GSB# 2441/02
UNION# 2002-0999-0018 [02U120]
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Union Grievance)
Grievor
- and -
The Crown in Right of Ontario (Management Board Secretariat)
Employer
BEFORE
Ken Petryshen
Vice-Chair
FOR THE UNION
Richard Blair Ryder Wright Blair & Doyle Barristers and Solicitors
FOR THE EMPLOYER
Mary Pat Moore Counsel Management Board Secretariat
HEARING
June 9, 2003.
DECISION
In a grievance dated June 10, 2002, the Union alleges that “the employer is violating the Collective Agreement by employing Agency Staff, Fee for Service Staff and Consultants to perform bargaining unit work”. In essence, the Union claims that the Employer is utilizing the services of persons outside of the bargaining unit to perform bargaining unit work. In part, the Union seeks an order directing the Employer to cease and desist from using such persons to perform bargaining unit work and also an order directing the Employer to post a relevant number of bargaining unit positions. For ease of reference I will refer to this grievance as the Bargaining Unit Integrity grievance (“the BUI grievance”). The Union has indicated that there are at least 190 work areas covered by this grievance.
When this matter came on for hearing on April 29, 2003, the parties, recognizing the considerable task ahead of them, commenced the process of developing a procedural protocol for litigating the BUI grievance. This process continued on May 22 and June 9, 2003. Through their efforts, and but for one issue, the parties were able to reach agreement on a complex, yet workable, procedural protocol. The issue the parties could not resolve is how many mediation/arbitration dates (“med/arb dates”) should be scheduled each month. After agreeing that I have the jurisdiction to decide this matter, the parties made submissions on this issue at the hearing on June 9, 2003.
In arguing for 8 med/arb dates per month, the Union referred to the nature of the Collective Agreement violation, the impact of such a violation on the bargaining unit and the number of work areas involved. It submitted that it was prepared to allocate the resources necessary for this number of hearing dates, since this number was required to effectively address what it perceives to be a serious situation. The Union submitted that a higher number should be selected initially and only changed if experience under the protocol demonstrates that a change is warranted.
The Employer emphasized that the burden of the disclosure obligation rested with the Employer and that each med/arb date was preceded by a mediation date. Having regard to its resources and its concern about building a backlog of other grievances, the Employer submitted that 2 med/arb dates per month were appropriate. The Employer argued that it was best to begin with a manageable number, which could be increased later if circumstances demonstrated that the parties could handle more hearing dates per month.
Having considered the submissions of the parties and their respective interests, it is my conclusion that 5 med/arb dates be scheduled each month, commencing in November 2003. More than 2 med/arb dates per month are needed to deal with the number of work areas covered by the grievance. On the other hand, the disclosure obligations on the Employer and the legitimate concern about creating a backlog of other grievances suggest that 8 med/arb dates per month is too many. In my view, 5 med/arb dates per month is a workable compromise at this stage of the process. Given the lead time needed for each med/arb date, the number of med/arb dates scheduled prior to November 2003 and the fact that the summer vacation months will soon be upon us, it is reasonable to commence scheduling the 5 med/arb dates in November 2003. The procedural protocol under the heading “Procedural Matters” provides that either party may make representations to me concerning the need for changes to the protocol as the litigation progresses. After some experience with the protocol it may be appropriate for either party to make representations concerning the number of med/arb dates scheduled per month.
I have attached the procedural protocol for the BUI grievance as Appendix “A” to this decision. The parties agreed that the protocol be issued as an interim order of the Grievance Settlement Board. Having regard to this agreement, I direct The Crown in Right of Ontario and the Ontario Public Service Employees Union, to comply with Appendix “A”, the procedural protocol for the BUI grievance.
Dated at Toronto, this 27^th^ day of June, 2003.
APPENDIX “A”
Procedural Protocol Concerning Union Grievance 02U120
The parties have, with the assistance of the Grievance Settlement Board, agreed upon a protocol for the areas under dispute in this grievance to be brought before the Grievance Settlement Board, save for the question of the number of mediation/arbitration dates (and associated mediation dates) per month. That protocol is set out below and is to be issued as an interim order of the Grievance Settlement Board. The parties agree to meet every six months to review the operation of this protocol and discuss any issues they may wish to raise related to it.
The intention of this protocol is to provide a framework for the proceedings, and it is understood that there must be some flexibility in the manner that the protocol is applied and administered as the matters proceed. Where issues arise concerning the application of the protocol, the parties will discuss the issues and endeavour to resolve them; failing resolution, issues can be brought forward by either party to one of the appointed Vice Chairs for resolution.
The timelines set out in the protocol may be extended by mutual agreement, failing which, if a party requires an extension of a timeline, the parties may make representations to Vice Chair Ken Petryshen or, by agreement, to the Vice Chair who is seized with respect to the area in question, who may grant an extension where it is reasonable to do so.
There shall be four Vice Chairs of the Grievance Settlement Board assigned to hear the matter in mediation/arbitration, as follows:
Ken Petryshen, Barry Fisher, Randi Abramsky, Bram Herlich
The process for identifying the areas (i.e. units, branches, departments, or offices, or groups thereof) to be mediated/arbitrated shall be as follows:
The parties, in consultation with the Grievance Settlement Board, will identify hearing dates, 5 per month commencing in November 2003 (as decided by Vice Chair Petryshen in a decision date June 27, 2003), on which mediation/arbitration will take place. Scheduling of the dates, including mediation dates (as distinct from mediation/arbitration hearing dates), will take place at Joint File Review. Each Joint File Review will commence with the scheduling of dates for this matter before moving to the scheduling of dates for other matters.
