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HomeMy WebLinkAbout2002-1227.Balazs.04-11-30 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-1227 UNION# 2002-0517-0015 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Balazs) Grievor - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE FelIcIty D Bnggs Vice-Chair FOR THE UNION Stephen GIles Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Greg GledhIll Staff RelatIOns Officer Mimstry of Commumty Safety and CorrectIOnal ServIces HEARING June 24 2004 2 DeCISIon From March 13th to May 6th 2002, the Umon and Its members were engaged In a legal strike Pnor to the begInnIng of tlus actIOn the partIes had negotIated a Memorandum of Agreement regardIng the condItIons of work In the event of a stnke 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 Umon contInued nght under ArtIcle 22 13 of the CollectIve Agreement to file Umon gnevances on behalf of employees who were performIng essentIal and emergency servIces Dunng the course of the strike approxImately 5000 gnevances were filed by Umon members across the Ontano PublIc ServIce As part of the negotIatIOns that ended the work stoppage, the partIes negotIated a Return to Work Protocol That agreement contemplated vanous prOVISIOns IncludIng how contInUOUS servIce, pensIOn, credIts and semonty would be affected as a result of the stnke AddItIonally, the partIes addressed other Issues such as repnsal, dIscIplIne and the mechamcs of the actual return of the bargaInIng umt members to the workplace It was further agreed these "strike related" gnevances 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 Secunty (hereInafter referred to as "MPSS") met to dISCUSS a process In order to resolve the outstandIng stnke related gnevances FolloWIng that meetIng a letter, dated October 11, 2002, confirmed the agreement that 3 In order to deal wIth the stnke related gnevances In a proactIve, expedItIOus and effectIve manner, the partIes have agreed to the folloWIng . No stage 2 heanngs . No filIng of strike related gnevances at GSB, untIl agreed otherwIse . WaiVIng of tIme lImIts . RespectIvely assIgnIng dedIcated resources to deal wIth the volume ApproxImately 4500 gnevances 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 wntten 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 clanficatIOn 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 gnevors 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 vanous Issues Other procedural Issues were addressed to ensure that gnevances would be dealt wIth In a tImely fashIOn The Terms of Reference also provIded that I would remaIn seIzed of all outstandIng strike related gnevances 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 gnevance by mediatIOn If the partIes are unable to settle the gnevance by medIatIOn, the mediator/arbItrator shall detennIne the gnevance by arbItratIOn When determInIng the gnevance by arbItratIOn, the medIator/arbItrator may lImIt the nature and extent of the eVIdence and may Impose such condItIons as he or she consIders appropnate The 4 medIator/arbItrator shall gIve a SUCCInct deCISIOn wIthIn five (5) days after completIng proceedIngs, unless the partIes agree otherwIse The maJonty of the 4500 gnevances 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 appropnate holIday pay for Good Fnday and Easter Monday, . EntItlement to call back, . On-Call and Standby Issues for emergency workers Those matters were separately lItIgated at the Gnevance Settlement Board and decIsIOns eIther have been Issued or are pendIng In accordance wIth the agreement of the partIes a number of heanng days were scheduled to hear and determIne the outstandIng strike related gnevances Many of the gnevances have been resolved through mediatIOn ThIS IS a further decIsIOn dealIng wIth those matters On March 4, 2004, I released a decIsIOn regardIng the gnevance filed by Mr Balazs He IS a CorrectIOnal Officer at the Metro Toronto West DetentIOn Centre (MWTDC) and after the conclusIOn of the stnke he filed a gnevance regardIng the balancIng of hours In that decIsIOn I explaIned the Issue at page 3 whIch said. Most CorrectIOnal Officers work a compressed workweek. The number of weeks In compressed workweek schedules can vary greatly ThIS IS true not only from one InstItutIOn to another but also wItlun one facIlIty For example, a rotatIOn for some compressed workweek schedules IS ten weeks In length The hours to be worked are averaged over that penod. That IS to say that a CorrectIOnal Officer mIght work more hours In the first pay penod of the rotatIOn than the second but the compensatIOn he receIves would remaIn constant Over the course of the entIre rotatIOn each CorrectIOnal 5 Officer works and IS compensated for the appropnate hours of work as set out In the CollectIve Agreement In the strike of 2002 the actual work stoppage began on a Wednesday thereby InterruptIng the normal schedule of work In the mIddle of a week. There were several decIsIOns dunng the course of the strike Issued statIng that normal schedulIng of hours dId not apply When CorrectIOnal Officers