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HomeMy WebLinkAbout2002-2441.Union Grievance.03-06-27 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# 2441/02 UNION# 2002-0999-0018 [02UI20] 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) Grievor - and - The Crown In RIght of Ontano (Management Board Secretanat) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION RIchard Blair Ryder Wnght Blair & Doyle Barnsters and SOlICItorS FOR THE EMPLOYER Mary Pat Moore Counsel Management Board Secretanat HEARING June 9 2003 2 DECISION In a gnevance dated June 10 2002, the Umon alleges that "the employer IS vIOlatIng the CollectIve Agreement by emploYIng Agency Staff, Fee for ServIce Staff and Consultants to perform bargaInIng umt work" In essence, the Umon claims that the Employer IS utIlIZIng the servIces of persons outsIde of the bargaInIng umt to perform bargaInIng umt work. In part, the Umon seeks an order dIrectIng the Employer to cease and desIst from USIng such persons to perform bargaInIng umt work and also an order dIrectIng the Employer to post a relevant number of bargaInIng umt posItIOns For ease of reference I wIll refer to thIS gnevance as the BargaInIng Umt Integnty gnevance ("the BUI gnevance") The Umon has IndIcated that there are at least 190 work areas covered by thIS gnevance When thIS matter came on for heanng on Apnl 29 2003 the partIes, recogmzIng the consIderable task ahead of them, commenced the process of develoPIng a procedural protocol for lItIgatIng the BUI gnevance ThIS process contInued on May 22 and June 9 2003 Through theIr efforts, and but for one Issue, the partIes were able to reach agreement on a complex, yet workable procedural protocol The Issue the partIes could not resolve IS how many medIatIOn/arbItratIOn dates ("med/arb dates") should be scheduled each month. After agreeIng that I have the jUnSdIctIOn to decIde thIS matter the partIes made submIssIOns on thIS Issue at the heanng on June 9 2003 In arguIng for 8 med/arb dates per month, the Umon referred to the nature of the 3 CollectIve Agreement vIOlatIOn, the Impact of such a vIOlatIOn on the bargaInIng umt and the number of work areas Involved. It submItted that It was prepared to allocate the resources necessary for thIS number of heanng dates, SInce thIS number was reqUIred to effectIvely address what It perceIves to be a senous sItuatIOn. The Umon submItted that a hIgher number should be selected ImtIally and only changed If expenence under the protocol demonstrates that a change IS warranted. The Employer emphasIzed that the burden of the dIsclosure oblIgatIOn rested wIth the Employer and that each med/arb date was preceded by a medIatIOn date HavIng regard to ItS resources and ItS concern about bUIldIng a backlog of other gnevances, the Employer submItted that 2 med/arb dates per month were appropnate The Employer argued that It was best to begIn wIth a manageable number whIch could be Increased later If cIrcumstances demonstrated that the partIes could handle more heanng dates per month. HavIng consIdered the submIssIOns of the partIes and theIr respectIve Interests, It IS my conclusIOn that 5 med/arb dates be scheduled each month, commenCIng In November 2003 More than 2 med/arb dates per month are needed to deal wIth the number of work areas covered by the gnevance On the other hand, the dIsclosure oblIgatIOns on the Employer and the legItImate concern about creatIng a backlog of other gnevances suggest that 8 med/arb dates per month IS too many In my VIew 5 med/arb dates per month IS a workable compromIse at thIS stage of the process GIven the lead tIme needed for each med/arb date, the number of med/arb dates scheduled pnor to 4 November 2003 and the fact that the summer vacatIOn months wIll soon be upon us, It IS reasonable to commence schedulIng the 5 med/arb dates In November 2003 The procedural protocol under the headIng "Procedural Matters" provIdes that eIther party may make representatIOns to me concermng the need for changes to the protocol as the lItIgatIOn progresses After some expenence wIth the protocol It may be appropnate for eIther party to make representatIOns concermng the number of med/arb dates scheduled per month. I have attached the procedural protocol for the BUI gnevance as AppendIx "A" to thIS decIsIOn. The partIes agreed that the protocol be Issued as an Intenm order of the Gnevance Settlement Board. HavIng regard to thIS agreement, I dIrect The Crown In RIght of Ontano and the Ontano PublIc ServIce Employees Umon, to comply wIth AppendIx "A" the procedural protocol for the BUI gnevance APPENDIX "A" Procedural Protocol Concerning Union Grievance 02U120 The partIes have wIth the assIstance of the Gnevance Settlement Board, agreed upon a protocol for the areas under dIspute In thIS gnevance to be brought before the Gnevance Settlement Board, save for the questIOn of the number of medIatIOn/arbItratIOn