GSB# 2002-2095
UNION# 2002-0999-0028
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)
Union
- 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
January 25, 28 & May 12, 2005.
Decision
From March 13th to May 6th 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’s 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.
During the course of the hearings into these matters it became apparent that reasoned decisions were no longer necessary. The major issues between the parties had been canvassed, litigated and decided in various awards and settlements. It was also clear that time constraints were such that the outstanding issues had to be determined in a more expeditious fashion and therefore the parties agreed that the remaining matters would be decided without reasons. It should be noted that in setting out my ruling below I have, in some instances, provided a remedy that is less that what was being requested by the grievor. However, the remedy I have ordered, if any, reflects the appropriate result in each circumstance.
It was hoped that my decision of December 20, 2004 would complete the outstanding disputes. However, there were a number of matters that remained unresolved. Following is a list of those grievances accompanied only with my ruling:
REFERENCE # NAME DISPOSITION
ES62 McLaren 1 day pay
ES72 Harvey 1 day pay
PA212 Smythe dismissed
PA213 Tuff dismissed
Shaun Deley 8 hours pay
John Kennedy 8 hours pay
Mark Gouge dismissed
Larry Herechuk dismissed
David Sproat dismissed
Stephen Nenadov dismissed
Shannon et al dismissed (no jurisdiction)
Henri Dumont dismissed
Dennis Christo 13 sick days
Jeff McLauchlin 5 sick days
Darlene D’Andrea $307.20
Patrick Morris dismissed
ES121 David Kerr dismissed
ES61 Mankis dismissed
ES63 Riley dismissed
ES65 Tooke dismissed
ES69 Cook dismissed
ES76 Guylee dismissed
ES79 Irish dismissed
ES82 Kennett dismissed
ES91 Clare dismissed
ES104M Breton et al dismissed
ES146M Gillis et al dismissed
PA267M Quinte Group dismissed
PA412 Egerter dismissed
RW74 Peckford dismissed
PA100 Ball dismissed
PA315 Forndorn dismissed
PA329 Jean dismissed
PA04 Duchesne
PA115 Duchesne
DH26 Duchesne 280 hours pay
DH36 Nantais 280 hours pay
Sudbury Work Refusal (Group) dismissed
The parties are of the view that there are a few outstanding matters that will need to be addressed at a later date. Again, I thank the parties for their work and for their thorough presentations that have allowed for this efficient process.
Dated in Toronto this 19th day of May, 2005.