returned to work on a Monday In May they dId not return to the same place on theIr compressed work week schedule that they left As a result, some CorrectIOnal Officers were In a posItIOn of havIng worked extra hours and some Officers were In a deficIt hour posItIOn The partIes entered Into a settlement regardIng thIS matter on January 29, 2003 that stated. The partIes agree to a full and final settlement of the gnevance( s) lIsted In AppendIx A wIthout precedent and wIthout prejUdICe to any future and/or sImIlar matter(s) on the folloWIng terms 1 Where the local Umon wIshes that hours from the strike be balanced, the Employer wIll meet as soon as possible wIth the local Umon ERC 2 In such cases where the local Umon ERC wIshes that hours from the strike can be balanced the prOVISIOn of ArtIcle 10 from the January 1, 1999 - December 31, 2001 CollectIve Agreement and the local C W W agreement shall apply 3 The partIes agree that any strike related gnevances regardIng averagIng of hours, IncludIng IndIVIdual, group, and local polIcy gnevances, that cannot be resolved In accordance wIth the agreement, shall be referred back to Ms Diane Cotton, MPSS and Mr Tnn Mulhall, OPSEU, or theIr respectIve desIgnees, wItlun 45 calendar days after the sIgnIng of thIS Memorandum Should the gnevances remaIn In dIspute, the gnevances wIll be consolIdated and a final determInatIOn by a VIce-Chair of the Gnevance Settlement Board shall be made 4 The partIes agree that the gnevances lIsted on AppendIx A attached are resolved by thIS Memorandum of Settlement The partIes agree to make best efforts to finalIze AppendIx A wItlun 45 days of the sIgmng of thIS agreement At the InItIal heanng Into thIS matter the partIes were unsure If the local partIes at MTWDC had properly addressed the matter of the balancIng of hours at the ERC 6 meetIng Therefore, I ordered the local partIes to meet to dISCUSS the Issue In accordance wIth the above agreement of the partIes Dunng thIS penod of tIme a heanng was scheduled at the Ontano Labour RelatIOns Board for dISposItIOn of charges filed by Mr Balazs The partIes sIgned a Memorandum of Agreement on March 8, 2004, whIch stated the folloWIng The partIes to thIS applIcatIOn agree as follows 1 In accordance wIth GSB VIce Chair Bnggs' decIsIOn the Metro West ERC wIll meet forthwIth to dISCUSS the Issue of balancIng hours MInutes of the meetIng wIll be taken and forwarded to S GIles of OPSEU and Mr GledhIll The mInutes wIll reflect what decIsIOn, If any, was arnved at wIth respect to the hours balancIng Issue 2 If no decIsIOn IS reached the gnevance shall be referred back to the GSB for final decIsIOn 3 The partIes request tlus applIcatIOn be adjourned szne dle 4 The Umon and Local 517 wIll ensure that the names on gnevance 02C939 are compared to ascertaIn that all correct names are Included. 5 The Umon wIll endeavour to SOlICIt Input from Local 517 wIth respect to tlus gnevance The gnevor, along wIth two other members of the local executIve drafted a Memorandum outlInIng theIr concerns regardIng thIS matter That document stated, In part We the members of the Local Employee RelatIOns CommIttee (ERC) OPSEU Local 517 object to beIng delegated the onerous task of decIdIng the final outcome of the "balancIng of hours" gnevances DespIte the decIsIOn of the GSB arbItrator (Ms FelIcIty Bnggs) we do NOT accept thIS ultImate responsibIlIty on several grounds as follows 1 The Umon (OPSEU) has no legal authonty to sIgn away the member's nghts that are contInue In A) The CollectIve Agreement, and B) The Employment Standards Act In both documents, workers are entItled to be paid for all hours worked, IncludIng overtIme for hours In excess of our standard forty hour workweek and our compressed workweek agreement OPSEU has no legal authonty to change these condItIons, and no legal authonty to appoInt others to make tlus decIsIOn for them Therefore, the settlement dated January 29,2003 IS flawed and Illegal 7 2 Local ERC's have no legal authonty to deal wIth gnevances ArtIcle 16 of our CollectIve Agreement states that ERC tOpICS shall not be subject to the medIatIOn and arbItratIOn process The ongInal agreement to set up MERC and Local ERCs precludes the ERC from dISCUSSIng gnevances Weare NOT elected to deal wIth and make decIsIOns on our member's gnevances Weare NOT even an officIal party to the gnevance at thIS stage The only official partIes to the gnevance are OPSEU and the employer So we have no legal authonty to dIspose of the gnevance In any way Therefore, our members could nnmedIately gneve any decIsIOn taken at ERC that vIOlates theIr nghts under the CollectIve Agreement and/or the Employment Standards Act 3 A conflIct of Interest eXIsts for the Umon ERC members It makes no sense for ERC members to make the final decIsIOn on gnevances that they themselves submItted In the first place There would be a tremendous potentIal for bias Members who stood to gaIn money would vote In favour of balancIng hours, whIle members who stood to lose would vote agaInst ThIS IS not a fair and eqUItable way of decIdIng the gnevance on behalf of