GSB#2006-2210, 2010-0149, 2010-0150, 2010-0151, 2010-2243

UNION#2006-0605-0005, 2009-0605-0005, 2009-0605-0007, 2009-0605-0006,

2010-0605-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bertolo 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 Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Labour Practice Group Counsel

HEARING

May 10, 2011.

Decision

1The following grievances were scheduled for arbitration before the Board on May 10, 2011;

File No. 2006-2210, Bertolo et al

File No. 2010-0149, Boudreau

File No. 2010-0150, Gagnon

File No. 2010-0151, Blanchard

File No. 2010-2243, Parker et al

2At the commencement of the hearing, the parties agreed to deal with an issue common to all grievances under the mediation/arbitration provisions of article 22.16, in a preliminary way. Since mediation was unsuccessful, submissions were received on this issue.

3Article UN 8 of the collective agreement sets out a number of provisions relating to overtime. Article UN 8.2.1 reads:

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.

The issue put to the Board for ruling was, whether article UN 8.2.1 is satisfied merely by developing methods of distributing overtime that are fair and equitable, or whether there is an additional obligation on the employer, when overtime is assigned, to make its records and documentation available for review by the union and its members, so that they can satisfy themselves that the employer had in fact complied.

4The union submits that in the absence of information as to how a particular overtime opportunity was assigned the way it was, employees are unable to confirm whether or not the employer had distributed overtime fairly and equitably. Distribution of overtime is a discretionary act on the part of the employer. The employer may well have legitimate explanations for the manner it distributed overtime, even though on paper significant disparity is evident in the amount of overtime performed by individual employees. However, there is no way for employees to verify that, unless the employer provides information that will explain that apparent disparity. That would leave employees no choice but to grieve in order to obtain disclosure as to why a certain overtime opportunity was assigned in the manner it was done. It was submitted that interpreting the duty to develop fair and equitable methods for distribution of overtime broadly, to include a duty to provide that information would avoid the filing of grievances, because in many cases the employees may well be satisfied with the employer’s explanation.

5The employer submits that article UN 8.2.1 imposes only a duty to develop fair and equitable methods for distribution of overtime. The union’s position, if accepted, would add a further obligation on the employer to take affirmative action to furnish information to the union and employees every time overtime is assigned. That would be to add to and expand the provision of the collective agreement. Citing a provision from a collective agreement between other parties which explicitly imposes an obligation of the type sought here by the union, counsel submitted that if the parties here intended to create such an obligation, they would have negotiated a similar provision. Counsel argued that there was nothing unique about article UN 8.2.1. There are numerous other provisions in the collective agreement which require the employer to act in a certain manner. For example, article 6.3 imposes an obligation to adhere to the principle of “relative equality” in job competitions. It has not been suggested that the employer must, on an on-going basis, provide documentation to demonstrate that it had complied. The union would be entitled to disclosure of that information, but only if and when a grievance is filed.

6I find the union’s submissions quite appealing in that its goal and potential result is the avoidance of the filing of unnecessary grievances. However, upon closer review, I have concluded that such initial appeal must give way to the fundamental principle that the Board is not entitled to add to or expand the terms agreed to by the parties. I find the employer’s submissions compelling that article UN 8.2.1 cannot reasonably be read as including, explicitly or implicitly, a duty to provide the information the union seeks.

7As a matter of good labour relations practice, however, I urge the employer, where the union or an employee makes specific inquiry relating to what appears on its face to be an unequal distribution of overtime, to provide explanation without the need for filing of a formal grievance, unless there is good reason why that cannot be done. Needless to say, both parties stand to benefit in more than one way, by resolving concerns informally and at the earliest possible time.

8Having ruled on the issue put to me, I remain seized with all of the grievances. The parties are to consider what grievances/issues, if any, remain outstanding in light of this ruling.