GSB#2012-1977, 2012-1978

UNION#2012-0338-0008, 2012-0338-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Heryet 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 Labour Practice Group Counsel

HEARING SUBMISSIONS

June 15, 2012. November 14, 2012.

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.

10Shannon Heryet and Susan Griffin are Court Reporters in the Barrie Courthouse. They both grieve that hours they worked as the result of being “called back” to work on a day that they were not otherwise scheduled should have been counted toward their weekly hours.

11Both Ms. Heryet and Ms. Griffin note on the face of their grievances that they were obliged to refer the period of call back as a “Leave without pay”. It was asserted that their call back hours should be counted toward their minimum weekly hours requirement as a 1000 hour category FPT.

12The grievor’s note that Appendix 32 proves that, “for clarity, all hours worked by employees regardless of pay rate, shall be counted as hours worked toward the accrual of minimum category hours.”

13It was the Employer’s position that the grievances must be dismissed because there was no violation of Appendix 32 or any other provision of the Collective Agreement. Indeed, the position of the Employer is that the grievor’s hours were counted as requested by the grievors.

14All callback hours worked by FPT employees count toward their annual category hours and are therefore used in the annual reconciliation process.

15It was suggested by the Employer that perhaps its method of pay administration has confused the grievors. The Board was provided with one of the ILRS communication documents which said:

To maximize the benefit for FPT employees and ensure that no employee accrues deficit hours for the number of callback hours worked and that the correct pay rate is applied for the callback hours, a leave of absence without pay up to the maximum number of callback hours worked in the week must be entered into WIN to offset the deficit. Please note that leave of absence without pay adjustments are only required if the FPT employee does not meet the minimum weekly hours prior to working the callback hours.

16The Employer submitted that the grievor’s call-back hours are not processed as “regular” hours but are instead processed by the payroll system as a “premium” payment at 1.5 times the regular hourly pay rate. Therefore, in order to generate the correct premium payments, call-back hours must be entered into WIN separately and distinctly from the regular hours worked in a calendar week.

17When an FPT employee is entitled to premium payments under Article UN-9, but has not actually worked sufficient regular and/or call-back hours within the calendar week to meet his or her minimum weekly hours threshold, deficit hours are incurred.

18A leave-of-absence-without-pay entered into the payroll system reduces deficit hours accumulated in that calendar week by the duration of the leave entered. This practice reduces any deficit hours incurred in a calendar week by up to the total number of hours actually worked under Article UN-9 call-back and ensures employees receive the correct pay and hours treatments.

19In the documents provided by the Union, the grievors did not show that their hours were not counted. Accordingly, there appears to be no dispute between the parties about the interpretation of the Collective Agreement.

20The grievances are dismissed.