the rest of the membershIp The document contInued for three further paragraphs One stated that ERC members are not employees of OPSEU and therefore have no legal authonty to "dIctate to our members whether they wIll or wIll not be paid for hours worked" It was also suggested that because Mr Balazs dId not attend the ongInal gnevance heanng I was not told that the matter had been dIscussed at an ERC meetIng held on March 24, 2003 FInally, It was Said that In the past thIS gnevance has been confused wIthout another sImIlar matter A local ERC meetIng was held at Metro Toronto West DetentIOn Centre on Apnl 1,2004 On Apnl 5, 2004, I was sent a letter from the Supenntendent ofMTWDC I dId not accept tlus document untIl It was properly put before me by representatIves of the partIes In that Apnl 5, 2004 memorandum, the folloWIng was stated. As a result of a Toronto West DetentIOn Centre Employee RelatIOns CommIttee MeetIng held on Apnl 1, 2004, one of our agenda Items were (SlC) "The BalancIng of Hours - re F Bnggs DecIsIOn The attached 8 document was presented to the management and IS now beIng forward to your for your InterpretatIOn as the Umon dId not make a decIsIOn Included In that package of documentatIOn from the Local was a "handout" from the Umon ERC members gIven to the Employer dunng the Apnll, 2004 meetIng ThIS appears to be In lIeu of mInutes of the meetIng That "handout" stated. CollectIve Agreement ArtIcle 16 - does not allow medIatIOn/arbItratIOn at the local ERC ERC on Umon SIde - compnsed more specIfically, "ArtIcle 16" No agreement - thIS IS the 3rd ERC thIS Issue has been dIscussed at, same result, no agreement, umon - deal wIth gnevors It IS apparent from the above that, for whatever reason, the local ERC members at Metro Toronto West DetentIOn Centre have contInued to refuse to make any decIsIOn regardIng thIS matter In other CIrcumstances I mIght have some sympathy for theIr not wantIng to "Impose theIr vIews" on the entIre bargaInIng umt However, I do not thInk that was ever the IntentIOn of the partIes I am of the VIew that the IntentIOn of the partIes In the January 29, 2003 Memorandum of Agreement was clear It was agreed that, because of the collectIve Interest, the local umon representatIves would canvass the wIshes of theIr membershIp Once the VIew of the maJonty of the bargaInIng umt was ascertaIned, that decIsIOn would prevail and would be presented to the Employer at the local ERC I understand Mr Balazs' concern that bias mIght Interfere wIth the decIsIOn makIng process If left to only three members However, I would hope (and I tlunk the partIes Intended) that In a case such as tlus, the wIshes of the maJonty of the bargaInIng umt would be sought and then followed. Indeed, there was no suggestIOn In the Memorandum of Agreement that local ERC members would "dIctate to" membershIp "whether they wIll or wIll not be paid for hours worked" 9 I am not prepared to have thIS group leave the matter to me for determInatIOn That was not what the partIes agreed upon In accordance wIth the agreement sIgned on January 29, 2003, the local Umon IS to put forward ItS posItIOn, whIch wIll apply to all members of the bargaInIng umt, to the local Employer That local Employer wIll eIther uphold the Umon's wIshes or declare a dIspute If there IS a dIspute at that pOInt In tnne, I have the JunsdIctIOn to detennIne that matter However as IS eVIdent from the above, that process has not occurred In thIS Instance I wIll not determIne an Issue In the absence of the local Employer beIng Informed of the Umon's posItIOn and beIng gIven an opportumty to remedy the Issue If there IS no agreement I realIze that the agreement between the Umon and Mr Balazs at the Ontano Labour RelatIOns Board stated that MInutes of the ERC meetIng held to dISCUSS thIS matter wIll reflect the decIsIOn "If any" regardIng the balancIng of hours As I understand It IS the VIew of Mr Balazs that tlus allows the local umon to bypass the need to take a posItIOn I dIsagree The agreement between Mr Balazs and the Umon cannot and does not overrIde the Memorandum of Agreement dated January 29, 2003 and any InCOnsIstency between the two must be resolved In favour of the overarclung agreement between the partIes It mIght be that In March of 2003 the local ERC at MTWDC dIscussed thIS matter However, If the local Umon representatIves sImply chose to mentIOn the tOpIC and not deal wIth the matter In any substantIve way, that dIscussIOn was as InsufficIent as the dIscussIOn held on Apnll, 2004, accordIng to the documents before me AccordIngly, I order the local ERC to meet wIthIn SIxty days at the MTWDC At that tIme, the Umon wIll Inform the Employer of ItS wIshes wIth respect to the balancIng of hours The Employer wIll eIther agree to that request or declare that a 10 dIspute eXIsts Minutes of that meetIng wIll be taken If the matter remaInS outstandIng at that pOInt, the partIes are to send the mInutes of the meetIng to theIr own representatIve who wIll Infonn me that a heanng In tlus regard IS reqUIred. Dated In Toronto tlus 30th day of November, 2004 f~/s VIce-Chair