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Home My WebLink About2002-2095.Union Grievance.04-12-17 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# 2002-2095 UNION# 2002-0999-0028 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Union - and - The Crown III 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 July 22, 2004 2 DeCISIon From March 13th to May 6th 2002, the UnIon and Its members were engaged m a legal strike Pnor to the begmnmg of tlllS actIOn the partIes had negotIated a Memorandum of Agreement regardmg the condItIons of work m the event of a stnke or a lockout (heremafter referred to as the "CondItIons Document") In that agreement It was provIded that "all collectIve agreement prOVISIOns apply to essentIal and emergency workers wIthout mterruptIOn, save only that AppendIx 9 and AppendIx 18 shall not apply" The CondItIons Document also expressly provIded the UnIon contmued nght under ArtIcle 22 13 of the CollectIve Agreement to file UnIon gnevances on behalf of employees who were perfonnmg essentIal and emergency servIces Dunng the course of the strike approxImately 5000 gnevances were filed by UnIon members across the Ontano Pubhc ServIce As part of the negotIatIOns that ended the work stoppage, the partIes negotIated a Return to Work Protocol That agreement contemplated vanous prOVISIOns mcludmg how contmuous servIce, pensIOn, credIts and senIonty would be affected as a result of the stnke AddItIonally, the partIes addressed other Issues such as repnsal, dIscIphne and the mechanIcs of the actual return of the bargammg UnIt members to the workplace It was further agreed these "strike related" gnevances would be treated separately and htIgated m an efficIent manner To that end, on June 27, 2002, OPSEU and the MmIstry of Pubhc Safety and Secunty (heremafter referred to as "MPSS") met to dISCUSS a process m order to resolve the outstandmg stnke related gnevances Followmg that meetmg a letter, dated October 11, 2002, confirmed the agreement that 3 In order to deal wIth the stnke related gnevances m a proactIve, expedItIOus and effectIve manner, the partIes have agreed to the followmg . No stage 2 heanngs . No filmg of strike related gnevances at GSB, untIl agreed otherwIse . WaIvmg of tIme hmIts . RespectIvely assIgnmg 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 mcluded 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 wherem each party provIdes to the VIce Chair wntten submIssIOns whIch mclude 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 regardmg the facts of the matter or the underlymg ratIOnale, I wIll dIrect the partIes to speak agam wIth theIr prmcIples NotwIthstandmg that some gnevors mIght wIsh to attend and provIde oral eVIdence, thIS process has been efficIent and has allowed for a thorough canvassmg of the facts and arguments wIth respect to the vanous Issues Other procedural Issues were addressed to ensure that gnevances would be dealt wIth m a tImely fashIOn The Terms of Reference also provIded that I would remam seIzed of all outstandmg strike related gnevances filed by members workmg m MPSS ThIS process was developed m 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 detennme the gnevance by arbItratIOn Wllen determmmg the gnevance by arbItratIOn, the medIator/arbItrator may hmIt 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 succmct deCISIOn wIthm five (5) days after completmg proceedmgs, unless the partIes agree otherWIse The majonty of the 4500 gnevances dealt wIth one of the followmg Issues . An allegatIOn of delayed retroactIve payments wIth a request for mterest owmg, . An allegatIOn of failure to pay appropnate hohday pay for Good Fnday and Easter Monday, . EntItlement to call back, . On-Call and Standby Issues for emergency workers Those matters were separately htIgated at the Gnevance Settlement Board and decIsIOns eIther have been Issued or are pendmg In accordance wIth the agreement of the partIes a number of heanng days were scheduled to hear and determme the outstandmg strike related gnevances Many of the gnevances have been resolved through mediatIOn ThIS IS a further decIsIOn deahng wIth those matters ApproXImately sIxteen mdIvIdual gnevances were filed by CorrectIOnal Officers at the North Bay JaIl At the heanng held mto tlllS matter, there was some dIspute regardmg the facts However, for reasons that wIll become clear those dIfferences are not relevant to my detennmatIOn m tlllS matter On Apnll0, 2002, there was a work refusal due to health and safety concerns On Apnl 17, 2002, the partIes agreed to a Return to Work Agreement Unfortunately, there was some dIspute about a prOVISIOn m that agreement and a heanng was held before VIce Chair McLean at the Ontano Labour RelatIOns Board. He Issued a decIsIOn wIth a clanficatIOn and further ordered the essentIal workers to attend at work at 0800 hours Apn124, 2002 5 Accordmg to the UnIon, the gnevors appeared at work at the appomted hour but two or three employees who had been prevIOusly suspended were barred from entenng 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 reportmg to work wIth other CorrectIOnal Officers Wilen the Employer refused to alter Its posItIOn, the local UnIon representatIves verbahzed 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 gnevors left and dId not work. They now gneve that they should have receIved pay for that whole penod because they were not allowed to work by the Employer Accordmg to the Employer, the Supenntendent wrote to the afternoon shIft employees after thIS confrontatIOn and told them to report for work at 1400 hours m 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 convmced that the Employer mSIstmg 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 gnevors were not entItled to Issue an ultImatum to the Employer that ultImately resulted m no one returnmg 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 clanficatIOn or the UnIon could have filed a gnevance allegmg that the Employer vIOlated the Return to Work agreement There IS no questIOn that dunng a stnke certam concerted actIvItIes are taken by both sIdes ObvIOusly, these CorrectIOnal Officers felt strongly that the Employer 6 was wrong m thIS mstance I am not convmced that It was, but even If the gnevors were nght that there was a vIOlatIOn of the agreement, I cannot order the Employer to pay these gnevors for work not performed when theIr non-performance was entIrely of theIr own makmg I understand that some of the gnevors suggested that a new work refusal began on Apnl 24, 2002, and therefore the gnevances should be upheld. I cannot accept that VIew There was no dIspute between the partIes that on Apnl 24, 2002, none of the gnevors entered the secure area of the facIhty or reported to theIr posts Accordmgly, It IS dIfficult to understand how the UnIon representatIves determmed on Apn124, 2002 that the workplace was unsafe F or those reasons, the gnevance IS denIed. Dated m Toronto tlllS 1 ih day of December, 2004 . S