David Wynne Wright

The union requested an order directing the Ministry of Transportation to allow employees converted between December 1, 2002 and February 25, 2003 to elect whether to transfer to a new service provider.

The Grievance Settlement Board denied the request, noting that reasons for the decision and a ruling on the declaration sought by the union would be issued in due course.

The union filed a grievance regarding the conversion of unclassified driver examiners to classified status under the collective agreement.

The issue was whether the 54 days of the 2002 OPSEU strike should count toward the 18-month service requirement for conversion.

The Grievance Settlement Board held that a literal reading of the collective agreement required the performance of work, meaning the strike period did not count.

The Board also found that the employer's approach did not violate the settlement agreement or the implied prohibition against arbitrary and discriminatory treatment.

The grievor, a Correctional Officer with asthma and a sensitivity to cigarette smoke, filed grievances alleging the Employer failed to accommodate his handicap by not providing a smoke-free environment at the Toronto Jail.

The Grievance Settlement Board found that despite assigning the grievor to designated non-smoking areas, the Employer failed to adequately enforce its smoking policy, resulting in frequent exposure to smoke by staff and managers.

The Board concluded the Employer failed to accommodate the grievor to the point of undue hardship and ordered compensation for losses resulting from absences caused by smoke exposure.

The employer raised a preliminary objection that the union's grievance, which sought a right of re-election for classified employees regarding a transfer of services, was barred by a memorandum of settlement resolving an earlier grievance.

The arbitrator interpreted the release clause in the settlement, which barred claims 'arising out of' the prior decision.

The arbitrator concluded that the release only covered claims posed by the earlier grievance and left unresolved, and did not extend to the current claim for re-election.

The preliminary objection was dismissed.

The union (OPSEU) grieved the transfer of family court work formerly performed by Parental Support Workers to lawyers employed by the Ministry.

The Association of Law Officers of the Crown (ALOC), representing the lawyers, applied for intervenor standing.

The Grievance Settlement Board reviewed the law on third-party standing at arbitration, distinguishing between third parties with a direct legal interest under a collective agreement and those with merely a financial or commercial interest.

The Board concluded that ALOC's interest was analogous to that of a third-party contractor whose financial interests might be affected by a contracting-out grievance, rather than a union with a competing legal claim to the work.

Consequently, ALOC's application for standing was denied.

The Grievance Settlement Board evaluated the Employer's proposal to accommodate a Correctional Officer with asthma and sensitivity to cigarette smoke by assigning him temporarily to the administrative offices of the Toronto East Detention Centre.

The Board found the proposal unreasonable because the grievor would still be exposed to cigarette smoke in other areas of the institution, such as the locker room and washroom, due to ongoing violations of the smoking policy.

The Employer was directed to attempt to accommodate the grievor at a location other than the Toronto East Detention Centre.

The union grieved the employer's refusal to convert unclassified driver examiners to classified status after they had worked full-time for more than two years.

The employer argued that the impending privatization of driver examination services meant there was no 'continuing need' for the work.

The Grievance Settlement Board found that the employer's plan to continue providing services for at least six months prior to the transfer constituted a determination of continuing need.

The grievance was allowed, and the employer was directed to convert all eligible driver examiners.

Following a prior decision finding that the employer failed to accommodate the grievor's occupational asthma and sensitivity to cigarette smoke, the employer proposed assigning the grievor to the control room at the Toronto East Detention Centre.

The grievor rejected the proposal, arguing he would still be exposed to second-hand smoke.

The Grievance Settlement Board found the employer's proposal unreasonable, as evidence demonstrated a fairly high risk of exposure to cigarette smoke in the control room.

The Board held that the grievor's decision not to try the accommodation was not unreasonable.

The employer brought a preliminary motion to dismiss grievances alleging that its refusal to negotiate a compressed work week schedule (CWWS) violated the collective agreement.

The employer argued that the collective agreement did not compel it to negotiate a CWWS and that the Board lacked jurisdiction.

The union argued that the employer's refusal was discriminatory and violated management rights, health and safety, and overtime provisions.

The Vice-Chair dismissed the preliminary objection, finding that while the employer is not compelled to negotiate a CWWS, its decision not to do so must be made in good faith, for genuine government purposes, and without violating other provisions of the collective agreement, such as the non-discrimination clause.

The Board has jurisdiction to review the employer's decision-making process.

The Ontario Teachers' Federation (OTF) appealed a decision declaring its By-law X invalid.

By-law X required its affiliates, including the Ontario Secondary School Teachers' Federation (OSSTF), to collect and remit membership fees to OTF, and allowed OTF to suspend an affiliate for default.

The OSSTF had withheld a portion of the fees designated for the Canadian Teachers' Federation.

The Court of Appeal held that sections 1-5 of By-law X, which established the fee collection mechanism, were validly enacted under the Corporations Act as a matter of internal management.

However, section 6, which permitted the suspension of an affiliate, was ultra vires because it interfered with the OSSTF's statutorily protected role within the OTF.

The appeal was allowed in part.

The grievor, a correctional officer with asthma, filed grievances alleging the Employer failed to accommodate his disability by exposing him to second-hand cigarette smoke at the Toronto East Detention Centre.

