GSB#2007-1668, 2007-2100

UNION#2007-0603-0002, 2007-0611-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gauthier et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Mark Barclay Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Felix Lau Counsel Ministry of Government Services

HEARING

October 10, 2008.

Decision

1This decision concerns group grievances filed by Mr. Mark Gauthier and Mr. Brent Howell, seasonal crew leaders working out of the Sault Ste Marie and Wawa Fire Management Headquarters. The grievors have grieved that members of their crews were required to take their scheduled days off, while out of district and type 2 (Contract) fire crews worked on those days. They claim that as members of the local crews they should have been allowed to perform that work on overtime instead.

2The parties referred this matter to me pursuant to the Mediation/Arbitration procedure set out in article 22.16 of the collective agreement.

3The employer’s position is that the assignment of the overtime work in question was made in accordance with Ministry Directive No. FM:3:05 which governs all fire staff within the Ministry. In deciding to assign the overtime work to the other crews, the employer took into account (1) financial considerations of minimizing overtime costs and (2) safety considerations of ensuring that fatigued employees are not assigned to work.

4The union submits that it is unfair to assign available overtime opportunities to out of district and contract crews, when local crew members are willing and available to work. Mr. Barclay characterises that as an unreasonable exercise of management discretion. He submits that the Ministry directive allows sufficient discretion to management, that the work could have been assigned to the grievors without violating the directive, and that at least once in the past, the employer had assigned overtime to local crew members in similar circumstances. He relied on article UN 8.2.1., which provides:

In the assignment of overtime, the employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all its operational requirements are met.

5Article UN 8.2.1., however, has no application to seasonal employees such as the grievors. (See article 32.21.2). In any event, there is no evidence that the employer’s exercise of discretion in assigning the overtime in question was tainted by any illegitimate or irrelevant considerations. While the grievors’ disappointment is not difficult to understand, it cannot be concluded that the employer acted in bad faith or acted so unreasonably as would justify the intervention by this Board.

6In the circumstances the grievances are denied.