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 the first decision dealing with those matters.

Discipline Grievances

Following many grievances filed alleging discipline without just cause, the parties signed a Memorandum of Settlement on December 19, 2002. That Memorandum stated:

The Ministry agrees that Article 10 of the Back To Work Protocol has full effect during the period of March 13, 2002 through to May 1 inclusive.
The parties agree that, in accordance with the Back to Work Protocol, with the exception of instances where criminal charges are laid there will be no discipline taken against any act done during the strike up to and including May 1, 2002.
The Ministry agrees to remove any reference to disciplinary action from employee’s files and reimburse the employee for any subsequent loss of wages and/or credits.
The Ministry agrees to provide direction to all institutions and area offices in regards to the implementation of this settlement within 20 working days of the signing of this agreement. Furthermore, the Ministry agrees to make its best efforts to provide all retroactive payments within forty-five (45) working days after the signing of this Memorandum.
The parties agree that any strike-related grievances regarding discipline including individual, group and local policy grievances that cannot be resolved in accordance with this agreement, shall be referred back to Ms. Diane Cotton, MPSS and Mr. Tim Mulhall, OPSEU, or their respective designees within 45 calendar days of the signing of this Memorandum, or else be deemed resolved in accordance with this Memorandum. Should the issues remain in dispute, the grievances will be consolidated, and a final determination by a Vice-Chair of the Grievance Settlement Board shall be made.
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 calendar days of the signing of this settlement.

As can be seen from the above memorandum, provisions were made for individual grievors to raise any concerns with both the Employer and Union in the event of peculiar circumstances. Responses to the letters sent to the local presidents failed to bring forward any additional information that caused the parties to investigate further.

Therefore, in accordance with the Return to Work Protocol and the Memorandum of Settlement signed December 19, 2002, and after consideration of the submissions made at the hearing on October 22, 2003, I find that the grievances set out at Appendix A are deemed to have been withdrawn. It is probable that Appendix A is not complete. It might be necessary for me to issue a further decision including other, yet unidentified, grievances to be included.

Dated at Toronto, this 22^nd day of March, 2004.

APPENDIX A - DISCIPLINE SETTLEMENT

NUMBER

Ontario Public Service Employees Union v. The Crown in Right of Ontario, 2004 CanLII 55441

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Grievor