GSB# 2002-1227

UNION# 2002-0517-0015

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

June 24, 2004.

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. In the event of any confusion regarding the facts of the matter or the underlying rationale, I will direct the parties to speak again with their principles. Notwithstanding that some grievors might wish to attend and provide oral evidence, this process has been efficient and has allowed for a thorough canvassing of the facts and arguments with respect to the various issues. 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. This process was developed in consideration of Article 22.16.2 of the collective agreement. It states:

The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise.

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.

On March 4, 2004, I released a decision regarding the grievance filed by Mr. Balazs. He is a Correctional Officer at the Metro Toronto West Detention Centre (MWTDC) and after the conclusion of the strike he filed a grievance regarding the balancing of hours.

In that decision I explained the issue at page 3 which said:

Most Correctional Officers work a compressed workweek. The number of weeks in compressed workweek 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 workweek 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 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:

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 can be balanced the provision 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 the 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.

At the initial hearing into this matter the parties were unsure if the local parties at MTWDC had properly addressed the matter of the balancing of hours at the ERC meeting. Therefore, I ordered the local parties to meet to discuss the issue in accordance with the above agreement of the parties.

During this period of time a hearing was scheduled at the Ontario Labour Relations Board for disposition of charges filed by Mr. Balazs. The parties signed a Memorandum of Agreement on March 8, 2004, which stated the following:

The parties to this application agree as follows:

1. In accordance with GSB Vice Chair Briggs’ decision the Metro West ERC will meet forthwith to discuss the issue of balancing hours. Minutes of the meeting will be taken and forwarded to S. Giles of OPSEU and Mr. Gledhill. The minutes will reflect what decision, if any, was arrived at with respect to the hours balancing issue.

2. If no decision is reached the grievance shall be referred back to the GSB for final decision.

3. The parties request this application be adjourned sine die.

4. The Union and Local 517 will ensure that the names on grievance 02C939 are compared to ascertain that all correct names are included.

5. The Union will endeavour to solicit input from Local 517 with respect to this grievance.

The grievor, along with two other members of the local executive drafted a Memorandum outlining their concerns regarding this matter. That document stated, in part:

We the members of the Local Employee Relations Committee (ERC) OPSEU Local 517 object to being delegated the onerous task of deciding the final outcome of the “balancing of hours” grievances. Despite the decision of the GSB arbitrator (Ms. Felicity Briggs) we do NOT accept this ultimate responsibility on several grounds as follows:

1. The Union (OPSEU) has no legal authority to sign away the member’s rights that are continue in: A) The Collective Agreement, and B) The Employment Standards Act. In both documents, workers are entitled to be paid for all hours worked, including overtime for hours in excess of our standard forty hour workweek and our compressed workweek agreement. OPSEU has no legal authority to change these conditions, and no legal authority to appoint others to make this decision for them. Therefore, the settlement dated January 29, 2003 is flawed and illegal.

2. Local ERC’s have no legal authority to deal with grievances. Article 16 of our Collective Agreement states that ERC topics shall not be subject to the mediation and arbitration process. The original agreement to set up MERC and Local ERCs precludes the ERC from discussing grievances. We are NOT elected to deal with and make decisions on our member’s grievances. We are NOT even an official party to the grievance at this stage. The only official parties to the grievance are OPSEU and the employer. So we have no legal authority to dispose of the grievance in any way. Therefore, our members could immediately grieve any decision taken at ERC that violates their rights under the Collective Agreement and/or the Employment Standards Act.

3. A conflict of interest exists for the Union ERC members. It makes no sense for ERC members to make the final decision on grievances that they themselves submitted in the first place. There would be a tremendous potential for bias. Members who stood to gain money would vote in favour of balancing hours, while members who stood to lose would vote against. This is not a fair and equitable way of deciding the grievance on behalf of the rest of the membership.

