GSB# 2001-1630

UNION# 02U014

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

(Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Nelson Roland

Ryder Wright Blair & Doyle

Barristers and Solicitors

FOR THE EMPLOYER

Suneel Bahal

Counsel

Management Board Secretariat

HEARING

February 25, 2004.

Decision

In a Memorandum of Settlement dated December 17, 2001 (“the Memorandum”),the parties agreed to withdraw two applications before the Ontario Labour Relations Board (“OLRB”) and also agreed that, as a Vice-Chair of the Grievance Settlement Board, I have the jurisdiction to determine entitlement to pay for certain employees at the Toronto West Detention Centre (“Toronto West”) for their shifts commencing on November 6, 2001, which they did not work. The Employer agreed to pay the employees for these shifts and the issue for determination was whether the employees should repay what they were paid for that day. After many hearing days during which I heard a considerable amount of evidence, the parties made submissions at the hearing on December 2, 2003, with respect to both the merits of the case and the remedial issues before me. In a decision dated December 4, 2003, I made the following directions and retained jurisdiction to resolve any dispute between the parties arising out of the decision:

(1) The parties at the local level shall meet to determine who is properly

on the “B” list for the purposes of this Decision and shall produce a

list in this regard within ten working days of the date of this Decision.

The criteria associated with those who are not properly on the list include,

but are not limited to, staff who were on a pre-approved leave of absence on

November 6, 2001, and/or those who never received an initial deduction

by the Ministry or subsequent reimbursement, and/or those who are no longer

employed within the Ministry.

(2) Those persons properly on the “B” list shall have the equivalent of 1/3 of

their pay for their shift of November 6, 2001, returned to the Ministry within

60 days of the date of this Decision.

The parties at the local level were unable to agree on a “B” list and the Employer requested that the matter be listed for hearing for the purpose of dealing with the “B” list issue. The parties at the local level were working from a revised Schedule “B” which had been a part of the Employer’s application to the OLRB. This document contained the names of employees who were scheduled to work day shifts on November 6, 2001. Apart from those employees who were absent due to sickness, the revised Schedule “B” contained 72 names.

The Union called Mr. M. Vieselmeyer, the President of the Local Union, to testify in support of its position. The Union referred to a number of Employer documents, such as a master schedule and a duty roster, and took the position that the inconsistencies in the documentation created considerable uncertainty about whether many of the employees whose names appeared on the revised Schedule “B” were scheduled to work day shifts on November 6, 2001. In addition to taking the position in the alternative that some of the 72 names should not be on the “B” list, the Union argued that there should be no names on the “B” list in the circumstances. This position was based on its view that the names of certain employees who appear to have been scheduled for the day shift on November 6, 2001 were not on the revised Schedule “B”. Although not seeking the addition of their names to the “B” list, the Union argued that the absence of these names without an explanation is discriminatory and should result in no repayment by any employee whose name might otherwise be appropriately on the “B” list.

The Union’s position that there should be no names on the “B” list cannot be sustained. It is not clear from the material before me that the names of employees who the Union claims are missing from the revised Schedule “B” were scheduled to work day shifts on November 6, 2001. In any event, in making their submissions on December 2, 2003, the parties contemplated that the dispute about the revised Schedule “B” related to what particular names should be removed from the “B” list, not that there was a possibility that there would not be a “B” list.

At the hearing on February 25, 2004, the parties separately advised me and the party opposite of which names should be removed from the revised Schedule “B”. At the end of this process, there continued to be a dispute about the status of fourteen employees. After considering the submissions of counsel relating to these fourteen employees, it is my conclusion that Violet Blackman, Jarek Marcinkowski, Ozzie Bacchus, Paul Fagon and Alex Zurby should not be on the “B” list. The “B” list attached to this Decision includes the names of those employees who on the balance of probabilities were scheduled to work day shifts on November 6, 2001.

Dated at Toronto, this 8th day of March, 2004.

“B” LIST

Belfiore, Joe Bradley, Janet

Benedict, Barry Calligan, Brian

Burritt, John Cannon, Ken

Campbell, Colin Cottier, Deborah

Clarke, Andrea Cottier, Darren

Douglas, Jamie Desousa, Lucille

Edwards, Rob Diver, Angela

Hollmann, Andy Gerofsky, Beverley

Holloway, Tracy Grace, Larry

Houston, Doug Lauria, Vince

Hutcheson, Rod Maciver, Ian

Koester, Andrew Maxwell, Paul

Liantzakis, Nick May, Michael

MacKenzie-Haines, Craig McNeil, Lorelei

McMullen, Reg Parker, Charles

Singh, Balbinder Penner, Jim

Sparks, Constance Ralley, Georgina

Willey, Scott Skoufaris, Efi

Allen-Leblanc, Kathleen Smith, Chris

Bartlett, Scott Sponagle, Joseph

Boychuk, William Stephens, Jeff

Brace, Michael Swanson, Ian