GSB# 2002-0228

UNION# 2002-0234-0010 [02C366]

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Camman)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Barry Stephens

Vice-Chair

FOR THE UNION

Stephen Giles Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Mike Briscoe Staff Relations Officer Ministry of Community Safety and Correctional Services

HEARING

June 2, 2005.

Decision

The parties agreed to an Expedited Mediation-Arbitration Protocol for the Maplehurst Correctional Complex. It is not necessary to reproduce the entire Protocol here. Suffice it to say that the parties have agreed to an expedited process wherein each party provides the vice-chair with written submissions, which include the facts and authorities the party intends to rely upon, one week prior to the hearing. At the hearing, oral evidence is not called, although the vice-chair is permitted to request further information or documentation. In addition, if it becomes apparent to either party, or the vice-chair, that the issues involved in a particular case are of a complex or significant nature, the case may be taken out of the expedited process and processed through “regular” arbitration. Although individual grievors often wish to provide oral evidence at arbitration, the process adopted by the parties provides for a thorough canvassing of the facts prior to the hearing, and leads to a fair and efficient adjudication process.

The grievor was denied the opportunity to fill an OM16 position. The OM16 positions are outside the bargaining unit. The union alleges the grievor was denied the position for reasons that were arbitrary, discriminatory or in bad faith, asserting that the employer denied him the position in retribution for the fact that his brother acts as a lawyer representing OM16’s at the Public Service Grievance Board (PSGB). Specifically, the union alleges that the grievor’s brother had successfully represented employees in a major case before the PSBG at the time of the job posting, and that grievor was denied the OM16 opportunity for this reason. The employer argued that I did not have jurisdiction to hear this matter, as it dealt with the grievor's right to a position that is outside of the collective agreement.

Having carefully reviewed the evidence presented and the submissions of the parties, it is my conclusion that there is no clear and cogent evidence that the employer has acted in an arbitrary, discriminatory or bad faith manner in this matter. Assuming, without deciding, that I have jurisdiction to decide this matter, it is my view that the grievance should be dismissed.

Dated at Toronto, this 29th day of August, 2005.