The document continued for three further paragraphs. One stated that ERC members are not employees of OPSEU and therefore have no legal authority to “dictate to our members whether they will or will not be paid for hours worked”. It was also suggested that because Mr. Balazs did not attend the original grievance hearing I was not told that the matter had been discussed at an ERC meeting held on March 24, 2003. Finally, it was said that in the past this grievance has been confused without another similar matter.

A local ERC meeting was held at Metro Toronto West Detention Centre on April 1, 2004. On April 5, 2004, I was sent a letter from the Superintendent of MTWDC. I did not accept this document until it was properly put before me by representatives of the parties. In that April 5, 2004 memorandum, the following was stated:

As a result of a Toronto West Detention Centre Employee Relations Committee Meeting held on April 1, 2004, one of our agenda items were (sic) “The Balancing of Hours – re F. Briggs Decision. The attached document was presented to the management and is now being forward to your for your interpretation as the Union did not make a decision.

Included in that package of documentation from the Local was a “handout” from the Union ERC members given to the Employer during the April 1, 2004 meeting. This appears to be in lieu of minutes of the meeting. That “handout” stated:

Collective Agreement Article 16 – does not allow mediation/arbitration at the local ERC.

ERC on Union Side – comprised more specifically, “Article 16”

No agreement – this is the 3^rd ERC this issue has been discussed at, same result, no agreement, union – deal with grievors.

It is apparent from the above that, for whatever reason, the local ERC members at Metro Toronto West Detention Centre have continued to refuse to make any decision regarding this matter. In other circumstances I might have some sympathy for their not wanting to “impose their views” on the entire bargaining unit. However, I do not think that was ever the intention of the parties. I am of the view that the intention of the parties in the January 29, 2003 Memorandum of Agreement was clear. It was agreed that, because of the collective interest, the local union representatives would canvass the wishes of their membership. Once the view of the majority of the bargaining unit was ascertained, that decision would prevail and would be presented to the Employer at the local ERC.

I understand Mr. Balazs’ concern that bias might interfere with the decision making process if left to only three members. However, I would hope (and I think the parties intended) that in a case such as this, the wishes of the majority of the bargaining unit would be sought and then followed. Indeed, there was no suggestion in the Memorandum of Agreement that local ERC members would “dictate to” membership “whether they will or will not be paid for hours worked”.

I am not prepared to have this group leave the matter to me for determination. That was not what the parties agreed upon. In accordance with the agreement signed on January 29, 2003, the local Union is to put forward its position, which will apply to all members of the bargaining unit, to the local Employer. That local Employer will either uphold the Union’s wishes or declare a dispute. If there is a dispute at that point in time, I have the jurisdiction to determine that matter. However as is evident from the above, that process has not occurred in this instance. I will not determine an issue in the absence of the local Employer being informed of the Union’s position and being given an opportunity to remedy the issue if there is no agreement.

I realize that the agreement between the Union and Mr. Balazs at the Ontario Labour Relations Board stated that Minutes of the ERC meeting held to discuss this matter will reflect the decision “if any” regarding the balancing of hours. As I understand it is the view of Mr. Balazs that this allows the local union to bypass the need to take a position. I disagree. The agreement between Mr. Balazs and the Union cannot and does not override the Memorandum of Agreement dated January 29, 2003 and any inconsistency between the two must be resolved in favour of the overarching agreement between the parties.

It might be that in March of 2003 the local ERC at MTWDC discussed this matter. However, if the local Union representatives simply chose to mention the topic and not deal with the matter in any substantive way, that discussion was as insufficient as the discussion held on April 1, 2004, according to the documents before me.

Accordingly, I order the local ERC to meet within sixty days at the MTWDC. At that time, the Union will inform the Employer of its wishes with respect to the balancing of hours. The Employer will either agree to that request or declare that a dispute exists. Minutes of that meeting will be taken. If the matter remains outstanding at that point, the parties are to send the minutes of the meeting to their own representative who will inform me that a hearing in this regard is required.

Dated in Toronto this 30^th day of November, 2004.