The Union will advise the Employer with a list and proposed schedule of which areas (i.e. unit, branch, department or office, or group thereof) the Union wishes to proceed to mediation/arbitration on the identified hearing dates. The proposed schedule will be in the nature of a “rolling” list at least four months in advance. Where the Employer has a concern regarding the proposed schedule of areas, that concern may be raised and dealt with as set out below, first through discussions between the parties to attempt to resolve the issue and, failing that, by putting that issue expeditiously to Vice Chair Petryshen for his resolution.
Sixty days prior to the identified hearing day, the Employer will provide to the Union disclosure of information relating to that area as set out below under “DISCLOSURE”. The “cut off” or “snapshot” date to be used in determining the information shall be the date ninety days prior to the identified hearing date relating to that area.
Where issues arise concerning the application of the above process, including, for example, the Union’s choice of area to be dealt with for a particular date or the disclosure deadlines, the parties will discuss and attempt to resolve the issues, or failing this, put the issue expeditiously before Vice Chair Petryshen for resolution.
DISCLOSURE
In respect of each non-Ministry employee (agency employee, fee-for-service consultant, consultant employee, transfer payment agency employee, contractor, partner, volunteer) in the identified unit, branch, department, or office (or group of units, branches, departments, or offices, as the case may be), and for each unclassified employee in the identified unit, branch, department, or office (or group of units, branches, departments, or offices, as the case may be), the Employer will provide the following disclosure at least sixty days prior to the hearing date scheduled in respect of the identified unit, branch, department, or office (or group of units, branches, departments, or offices, as the case may be):
Name of individual.
Name of current position, or if there is no specified position name, information as to the nature of the work performed (for example, a job description, or a task description or list) and name of the project (if applicable).
The first date on which this individual was employed in respect of or worked on the task or tasks in question.
If the task or tasks have been performed by more than one individual in succession, the first date on which the task or tasks were performed, and the name of the individual or individuals who performed the work, and the dates on which s/he or they commenced performance of the work in question.
Method of payment – hourly, daily, weekly, on a project basis, or any other compensation arrangement.
The number of hours billed to the Crown by or in relation to the individual in question (where applicable).
Work location (unless the Employer specifies, it will be assumed that the person works on Employer premises).
Equipment/tools – whether supplied by Employer, and what supplied (unless the Employer specifies, it will be assumed that the tools of the trade utilized by the individual are owned by the Employer.
Name of Ministry “contact” person and/or supervisor, where applicable.
The identity of the agency, transfer payment agency, or firm through which the individual or the work is supplied, as applicable.
In the case of unclassified employees, in addition to any of the applicable information outlined above, whether the individual is full-time or part-time and the reason for the individual’s appointment to the unclassified service.
It is understood that an inadvertent failure to disclose information will not preclude the Employer from calling evidence concerning a particular area, subject to the Union having an opportunity to adequately respond to the evidence including, for example, seeking further disclosure or adjourning the matter as necessary to review evidence not previously disclosed.
MEDIATION
Approximately thirty days prior to the hearing date scheduled in respect of a particular area, on the date scheduled for mediation at the Joint File Review as noted above (unless otherwise agreed), the parties will meet to mediate in an effort to resolve the issues in that area, or failing resolution of the area to narrow the issues between them with respect to an area. If the area under consideration is not fully resolved, the aspects remaining will then proceed to mediation/arbitration before one of the Vice Chairs of the Grievance Settlement Board selected as set out above.
The parties agree that it is desirable that these mediations be scheduled to take place on the same scheduled date as mediations/arbitrations so that where practicable the assistance, in mediation, of a Vice Chair may be obtained if the parties so wish.
MEDIATION/ARBITRATION
Failing resolution at the mediation stage, issues remaining between the parties with respect to the area under consideration for that hearing day will be the subject of mediation/arbitration before one of the selected Vice Chairs of the Grievance Settlement Board.
PROCEDURAL MATTERS
In respect of procedural matters generally governing the manner in which the litigation of the grievance (as distinct from procedural matters affecting only the litigation in respect of an area or areas) proceeds before the Board, the parties are agreed that such matters should be referred to Vice Chair Petryshen, who may determine the manner in which the issue is to be determined (including, for example, telephone conference hearings or written submissions). In addition, an allegation that this protocol has not been complied with will also be brought before arbitrator Petryshen.
Where, during the process described above, any issue arises which bears on the application of the protocol, including, without limitation, issues concerning the identification of an area for disclosure, mediation and/or mediation/arbitration, the issues to be determined, or the scope, relevance or necessity of disclosure of information, the need for addition or concerning the ability of either party to meet the timeliness set out in the protocol, the parties may discuss the issue and, failing resolution, refer the issue to Vice Chair Petryshen or, by agreement, one of the other appointed Vice Chairs for determination. Where such issues arise and require discussion or determination, the parties will endeavour to have the issues dealt with expeditiously.
With respect to this protocol, at any time during the process, either party may make representations to Vice Chair Petryshen concerning the need for changes to the protocol as the litigation progresses and he may amend the protocol as he deems appropriate and necessary based on the representations of the parties.
Where a determination of a Vice Chair concerning the protocol is necessary, the issue may be determined by hearing, by telephone conference, by written submission, or any method which is agreeable to the parties. Failing agreement on the method, the Vice Chair may determine the method by which the issue will be dealt with.
It is understood that the intention and agreement of the parties is that, with the exception of matters already scheduled or where hearings have commenced and the matters are ongoing, or as otherwise agreed by the parties, grievances concerning the issues raised in grievance 02U120 will be consolidated with 02U120 and dealt with through this process, subject in each case to discussion by the parties.
TERMINATION
This protocol may be terminated by either party on thirty days notice in writing to the other party. Prior to termination, where either party has given notice to terminate, the parties will meet with Vice Chair Petryshen for discussion of the issues giving rise to the notice or issues arising from the termination to attempt to resolve the issues.