GSB# 2002-1510

UNION# 2002-0999-0021

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

Richard Brown

Vice-Chair

FOR THE UNION

Richard Blair Ryder, Wright, Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Kelly Burke Senior Counsel Management Board Secretariat

HEARING

May 12, 2004.

Decision

This is the fourth in series of decisions about the entitlement of essential and emergency workers to holiday pay for Good Friday and Easter Monday in 2002, both of which days fell during the strike that year. The current dispute is about correctional workers.

I

To be entitled to pay for a holiday, an employee must have been covered by the 1999-2001 collective agreement when the holiday occurred and must have met the entitlement criteria prescribed by that agreement. Coverage under the collective agreement is governed by document, dated September 20, 2001, entitled Conditions for the 2001-2002 OPS-OPSEU Essential Services and Collective Agreement Negotiations (the 2002 conditions document).

In a decision dated December 4, 2002, I made the following determinations as to when emergency and essential employees were covered by the collective agreement:

1. An emergency worker was covered by the collective agreement in the interval between being scheduled to work and completing all scheduled work. The collective agreement did not apply to such an employee before being scheduled to work or after all scheduled work had been completed.

2. The collective agreement has no application to an employee who was designated to provide essential services but performed no such work during the strike.

3. An employee who was designated to perform essential services, and who did so, was covered by the collective agreement for the entire duration of the strike. (pages 18 and 19)

This ruling was clarified in a second decision, dated October 30, 2003, where I concluded:

In summary, the interim award is hereby clarified to mean an emergency worker was covered by the collective agreement in the interval between being scheduled or called back to work and completing all outstanding shifts so assigned.

The second decision also addressed the issue of whether employees who were covered by the collective agreement on a holiday, but who did not work that day, were entitled to be paid for the holiday according to the terms of the agreement:

The decision in Andres Wines would seem to indicate the issue to be determined here is whether there exists a “reasonable nexus” between the holiday pay claimed and the performance of work, in the case of employees covered by the collective agreement on Good Friday or Easter Monday. A final ruling on whether the existence of such a nexus should be the determining factor, and on whether this sort of nexus does exist in the circumstances, would be premature until the parties have had an opportunity to make submissions on these two questions. (page 7)

The final ruling on this matter is contained in the third decision, dated March 8, 2004:

Having reviewed the submissions of counsel, I conclude entitlement to holiday pay should be determined by considering whether there is a sufficient nexus between the work performed and the benefit claimed.

In deciding whether such a nexus exits in the case at hand, I begin with emergency workers. I already have ruled they were covered by the collective agreement on the day of a holiday only if it fell in the interval between work being assigned and the completion of that work. For a holiday falling in this period, there is a reasonable nexus between the work performed and the benefit claimed. Employees designated as essential were covered by the collective agreement throughout the strike, so long as they actually performed some essential duties. Such employees may have worked fewer hours per week, or fewer weeks per month, than they did before the work stoppage, but they typically had scheduled hours throughout the strike. Based upon the shifts scheduled for them, I conclude there is a reasonable nexus between the performance of work and the benefit claimed. Indeed, for both emergency and essential workers, the nexus between work performed and benefit claimed is much stronger than it was in Andres Wines where holiday pay was awarded to employees laid off for months.

The foregoing analysis leads me to conclude any employee covered by the collective agreement on Good Friday or Easter Monday is entitled to pay in recognition of the holiday. (page 4 and 5)

II

The issue now raised by the employer involves certain correctional workers. As a response to the strike, employees in correctional facilities were divided into two groups, with essential services being provided by one group for the first period of two weeks, then by the other group for the next two weeks, and so on. During any two-week period when a particular group of employees was not providing essential services, they could be called upon as emergency workers. The dispute at hand concerns only those correctional employees who, during the two-week period when a holiday fell, were not scheduled to provide essential services but were required to be available for emergency response.

