GSB# 2002-2095
UNION# 2002-0999-0028
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)
Union
- 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
September 9, October 13& November 8, 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.
During the course of the hearings into these matters it became apparent that reasoned decisions were no longer necessary. The major issues between the parties had been canvassed, litigated and decided in various awards and settlements. It was also clear that time constraints were such that the outstanding issues had to be determined in a more expeditious fashion and therefore the parties agreed that the remaining matters would be decided without reasons. It should be noted that in setting out my ruling below I have, in some instances, provided a remedy that is less that what was being requested by the grievor. However, the remedy I have ordered, if any, reflects the appropriate result in each circumstance. Accordingly, following is a list of the grievances that were argued before me accompanied only with my ruling:
REFERENCE # NAME DISPOSITION
DH25 Darlaw dismissed
ES52 Brittain upheld – 10 days owing
ES64 Squires dismissed
MS38 Ledger upheld – 4 weeks owing
PA58 Schoenmakers dismissed
PA21 Hunter upheld – 4 hours owing
PA153M Mason upheld – 4 hours owing
PA153M Miller upheld – 4 hours owing
ES100 Tyler upheld – 8 hours owing
PA408 Kennedy upheld – 4 days owing +
& RW59 3 days sick leave
PA250M Group dismissed
ES51 Brady upheld – 10 days owing
MS10 Harvey dismissed
DH74 Galla dismissed
DH29 Hugo dismissed
ES107 Busat dismissed
PA344 Walker dismissed
PA276 Pungitore dismissed
PA277 Suhota dismissed
PA282 Knaap & Krusto
& PA33 upheld 5 days owing
PA31 Kieffer upheld - 4 days owing
ES28 & 29 Wilson upheld – 10 days owing
MS07 Wint-Inglis dismissed
DH04 Laderoute dismissed
ES97 Rivet dismissed
ES23 Majee dismissed
DH22 Hope dismissed
DH19 Matwichuk dismissed
DH20 Punja dismissed
PA24 Johnston upheld – 23 hours owing
DH48 & MS01 Digianni upheld – 9 hours owing
DH01 Sidler dismissed
DH37 Panico dismissed
PA205M Group dismissed
PA76M Group dismissed
ES72 & 73 Duncan dismissed
ES80 Joncas dismissed
ES81 Grimes dismissed
RW83 Walters dismissed
PA114 Duncan dismissed
DH07 Carol dismissed
PA116 Casement A balancing of hours issue
RW109 Young dismissed
DH17 Berry upheld – 4 weeks owing
ES74 Duncan upheld – 8 hours owing
ES48 & DH49 Kerr upheld – 20 days owing
RW100 Peckford dismissed
ES68 Cockburn dismissed
RW84M Group dismissed
MS05 Risdale dismissed
PA92 Lindsay dismissed
DH54 Campbell dismissed
PA57 Rosati upheld – 7 hours owing
PA13 Forsyth upheld – 8 hours owing
PA254 Cook dismissed
PA414 Kennedy dismissed
PA182 Merry upheld - $20 owing
DH73 Richards upheld – Employer to remove
comments on WIN
RW83 Walters dismissed
PA266 St. Yves upheld – 8 hours owing
PA422 Renaud dismissed
PA424 Anderson dismissed
PA425 Woolnough dismissed
PA427 Cordick dismissed
PA133 Mowe dismissed
PA206 & DH64 Bennett upheld – 1 day owing
PA207 Large upheld – 2 days owing
PA210 Nutson upheld – 1 day owing
Julie White upheld – 30 hours owing
ES78 Hauth dismissed
PA62 & 63 Simpson upheld - 8 hours owing
PA80 Allan upheld – 16 hours owing
PA70 & 71 Tyrell upheld – 11.5 hours owing
PA 47 McIvor upheld – 24 hours owing
PA07 & 88 Duval upheld – 8 hours owing
PA91 Hoover upheld – 8 hours owing
PA87 Drummond dismissed
PA85 Coker upheld – 8 hours owing
PA263 Haggett upheld – 8 hours owing
PA68 Stephenson upheld – 8 hours owing
PA55 Pekeski upheld – 16 hours owing
PA53 Patrick upheld – 24 hours owing
PA64 Sinclair upheld – 8 hours owing
PA72 Valleau upheld – 8 hours owing
PA73 Vanderyt upheld – 16 hours owing
PA78 Curran dismissed
PA79 Fisher upheld - 5.5 hours owing
PA90 Hagan upheld – 8 hours owing
ES20 Stoner upheld – 8 hours owing
Eileen Smerdon upheld – 4 hours owing
DH61 & 62 Nabert dismissed
DH33 MacDonald dismissed
PA50 Mullings dismissed
RW94 Hope upheld 33 hours owing
DH13 Janitens dismissed
DH14 MacDonald dismissed
DH15 McCann dismissed
MS08 Lowe dismissed
RW155 Grimmond dismissed
PA162 McGuigan dismissed
PA08 Endrizzi dismissed
PA10 Faieta dismissed
ES55M Mitchel dismissed
Gagnon dismissed
DH35 Miller dismissed
This disposes of most of the outstanding matters. I would be remiss if I did not thank the parties for their considerable efforts in finalizing this task. At the outset it seemed difficult to imagine how we would dispose of hundreds of individual disputes during the life of this collective agreement. However, much time and organization was taken to achieve these results. I am grateful for this assistance.
Dated in Toronto this 20^th^ day of December, 2004.