GSB#2007-1773
UNION#2007-0526-0016
Additional Files – Appendices ‘A’ and ‘B’
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (McGann et al.)
Union
- and -
The Crown in Right of Ontario (Ministry of the Attorney General)
Employer
BEFORE
Owen V. Gray
Vice-Chair
FOR THE UNION
Anastasios Zafiriadis and Stephen Giles Grievance Officers Ontario Public Service Employees Union
FOR THE EMPLOYER
Len Hatzis Counsel Ministry of Government Services
HEARING
April 8, 2009.
DECISION
Files included in these proceedings
1In my decision of December 1, 2008, I noted that there were then 73 grievances scheduled to be heard and determined by me in these proceedings, all of which raise issues of one kind or another concerning Appendix 32 to the collective agreement and/or subsequent agreements of the parties concerning Appendix 32. Between that date and the next hearing of April 8, 2009 the parties added 8 grievances to the list. The grievor names and file numbers for those added files now appear at the end of the list in Appendix ‘A’ to this decision. Three of the grievances listed in that appendix – GSB Files 2007-3632, 2007-3739 and 2008-0203 – were dismissed orally at the hearing of April 8, 2009, as noted and confirmed in this decision.
2At the hearing of April 8, 2009, I was advised that the parties had agreed that I should also hear and determine the grievances listed in Appendix ‘B’. Those grievances were dismissed orally at the hearing of April 8, 2009, as noted and confirmed later in this decision.
Applicability of Article 22.16
3The parties agree that none of the grievances before me is a “union grievance with corporate policy implications” or concerns “dismissal, sexual harassment and/or human rights” within the meaning of Article 22.16.1 of the parties’ collective agreement. Accordingly, Article 22.16 would apply to the hearing and decision making process unless the parties have agreed otherwise. The employer says the parties have agreed otherwise, with the result that these matters are to be dealt with in accordance with the “regular arbitration procedure” to which article 22.16.6 refers. The union denies that there has been such an agreement. Both parties agree, however, that I should explore the possibility of mediated settlement where possible, and that I should be interventionist in conducting the hearing. They also agree that decisions in these proceedings will have “precedential value,” notwithstanding article 22.16.7. The question whether the parties did or did not to agree to exclude these proceedings altogether from the process contemplated by article 22.16 may be addressed at a latter date.
The “Slat et al.” Grievances (Appendix ‘B’)
4Each of the seven grievors whose grievance is listed in Appendix ‘’B’ became a classified employee at some time before June 24, 2005. On that date parties agreed in Appendix 32 to the creation of a new “Flexible Part-time” category of classified employee, terms and conditions on which employees in that category would be employed, and conversion of certain unclassified employees to the new “Flexible Part-time” classified status. These grievors all grieve as follows:
Statement of Grievance:
As former unclassified employees of the Ministry of the Attorney General (now classified employees), we have been treated unfairly with respect to our vacation credits.
Our years of uninterrupted service with the Ministry were not factored into our vacation credits at our time of conversion into classified positions. Conversely, in September 2006 the Ministry of the Attorney General made the unclassified court staff (clerks & reporters) into classified staff and factored in those employees years of service from their respective hiring dates.
The end result of this is that other employees of the Ministry of the Attorney General simply by virtue of their job titles and without regard to seniority now have more vacation time than the grievors. This is patently inequitable.
The conversions referred to in the second sentence of the second of the quoted paragraphs are conversions of then unclassified employees into “Flexible Part-time” classified employees. The “other employees” referred to in the last paragraph are those who were converted from unclassified to “Flexible Part-time” classified status.
5None of these grievors is a “Flexible Part-time” classified employee. Appendix 32 does not apply to their employment. The union’s representatives acknowledge that the grievors’ vacation credits were and are properly calculated in accordance with the collective agreement provisions applicable to those seven grievors. The union’s representatives could point to any collective agreement right of the grievors’ in relation to vacation credits that the employer has breached. Indeed, they conceded that the union has no dispute with the employer concerning these grievors’ vacation credits.