dates (and assocIated medIatIOn dates) per month. That protocol IS set out below and IS to be Issued as an Intenm order of the Gnevance Settlement Board. The partIes agree to meet every SIX months to reVIew the operatIOn of thIS protocol and dISCUSS any Issues they may wIsh to raise related to It. The IntentIOn of thIS protocol IS to provIde a framework for the proceedIngs, and It IS understood that there must be some fleXIbIlIty In the manner that the protocol IS applIed and admInIstered as the matters proceed. Where Issues anse concermng the applIcatIOn of the protocol, the partIes wIll dISCUSS the Issues and endeavour to resolve them, faIlIng resolutIOn, Issues can be brought forward by eIther party to one of the appoInted Vice Chairs for resolutIOn. The tImelInes set out In the protocol may be extended by mutual agreement, faIlIng whIch, If a party reqUIres an extensIOn of a tImelIne, the partIes may make representatIOns to Vice Chair Ken Petryshen or by agreement, to the Vice Chair who IS seIzed wIth respect to the area In questIOn, who may grant an extensIOn where It IS reasonable to do so There shall be four Vice Chairs of the Gnevance Settlement Board assIgned to hear the matter In medIatIOn/arbItratIOn, as follows Ken Petryshen, Barry FIsher RandI Abramsky Bram HerlIch The process for IdentIfYIng the areas (i e umts, branches, departments, or offices, or groups thereof) to be medIated/arbItrated shall be as follows The partIes, In consultatIOn wIth the Gnevance Settlement Board, wIll IdentIfy heanng dates, 5 per month commenCIng In November 2003 (as decIded by Vice Chair Petryshen In a decIsIOn date June 27 2003) on whIch medIatIOn/arbItratIOn wIll take place SchedulIng of the dates, IncludIng mediatIOn dates (as dIStInCt from medIatIOn/arbItratIOn heanng dates) wIll take place at JOInt FIle RevIew Each JOInt FIle RevIew wIll commence wIth the schedulIng of dates for thIS matter before mOVIng to the schedulIng of dates for other matters The Umon wIll advIse the Employer wIth a lIst and proposed schedule of whIch areas (i e umt, branch, department or office, or group thereof) the Umon wIshes to proceed to medIatIOn/arbItratIOn on the IdentIfied heanng dates The proposed schedule wIll be In the nature of a "rollIng" lIst at least four months In advance Where the Employer has a concern regardIng the proposed schedule of areas, that concern may be raised and dealt wIth as set out below first through dIscussIOns between the partIes to attempt to resolve 2 the Issue and, faIlIng that, by puttIng that Issue expedItIOusly to Vice Chair Petryshen for hIS resolutIOn. SIxty days pnor to the IdentIfied heanng day the Employer wIll provIde to the Umon dIsclosure of InformatIOn relatIng to that area as set out below under "DISCLOSURE" The "cut off' or "snapshot" date to be used In determInIng the InformatIOn shall be the date mnety days pnor to the IdentIfied heanng date relatIng to that area. Where Issues anse concermng the applIcatIOn of the above process, IncludIng, for example, the Umon' s chOIce of area to be dealt wIth for a partIcular date or the dIsclosure deadlInes, the partIes wIll dISCUSS and attempt to resolve the Issues, or faIlIng thIS, put the Issue expedItIOusly before Vice Chair Petryshen for resolutIOn. DISCLOSURE In respect of each non-Mimstry employee (agency employee fee-for-servIce consultant, consultant employee, transfer payment agency employee, contractor partner volunteer) In the IdentIfied umt, branch, department, or office (or group of umts, branches, departments, or offices, as the case may be) and for each unclassIfied employee In the IdentIfied umt, branch, department, or office (or group ofumts, branches, departments, or offices, as the case may be) the Employer wIll provIde the folloWIng dIsclosure at least SIxty days pnor to the heanng date scheduled In respect of the IdentIfied umt, branch, department, or office (or group of umts, branches, departments, or offices, as the case may be) 1 Name of IndIVIdual 2 Name of current posItIOn, or If there IS no specIfied posItIOn name, InformatIOn as to the nature of the work performed (for example, ajob descnptIOn, or a task descnptIOn or lIst) and name of the project (if applIcable) 3 The first date on whIch thIS IndIVIdual was employed In respect of or worked on the task or tasks In questIOn. 4 If the task or tasks have been performed by more than one IndIVIdual In succeSSIOn, the first date on whIch the task or tasks were performed, and the name of the IndIVIdual or IndIVIduals who performed the work, and the dates on whIch s/he or they commenced performance of the work In questIOn. 5 Method of payment - hourly dally weekly on a project basIs, or any other compensatIOn arrangement. 