Despite the implementation of smoking policies, the grievor was frequently exposed to smoke due to poor enforcement and assignments that required him to enter inmate living areas.

The arbitrator found that the grievor's asthma constituted a handicap under the Human Rights Code and that the Employer failed to demonstrate it had accommodated him to the point of undue hardship.

The grievances were allowed, and the Employer was directed to renew accommodation efforts and compensate the grievor for lost time caused by smoke exposure.

The grievor, a non-engineer who had historically been paid the same salary as professional engineers, filed a grievance after a new collective agreement for engineers resulted in a significant pay disparity.

The employer brought preliminary motions to dismiss the grievance for lack of jurisdiction and untimeliness.

The Board dismissed the employer's motions, finding that it had jurisdiction to hear allegations of a breach of a working condition or term of employment.

The Board also extended the time limits for filing the grievance, noting the delay was bona fide, the grievance had significant ongoing monetary implications, and the employer was not prejudiced.

The union filed four grievances concerning the transfer of psychiatric facilities from the provincial government to hospitals and the subsequent enrollment of transferred employees in the Hospitals of Ontario Pension Plan (HOOPP) instead of the OPSEU Pension Trust (OPT).

The employer raised a preliminary objection that the grievances were untimely.

The Grievance Settlement Board found that the grievances were filed late but granted an extension of time under s. 48(16) of the Labour Relations Act for the claims based on Appendices 9, 11, and article 2.1 of Appendix 18, as the delay was largely due to the union pursuing court proceedings and the employer suffered no substantial prejudice.

However, the Board denied an extension for the claims based on article 6.0 of Appendix 18, which had a strict seven-day time limit, due to the length of the delay and the lack of explanation.

The union filed grievances alleging the employer violated the collective agreement by failing to use reasonable or best efforts to persuade receiving hospitals to keep transferred employees in the union's pension plan.

Six hospitals applied for third-party standing to participate in the arbitration hearing, arguing the outcome could have significant financial repercussions for them.

The arbitrator reviewed the case law on third-party standing, distinguishing between employees governed by a collective agreement, third-party unions in jurisdictional disputes, and third-party contractors.

The arbitrator concluded the hospitals' financial interest was analogous to that of a contractor and did not confer an entitlement to notice or standing.

The applications for standing were denied.

The union alleged that the employer improperly surplussed Parental Support Workers (PSWs) when their duties were reorganized and transferred to other components of the Ministry, including outside the bargaining unit.

The Grievance Settlement Board determined that the employer's reorganization did not inherently violate the collective agreement or section 22(4) of the Public Service Act.

However, the Board found that the union could potentially establish a violation if the largest portion of the PSWs' duties (over 50%) was transferred intact to the Legal Services Branch, or if the transfer of work outside the bargaining unit violated an implied restriction.

The matter was deferred for further evidence and argument.

In an unfair labour practice and duty of fair representation complaint regarding the end-tailing of seniority following a corporate amalgamation, the applicant sought production of legal opinions and advice provided to the responding union.

The responding union claimed solicitor-client privilege over advice concerning strategy and negotiations, while conceding waiver regarding the legality of end-tailing.

The Board held that by pleading reliance on legal advice to establish the bona fides of its decision to end-tail seniority, the responding union impliedly waived privilege over all related legal advice, including recommended options and strategies.

Production of the documents was ordered.

The Union filed six grievances concerning the interpretation of Article COR6.1.3 of the Correctional Bargaining Unit Collective Agreement, which provides an $8.00 premium for weekend shifts.

The Union argued that 'shift' meant any continuous period of work, while the Employer argued it meant a regularly scheduled shift.

The Grievance Settlement Board held that 'shift' refers to a regularly scheduled shift, meaning ad hoc overtime or partial shifts do not qualify for the premium unless they constitute a full regularly scheduled shift.

The Board also held that Article COR6.4, which disentitles employees to premiums for mutually agreed shift changes, applies to voluntary shift exchanges between employees but does not apply to Employer-assigned overtime.

The Ontario Labour Relations Board issued a brief decision amending the style of cause from its previous decision of May 4, 2001, to reflect the Canadian Union of Public Employees, Local 443 as an intervenor.

The applicant union (OPSEU) applied for certification to represent paramedics.

The responding party (City/Region) claimed it was not the employer, asserting the Town of Ancaster was.

An intervenor union (CUPE) claimed the application was untimely because its existing collective agreement with the City/Region covered the paramedics.

The Board applied the York Condominium factors and found the City/Region was the employer at the time of the application, given its control over hiring, remuneration, and intention to create an employment relationship.

The Board also found that the scope clause of the CUPE collective agreement did not automatically include the new paramedic classifications, as the parties had not agreed to their inclusion, and therefore the clause did not bar OPSEU's certification application.

The union filed a policy grievance regarding the appropriate remedy when a Correctional Officer is improperly denied an overtime assignment under the local overtime agreement at the Guelph Correctional Centre.

The employer argued for an in-kind remedy (a future overtime opportunity), while the union sought monetary compensation.

The Grievance Settlement Board held that because the local overtime distribution system was voluntary and not a true equalization system, an in-kind remedy would be impractical and inconsistent with the collective agreement.

The Board concluded that a monetary award is the appropriate remedy for the missed overtime opportunities.