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HomeMy WebLinkAbout2006-2289.Holmes.07-09-26 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 IN THE MATTER OF AN ARBITRATION Under Nj ~ Ontario GSB# 2006-2289 UNION# 2006-0617-0013 THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Holmes) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Marilyn A. Nairn Scott Andrews Grievance Officer Ontario Public Service Employees Union Faith Crocker Staff Relations Officer Ministry of Community Safety and Correctional Services September 17,2007. Union Employer Vice-Chair 2 Decision This award flows from a mediation-arbitration session concerning the Sudbury Jail on September 17 and 18,2007. Going into the session, the parties had agreed to utilize an expedited mediation-arbitration process to determine grievances. That process contemplates that the parties will attempt to resolve matters through mediation, failing which, they have agreed that the Vice- Chair will determine the matter based on the material presented by both parties during the mediation and without the need for further formal proceedings. The parties are agreed that any award issued in this process does not constitute a precedent and is without prejudice to the positions of the parties in any other matter. As a result, they have also agreed that any award is to provide only brief reasons, if any. In doing so, the parties have agreed to a process that will also expedite the release of any award. In rare cases, if it becomes apparent to either party, or to the Vice-Chair, that the issues involved are of a complex nature, the case may be taken out of the expedited process and processed through 'regular' arbitration. Such was not the case here. Although individual grievors often wish to provide oral evidence at arbitration, the process adopted by the parties provides for a thorough canvassing of the facts and leads to a fair and efficient adjudication process. In this case, the grievance, dated October 20, 2006, asserts that the employer was in violation of the collective agreement by failing to distribute overtime on an equitable basis. The union alleged that the grievor, Mr. Dean Holmes, was denied the opportunity to work overtime resulting in this alleged inappropriate distribution. There was no dispute that the collective agreement requires the equitable distribution of overtime opportunities. There was also no dispute that the employer instituted a new overtime protocol dated November 1, 2006, which took effect about a month later. Thus, the union pursued a claim for the months of September, October, and November 2006 based on the period of thirty working days prior to the filing of the grievance up to the introduction of the new protocol. A review of the overtime worked at the institution by correctional officers during this period indicates that the grievor actually worked in excess of two times the average number of hours of overtime worked by correctional officers for each of the months of October and 3 November. He worked no overtime in September and was booked off work for 142 hours that month on vacation and/or lieu time. The average number of straight time hours paid for overtime worked for the month of September was 16 hours, reflecting less than one extended overtime shift per person. Based on these numbers I would be inclined to dismiss the grievance as the grievor apparently received significantly more than his 'share' of overtime opportunities over the period challenged. However, the employer acknowledged that it did not call the grievor during September as he was booked out. At the time, the overtime protocol indicated that overtime was to be "distributed based on the cards". The grievor had a card in the system. There was nothing in the protocol to suggest any exemption based on the fact that the correctional officer was otherwise booked off from his/her regular shift. Given that lack of exemption, and having regard to the average number of hours paid for overtime worked in September, and to the number of overtime hours worked by the grievor over the period in issue, I am satisfied that an award of ten hours of pay at straight time rates is an appropriate order to compensate the grievor for the employer's failure to call and one which also reflects an equitable distribution of overtime to the grievor in the overall circumstances. Having regard to the above, I hereby direct the employer to pay forthwith to the grievor the amount of ten hours of pay at the appropriate straight time rate. Dated at Toronto, Ontario this 26th day of September, 2007.