as a result the collectIve agreement applIed to her dunng the entIre penod of the stnke It was claImed on behalf of the employer however that the gnevor was only covered by the collectrve agreement for the specIfic dates upon whIch she actually worked. Under thIS mterpretatIOn, to quahfy for coverage under the collective agreement the dental expenses of the gnevor's famIly members would have had to have been mcurred on March 30 31 or Apnl 1 2 or 5 Smce they were not, It was submItted, the gnevor was not entItled to reImbursement under the dental benefits plan. -' --- 3 In support of thIS submISSIOn, counsel for the employer not only referred to the relevant provIsIOns of the "CondItions" agreement set forth above, but also to a memorandum of agreement between Management Board Secretanat and OPSEU dated February 23, 1996 ThIs agreement essentially laid down the CIrcumstances under whIch each party would pay for certam benefits that the umon WIshed to contmue dunng the stnke, mcludmg baSIC hfe msurance, supplementary and dependent hfe msurance, long term mcome protectIOn and supplementary health and hospItal msurance Paragraph 5 of thIS agreement provIded, m pertment part: The employer wIll provIde payment for employees who perform emergency servIces pursuant to the EssentIal ServIces Agreements for days on WhICh such work IS performed. It was submItted on behalf of the employer that the above language showed that ImmedIately precedmg the stnke, the mtent of the partIes was that emergency serVICe employees were only to be covered by the collectIve agreement for days upon whIch they actually performed work. In an oral award rendered at the heanng, I rejected thIS submISSIOn. In my OpInIOn, It went too far There was no mdlcatlon m the eVIdence that In the memorandum of agreement dated February 23 1996, the partIes Intended In any way to alter theIr commItments under the more comprehensIve "CondItions" agreement that had been negotiated several months earlIer, m June, 1995 There was no reference to the "CondItIons" agreement In the body of the memorandum. The memorandum was for a hmlted purpose, ie, to allocate costs between the partIes for the -- 4 contmuatIon of certam specified benefits The dental benefits which are the subject of the present proceedmg were not even among them. I preferred mstead to have my deCISIon rest squarely upon the relevant wordlllg of the "ConditIOns" agreement set forth above This wordlllg did not say that once an employee actually commenced the performance of emergency services work, he or she would be covered by the collective agreement. Instead, It stated that "the collectIve agreement Will apply" after "determllllllg that an emplovee IS to be used to perform emergency services work." ThiS made the "key" to apphcatlOn of the collectIve agreement the date upon whIch the employer actually "determmed" to use an employee m thiS way In my opllllOn, the date upon WhICh the employer "determllled" that the gnevor would be used to perform emergency servIces work was the date upon whIch she was scheduled to work dunng the stnke, i. e March 20 1996 Pnor to that date, there was too much unceItamtv The gnevor was Just one among a number of employees deemed quahfied to perform such work. She mIght never have been called upon to work dunng the stnke Once the gnevor was scheduled to work, however all uncertall1ty came to an end. The employer had "determmed" to use the gnevor to perform emergency serVIces work wlthm the meanmg of the "ConditIOns" agreement From that date untJl the completIOn of performance of the work, the prOVISIOns of the collectIve agreement -- mcludmg the dental benefit plan -- apphed to the gnevor ThIS means that when dental servIces were proVIded to the gnevor's husband, Robert, on March - 5 26 ] 996 the gnevor was covered by the dental benefits plan mcluded III the collective agreement. When dental servIces were provIded to her son, Aaron, on March 7, 1996 however, the gnevor was not covered. ThIs was pnor to the date upon whIch the gnevor was scheduled to perform emergency serVIces work. Accordmgly, the gnevance IS allowed m part and dIsmIssed 111 part. The employer IS dIrected to compensate the gnevor accordmg to the provIsIons of the dental benefits plan for the cost of the dental serVIces that were mcurred on March 26th. . Dated at Toronto, Ontano, thIS23J day of July, 1996