GSB# 2019-1890

UNION# 2019-0584-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Eckert)

Union

• and -

The Crown in Right of Ontario (Ontario Clean Water Agency)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Anjana Kashyap Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Maria-Kristina Ascenzi Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 28, 2021

Decision

1An individual grievance dated October 22, 2019 filed by Mr. Chris Eckert (“grievor”) came before the Board for determination pursuant to article 22.16 of the collective agreement. Mediation was not successful. Evidence was received on several issues, followed by submissions.

2At the outset I note that at the request of the employer the Board had issued a comprehensive order dated December 15, 2020, that the union provide particulars to the employer. The order stated inter alia, that “If the union fails to provide particulars of an allegation in compliance with this order, it may not introduce evidence about that allegation in this proceeding without leave”. Accordingly, I have not given weight to assertions not particularized and were raised for the first time during the union’s evidence.

3The grievance alleges that the grievor was denied a twelve-hour overtime shift that became available on July 7, 2019 and that the employer thereby contravened articles 2, 3 and UN 8.2.1 of the collective agreement.

4Article 2 is the management rights clause.

5Article UN 8.2.1 reads:

In the assignment of overtime, the employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all its operation requirements.

The article does not require that the employer have one method for distribution of overtime, written or otherwise. It refers to “methods” in the plural. That in my view is a recognition that one method of distributing overtime that meets operational requirements in one situation may not meet operation requirements in another, for example where work required to be done is different. When a need for overtime arises the employer is entitled to assign it as it sees fit, subject only to the fair and equitable distribution requirement in article UN 8.2.1, having ensured that its operational requirements in the particular circumstances have been met. Article UN 8.2.1 does not require distribution of overtime based on seniority.

6Article 3 prohibits discrimination on grounds specified in section 10(1) of the Ontario Human Rights Code, and harassment. The management rights of the employer in article 2 are stated to be “subject only to provisions of the central collective agreement and any other collective agreement to which the parties are subject”. Therefore, since article 3 was not pursued, in order to succeed the union has to establish a violation of article UN 8.2.1. The only obligation that article imposes on the employer is to develop fair and equitable methods of distributing overtime. It provides that fairness and equity is to be assessed “at the local workplace”. In this case that is the Peel South Transmission Systems facility.

7The obligation imposed on the employer by the article to develop fair and equitable methods of distributing overtime is explicitly made conditional on “having ensured that all its operational requirements are met”. On the basis of the evidence, I find that the manner in which the shift in question was assigned was not contrary to article UN 8.2.1. The evidence does not establish that the grievor had been treated unfairly or inequitably in relation to overtime. Compared to other employees the grievor had performed more overtime hours in 2019 than most other employees at the Peel South facility. The employee who was assigned the overtime shift in question had performed significantly less overtime hours than the grievor, and was qualified to the needed work.

8Therefore I find that there has been no violation of the collective agreement and the grievance is hereby dismissed.