GSB# 2021-3092

UNION# 2022-0617-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

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

Employer

BEFORE

Brian Sheehan

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Justin O’Gorman Treasury Board Secretariat Employee Relations & Negotiations Team Lead

HEARING

June 19, 2024

Decision

1The Employer and the Union at the Sudbury 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 award relates to a Union policy grievance asserting a violation of Articles 1,2, and 9 of the collective agreement.

3The facts associated with this matter are not substantively in dispute.

4During the COVID-19 pandemic, the Employer assigned bargaining unit personnel to perform temperature checks on staff coming into work at the front door of the institution.

5Initially, this work was performed by two Correctional Officers (COs) as part of their regular working assignment.

6The Employer subsequently adopted the practice of utilizing overtime assignments to complete the work in question. Those overtime opportunities were not exclusively restricted to COs, as bargaining unit employees in other classifications also performed the work in question on an overtime basis.

7The Secretary to the Superintendent is a position excluded from the bargaining unit. At some point, while the overtime assignments regarding the temperature checks were ongoing, the name of the incumbent in that position was added to the list of those willing to perform the temperature check duties on an overtime basis, and that individual was subsequently assigned to such overtime opportunities.

8While appreciating the Employer’s perspective that the work in question was not traditional work performed by members of the bargaining unit, it has been concluded that allowing an employee who is not part of the bargaining unit to perform work that had been performed regularly by members of the bargaining unit represents an attack on the integrity of the bargaining unit; and as such, violated the accepted implied restriction on non-bargaining unit personnel performing bargaining unit work (see OPSEU (Pilon et. al) Ministry of Community and Social Services (Brown) GSB File # 0573/99 decision dated June 2, 2003). Moreover, that assignment also breached COR 8 of the collective agreement and the Provincial Overtime Protocol, as the individual involved should not have been offered overtime opportunities that properly constituted available overtime assignments for members of the bargaining unit.

9A remedy that the Union is seeking is that those employees who would have otherwise been offered the overtime in question be made whole in terms of lost wages. The position of the Employer is that if a violation were to be found, the appropriate penalty is payment to the Union an amount equal to the loss of union dues experienced by the Union as a result of the work in question not being performed by members of the bargaining unit.

10The parties advised that there was ongoing litigation at the GSB, wherein the issue regarding the appropriate remedy in the context of the restriction on non-bargaining unit personnel performing bargaining unit work is currently being litigated.

11In light of the above, the grievance is upheld, and it is hereby declared that the Employer violated the collective agreement by having the Secretary to the Superintendent perform the work in dispute. The issue as to the nature of further remedial relief that is appropriate in the circumstances is remitted back to the parties. If the parties have failed to resolve this particular issue after six months, either party can request that the GSB schedule a conference call be held with me to address any remaining outstanding disputes regarding the appropriate remedy.