GSB# 2002-0376, 2002-1018, 2002-2048, 2002-2112, 2002-2222, 2002-2479, 2002-3072, 2002-3159, 2004-0077
UNION# 2002-0252-0034, 2002-0252-0012, 2002-0252-0045, 2002-0719-0092, 2002-0719-0093, 2002-0719-0075, 2002-0719-0076, 2002-0719-0077, 2002-0719-0078, 2002-0719-0079, 2002-0719-0080, 2002-0719-0081, 2002-0719-0082, 2002-0719-0083, 2002-0719-0084, 2002-0719-0085, 2002-0719-0086, 2002-0719-0087, 2002-0719-0088, 2002-0719-0089, 2003-0719-0002, 2002-0719-0096, 2003-0719-0018, 2002-0252-0066
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Molloy et al.)
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
November 15, 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. However, it was agreed between the parties that the facts should be set out in this matter.
In an earlier decision (May 19th, 2005) that dealt with various grievances regarding strike issues I ordered that a matter referred to as Shannon et al was to be dismissed. The parties have requested that I issue a supplementary decision for this matter.
A number of Correctional Officers (Shannon et al) from facilities all over the Province filed grievances alleging that throughout the entire period of the legal strike the Employer utilized managers who were insufficiently trained to perform work in a correctional institution. This was an outstanding dispute during the course of the legal strike and the Ontario Labour Relations Board issued a decision that found the compressed orientation and training provided to the managers at issue was sufficient in the circumstances. The grievors allege in this grievance that they have been differentially treated because they had to take and pay for training at Bell Cairn prior to becoming unclassified Correctional Officers. They sought a remedy that included reimbursement for this training.
It was the Employer's submission that the grievors were not yet employees at the time that they were taking training and therefore the matter should be dismissed.
In the decision of May 19, 2005, I dismissed the grievances. However, at that time I failed to make clear that I am of the view that I am without jurisdiction to hear and determine this matter.
Accordingly, the following grievances are denied:
2002-0719-0075 to 2002-0719-0089 [GSB#2002-2222]
2003-0719-0018 [GSB#2002-3159]
2002-0719-0096 [GSB#2002-3072]
2002-0719-0092 [GSB#2002-2112]
2002-0719-0093 [GSB#2002-2112]
2003-0719-0002 [GSB#2002-2479]
2002-0252-0045 [GSB#2002-2048]
02C-533 [2002-0252-0012 GSB#2002-0376]
02C-820 [2002-0252-0034 GSB#2002-1018]
2002-0252-0066 [GSB#2004-0077]
Dated in Toronto this 18th day of January, 2006.