6 The number of hours bIlled to the Crown by or In relatIOn to the IndIVIdual In questIOn (where applIcable) 7 Work locatIOn (unless the Employer specIfies, It wIll be assumed that the person works on Employer premIses) 8 EqUIpment/tools - whether supplIed by Employer and what supplIed (unless the Employer specIfies, It wIll be assumed that the tools of the trade utIlIzed by the IndIVIdual are owned by the Employer 3 9 Name ofMimstry "contact" person and/or supervIsor where applIcable 10 The IdentIty of the agency transfer payment agency or firm through whIch the IndIVIdual or the work IS supplIed, as applIcable 11 In the case of unclassIfied employees, In addItIOn to any of the applIcable InformatIOn outlIned above whether the IndIVIdual IS full-tIme or part-tIme and the reason for the IndIVIdual's appoIntment to the unclassIfied servIce It IS understood that an Inadvertent faIlure to dIsclose InformatIOn wIll not preclude the Employer from callIng eVIdence concermng a partIcular area, subject to the Umon havIng an opportumty to adequately respond to the eVIdence IncludIng, for example, seekIng further dIsclosure or adjournIng the matter as necessary to reVIew eVIdence not prevIOusly dIsclosed. MEDIA TION ApproxImately thIrty days pnor to the heanng date scheduled In respect of a partIcular area, on the date scheduled for medIatIOn at the JOInt FIle RevIew as noted above (unless otherwIse agreed) the partIes wIll meet to medIate In an effort to resolve the Issues In that area, or faIlIng resolutIOn of the area to narrow the Issues between them wIth respect to an area. If the area under consIderatIOn IS not fully resolved, the aspects remaInIng wIll then proceed to medIatIOn/arbItratIOn before one of the Vice Chairs of the Gnevance Settlement Board selected as set out above The partIes agree that It IS desIrable that these medIatIOns be scheduled to take place on the same scheduled date as medIatIOns/arbItratIOns so that where practIcable the assIstance, In medIatIOn, of a Vice Chair may be obtaIned If the partIes so wIsh. MEDIATION/ARBITRATION FaIlIng resolutIOn at the medIatIOn stage, Issues remaInIng between the partIes WIth respect to the area under consIderatIOn for that heanng day wIll be the subject of medIatIOn/arbItratIOn before one of the selected Vice Chairs of the Gnevance Settlement Board. PROCEDURAL MATTERS In respect of procedural matters generally govermng the manner In whIch the lItIgatIOn of the gnevance (as dIStInct from procedural matters affectIng only the lItIgatIOn In respect of an area or areas) proceeds before the Board, the partIes are agreed that such matters should be referred to Vice Chair Petryshen, who may determIne the manner In whIch the Issue IS to be determIned (includIng, for example telephone conference heanngs or wntten submIssIOns) In addItIOn, an allegatIOn that thIS protocol has not been complIed wIth wIll also be brought before arbItrator Petryshen. 4 Where, dunng the process descnbed above, any Issue anses whIch bears on the applIcatIOn of the protocol, IncludIng, wIthout lImItatIOn, Issues concermng the IdentIficatIOn of an area for dIsclosure, medIatIOn and/or medIatIOn/arbItratIOn, the Issues to be determIned, or the scope relevance or necessIty of dIsclosure of InformatIOn, the need for addItIOn or concermng the abIlIty of eIther party to meet the tImelIness set out In the protocol, the partIes may dISCUSS the Issue and, faIlIng resolutIOn, refer the Issue to Vice Chair Petryshen or by agreement, one of the other appoInted Vice Chairs for determInatIOn. Where such Issues anse and reqUIre dIscussIOn or determInatIOn, the partIes wIll endeavour to have the Issues dealt wIth expedItIOusly With respect to thIS protocol, at any tIme dunng the process, eIther party may make representatIOns to Vice Chair Petryshen concermng the need for changes to the protocol as the lItIgatIOn progresses and he may amend the protocol as he deems appropnate and necessary based on the representatIOns of the partIes Where a determInatIOn of a Vice Chair concernIng the protocol IS necessary the Issue may be determIned by heanng, by telephone conference, by wntten submIssIOn, or any method whIch IS agreeable to the partIes FaIlIng agreement on the method, the Vice Chair may determIne the method by whIch the Issue wIll be dealt wIth. It IS understood that the IntentIOn and agreement of the partIes IS that, wIth the exceptIOn of matters already scheduled or where heanngs have commenced and the matters are ongOIng, or as otherwIse agreed by the partIes, gnevances concermng the Issues raised In gnevance 02U120 wIll be consolIdated wIth 02U120 and dealt wIth through thIS process, subJect In each case to dIscussIOn by the partIes TERMINA TION ThIS protocol may be termInated by eIther party on thIrty days notIce In wntIng to the other party Pnor to termInatIOn, where eIther party has gIven notIce to termInate, the partIes wIll meet wIth Vice Chair Petryshen for dIscussIOn of the Issues gIVIng nse to the notIce or Issues ansIng from the termInatIOn to attempt to resolve the Issues