GSB# 2002-1227

UNION# 02C939

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Balazs)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Stephen Giles Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Greg Gledhill Staff Relations Officer Ministry of Community Safety and Correctional Services

HEARING

October 30, 2003.

Decision

From March 13^th to May 6^th 2002, the Union and its members were engaged in a legal strike. Prior to the beginning of this action the parties had negotiated a Memorandum of Agreement regarding the conditions of work in the event of a strike or a lockout (hereinafter referred to as the "Conditions Document"). In that agreement it was provided that "all collective agreement provisions apply to essential and emergency workers without interruption, save only that Appendix 9 and Appendix 18 shall not apply". The Conditions Document also expressly provided the Union continued right under Article 22.13 of the Collective Agreement to file Union grievances on behalf of employees who were performing essential and emergency services.

During the course of the strike approximately 5000 grievances were filed by Union members across the Ontario Public Service. As part of the negotiations that ended the work stoppage, the parties negotiated a Return to Work Protocol. That agreement contemplated various provisions including how continuous service, pension, credits and seniority would be affected as a result of the strike. Additionally, the parties addressed other issues such as reprisal, discipline and the mechanics of the actual return of the bargaining unit members to the workplace.

It was further agreed these "strike related" grievances would be treated separately and litigated in an efficient manner. To that end, on June 27, 2002, OPSEU and the Ministry of Public Safety and Security (hereinafter referred to as "MPSS") met to discuss a process in order to resolve the outstanding strike related grievances. Following that meeting a letter, dated October 11, 2002, confirmed the agreement that:

In order to deal with the strike related grievances in a proactive, expeditious and effective manner, the parties have agreed to the following:

• No stage 2 hearings
• No filing of strike related grievances at GSB, until agreed otherwise
• Waiving of time limits
• Respectively assigning dedicated resources to deal with the volume

Approximately 4500 grievances were filed by members employed by the MPSS. The parties agreed to a Dispute Resolution Protocol for MPSS that included Terms of Reference. It is not necessary to provide all of that agreement. It is sufficient to say that the parties agreed to an expedited process wherein each party provides to the Vice Chair written submissions which include the facts, provisions of the Collective Agreement, the Essential Services Agreement, legislation or any other document alleged to have been violated, arguments and requested remedy. Oral evidence would not be called although it was allowed that I could request further clarification if necessary. Other procedural issues were addressed to ensure that grievances would be dealt with in a timely fashion. The Terms of Reference also provided that I would remain seized of all outstanding strike related grievances filed by members working in MPSS.

The majority of the 4500 grievances dealt with one of the following issues:

• An allegation of delayed retroactive payments with a request for interest owing;
• An allegation of failure to pay appropriate holiday pay for Good Friday and Easter Monday;
• Entitlement to call back;
• On-Call and Standby issues for emergency workers.

Those matters were separately litigated at the Grievance Settlement Board and decisions either have been issued or are pending.

In accordance with the agreement of the parties a number of hearing days were scheduled to hear and determine the outstanding strike related grievances. Many of the grievances have been resolved through mediation. This is a further decision dealing with those matters.

Tom Balazs is a Correctional Officer working at Metro West Detention Centre. After the conclusion of the strike he filed a grievance regarding the balancing of hours. There were many other grievances from various institutions filed regarding this matter. Following the strike in 1996 the parties contemplated this issue. The parties agreed at that time that the Employer would be required to balance employee hours. However, no such agreement was included in the 2002 Return to Work Protocol.

Most Correctional Officers work a compressed work week. The number of weeks in compressed work week schedules can vary greatly. This is true not only from one institution to another but also within one facility. For example, a rotation for some compressed work week schedules is ten weeks in length. The hours to be worked are averaged over that period. That is to say that a Correctional Officer might work more hours in the first pay period of the rotation than in the second but the compensation he receives would remain constant. Over the course of the entire rotation each Correctional Officer works and is compensated for the appropriate hours of work as set out in the Collective Agreement.

In the strike of 2002 the actual work stoppage began on a Wednesday thereby interrupting the normal schedule of work in the middle of a week. There were several decisions during the course of the strike issued stating that normal scheduling of hours did not apply. When Correctional Officers returned to work on a Monday in May they did not return to the same place on their compressed work week schedule that they left. As a result, some Correctional Officers were in a position of having worked extra hours and some Officers were in a deficit hour position.

The parties entered into a settlement regarding this matter on January 29, 2003 that stated:

The parties agree to a full and final settlement of the grievance(s) listed in Appendix A without precedent and without prejudice to any future and/or similar matter(s) on the following terms:

The parties agree to partially resolve all other strike-related grievance(s) regarding balancing of hours, as identified in accordance with paragraph 4, below, on the following terms:

1. Where the local Union wishes that hours from the strike be balanced, the Employer will meet as soon as possible with the local Union ERC.

2. In such cases where the local Union ERC wishes that hours from the strike be balanced the provisions of Article 10 from the January 1, 1999-December 31, 2001 Collective Agreement and the local C.W.W. agreement shall apply.

3. The parties agree that any strike related grievances regarding averaging of hours, including individual, group, and local policy grievances, that cannot be resolved in accordance with this agreement, shall be referred back to Ms. Diane Cotton, MPSS and Mr. Tim Mulhall, OPSEU, or their respective designees, within 45 calendar days after the signing of this Memorandum. Should the grievances remain in dispute, the grievances will be consolidated, and a final determination by a Vice-Chair of the Grievance Settlement Board shall be made.

4. The parties agree that the grievances listed on Appendix A attached are resolved by this Memorandum of Settlement. The parties agree to make best efforts to finalize Appendix A within 45 days of the signing of this agreement.

In accordance with paragraph 3 above, the matter is before me for determination. A handful of institutions remitted the matter back to the parties, including Thunder Bay Correctional Centre, Metro West Detention Centre, Sudbury Jail and Bluewater Youth Centre. However, when questioned, the parties were unable to tell me whether the matter of balancing of hours had ever been discussed at these institutions at the local ERC level as set out in the above Memorandum of Agreement. Accordingly, I order the local Union and appropriate management institution official to hold an ERC meeting to discuss this issue within sixty days of the release of this decision.

The grievance at hand is encompassed by the Memorandum of Settlement set out above. In accordance with that agreement, the ERC decision from each institution shall apply to all employees within that facility.

Dated in Toronto, this 4^th day of March, 2004.