GSB#2016-0344

UNION#2016-0368-0058

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McConnell)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Brian P. Sheehan

Vice-Chair

FOR THE UNION

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Sia Romanidis Treasury Board Secretariat Centre For Employee Relations Employee Relations Advisor

HEARING

March 29, 2017

Decision

1The Employer and the Union at the Central East Correctional Centre (CECC) agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Vice-Chair with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement; and it is without prejudice or precedent.

2This Award concerns a grievance filed by the grievor asserting that the Employer violated the collective agreement by not offering an overtime opportunity to the maintenance staff at CECC.

3The grievor is employed as a Maintenance Mechanic and has been an employee of the Employer for approximately twenty-five years.

4There are lockers at the CECC for the correctional staff to store personal items. Earlier this year, for variety of reasons, including that some employees had laid claim to more than one locker, the Employer initiated a process of re-assigning those lockers to employees. As part of that process employees were given an opportunity to empty their current lockers.

5Over the course of the weekend of March 5, and 6, 2016 the Employer sought to clean out those lockers that had been not yet emptied. Specifically, an Operational Manager, in the presence of two members of the Local Union Executive, cut off the lock and emptied the contents of any non-vacated locker. The two Local Union Executive members were paid the applicable overtime rate for the hours they worked on those two days.

6It is the position of the grievor, and the Union, that the task of removing the locks from the lockers was work of the maintenance staff and that a maintenance employee should been provided the opportunity to perform that work as overtime. In relation to this point, it is asserted that the maintenance staff have the responsibility of maintaining and repairing the locks on the various doors in the facility.

7The Union, however, did acknowledge that in the past if a particular locker needed to be open (i.e. in the case of an employee who had been terminated or resigned) a member of the Employer’s security staff, in the presence of a Local Union Executive member, would cut the lock an empty the contents of the locker.

8Based on the submitted facts there exists no basis to find that the Employer violated the collective agreement by not assigning the work in question to a member of the maintenance staff as overtime. Unless constrained or restricted by collective agreement language the Employer has the inherent right to decide the nature of a particular work assignment, and who should perform that work assignment. Further to this point, there is no provision in the collective agreement mandating that work in question either be performed by a member of the bargaining unit or more particularly by a member of the maintenance staff. Moreover, the past practice of the parties does not support the position of the Union; as generally when the Employer needed to be emptied a locker it was a member of the Employer’s security staff who performed that task of cutting the lock.

9Accordingly the grievance is hereby dismissed.