Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Transportation), 2002 CanLII 45796

GSB# 0933/01

UNION# 01F530

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Group Grievance, Ainsbury et al.)

Grievor

-and-

The Crown in Right of Ontario

(Ministry of Transportation)

Employer

BEFORE Bram Herlich Vice-Chair

FOR THE UNION Robin Gordon Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER Corey Foster Employee Relations Advisor Ministry of Transportation

SUBMISSIONS September 24, 2002.

AWARD

The parties have put this case before me by way of written submissions. Those submissions are as follows:

In the interest of resolving the above-noted dispute in a timely manner the parties agree to the following facts:

1. The Ministry of Transportation and OPSEU entered into minutes of settlement dated May 11th, 2001.

2. One condition of the minutes of settlement was to appoint an employee to the position of Senior Driver Examiner at the Oshawa Driver Examination Office.

3. On May 23, 2001 employees Mark Ainsbury, Gary Roffey, Frank Jackson, Greg Keen, Toni Delpippo, Wendy McCabe, Patricia Thompson-Jeffrey, Gail Freemantle, Lauree Hubbert, Cathy Silva, and Carol Kelly filed a group grievance alleging that the Ministry had violated article 6 of the Collective Agreement by not positing [sic] the position of Senior Driver Examiner, at the Oshawa Driver Examination Office.

Submissions of the parties:

OPSEU:

The grievors in this matter allege that the employer has violated article 6 of the Collective Agreement by failing to post the position of Senior Driver Examiner at the Oshawa Driver Examination Office.

The Union concurs that the Ministry was required to fill the vacancy in accordance with the minutes of settlement dated May 11, 2001. The Union therefore does not allege any violation of the Collective Agreement against the Employer in this matter, and takes the position that there is legally "no dispute" with respect to the Ministry's actions in this matter.

Notwithstanding the above, the Union notes that the grievors in this matter remain frustrated that they were not provided with a satisfactory explanation as to the situation in a timely manner.

Employer:

Whereas there is no dispute between the bargaining agent and the employer in this matter the Employer submits that the Board lacks jurisdiction to review and decide this matter.

In accordance with the decision in ATU (Blake) & Toronto Area Transit Authority, GSB File No. 1276/87 (Shime), dated May 3, 1988, the Board is compelled to follow other awards of the Board. The Board has had opportunity to review a number of cases prior to this case, where there is no dispute between the bargaining agent and the employer. In all of these cases the board has concluded that it did not have jurisdiction and dismissed the grievance. Cases in point are: OPSEU (group grievance, Cook et al.) vs. The Crown in Right of Ontario (The Ministry of the Solicitor General and Correctional Services), GSB#1401/99; and OPSEU (Pearson and Azevedo) vs. The Crown in Right of Ontario (Ontario Clean Water Agency), GSB# 1911/96.