6This Board has no jurisdiction to resolve a dispute between a bargaining unit employee and the union about differences between the collective agreement provisions that apply to that employee and the provisions that apply to other bargaining unit employees. This Board’s jurisdiction is to resolve by arbitration “all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement.”1 The “parties” whose differences the board resolves are the union and the employer. The referral of a grievance to arbitration is a representation that the grievance concerns a difference or dispute between the union and the employer. If there is no dispute between the union and the employer about the matters described in a grievance, however, then there is nothing for this Board to do with that grievance except dismiss it.
7Accordingly, when the union’s representatives conceded that the union had no dispute with the employer concerning the matters referred to in these grievances, I dismissed the grievances orally. I hereby confirm that ruling.
Sign In Sheet Grievances – Files 2007-3632, 2007-3739 and 2008-0203
8The employer requires that Flexible Part-time classified (“FPT”) employees report their hours of work. Since early 2008 it has required that this report be made on a daily time sheet. Each sheet has a column of names of FPT employees at the left. To its right are columns in which the employee is to insert “Work start time”, “Work end time,” “Lunch duration”, “Total Hrs. Court,” Total Hrs. Admin,” Total Hrs. Worked,” “Staff Signature” and “Comments/Clarification.” At any particular work location there may be one, two or three FPT sign in sheets for each day, depending on the number of FPT employees employed at that location. The sheets are gathered up at the end of the day. The employer uses them for payroll and other purposes.
9Three of the grievances before me concern these sign in sheets.
10The union’s pre-hearing particulars of the group grievance in Board File #2007-3739 are as follows:
The Employer is forcing the FPT's to sign in and out every day. The information contained in the sign in and out sheets is accessible for any individual to view.
This is a change in practice. Prior to this practice each individual was given a time sheet that was given to their immediate Supervisour [sic] at the end of the week. Staff had the ability to make a copy of these sheets and maintain their own record to compare against the pay staff received. Effective early January 2008 the past practice was replace [sic] for FPT staff only.
The change provided the ability for staff to view their peers hours, sign in and out times, vacation, sick days et cetera. We are required to sign in in the AM and out in the PM, and record lunch and note anything relevant under comments with our signature.
REMEDY: Grievors are seeking a fair system that only is a sign in and out sheet for all staff and not just FPT but that includes Full-Time and Unclassified staff. Return to a weekly or bi-weekly payroll sheet that is submitted to our Supervisour [sic] and signed copies returned to the Grievor's [sic] with any changes made by payroll or the Supervisour [sic].
11The union’s pre-hearing particulars of the group grievance in Board File # 2007-3632 are as follows:
The requirement to obtain daily authorization for hours worked was introduced with the implementation of the September 13th, 2007 MOA. Staff were required to carry these forms with them all the time in order for each and every Supervisor they reported to, to sign.
Subsequent to this grievance being filed the requirement for staff to carry the aforementioned forms has been rescinded.
The Employer on March 1st, 2008 sent an e-mail to staff advising staff that they must sign in, in the morning upon arrival and it is not okay to sign in at a later time for the Employer to ensure staff are in the building and in their scheduled courts.
The Employer sent an e-mail to all staff on February 12th, 2008 advising staff they are prohibited from photocopying the sign in and out sheets. The employer refuses to allow staff access to their sign in and out sheets for the purposes of tracking their own hours.
This is a change in past practice as employees did not have to get their Supervisors authorization and employees were allowed a copy of the attendance sheet for their own records.
REMEDY: To be made whole and full redress. Any other remedy the Board and the Union deem just.
12The union’s pre-hearing particulars of the group grievance in Board File # 2008-0203 are as follows:
The grievors have repeatedly requested that they be provided with copies of daily sign in and sign out sheets so that they may keep track of hours worked and submitted to the Employer for payment.
