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HomeMy WebLinkAbout2003-3774.Union Grievance.04-03-15 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# 2003-3774 UNION# 2004-0999-0002 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 (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 January 6 2004 2 DeCISIon From March 13th to May 6th 2002, the Umon and Its members were engaged In a legal stnke Pnor to the begInmng of thIS 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 stnke 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 "stnke related" gnevances would be treated separately and lItIgated In an efficIent manner To that end, on June 27 2002, OPSEU and the Mimstry 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: 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 stnke related gnevances at GSB untIl agreed otherwIse . WaiVIng of tIme lImIts . RespectIvely assIgmng 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 3 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 pnncIples 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 stnke 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 determIne 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 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 stnke related gnevances Many of the gnevances have been resolved through medIatIOn. ThIS IS a further decIsIOn dealIng wIth those matters 4 Mr Gawrylash IS a CorrectIOnal Officer workIng at Sprucedale DetentIOn Centre ImmedIately pnor to the stnke he had been workIng In the accommodated posItIOn of Temporary Absence Program CoordInator His name was not Included In the draw for essentIal and emergency workers It IS thIS faIlure to be gIven an opportumty to work dunng the legal stnke that he gneved. Richard Dunlop IS a Steam Plant EngIneer who was, pnor to the stnke, beIng accommodated as a Secunty Officer at QUInte DetentIOn Centre The posItIOn of Secunty Officer was non-essentIal dunng the stnke Carl Herrman IS a CorrectIOnal Officer who was beIng accommodated as a Records Clerk. Joe Gansto IS a MaIntenance Mechamc who was also beIng accommodated as a Records Clerk. Both gnevors work at the Toronto JaIl In each of these Instances It was the gnevors' posItIOn that hIS accommodatIOn needs could have and should have been revIsIted pnor to the draw It was the employer's posItIOn that the gnevor was not Included In the draw for two reasons FIrstly the partIes agreed that the accommodated posItIOns were not essentIal work. Secondly If the gnevor were able to perform work that was dIfferent from the modIfied work they had been performIng, each should have provIded updated medIcal InformatIOn confirmIng hIS abIlIty to perform the essentIal dutIes of the CorrectIOnal Officer posItIOn. The faIlure of the gnevors to provIde thIS InformatIOn left the Employer wIth no alternatIve but to exclude them from the draw In my VIew the Employer was under no oblIgatIOn to schedule the gnevor In a work assIgnment other than the most recently agreed upon modIfied work assIgnment. ObvIOusly because the partIes agreed that thIS work was not essentIal, the gnevor had no work to perform dunng the course of the stnke The gnevor asserted that the Employer could have scheduled hIm to do other work. I dIsagree Indeed, If the Employer took It upon Itself to utIlIze the gnevor In an assIgnment other than the agreed upon modIfied posItIOn It would have been Improper WhIle It mIght have been that the gnevors' accommodatIOn needs could have been revIsIted pnor to the commencement of the stnke, In the absence of the Employer reCeIVIng any revIsed medIcal InfOrmatIOn concermng the gnevors' abIlItIes, there was no vIOlatIOn of the collectIve agreement. 5 Dated at Toronto thIS 15th day of March, 2004 ~ . I ~ .' 'II; .. "I r . , .', ,-- ".