Letter to The Globe and Mail about article on OPSEU/SEFPO

Hi everyone,

In this recent article, The Globe & Mail reports on tensions within OPSEU.  I felt the story was not completely factual and have sent the email below to the reporter.

Hi Vanmala,

My name is Lois Boggs and I am the President of the Ontario Pubic Service Staff Union (OPSSU).  I am writing to you because I am very disappointed with the article you recently published titled “Tensions Build at OPSEU”.  As the President of OPSSU, representing over 300 frontline employees that work at OPSEU, I would have expected that you would have contacted me regarding the current working environment.

Under former President Smokey Thomas’ leadership, we had to endure a workplace where staff were routinely disciplined and/or terminated. Between 2016, when our workplace took a serious turn for the worse, and until the election of the new President, OPSSU filed hundreds of grievances, including numerous termination and discipline grievances. OPSEU leadership constantly violated our collective agreement rights and ignored their own OPSEU policies.  My members did not feel safe in their own workplace. 

In April 2022, the OPSEU membership elected a new President and First Vice President/Treasurer.  It has been just under ten months since JP Hornick and Laurie Nancekivell were elected and I can say the internal culture for my members has changed significantly in a positive manner.  For the first time in more than a decade, my members feel appreciated, respected and safe.

I do understand that a handful of the management team, represented by the Administrative Staff Union, may not feel the same way as our members.  While I know that two ASU members have been terminated, I can assure you that overall staff are happy, labour relations between OPSSU and OPSEU are better than they have been in many years, and we are working together with the current administration to rebuild OPSEU.

Please feel free to contact me if you have any questions.

Sincerely,
Lois Boggs
President OPSSU
905-978-3147




July 20 ratification vote details

Hello OPSSU members,

There will be a ratification meeting held on Wednesday, July 20, 2022 at 6pm.  The bargaining team will present the tentative agreement, followed by a question-and-answer period.  Voting will begin immediately following the Q&A or 8:00pm which ever is earlier.  Voting will close at 10:00pm.  If you are not able to attend the meeting, all you need to do is join the Zoom meeting between 8-10 and request a ballot.

Please register for the ratification vote in advance by emailing ratification2022@opssu.ca and provide your name and personal email address.  You will be sent a Zoom registration link after you pre-register.  Please ensure you click the Zoom registration link and follow the instructions.  You will then be sent the Zoom meeting link.   

If you have cast a ballot in the past using the OPSSU Simply Voting, no further action is required.  If you have never cast a ballot through OPSSU Simply Voting (or your personal email address has changed), please indicate so in your registration email to ratification2022@opssu.ca.  If this is your first time, you will be sent a test ballot.  Please ensure you cast the test ballot prior to the ratification meeting.

Please register as soon as possible, to avoid any delays in your ability to cast your ballot.

6pm-8 pm – Ratification Q&A

8pm-10 pm –  Voting (note: voting will occur immediately following the Q&A or at 8pm whichever is earlier)

Stronger, Solid, United

With warm regards from your OPSSU Bargaining Team


Have you received the tentative agreement?

After 10 days of bargaining, the bargaining team reached a tentative agreement.

Details of the tentative agreement has been emailed to the personal email address of all OPSSU members. If you haven’t yet received the tentative agreement, please email your name, job title, and personal email address to the bargaining team at bargaining2022@opssu.ca — they will send you back the agreement.


Tentative agreement reached

After a long day of bargaining, your OPSSU bargaining team is pleased to announce we have reached a tentative agreement.

Details of the agreement and the date and time of the ratification vote will be sent out within the next few days.

If you are, or even think you might be, an OPSSU member but aren’t receiving emails from @opssu.org, please send your name, current personal email address, place of work and job title to bargaining2022@opssu.ca. We’ll then be able to send you details about the tentative agreement and the ratification vote.

The ratification vote will be held virtually.

Thank you for your support.

Stronger, Solid, United!

With warm regards from your OPSSU bargaining team.


How SSU’s pension trustees helped prevent a strike

Cheri Hearty
Cheri Hearty

In a new article about responsible pension trusteeship, OPSSU member Cheri Hearty talks about how the trustees of the SSU pension were able to help prevent a strike.

“The cleaners were able to get a fair first contract and they didn’t have to go on strike,” said Hearty in the article, which was published by an international organization called Committee on Workers’ Capital.

If I could be a small part of that ultimate resolution as a fiduciary of workers’ capital, that’s amazing.”

Here’s an excerpt:

Interviewer: Can you describe how collective action by asset owners can enable a fund like yours to drive real world changes when it comes to the integration of human and labour rights in investments?

