GSB# 2023-00928

UNION# 2023-0584-0008

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 et al)

Union

• and -

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

Employer

BEFORE

Diane L. Gee

Arbitrator

FOR THE UNION

Sarah Khan Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 28, 2024

Decision

1This is a decision pursuant to Article 22.16.2 of the Collective Agreement and has no precedential value.

2This matter is a grievance concerning Transmission Maintenance Employees (“TME”) in which it is alleged that the Employer has violated Articles 2 (management rights), 3 (no discrimination/employment equity) and 10 (work arrangements) of the Collective Agreement. Article 10 provides that arrangements regarding hours of work and overtime may be entered into between the parties on a local or ministry level with respect to variable work days or variable work weeks. Article 10 requires such arrangements to be set out in writing in a Memorandum of Agreement with respect to Compressed Work Week Arrangements (“MOA”).

3The grievors seek the opportunity to work four 10 hour days (4 x 10) each week instead of the five 8 hour days (5 x 8) that they have been assigned by the Employer. There is currently an MOA in effect pursuant to which the parties have agreed the TMEs will work a 5 x 8 schedule.

4The Union argues that the Employer is estopped from requiring the TMEs to work a 5 x 8 schedule based on a conversation Chris Eckert, one of the grievors and a union representative, had with a local manager in which the manager is alleged to have said: “we will not change the shift.” The Union has not provided the date on which this conversation took place or the location. The Union has not sufficiently particularized this alleged conversation. The conversation is denied by the Employer.

5The Union further argues that the Employer is requiring the TMEs to work the 5 x 8 schedule as a reprisal against the Union for having negotiated a compressed work week arrangement for personnel in the operations group in March 2023. There are no particulars relating to this allegation.

6Article 22.16 of the Collective Agreement provides for a mediation/arbitration procedure applicable to all grievances except those “concerning dismissal, sexual harassment, and/or human rights, and Union grievances with corporate policy implications”. There is no dispute that this matter falls within Article 22.16.

7Mediation efforts were unsuccessful in resolving this matter. Article 22.16 provides for an expedited arbitration process in the event mediation is unsuccessful. Decisions are to be issued within five days and the reasons are to be succinct.

8The undisputed chronology of events is as follows.

• In 2014, the Transmission Maintenance Employees (“TME”) were working a 4 x 10 schedule.
• As of approximately 2019, a Memorandum of Agreement (“MOA”) with respect to Compressed Work Week Arrangements was entered into that provided TMEs were to work a 5 x 8 schedule. The MOA is subject to renewal.
• Existing TMEs working the 4 x 10 schedule were permitted to continue working the 4 x 10 shift. All new TMEs were assigned to the 5 x 8 schedule.
• On March 23, 2023, the Union raised a concern with the Employer about the TMEs working two different schedules. The Union indicated it was creating friction.
• The MOA came up for renewal. One of the terms of the renewal was that the TMEs were to work a 5 x 8 schedule.
• The Employer signed the renewal MOA on April 4, 2023.
• The Employer met with the Union and informed them that, as a result of the concerns raised by the Union, all TMEs would be moved to a 5 x 8 schedule as of May 29, 2023.
• The TMEs were given notice on April 20, 2023.
• Chris Eckert signed the MOA on behalf of the Union on April 23, 2023.
• The change was implemented on May 29, 2023.

9In OPSEU (Sutherland) and Ontario (Ministry of Labour), (2008), 179 L.A.C. (4th) 387 Arbitrator Dissanayake stated:

The authorities reviewed above establish two propositions with respect to CWW arrangements. First, that article 10.1 does not impose any obligation on the employer to enter into a CWW arrangement with any employee. Second, article 10.1 “… does not provide for a discretion to be exercised by the employer. Rather, it simply provides a mechanism for the parties to mutually arrive at “other arrangements” vis a vis a variable week”. See, the quotation from Re Algerson et al, set out at p.7 (supra). It follows, therefore, that the employer’s decision to negotiate or not negotiate a CWW arrangement is a matter of a management right to “among other things, manage its business as set out in article 2.” (Re Emmett), (supra), at p. 11). Therefore, this Board has no jurisdiction to review the employer’s exercise of a management right, in the absence of a claim that such exercise (in this case the non-exercise) of management rights affected a right of the grievor under the collective agreement. Since the union has not made such a claim. Nor has it alleged bad faith. In the circumstances the Board lacks jurisdiction. Therefore, the employer’s first motion succeeds.

[emphasis added]

10As such, I have no power to order the Employer to enter into a memorandum of agreement concerning a compressed work week schedule unless there is an allegation that the Employer’s exercise of its management right affected a right set out in the Collective Agreement. In this case, the remedy the Union is seeking is that I direct the Employer not to enforce the terms of the MOA as against certain legacy employees on the basis that the Employer is estopped from doing and, in the alternative, the Employer’s doing so is an act of reprisal.

11The Estoppel argument is not sustainable in the face of the fact that the Union signed the renewal MOA on April 23, 2023, after the date on which it was put on notice by the Employer that the legacy employees would be required to work the 5 x 8 shift. The reprisal argument is not particularized and there is no basis on which a reprisal could be found.

12Having regard to the submissions made by the parties with respect to the facts and jurisprudence, I hereby dismiss the grievance.