In the past, some grievors have experienced discrepancies between the hours they work and keep of track of personally, and the hours recorded by the Employer. They wish, therefore, to keep copies of the attendance sheets used by the Employer to calculate hours, in order to be able to check that the hours they work are correctly recorded and remunerated.
The Employer has consistently refused to make these attendance sheets available for copying and emails of February 12 and 19, 2008, manager Jennifer Lee expressly forbade employees to make copies of the sheets and stated that employees would not be provided with copies.
Remedy: Access to copy or receive copies of the attendance sheets.
13These grievances raise two general issues: that the employer requires FPT employees to do something that it does not require unclassified and regular classified employees to do, and that the employees are not permitted copies of the sheets on which they record their information. Although the particulars of the grievance in Board File #2007-3739 hint at concern about the limited access that other employees have to the information that an employee enters on the sheets, this was not pressed in argument. Indeed, the union argued that employees’ having photocopies of other employees’ information would provide desirable transparency.
14The employer says that all employees who work in courtrooms, whether they are regular classified, Flexible Part-time classified or unclassified, are required to fill in daily sign in sheets on which they must record their start time, end time, lunch duration and total time worked. Notwithstanding what had been said in the union’s particulars of the grievance in Board File #2007-3739, the union’s representatives were able to verify and agree that these facts are true, that all other courtroom employees are required to fill in sign in sheets that are similar in form and content to the FPT sign in sheets, except that only FPT employees asked to record an allocation of time worked as between Court time and Admin time.
15The employer stated that FPT employees are the only ones asked to record that allocation because FPT employees are the only employees for whom it is pertinent. It is pertinent because although the union has agreed that the employer can assign FPT employees to work inside or outside the courtroom as needed, it has obtained the employer’s agreement that “the primary work of courtroom staff will be working in the courtroom as described in their job specifications.” To assist it in verifying its compliance with that obligation, the employer asks FPT employees to say how much of their work time they think they spent doing work outside the courtroom. The union’s representatives agreed that the information is pertinent with respect to FPT employees and not with respect to other employees. They were unable to explain how it is unreasonable to require that FPT employees record that information.
16In the circumstances, the union did not pursue the grievances except in so far as they assert that the employer should provide each employee who so requests with a photocopy of each sign in sheet on which that employee has entered information about her or his hours of work. That was the only point on which I had to rule.
17The employer says, and the union does not dispute, that it does not prohibit employees from making their own notes about the data they have entered on the sign in sheets, provided they do so on their own time. It does not provide employees with photocopies of sign in sheets, and does not permit employees to make such photocopies using the employer’s time, equipment or supplies. The cost of providing photocopies is not something it wishes to bear. It argues that nothing in the collective agreement requires that it do so.
18Much of the union’s argument on this issue focused on the relative evidentiary value of photocopies as compared with notes that employees might make themselves, beginning with the premise that what the employee has entered on a sign in sheet may be surreptitiously altered after the employee enters it and before the employer relies on the entry to calculate the employee’s pay. The union did not provide any pre-hearing particulars about pay discrepancies that could have been avoided or resolved more expeditiously if photocopies had been provided, nor about the extent to which any such discrepancies have ever been the result of surreptitious alteration of documents provided by the allegedly underpaid employee. The premise that documents can be altered also applies to photocopies.
19The issue for arbitration here, however, is whether the employer is obliged to provide photocopies, not whether the employer is mistaken in judging for itself the relative costs and benefits of doing so voluntarily. This issue does not turn on a debate about the likely evidentiary value of photocopies relative to that of contemporaneous handwritten notes of the same data (which would in each case depend, I note, on the credibility of the employee who made and kept custody of the notes or photocopy.)
20The union was unable to point to any provision of the collective agreement that expressly requires that the employer provide photocopies of these or any other records the employer asks employees to make concerning their employment. The union’s representatives argued that such an obligation arises from the obligation to pay for work done. I did not accept that argument.
