GSB#2007-0298, 2007-0471, 2007-0655, 2007-0656, 2007-0821, 2007-0822, 2007-1810, 2007-1811,
2007-2303, 2007-2304
UNION#2007-0108-0010, 2007-0108-0019, 2007-0108-0021, 2007-0108-0022, 2007-0108-0026,
2007-0108-0027, 2007-0108-0055, 2007-0108-0063, 2007-0108-0068, 2007-0108-0069
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Timperley et al )
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional)
Employer
BEFORE
Barry Stephens
Vice-Chair
FOR THE UNION
Greg McVeigh Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Sean Milloy Ministry of Community Safety and Correctional Services Staff Relations Officer
HEARING SUBMISSIONS
February 18, 2009. June 22, 2009.
Decision
1The 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 a “True Mediation-Arbitration” process, wherein each provides the Vice-Chair with submissions, which include the facts and authorities each relies upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, and is without prejudice or precedent.
2The grievances in this case relate to the introduction of a Compressed Work Week Agreement (CWWA) in Unit 10 effective February 20, 2007. The agreement was signed by both parties, and it reads as follows:
Minute of Understanding
As a result of the collective work of the Scheduling Committee, the following local agreement has been reached between
The Ministry of Community Safety and Correctional Services
OPSEU Local 108
It is without prejudice and precedence and is subject to a ratification vote by the membership of OPSEU Local 108 prior to April 1, 2007.
It is understood that the following attached schedules are established as temporary until the completion of the aforementioned ratification vote.
By October 1, 2007, those people who wish to remain in Schedule “E” of the attached schedules must self identify or return to their original schedule.
The employer and the Union (OPSEU Local 108) will work cooperatively to minimize the impact of vacation conflicts of the 2007 vacation draw.
Schedules A, B, C, E 8/20, Female Unit and Admit and Male Admit and Front Door will remain filled except the RPM. It is understood that the Resource Management Position schedule (RPM) is primarily utilized for backfill purposes.
The employer and the Union (OPSEU Local 108) will undertake to review the male admit schedule with the intention of improving this schedule.
Either party may, on written notice of 90 days to the other party, terminate this agreement.
3The ratification vote mentioned in the agreement was held early in April 2007 but the CWWA agreement was rejected. Subsequent votes were held, and the agreement was eventually ratified in mid-July.
4The grievances claim that the employer breached the collective agreement by continuing to use the rejected CWWA for Unit 10 between the initial rejection vote in April, and the eventual approval of the CWWA in mid-July. The grievors claim that the employer is required to pay overtime for the period in question for hours worked by employees in Unit 10 beyond eight hours per day, which is stipulated by the collective agreement as the normal daily hours of work. Further, the union asserts that, although all such hours were worked by employees in Unit 10, the collective agreement requires an equal distribution of overtime opportunities, and, as a result, compensation should be paid to all employees.
5The employer responds that the agreement reached by the parties contained a termination notice provision in paragraph 6, and that, when the agreement was rejected, such notice was required in order to terminate the temporary arrangements contemplated by the collective agreement. The employer also points out that the grievances were filed by employees who do not work in Unit 10, and that the union did not file a policy grievance with respect to the alleged breach.
6After reviewing the submissions of the parties and the collective agreement, it is my conclusion that the grievances should be dismissed.
7The grievances are based on the assumption that the February 20, 2007 agreement required that the temporary CWW arrangements in Unit 10 were to be terminated immediately upon the rejection of the agreement. Such an outcome is not stipulated in the agreement, nor does it conform to common sense. There would be significant inconvenience and disruption in forcing an abrupt change to the schedule, both for the employer and the affected employees. Moreover, it does not seem likely, to say the least, that the employer would have agreed to an arrangement whereby it would incur a financial penalty, through the payment of overtime, in the event that the membership decided to reject the agreement. Although the interim scheduling arrangement was intended to be temporary, it is my view that the termination of the temporary arrangement was intended to be subject to reasonable notice in order to permit a smooth and business-like resumption of prior scheduling arrangements.
8There is no special notice period for the termination of the temporary arrangement. As a result, I agree with the employer that the mechanism available to the union was to advise the employer that the agreement was to be terminated on 90-days notice, as set out in paragraph 6. It is not clear that the union served the employer with such a notice, and I do not take the filing of individual grievances as an unambiguous statement on the part of the union on the subject. Regardless, the CWWA was ratified prior to the expiry of the 90-day period.
9Given all of the above, the grievances are dismissed.
Dated at Toronto this 25th day of September 2009.