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HomeMy WebLinkAbout1996-2779UNION97_09_29 . ' " OWTARIO EMP10ytS nr tA COl.lflONNf ,.,}'(J< .. . Cf/OWN f I,4PLOYf f S DE L'ONTAllO , " .. ' GRIEVANCE COMMISSION DE 1111 SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (41~) GSB # 2779/96, 141/97 OPSEU # 97UOO8, 97U056 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - the Crown in Right of ontario (Ministry of Community & social Services) Employex BEFORE W Kaplan Vice-Chair FOR THE G Leeb UNION Grievance Officer ontario Public Service Employees Union FOR THE B Loewen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING September 23, 25, 1997 I I 2 Introduction In a decIsIon dated June 2, 1997, J found that the employer was In vIolatIon - of the reasonable efforts provIsion of the collective agreement In the result, an extensive remedial order was "given As part of that order, I dIrected the parties to meet and discuss how best to manage closure of the facilities beanng in mind the employer's obligations under the collective agreement and the requirement that employees be surplused on the baSIS of seniority I specifically retained jUrisdiction to determine this Issue should the parties prove unable to agree The parties were unable to agree and it was necessary to reconvene On July 31, 1997, a consent order was issued This order suspended further transfers of residents from designated facilities for a period of six weeks. A process was put into place, and was, in fact, employed, to deal with exceptional circumstances which arose in i I the mtenm On August 15, 1997, following mediation, the parties entered into a Memorandum of Understanding setting out a protocol to be followed, one that was directed at ensuring that reasonable efforts were being made and that employees were beIng surplused on the basis of senlonty At the request of the parties, thiS Memorandum of UnderstandIng was Issued as an order of the Board On September 23, 1997, and then again on September 25, 1997, the matter agam proceeded to a hearing before the Board A number of Issues were addressed at thiS time most particularly the unIon's request that the Board Iss:Je an order staying both further surpluslng of employees and resident movement out of the facilities pending a hearing on the union's claim that 3 ( the employer contmued to be m breach of Its reasonable efforts obligations In bnef, the union took the position that any other order, pending a decIsion on the merits, would result in irreparable damage to the union and its members as the opportunity to enJoy a substantive remedy would have passed given all of the surplusing and resident movement that would have taken place For its part, the employer took the position that the scheduled surplusing should occur, and that the union and its members could, should the union prove successful In demonstrating that no reasonable efforts had beerl made - a claim which the employer contested - be made whole through the provision of damages Moreover, the employer argued that the Board was without jurisdiction to stay or postpone the movement of any residents fram any of the facilities without those residents having been first notified of the umon's request, and without those residents, or their guardians, having been given an opportunity to participate in these proceedings Decision At tre request Of the parties, I issued an oral decISion Immediately following the corrciusion of the hearing In bnef, having regard to the position of the parties, and to an appropriate balancing of Interests I denied the union's request that an oraer be Issued terminating any further sU~p'USlflg of errployees pending the resolution of the case on the merits HOW8"er I directed that the erlp10yer not initiate any plans of care or tra;-,~te~ arrangeMents tor any residents of any of the facIlities subject to tillS award where the initiation of such activity had not begun at the tIme 4 of this award Put another way I the employer could continue with transfer arrangements for resIdents of the facilitIes w~ere a substantIve step other than the Initial notification of facility closure or transfer has been given This order will remain In effect until the issue of the award on the ments, or until vaned by the Vice-Chair assigned to hear the ments In that regard. and thiS provides another baSIS for my ooclsion, the parties have agreed that this matter should proceed on an expedited baSIS It is anticipated that the case will proceed almost immediately to a heanng and a deCIsion will be Issued before thA end of the year The Registrar of the Board has been so Informed, and will 30 schedule the case DA TED at Toronto this 29th day of September 1997 1/1 / t----- WillIam Kaplan Vice-Chairperson