GSB# 2005-3566

UNION# 2006-0517-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Vieselmeyer)

Union

• and -

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

Employer

BEFORE

Barry Stephens

Vice-Chair

FOR THE UNION

Scott Andrews Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Pauline Jones Staff Relations Officer Ministry of Community Safety and Correctional Services

HEARING

June 20, 2006.

Decision

The parties have agreed to an Expedited Mediation-Arbitration Protocol. It is not necessary to reproduce the entire Protocol here. Suffice it to say that the parties have agreed to an “True Mediation-Arbitration” process, wherein each provides the vice-chair with submissions, which include the facts and authorities each relies upon. The process adopted by the parties provides for a canvassing of the facts during the mediation phase, although the vice-chair has the discretion to request further information or documentation. Arbitration decisions are issued in accordance with Article 22.16 of the collective agreement, without reasons, and are without prejudice or precedent.

The grievance in this case relates to a claim that the grievor lost the ability to accumulate Compensating Time Off (CTO) between January 1, 2006 and March 31, 2006. The circumstances surrounding the grievance are not in dispute. The parties signed a memorandum of agreement on May 18, 2000, in settlement of a policy grievance, that the past practice with respect to the accumulation of CTO would continue. Late in 2005, the employer advised the union and its members that, effective January 1, 2006, employees would not be permitted to accumulate CTO. This announcement led to further discussions between the parties, leading to a new agreement permitting the accumulation of up to 120 hours with other restrictions. The new agreement came into effect on April 1, 2006.

The grievor submits that, between January 1 and March 31, 2006, the employer should have been bound by the terms of the May 2000 memorandum of agreement, and that is was improper for the employer to unilaterally alter the terms of that agreement without doing so in negotiation with the union. Evidence was provided from the employer’s records indicating that the grievor could have accumulated a total of 232 hours of CTO. The grievor stated that he would have used this time in order to schedule time off to assist his spouse in caring for their toddler triplets. The employer responds that, since mutual agreement is required with respect to the accumulation of CTO, as per the collective agreement, the employer has a right to withdraw such mutual agreement upon proper notice. The employer also acknowledged that, had it not been able to bring the old practice to an end, it would have been more difficult to get the union to agree to change the practice. The employer also argued that the grievor has not lost any pay, simply he lost the option of banking some of his time as CTO. On this point, the grievor asserts that the grievor has seldom made use of CTO, and has almost always asked to have his time cashed out.

After reviewing the submissions of the parties and the collective agreement, it is my conclusion that the grievance should be allowed in part. The employer is ordered to grant the grievor 40 hours compensating time, which will be added to the grievor’s time bank.

Dated at Toronto, this 25^th day of July, 2006.