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HomeMy WebLinkAbout2003-3774.Union Grievance.04-03-24 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 February 2, 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 another decIsIOn dealIng wIth those matters 4 Lorene Chambers and Lome Varga are Human Resource Clerks at ElgIn Middlesex DetentIOn Centre Each filed two gnevances The first stated that theIr posItIOns should have been declared essentIal for the entIre penod of the stnke The second alleged that dunng and ImmedIately folloWIng the stnke theIr work was performed by management personnel Further they asserted that they were left havIng to redress Issues that arose In theIr absence, that IS, dunng the stnke By way of remedy the gnevors seek 145 hours of overtIme they could have Incurred In overtIme RegardIng the first gnevance, pnor to the begInmng of the stnke, the partIes agreed to all of the posItIOns that were deemed essentIal The gnevors' posItIOns were not so desIgnated. In those Instances where the partIes were unable to agree to the desIgnatIOn of essentIal work, each had access to a dIspute resolutIOn mechamsm to make such a determInatIOn. At thIS pOInt In tIme, the Issue of whether work was to be deemed essentIal IS InarbItrable Indeed, even If I found I had the JunsdIctIOn to decIde thIS matter It would be a partIcularly odd desIgnatIOn to apply retroactI vel y RegardIng the second gnevance the Employer stated that the work done by the excluded management personnel dunng the stnke was related to non correctIOnal managers who worked In the correctIOnal facIlItIes dunng the stnke To be clear the work was not work normally performed by the gnevors The Umon was unable to provIde any eVIdence to the contrary GIven those facts, the gnevance IS demed. Dated In Toronto thIS 24th day of March, 2004 p r- " " .1' ~ ~ _ .'"