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Home My WebLink About2003-3774.Union Grievance.04-03-18 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 October 22, 2003 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 Nineteen bargaInIng umt members from MonteIth CorrectIOnal Complex filed a group gnevance allegIng that the collectIve agreement was vIOlated due to the Employer dIsallowIng the bankIng of overtIme hours worked dunng the stnke The facts were not In dIspute The gnevors worked varyIng amounts of overtIme dunng the course of the stnke and were paid tIme and appropnate compensatIOn for all hours so worked. The Umon suggested that normally when the gnevors work overtIme they "bank" theIr overtIme hours and those hours are taken as compensatIng tIme off That compensatIng tIme off IS taken at a tIme mutually agreed upon between the employee and the Employer Indeed, thIS practIce IS consIdered In the CollectIve Agreement for the CorrectIOnal BargaInIng Umt. CorrectIOnal Officers are schedule 47 employees As such they are entItled to overtIme pay as set out at artIcle COR8 3 1 whereIn It IS stated Employees In Schedules 3 7 and 4 7 who perform authonzed work In excess of seven and one-quarter (7 1J4 ) hours or eIght (8) hours as applIcable, shall be paid at the overtIme rate ArtIcle COR8 5 contemplates how overtIme IS taken. It states Where there IS mutual agreement, employees may receIve compensatIng leave In lIeu of pay at the overtIme rate or may receIve pay at the overtIme rate In lIeu of compensatIng leave It was the Umon's posItIOn that gIven the past practIce of the partIes, the gnevors should have been allowed to take theIr earned overtIme hours In compensatIng tIme off It was the Employer's VIew that It had the nght to payout overtIme dunng the penod of the stnke In the Memorandum of Settlement entItled CorrectIOns BargaInIng Umt Master Agreement for EssentIal ServIces ordered Into effect by Vice Chair Jamce Johnston on October 24 2001 It was stated at paragraph 3 ThIS Memorandum of Agreement IS not based on a "busIness as usual" scenano and shall not be Interpreted as what would be advocated by eIther party In a normal sItuatIOn WIth a fully operatIng servIce I must dIsmIss the gnevance FIrstly local agreements that deal wIth schedulIng would have been one of those matters that would be consIdered "busIness as usual" ObvIOusly hours of 5 work and the amount of overtIme hours needed were vastly dIfferent dunng a work stoppage wIth essentIal and emergency workers staffing an InstItutIOn whIch IS stIll operatIng at full capacIty It sImply makes no sense that local schedulIng agreements regardIng the schedulIng of overtIme and the method of compensatIng overtIme would contInue as If It were "busIness as usual" Further as IS clear from the CollectIve Agreement, for overtIme to be compensated as lIeu tIme off there must be mutual agreement. The Employer wIthheld ItS agreement to treat overtIme In such a fashIOn dunng the course of the stnke and It was WIthIn ItS nghts to do so AccordIngly the gnevance IS demed. I have appended a lIst the names of the gnevors Dated at Toronto thIS 18th day of March 2004 Vice Chair 6 NUMBER CATEGORY SUB-CATEGORY NAME INSTITUTION DATE OF LOCAL GRIEVANCE PA353M Pay Administration PA Miscellaneous BergDunHon, M. L Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Caze, D Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Chisibisco, Ray Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Crispin, Ly nn Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Dane, Sue Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Darrington, Erin Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Dumont, Gerry Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Flamain, David Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Garlock, Irwin Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Gobbe, M.L. Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Kelly, D Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Lambert, Eric Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Lefebvre, R Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Luke, Tom Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Perreault, Jean-Luc Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Solis, Bruce Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Towsley, John Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Walkingshaw, Liseanne Monteith CC 02-Jun-02 642 PA353M Pay Administration PA Miscellaneous Whitrheda, Barry Monteith CC 02-Jun-02 642