GSB#2008-3722, 2008-3723, 2008-3724, 2008-3725, 2010-1178

UNION# 2008-0710-0005, 2008-0710-0006, 2009-0710-0001, 2009-0710-0002, 2010-0205-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Davies/Union)

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.

10Four grievances were filed by Ms. Lila Davies contending that the Employer is violating Appendix 32 by its failure to schedule all employees in strict accordance with the posted schedule. A policy grievance was also filed that alleged a violation of Appendix 32 because schedules are not posted by Friday noon for the following week.

11Paragraph 3(f) states that “Where the Employer is unable to post work schedules for the following week by Friday at noon, then the Employer shall notify employees of their work schedule as soon as practicable”.

12The Union contended that there is a positive obligation on the Employer to have a schedule posted by Friday noon for the following week to allow FPTs to organize their work arrangements.

13The Union stated that the Employer has been posting schedules that set out various work hours for employees but fail to allow employees to work those posted hours. It happens that, notwithstanding the schedule posted, employees are being told not to report for work on days they were originally assigned to work. Given that employees would be disciplined if they failed to appear for a scheduled shift, the Employer should not be allowed to rescind scheduled work shifts.

14Further, the Union submitted that Article UN5.1 states that there is a penalty for changing the posted schedule and the terms and conditions ought to be no different for FPTs.

15The Employer took a significantly different view of this issue. It stated that its only obligation under Appendix 32 regarding the scheduling of hours is to provide minimum weekly hours.

16The Employer asserted that it attempts to let employees know their schedule by Friday of the week before but in the event that is not possible it is only obligated to notify employees of their work for the following week as “soon as is practicable”. That language is significantly different from the provisions found at UN 5.1 of the Collective Agreement that does not apply to the grievors.

17The Employer conceded that there are instances when it cancels scheduled shifts of FPTs. This is not done in an arbitrary fashion as it was suggested. Rather, it occurs when people have worked their minimum weekly hours but others have not. Then the hours are given to those who need to work more to meet their minimum hours. Further, and to be clear, the Employer submitted that it is not going to schedule hours in a fashion that has some employees attracting overtime while others have not yet met their minimum hours unless necessitated by operational requirements.

18Finally, the Employer noted that the classification is “flexible” part time and that flexibility is an integral component of the work.

19I understand the frustration of not knowing far in advance of a work schedule. However, that frustration is not sufficient reason for this grievance to be upheld.

20I accept that it is not unusual for the Employer to be unaware of its needs for the following week on any given Friday. The Employer listed a myriad of factors that have an impact of the scheduling of work such as last minute settlements and the vacation roster of judges. There is no evidence that would lead me to find that the Employer is deliberately waiting until the last possible moment to inform employees of their work schedule.

21Concerning the grievances of Ms. Davies, I am of the view that there is no violation of Appendix 32 regarding the posting of schedules. Article 3(f) contemplates that there will be instances where posting work schedules by Friday noon is not possible. On those occasions the Employer is “to notify employees of their work schedule as soon as practical.”

22Further, in stark contrast to Article UN5.1 there is no provision that contemplates a penalty (or premium) to be paid in the event an employee’s posted schedule is changed with insufficient notice.

23For those reasons, the grievances are denied.