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

October 22, 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. 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.

Nineteen bargaining unit members from Monteith Correctional Complex filed a group grievance alleging that the collective agreement was violated due to the Employer disallowing the banking of overtime hours worked during the strike.

The facts were not in dispute. The grievors worked varying amounts of overtime during the course of the strike and were paid time and appropriate compensation for all hours so worked. The Union suggested that normally, when the grievors work overtime they “bank” their overtime hours and those hours are taken as compensating time off. That compensating time off is taken at a time mutually agreed upon between the employee and the Employer. Indeed, this practice is considered in the Collective Agreement for the Correctional Bargaining Unit.

Correctional Officers are schedule 4.7 employees. As such they are entitled to overtime pay as set out at article COR8.3.1 wherein it is stated:

Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven and one-quarter (7 ¼ ) hours or eight (8) hours as applicable, shall be paid at the overtime rate.

Article COR8.5 contemplates how overtime is taken. It states:

Where there is mutual agreement, employees may receive compensating leave in lieu of pay at the overtime rate or may receive pay at the overtime rate in lieu of compensating leave.

It was the Union’s position that given the past practice of the parties, the grievors should have been allowed to take their earned overtime hours in compensating time off. It was the Employer’s view that it had the right to pay out overtime during the period of the strike.

In the Memorandum of Settlement entitled Corrections Bargaining Unit Master Agreement for Essential Services ordered into effect by Vice Chair Janice Johnston on October 24, 2001, it was stated at paragraph 3:

This Memorandum of Agreement is not based on a “business as usual” scenario and shall not be interpreted as what would be advocated by either party in a normal situation with a fully operating service.

I must dismiss the grievance. Firstly, local agreements that deal with scheduling would have been one of those matters that would be considered “business as usual”. Obviously, hours of work and the amount of overtime hours needed were vastly different during a work stoppage with essential and emergency workers staffing an institution which is still operating at full capacity. It simply makes no sense that local scheduling agreements regarding the scheduling of overtime and the method of compensating overtime would continue as if it were “business as usual”. Further, as is clear from the Collective Agreement, for overtime to be compensated as lieu time off there must be mutual agreement. The Employer withheld its agreement to treat overtime in such a fashion during the course of the strike and it was within its rights to do so.

Accordingly, the grievance is denied. I have appended a list the names of the grievors.

Dated at Toronto this 18^th day of March 2004.