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Home My WebLink About2003-3774.Union Grievance.04-03-30 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 March 5 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 necessary to provIde all of that agreement. It IS sufficIent to say that the partIes agreed to an 3 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 A number of gnevances were filed allegIng dISCnmInatIOn and harassment based on partIcIpatIOn or non-partIcIpatIOn In the legal stnke ElIzabeth Cook, a CorrectIOnal Officer wIth QUInte 4 DetentIOn Centre alleged that her supervIsor told the Inmates that she was In the pod and later faIled to assIst her when Inmates began to chant obscemtIes at her Laura Ann Josephson, a CorrectIOnal Officer at Maplehurst, alleged that she was harassed when her supervIsor yelled at her In the presence of her co-workers and Inmates LOUIS GallIna, a CorrectIOnal Officer wIth QUInte DetentIOn Centre asserted that hIS manager was actIng Inappropnately dunng one of hIS ShIftS Vincent Richards, a CorrectIOnal Officer at OCI, complaIned about a partIcular sItuatIOn, One evemng when he went to the back door to sIgn In he was told to return to the pIcket lIne He dId as Instructed and stood wIth hIS co-workers by the fire barrel whIch was moved closer to the bUIldIng, The Employer called 911 and when the polIce, paramedIcs and fire fighters amved It was asserted that the pIcketers were attemptIng to burn down the facIlIty The FIre Department declared the sItuatIOn to be safe after the fire was put out by a fire extIngUIsher The gnevor alleged that he was yelled at by hIS supervIsor and he felt threatened, These are but a few of the many examples of confrontatIOns that took place dunng the course of the legal stnke It IS not uncommon for tempers to flare and for normally cIvIlIzed IndIVIduals to become somewhat short tempered or overtly rude dunng labour dIsputes To be clear I am not suggestIng that such behavIOur IS acceptable, merely that It IS not surpnSIng that It occurs As the stnke was drawIng to a conclUSIOn the partIes put theIr mInds to endIng the dIscourse between them In the Return to Work Protocol It was agreed 9 1 Both partIes agree that all efforts should be made to ensure there IS no harassment of managers and bargaInIng umt employees The umon, employer managers and bargaInIng umt employees agree to treat each other wIth courtesy and respect consIstent WIth the Ontano Human Rights Code and the OPS Workplace DISCnmInatIOn and Harassment PolIcy 92 Both partIes agree that there wIll be no repnsals, dISCnmInatIOn or retalIatIOn In the workplace for any act of InactIOn taken by any employee of the employer anSIng out of partIcIpatIOn In the stnke In addItIOn, both partIes agree that no employee shall ImtIate or partIcIpate In any repnsal, dISCnmInatIOn or retalIatIOn, For greater certaInty thIS shall not apply to dIscIplIne Imposed for matters occumng dunng the stnke, whIch IS dealt wIth hereInafter 5 10 1 It IS agreed that, except wIth respect to Instances where cnmInal charges are laid, there wIll be no dIscIplIne taken agaInst any employee for any act done dunng the stnke up to and IncludIng May 1 2002 11 1 Any actIOn or applIcatIOn commenced before any court by eIther party IncludIng applIcatIOns for InJunctIOns, pnvate prosecutIOns and contempt, and any applIcatIOn before the ORLB shall be wIthdrawn, It IS apparent from the Return to Work Protocol that the partIes were prepared to forgIve each other theIr IndIScretIOns ThIS approach makes labour relatIOns sense Indeed, faIlure to address thIS matter pnor to a return to work makes reIntegratIOn Into the workplace very dIfficult for both bargaInIng umt members and those management personnel who had to cross pIcket lInes to perform theIr work daIly It mIght be that some people, both bargaInIng umt and non bargaInIng umt employees, regret thIngs they said and dId, GIven that the partIes have agreed to move forward and take no repnsal for stnke actIvItIes It IS neIther helpful nor appropnate for me to hear and consIder IndIVIdual gnevances such as those outlIned above For those reasons, the matters are dIsmIssed,