GSB#2011-0937, 2011-0938, 2011-0939, 2011-0940

UNION#2010-0706-0008, 2011-0706-0008, 2010-0706-0009, 2010-0706-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lepage et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Jim Gilbert Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Kevin Dorgan Ministry of Government Services Labour Practice Group Counsel

HEARING

January 25, 2012.

Decision

1Two sets of grievances were referred to me for determination (each set comprising 2 individual grievances).

2The first set relates to a claim of unpaid expenses. The employer agreed that this grievance ought to be allowed insofar as it relates to a claim of $143.22 owed to the grievor O’Brien. However, there was a further outstanding claim amounting, in total for both grievances, to $133.25.

3The second set of grievances challenges the manner in which the employer has chosen to assign certain work on four days which are holidays under the collective agreement.

4All of these grievances were put before me in accordance with the mediation/arbitration procedure provisions found in Article 22.16 of the collective agreement. And the parties, in the interests of expedition, asked that I issue a “bottom-line” decision without reasons. Of course, pursuant to Article 22.16.7 of the collective agreement, apart from resolving the instant grievances, this decision will be entirely without precedential value

5I am satisfied that the first set of grievances relating to expenses ought to be allowed. These relate to modest expenses incurred by the grievors to pay for (at least portions of) meals of their spouse or guest over a period of time which included parts of three days. The spouse/guests were specifically invited by the employer to attend a “Peace Officer Exemplary Service Medal Ceremony” honouring the grievors (among others). The formal invitation to the grievors explicitly included granting them the option of extending the invitation to include a spouse/guest and indicated that hotel accommodations and travel costs for the grievors and their guests would be “incurred by MTO”. After the invitations were accepted by the grievors who had, in turn, already extended them to their guests, the employer apparently determined to communicate that meal expenses for the grievors but not for their guests would be covered. The employer believes it communicated that information to the grievors in an email distributed prior to the event. However, that document does not explicitly indicate that spouse/guest’s meals would not be covered, although, in fairness to the employer, it might be interpreted in that fashion. There is little doubt, however, that this information could have been communicated more clearly to counteract any contrary conclusions which would have reasonably flowed from the original invitation.

6When the grievors’ expense claims were filed, the employer refused to pay any of the claimed expenses whatsoever (i.e. including those parts of the claim it viewed as “legitimate”) unless and until the grievors resubmitted their claims omitting the meal expense claims for spouses. The grievor Goodman did that and had his revised claim paid. The grievor O’Brien did not and was not paid the $143.22 the employer, despite failing to pay it, has never disputed was owing.

7Having regard to the unique and specific facts of the case, including the representations of the employer and the conduct of the grievors in response, the provisions of the collective agreement, and the submissions of the parties before me, I hereby allow these two grievances and direct the employer to forthwith pay:

(a) to the grievor Goodman, the sum of $80.13

(b) to the grievor O’Brien, the sum of $196.34

8The second set of grievances pertain to the scheduling of work on holidays. For many years in this workplace neither the TEO3s (such as the grievors) nor TEO2s were scheduled to work on holidays. Recently the employer determined that it was desirable to carry out road-side enforcement activities on four holidays. There is, generally speaking, a substantial overlap in the duties of TEO2s and TEO3s. The holiday work is the type of work that can be and is routinely performed by either group. In addition to the overlapping duties, however, TEO3s have certain duties, obligations and responsibilities beyond the scope of TEO2s (including performing complex audits and investigations). There was no indication that these latter functions were to be performed on the four holidays. TEO3s are paid at a higher rate of salary and also, unlike TEO2s, tend to work straight days.

9The grievances relating to the introduction of the holiday work in question dispute the employer’s determination to assign such work to TEO2s, to the apparent exclusion of TEO3s. I am satisfied, however, on the basis of the facts and submissions before me, that is a determination entirely within the employer’s purview, made without any nefarious or otherwise improper motive. Accordingly, the second set of grievances must be and hereby is dismissed.

10In summary, the first set of grievances is allowed as set out above. The second set is dismissed.