GSB#2007-3961, 2007-3962, 2007-3963, 2007-3964, 2008-3229, 2008-3230, 2008-3231, 2008-3232

UNION# 2008-0212-0008, 2008-0212-0009, 2008-0212-0010, 2008-0212-0011, 2008-0212-0036, 2008-0212-0037, 2008-0212-0038, 2008-0212-0039

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hollingsworth et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Stephen Giles Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Legal Services Branch Counsel

HEARING

January 4, 2011.

Decision

1In the collective bargaining negotiations that took place in 2005, the parties agreed to insert a new Appendix 32 into the Collective Agreement. That provision provided for a change of status for a number of employees from fixed term to the new category of “flexible part time” (hereinafter referred to as “FPT”). At the outset the Employer referred to this initiative as the “Revitalized Workforce Project” (“RWP”). As of January 1, 2008 it has been commonly known as “Integrated Labour Relations Strategy” or “ILRS”.

2This change brought about many employee questions and ultimately, a number of disputes/grievances.

3By all accounts, there were a number of areas in the initial language of Appendix 32 that required clarification. Accordingly, in an effort to continue to work together through many of the identified problem areas, the parties negotiated a series of agreements regarding the various matters needing to be addressed. Additionally, in an ongoing effort to resolve outstanding issues that continued to arise, amendments were made to Appendix 32 in the next (and now current) Collective Agreement.

4On September 13, 2007, the parties agreed to a number of amendments in a fairly comprehensive Memorandum of Agreement. This Agreement resolved the identified disputes that had been outstanding and further recognized that future grievances might arise. In large measure, the amendments agreed upon in the September 13, 2007 Memorandum of Agreement were incorporated into Appendix 32 of the current Collective Agreement.

5Since September of 2007, approximately two hundred grievances have been filed. In an effort to resolve these matters efficiently, the parties worked together to create a process for the efficient litigation of all outstanding issues. To that end, a number of grievances have been heard and decided by the Board. Those decisions have resolved a number of outstanding matters.

6Given the passage of time and the number of grievances that had yet to be determined, the parties agreed that it was in their collective interest to further streamline the litigation process. In considering various options, it was agreed to investigate the possibility of adopting a process similar to that utilized by the Union and the Ministry of Community Safety and Correctional Services regarding “transition grievances”. Those grievances, which were many hundred in number, were filed as the result of the major re-organization within that Ministry. Given my experience in that process my assistance was sought in this matter.

7At our hearing held on January 18, 2010, the parties agreed to a number of issues including:

o All grievances outstanding as of January 18, 2010 and those filed in the foreseeable future flowing from the interpretation, application and administration of Appendix 32 will be referred to me for determination.

o While it is understood that all decisions under this process will be consistent, they are without precedent or prejudice in accordance with Article 22.16.2.

o I will determine the process to be followed for the litigation of these matters.

8The process for the litigation of the remaining grievances should be efficient and provide a timely and appropriate final resolution. In arriving at my decision in this regard, consideration was given to Article 22.16.2 which 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.

9As was the case in the “transition” process, there are a large number of grievances to determine and the parties are agreed that “traditional arbitration” will not serve their purpose. Therefore, in accordance with my jurisdiction to so determine, these matters will be litigated on the following basis:

• Grievances are to be presented by way of each party presenting a statement of the facts with appropriate documents, if any, and accompanying submissions. I understand that in many cases, particulars have been provided and documents exchanged. That preparatory work should further assist efficiency.

• I recognize that some grievors and managerial employees may wish to attend and provide oral evidence. However, given the task at hand and the time by which to do it, I order only the committee members from each party will attend.

• It may be that in a few instances some confusion might arise regarding certain facts. It might also happen that I will find that insufficient evidence has been provided. In those instances, should they arise, I will direct the parties to speak again with their principles to ascertain the facts or the rationale behind the particular outstanding matter. In the event I find there is still uncertainty regarding facts, I reserve the right to ask for viva voce evidence. It is my hope that this need shall never arise.

• Hopefully decisions can be issued within a relatively short period of time following submissions. My decisions will contain brief reasons and sufficient rationale so as to provide the parties with an interpretation thereby allowing them to move forward.

10A number of grievance were filed by Court Reporters. Each of the grievors was hired into the OPS sometimes after October 30, 1984 but before 1994.

11By way of background, it is important to note that there was a decision of the Public Service Labour Relations Tribunal in 1990 which declared the once “fee for service” court reporters to be members of the Ontario Public Service. That decision ultimately resulted in a Memorandum of Agreement between the parties in 1994 that Court Reporters would be unclassified employees.

12When the Employer was determining various entitlements for this group of employees it decided that September 17, 1990, the date of the Tribunal Decision, would be the entitlement date for seniority and vacation.

13The group of grievors contend that at the point that they were assigned the position of FPT in September of 2006, they became entitled to the provisions of Paragraph 6(b) of the November 1994 Memorandum of Agreement which stated:

6. Vacation entitlements will be calculated as follows for all employees converted to classified service:

(a) For salaried small claims court employees:

(b) For all other employees converted to classified staff:

• effective January 1, 1995 vacation accrual entitlements will be calculated from October 30, 1984 or date of hire, whichever is later.

14It was common ground that the grievors were given their own date of hire for the purposes of severance and pension entitlements. However, the Union asserted that all entitlements should flow from the date of hire of the grievors.

15I disagree. The Memorandum of Agreement upon which the Union relies was negotiated in 1994 long before there was a category of Flexible Part Time. It was an agreement providing for various terms and conditions for individuals who were affected by the 1990 Public Service Labour Relations Tribunal.

16Those terms and conditions were very specific about the integration of a number of people into the OPS. I do not agree with the Union that it now retroactively applies for OPS employees who have been assigned the status of FPT.

17Accordingly, the grievances are denied.