GSB# 2003-3774

UNION# 2004-0999-0002

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

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

January 6, 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.

Mr. Gawrylash is a Correctional Officer working at Sprucedale Detention Centre. Immediately prior to the strike he had been working in the accommodated position of Temporary Absence Program Coordinator. His name was not included in the draw for essential and emergency workers. It is this failure to be given an opportunity to work during the legal strike that he grieved.

Richard Dunlop is a Steam Plant Engineer who was, prior to the strike, being accommodated as a Security Officer at Quinte Detention Centre. The position of Security Officer was non-essential during the strike.

Carl Herrman is a Correctional Officer who was being accommodated as a Records Clerk. Joe Garisto is a Maintenance Mechanic who was also being accommodated as a Records Clerk. Both grievors work at the Toronto Jail.

In each of these instances it was the grievors' position that his accommodation needs could have and should have been revisited prior to the draw. It was the employer's position that the grievor was not included in the draw for two reasons. Firstly, the parties agreed that the accommodated positions were not essential work. Secondly, if the grievor were able to perform work that was different from the modified work they had been performing, each should have provided updated medical information confirming his ability to perform the essential duties of the Correctional Officer position. The failure of the grievors to provide this information left the Employer with no alternative but to exclude them from the draw.

In my view the Employer was under no obligation to schedule the grievor in a work assignment other than the most recently agreed upon modified work assignment. Obviously, because the parties agreed that this work was not essential, the grievor had no work to perform during the course of the strike. The grievor asserted that the Employer could have scheduled him to do other work. I disagree. Indeed, if the Employer took it upon itself to utilize the grievor in an assignment other than the agreed upon modified position it would have been improper. While it might have been that the grievors' accommodation needs could have been revisited prior to the commencement of the strike, in the absence of the Employer receiving any revised medical information concerning the grievors' abilities, there was no violation of the collective agreement.

Dated at Toronto this 15^th^ day of March, 2004.