The employer contends such a person should be treated as an emergency employee for the purpose of holiday pay. According to this line of argument, he or she would not have been covered by the collective agreement on the holiday, unless it fell in the interval between the employee being notified of an emergency assignment and the completion of that work. Relying upon the designation of correctional workers to provide not only emergency services but also essential ones, the union contends as essential workers they were covered by the collective agreement for the entire duration of the strike, so long as they worked at any time during it.

Counsel for the employer submits this issue was not determined by previous decisions dealing with the application of the conditions document. In support of the position now advanced, counsel relies upon the Corrections Bargaining Unit Master Agreement for Essential Services, dated October 30, 2001 [the corrections master agreement] and upon the decision in Ministry of Solicitor General and Correctional Services and OPSEU (Burns), decision dated July 23, 1996, GSB File No. 823/96 (Roberts). Union counsel submits the issue at hand has already been determined in favour of his client. In the alternative, counsel contends the employer’s reliance upon the Burns decision and the corrections master agreement is not well founded.

III

I agree with union counsel that the question posed by the employer has already been answered by my earlier rulings. Correctional workers were designated as both essential and emergency workers. By virtue of their designation to provide essential services, they were covered by the collective agreement throughout the work stoppage, if they performed any work during it. This conclusion flows from the third paragraph of my first decision reproduced above. Accordingly, there is no need for me to comment further. Nonetheless, as the issue is an important one, I offer the following comments.

I was referred to two paragraphs in the corrections master agreement, the relevant parts of which state:

2. This Memorandum of Agreement is subject to the definitions, principles and terms as set out in the [conditions document]. …

3. Employees are only deemed to be essential for the day/rotational period during which they are required to perform essential work; at all other times they are on the Emergency Services Eligibility List. …

The employer’s argument is based upon paragraph 2. The essence of the argument is that correctional workers lost their status as essential employees when on the emergency part of their rotation. The union’s response is based upon paragraph 2. Noting this provision renders the correctional master agreement “subject to” the conditions document, counsel asserts paragraph 11 of the latter cannot diminish the scope of coverage under the collective agreement specified by the former. I agree.

As to the Burns decision, I have already ruled that it has no bearing upon collective agreement coverage for essential employees. In the first decision, I wrote:

I turn now to consider [coverage under the collective agreement for] employees designated to perform essential services.

Does the Burns decision offer any guidance on this subject? The grievor in that case rotated between being available to work as an emergency employee in one two-week period and working as an essential employee in the next. He belonged to the group of employees slated to begin performing essential services in the third week of the strike. When he went to the dentist on the second day of the work stoppage, he was slated to provide essential services in less than two weeks. The effect of the decision in Burns was to deny him reimbursement for a dental expense incurred in the interval between the scheduling and performance of essential work, even though he would have been reimbursed for a similar expense incurred between the scheduling and performance of emergency work. Vice-Chair Roberts analysis in Burns acknowledges the grievor’s role as an essential employee, but makes no mention of the dental appointment occurring while he was scheduled to do essential work. As well as glossing over this fact, the Burns decision does not cite any provision, from either the conditions document or the corrections umbrella agreement, specifying how the collective agreement applies to employees performing essential services. The decision is based exclusively upon provisions in the umbrella agreement dealing with emergency employees. For these reasons, I conclude the ruling in Burns provides no authoritative guidance as to the proper treatment of essential employees, even in the context of the 1996 strike. (pages 15 and 16; emphasis added)

IV

Two matters remain to be addressed: the timeframe for implementation of the decisions in this matter; and whether interest should be paid on money owing. The union requests an order directing the employer to implement my rulings within 30 days, whereas the employer suggested 60 days would be more appropriate. The parties agreed to a schedule for dealing with the matter of interest, with initial submissions by May 31 and reply submissions by June 7. Employer counsel noted a timeframe for implementation that required the principal to be paid before the dispute about interest has been resolved would necessitate two payments for each employee, in the event interest is awarded. I direct the employer to implement my rulings within sixty days of the date of this decision.

Dated at Toronto this 14^th day of May 2004.