21Like the submissions about evidentiary value, this submission confuses the obligation itself with the things that might become pertinent if a dispute arose about whether the obligation had been breached. If an employee grieves that the employer has not paid for all of his or her hours worked, then the employer, the union and the employee would all be obliged to promptly provide disclosure of all facts pertinent to the dispute: Article 22.14.4. If the employer’s position in such a dispute is that it has paid the employee in accordance with the information provided by that employee in the sign in sheets, then those contents of those sheets would be pertinent and the employer could be expected to produce them for the inspection of the grievor and the union “at the earliest stage of the grievance procedure” (Article 22.14.5). (Indeed, the employer has told this Board that it retains those documents for just that purpose long after they are needed for preparation of payroll.) Likewise, the union and the employee would be expected to promptly produce any contemporaneous notes the employee may have made about her/his hours worked in the period in issue. Any delay by anyone in disclosing the pertinent portions of such documents would waste everyone’s time and money, including their own, and arouse justifiable suspicion about the merits of their position. Nevertheless, the fact that the documents will have to be produced promptly if a dispute arises to which they are relevant does not support the inference that those who will retain the documents must provide copies to the others at any time before a dispute has arisen.
22For these reasons, I ruled orally that I was dismissing the grievances in so far as they claimed that the employer was obliged to give employees copies of sign in sheets. The parties then reviewed the grievances and agreed that the combined effect of that ruling and the earlier withdrawal by the union was that no dispute remained between the parties concerning the grievances in Board Files 2007-3632, 2007-3739 and 2008-0203. I confirm that those grievances are dismissed in their entirety.
23The remaining grievances stand adjourned to subsequent hearing dates.
Dated at Toronto this 14th day of April, 2009.
Appendix ‘A’
GSB#
Union#
Grievor
2007-1682
2007-0228-0050
Jolicoeur, Brenda
2007-1773
2007-0526-0016
McGann, Dag
2007-2463
2007-0212-0026
Cho, Kellen
2007-3133
2007-0119-0016
Gibbon, Linda
2007-3248
2007-0228-0055
Caschera, Jessica
2007-3357
2007-0130-0004
Mehlenbacher, Francine
2007-3366
2008-0205-0002
Wilson, Jeffrey
2007-3367
2008-0205-0003
Wilson, Jeffrey
2007-3368
2008-0205-0011
Wilson, Jeffrey
2007-3370
2008-0205-0013
Wilson, Jeffrey
2007-3371
2008-0205-0014
Wilson, Jeffrey
2007-3372
2008-0205-0015
Wilson, Jeffrey
2007-3373
2008-0205-0016
Wilson, Jeffrey
2007-3374
2008-0205-0017
Wilson, Jeffrey
2007-3375
2008-0205-0018
Wilson, Jeffrey
2007-3377
2008-0205-0020
Wilson, Jeffrey
2007-3378
2008-0205-0004
Antoniak, Stephanie
2007-3379
2008-0205-0005
Kiss, Juliana
2007-3380
2008-0205-0006
Iacobucci, Anna
2007-3381
