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

February 2, 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 another decision dealing with those matters.

Lorene Chambers and Lorrie Varga are Human Resource Clerks at Elgin Middlesex Detention Centre. Each filed two grievances. The first stated that their positions should have been declared essential for the entire period of the strike. The second alleged that during and immediately following the strike their work was performed by management personnel. Further, they asserted that they were left having to redress issues that arose in their absence, that is, during the strike. By way of remedy the grievors seek 145 hours of overtime they could have incurred in overtime.

Regarding the first grievance, prior to the beginning of the strike, the parties agreed to all of the positions that were deemed essential. The grievors’ positions were not so designated. In those instances where the parties were unable to agree to the designation of essential work, each had access to a dispute resolution mechanism to make such a determination. At this point in time, the issue of whether work was to be deemed essential is inarbitrable. Indeed, even if I found I had the jurisdiction to decide this matter, it would be a particularly odd designation to apply retroactively.

Regarding the second grievance, the Employer stated that the work done by the excluded management personnel during the strike was related to non correctional managers who worked in the correctional facilities during the strike. To be clear, the work was not work normally performed by the grievors. The Union was unable to provide any evidence to the contrary. Given those facts, the grievance is denied.

Dated in Toronto, this 24^th day of March, 2004.