GSB#2014-3167, 2014-3168, 2014-3857, 2014-3858

UNION#2014-0430-0011, 2014-0430-0012, 2014-0430-0017, 2014-0430-0018

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cordeau)

Union

• and -

The Crown in Right of Ontario (Ministry of Government and Consumer Services)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Stephen Giles Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Erin Sarantis Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

December 10, 2015

Decision

1Mr. J. Cordeau is a Customer Service Specialist and the President of OPSEU, Local 430. He works at the Employer’s Kingston location.

2Four grievances filed by Mr. Cordeau were before me at the hearing on Thursday, December 10, 2015. The grievances dated September 5 and November 14, 2014, allege a contravention of UN 5.1 which provides that “Shift schedules shall be posted not less than fifteen (15) days in advance…” Another grievance dated September 5, 2014, claims that the Employer contravened UN 8, the overtime provision, with respect to the distribution of Saturday work. The Employer agreed in UN 8.2.1 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 last grievance, which is dated November 14, 2014, also alleges a breach of UN 8, but in this instance the claim relates to the failure to assign Mr. Cordeau to work the paid holiday of Remembrance Day (Tuesday, November 11, 2014).

3The parties advised me of their agreement to deal with these grievances by way of mediation/arbitration in accordance with article 22.16 of the Collective Agreement. They agreed that I had the jurisdiction to address these grievances and requested that I issue a decision without precedent or prejudice, and without extensive reasons.

4I turn first to deal with the grievances alleging a contravention of UN 5.1.

The shift schedules for September 8-19, 2014, were posted on August 24, 2014. This posting complied with the 15-day requirement if the requirement is based on calendar days as opposed to working days. Since UN 5.1 does not frame the notice requirement on the basis of working days and there are provisions in the Collective Agreement which do set out time frames based on working days, I am satisfied that the 15-day requirement in UN 15.1 is based on calendar days. Therefore, the posting on August 24, 2014, of the September 8-19, 2014 schedules did comply with the 15-day requirement set out in UN 5.1. Accordingly, the grievance dated September 5, 2014, alleging a contravention of UN 5.1 is dismissed. The shift schedules for October 27-November 1, 2014, were posted on October 14, 2014. There were some unusual circumstances taking place during this period which resulted in the Employer missing the 15-day posting requirement by two days. Mr. Cordeau’s November 14, 2014 grievance alleging a contravention of UN 5.1 is hereby allowed. Given that declaratory relief is the appropriate remedy, I hereby declare that the Employer contravened the 15-day requirement in UN 5.1 when it posted the shift schedules for October 27-November 1, 2014.

5UN 8.2.1 obliges the Employer to distribute overtime in a fair and equitable manner. Certain changes occurred in August and September 2014, which somewhat changed the pattern for Mr. Cordeau relating to the assignment of Saturday overtime shifts. However, in reviewing the distribution of Saturday shifts over a representative period, I am not satisfied that the Employer breached its obligation to distribute overtime in a fair and equitable manner. Accordingly, Mr. Cordeau’s grievance dated September

5, 2014, claiming a breach of UN 8 is hereby dismissed.

6Although framed as an overtime issue, the final grievance relates to the Employer’s assignment of an employee to work a paid holiday. I can appreciate the basis upon which Mr. Cordeau asserts that he should have been assigned to work on Tuesday, November 11, 2014 (Remembrance Day). However, the GSB has noted that, in contrast to the overtime provision, the Collective Agreement does not speak to the distribution of paid holiday work opportunities. The GSB has consistently held that employees do not have a right to work a paid (statutory) holiday and that the Employer may assign whomever it wishes to work a holiday. These principles are reflected in the following decisions: Gillies,0316/88 (Samuels) and OPSEU (Longstreet et al.) and Ministry of Community and Correctional Services (2006), GSB Nos. 2004-1068 et al. (Stephens). Accordingly, Mr. Cordeau’s grievance dated November 14, 2014, relating to the Employer’s failure to assign him to work the paid holiday of Remembrance Day in 2014, is hereby dismissed.