2008-0205-0007
Terpou, Beverly
2007-3382
2008-0205-0008
Iarusso, Terri
2007-3383
2008-0205-0009
Young, Elaine
2007-3632
2008-0228-0005
Godard, Maureen
2007-3729
2007-0212-0029
Hollingsworth, Marlene
2007-3733
2008-0212-0001
Dolan, Krystyne
2007-3734
2008-0212-0002
Marceau, Heather
2007-3735
2008-0212-0003
Hollingsworth, Marlene
2007-3736
2008-0212-0004
Hollingsworth, Marlene
2007-3737
2008-0212-0005
Hollingsworth, Marlene
2007-3738
2008-0212-0006
Hollingsworth, Marlene
2007-3739
2008-0228-0006
Godard, Maureen
2007-3824
2008-0453-0002
Markell, Lynn
2007-4035
2007-0526-0029
Schacherl, Susette
2007-4036
2007-0526-0030
Giannopoulos, Tina
2007-4037
2007-0526-0031
Thakurdin, Annie
2007-4038
2007-0526-0032
Caguioa, Petronila
2007-4039
2007-0526-0033
Boyes, Chuck
2007-4040
2007-0526-0034
Janu, Ivana
2008-0015
2008-0205-0027
Wilson, Jeffrey
2008-0016
2008-0205-0028
Wilson, Jeffrey
2008-0017
2008-0205-0029
Wilson, Jeffrey
2008-0018
2008-0205-0030
Wilson, Jeffrey
2008-0019
2008-0205-0031
Wilson, Jeffrey
2008-0020
2008-0205-0032
Wilson, Jeffrey
2008-0021
2008-0205-0033
Wilson, Jeffrey
2008-0022
2008-0205-0034
Wilson, Jeffrey
2008-0193
2008-0212-0012
Hollingsworth, Marlene
2008-0194
2008-0212-0013
Hollingsworth, Marlene
2008-0195
2008-0212-0014
Hollingsworth, Marlene
2008-0196
2008-0212-0015
Hollingsworth, Marlene
2008-0197
2008-0212-0016
Marceau, Heather
2008-0198
2008-0212-0017
Motiak, Ginette
2008-0201
2008-0228-0011
Gautier, Janet
2008-0203
2008-0228-0013
Jolicoeur, Brenda
2008-0280
2008-0212-0018
Hollingsworth, Marlene
2008-0402
2008-0526-0003
Nosova, Larissa
2008-0744
2008-0212-0019
Motiak, Ginette
2008-0745
2008-0212-0020
Royer, Raymond
2008-0746
2008-0601-0002
Chenier-Tulonen, Denise
2008-0795
2008-0212-0021
Hollingsworth, Marlene
2008-0796
2008-0212-0022
Hollingsworth, Marlene
2008-0797
2008-0212-0023
Humphries, Tammy
2008-0803
2008-0228-0020
Amador, Deborah
2008-0805
2008-0228-0022
Pecaric, Anne
2008-0880
2008-0205-0040
Wilson, Jeffrey
2008-0955
2008-0205-0085
Wilson, Jeffrey
2008-0956
2008-0205-0086
Wilson, Jeffrey
2008-1464
2008-0212-0025
Hollingsworth, Marlene
2008-1702
2008-0205-0088
Campell, Laurel Elaine
2008-1796
2008-0310-0007
Duvall, Deborah
2008-1821
2008-0212-0026
Hollingsworth, Marlene
2008-1822
2008-0212-0027
Reid, John
2008-1823
2008-0212-0028
Motiak, Ginette
2008-2094
2008-0526-0012
Lam, Maria
2008-2398
2008-0212-0030
Hollingsworth, Marlene
2008-2399
2008-0212-0031
Hollingsworth, Marlene
2008-2602
2008-0710-0001
McKinnon, Trudy
2008-2603
2008-0710-0002
McKinnon, Trudy
2008-2688
2008-0212-0032
Hollingsworth, Marlene
2008-2689
2008-0212-0033
Hollingsworth, Marlene
2008-2966
2008-0212-0034
Hollingsworth, Marlene
2008-2967
2008-0212-0035
Hollingsworth, Marlene
Appendix ‘B’
GSB#
Union#
Grievor
2007-2079
2007-0551-0008
Slat, Lydia
2007-2080
2007-0551-0009
Morsillo (Zuccarini), Lillana
2007-2081
2007-0551-0010
Arturi (Iozzo), Antonia
2007-2082
2007-0551-0011
Castiello, Tina
2007-2083
2007-0551-0012
Pineau, Michelle
2007-2084
2007-0551-0013
Bortolus, Mara
Footnotes
- s. 7(3), Crown Employees Collective Bargaining Act, S.O. 1993, c. 38.