GSB#2018-2900

UNION# 2018-0719-0023

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McConomy et al)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Caroline Markiewicz Treasury Board Secretariat Employee Relations Advisor

HEARING

September 11, 2019

Decision

1The Employer and the Union at the Kenora Jail 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 Arbitrator 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 grievance is a group grievance filed on behalf of the members of the Local 719 Bargaining Unit.

3The grievance relates to Appendix COR33 of the January 1, 2015 to December 31, 2017 collective agreement. The relevant wording of the Appendix was as follows:

In recognition of some of the current impacts from a challenging and changing workplace environment, all full time and fixed term correctional services bargaining unit employees shall be granted thirty-six hours (36) of compensating leave, pro-rata for part time effective January 1, 2016, and on January 1, 2017. Compensating leave that is not used within a calendar year shall be treated in accordance with article COR 8.6 or article COR15.5, as applicable.

4The January 1, 2015 to December 31, 2017 collective agreement continued to remain in effect until the parties reached an agreement on a renewal collective agreement in April 2019.

5The essence of the grievance is that it is asserted that for the 2018 calendar year, Appendix COR33 should have continued to be applicable; such that, the Employer should have been obligated to provide the relevant employees 36 hours of “compensating leave” with respect to that year.

6While I fully appreciate the underlying perspective associated with the position asserted by the Union, it is my determination that the grievance must be dismissed for failing to disclose a violation of the collective agreement.

7As expressly stipulated at Article 22.14.6, an arbitrator appointed under the collective agreement does not have the “jurisdiction to alter, change, amend or enlarge any provision” of the collective agreement. Related to this point, an arbitrator’s task is to interpret and apply the specific agreement of the parties, in accordance with the wording set out in the collective agreement. In the case at hand, Appendix COR33 only sets out an obligation upon the Employer to provide “compensating leave” effective January 1, 2016 and on January 1, 2017. There is no requirement to provide “compensating leave” as of January 1, 2018; nor is the nature of the entitlement to “compensating leave” set out in a more general fashion such as “each calendar year” or “as of January 1 each year”.

8In light of the above, the grievance is, hereby, dismissed.