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

March 5, 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.

A number of grievances were filed alleging discrimination and harassment based on participation or non-participation in the legal strike. Elizabeth Cook, a Correctional Officer with Quinte Detention Centre alleged that her supervisor told the inmates that she was in the pod and later failed to assist her when inmates began to chant obscenities at her.

Laura Ann Josephson, a Correctional Officer at Maplehurst, alleged that she was harassed when her supervisor yelled at her in the presence of her co-workers and inmates.

Louis Gallina, a Correctional Officer with Quinte Detention Centre asserted that his manager was acting inappropriately during one of his shifts.

Vincent Richards, a Correctional Officer at OCI, complained about a particular situation. One evening when he went to the back door to sign in he was told to return to the picket line. He did as instructed and stood with his co-workers by the fire barrel which was moved closer to the building. The Employer called 911 and when the police, paramedics and fire fighters arrived it was asserted that the picketers were attempting to burn down the facility. The Fire Department declared the situation to be safe after the fire was put out by a fire extinguisher. The grievor alleged that he was yelled at by his supervisor and he felt threatened.

These are but a few of the many examples of confrontations that took place during the course of the legal strike. It is not uncommon for tempers to flare and for normally civilized individuals to become somewhat short tempered or overtly rude during labour disputes. To be clear, I am not suggesting that such behaviour is acceptable, merely that it is not surprising that it occurs.

As the strike was drawing to a conclusion the parties put their minds to ending the discourse between them. In the Return to Work Protocol it was agreed:

9.1 Both parties agree that all efforts should be made to ensure there is no harassment of managers and bargaining unit employees. The union, employer, managers and bargaining unit employees agree to treat each other with courtesy and respect consistent with the Ontario Human Rights Code and the OPS Workplace Discrimination and Harassment Policy.

9.2 Both parties agree that there will be no reprisals, discrimination or retaliation in the workplace for any act of inaction taken by any employee of the employer arising out of participation in the strike. In addition, both parties agree that no employee shall initiate or participate in any reprisal, discrimination or retaliation. For greater certainty, this shall not apply to discipline imposed for matters occurring during the strike, which is dealt with hereinafter.

10.1 It is agreed that, except with respect to instances where criminal charges are laid, there will be no discipline taken against any employee for any act done during the strike up to and including May 1, 2002.

11.1 Any action or application commenced before any court by either party, including applications for injunctions, private prosecutions and contempt, and any application before the ORLB,, shall be withdrawn.

It is apparent from the Return to Work Protocol that the parties were prepared to forgive each other their indiscretions. This approach makes labour relations sense. Indeed, failure to address this matter prior to a return to work makes reintegration into the workplace very difficult for both bargaining unit members and those management personnel who had to cross picket lines to perform their work daily.

It might be that some people, both bargaining unit and non bargaining unit employees, regret things they said and did. Given that the parties have agreed to move forward and take no reprisal for strike activities it is neither helpful nor appropriate for me to hear and consider individual grievances such as those outlined above.

For those reasons, the matters are dismissed.

Dated in Toronto, this 30^th day of March, 2004.