GSB# 2017-0006

UNION# 2017-0247-0021

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Koenderink 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

Justin O’Gorman Treasury Board Secretariat Employee Relations Advisor

HEARING

August 26, 2020 (by videoconference)

DECISION

1In April of 2011, the parties signed a Memorandum of Agreement for the Med/Arb process within this Ministry. In that agreement it was agreed that overtime grievances would be dealt with on a regular basis at every institution. It was the stated expectation that the parties would “move forward together in a timely manner to resolve as many outstanding overtime grievances” as possible at each institution. Monthly meetings were to be scheduled for this purpose. It was hoped that these monthly overtime grievance sessions would resolve most grievances.

2It was also agreed in the Memorandum that Med-Arb sessions would be held to deal exclusively with overtime grievances from time to time. The parties would meet to attempt resolution of the outstanding grievances and the remaining disputes would be put before this Board.

3In May of 2012, the first decision from this process was issued. As agreed by the parties, that decision was without prejudice and without reasons. Since that time a number of sessions have been held and various decisions rendered. The process has not been altered and continues to serve the parties well.

4The grievance relates to a pilot project with respect to the introduction of the E-Roster scheduling system undertaken by the Employer at the Brantford Jail. A number of grievances alleging improper assignments subsequently arose as the E-Roster project unfolded.

5This group grievance alleges a violation of Article 22.3 of the collective agreement in relation to the purported failure of the Employer to hold grievance meetings regarding the filed E-Roster grievances. Specifically, the grievance states:

The employer has not held any meetings with the union when dealing with E-Roster Grievances. All E-Roster Grievances are apparently “placed into a folder to deal with at a later time”. Not once has there been a meeting within fifteen (15) days of receipt of the grievance, and therefore there has been no decision in writing within seven (7) days after the meeting. This is a complete contradiction to the Collective Bargaining Agreement.

6The Employer does not ostensibly dispute that certain Article 22.3 meetings may not have taken place.

7While a sense of frustration on the part of the Union is, at one level, appreciated, the relevant jurisprudence suggests that a failure of a grievance meeting to take place, or a failure to respond to the grievance in a timely manner, as contemplated under the collective agreement deems such a failure to act as a negative response to the grievance. Accordingly, the party that receives such a negative response is entitled to move the grievance to the next step in the grievance process. In more straightforward terms, what flows from a failure of the Employer to conduct an Article 22.3 meeting is that an answer of “no” has been given by the Employer with respect to the grievance; thus, a failure to conduct the meeting or respond in a timely fashion, as provided for under Article 22.3, does not in itself warrant any remedial relief.

8Against that background the grievance is, hereby, dismissed.