Cheri Hearty: Just like people join together in collective action to form unions, this is the same type of venture. You’re coming together with a common goal. You’re going to have diversity of thought and diversity of experience and that brings together a wealth of information. If you feel like that small minnow in a big ocean, all of a sudden, you’re ten thousand minnows in the same ocean. Collective action is really important; it can expand the effectiveness of individual trustee action.

For example, about a year ago, we were contacted because there was a labour trouble brewing at a mall in British Columbia. Cleaners were trying to negotiate a first contract at this mall. What they were asking for was the bare minimum: to be paid the average wage of their sector and for a few paid sick days in the middle of a pandemic.

The mall was wholly owned by one of the investment managers that the OPSEU Staff Plan invested with. The idea was to contact the investment manager and ask questions, for example, “What are you doing to rectify this issue, in line with your ESG policy?”

We contacted the investment manager and some other people did as well. We asked a lot of hard questions. I had expected to be brushed off because we’re a small plan, but they made commitments to us about what they were going to do.

It showed me that even though I’m from a small plan, my asking of questions can have some impact. The cleaners were able to get a fair first contract and they didn’t have to go on strike.

If I could be a small part of that ultimate resolution as a fiduciary of workers’ capital, that’s amazing.



Labour board dismisses Duty of Fair Representation complaint against OPSSU

PDF version

ONTARIO LABOUR RELATIONS BOARD

 

Labour Relations Act, 1995

OLRB Case No: 0493-21-U Duty of Fair Representation

Haran Thurairasah, Applicant v Ontario Public Services Staff Union, Responding Party v Ontario Public Services Employees Union (OPSEU), Intervenor

COVER LETTER TO THE PARTIES LISTED ON APPENDIX A

The Board is attaching the following document(s): Decision – April 08, 2022

DATED: April 08, 2022

Catherine Gilbert Registrar

Website: www.olrb.gov.on.ca

Address all communication to:

The Registrar

Ontario Labour Relations Board 505 University Avenue, 2nd Floor Toronto, Ontario M5G 2P1

Tel: 416-326-7500

Toll-free: 1-877-339-3335

Fax: 416-326-7531

 

ONTARIO LABOUR RELATIONS BOARD

OLRB Case No: 0493-21-U

Haran Thurairasah, Applicant v Ontario Public Services Staff Union, Responding Party v Ontario Public Services Employees Union (OPSEU), Intervenor

BEFORE: Maureen Doyle, Vice-Chair

DECISION OF THE BOARD: April 8, 2022

1. This is an application filed with the Board pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the “Act”). The applicant asserts that the responding party, Ontario Public Service Employees Union (“OPSSU”, the “union”) violated section 74 of the Act with respect to the applicant’s relationship with the employer, Ontario Public Service Employees Union (“OPSEU”, the “employer”). OPSSU denies that the Act has been violated.

2. In its response, in addition to denying that it has violated the Act, OPSSU seeks dismissal of the application on the basis that it does not reveal a prima facie case.

3. In a decision dated October 29, 2021, the Board directed the applicant to file submissions in response to the request of OPSSU that this matter be dismissed as revealing no prima facie case, including copies of any case law relied upon, and to copy the other parties. The applicant requested an extension of the time for those submissions, stating that an extension is required “due to work commitments” and the need to consult “outside counsel”.

4. The applicant was granted an extension to December 1, 2021 to provide the above-noted submissions to the Board, and to copy the other parties. In a decision dated January 24, 2022, the applicant was granted a further extension to February 8, 2022 to provide submissions and to copy the other parties. The decision stated that if the applicant failed to provide submissions in the timeframe provided, the Board would consider whether to dismiss this matter on a prima facie basis of the materials before it.

5. The Board has received nothing further from the applicant and accordingly this matter is decided on the basis of the materials currently before the Board.

6. The applicant includes Schedule “A” to an Unfair Labour Practice complaint (ULP), which states, among other things that the union understood the employer had hired 24 individuals who were temporary employees, to permanent positions, without competition. The applicant states that the union filed the Unfair Labour Practice (ULP) complaint against the employer on April 16, 2021, and that this complaint has a “direct impact” on the applicant’s pension. The applicant states that the union did not discuss with the applicant its intention to file the ULP and it did not disclose any information to the applicant regarding three days of mediation which took place with the employer, presumably about the ULP.

7. The applicant states that the union asserts it is acting in the best interests of all members but the applicant says that in the ULP the union wants to remove the applicant from the applicant’s permanent position. The applicant asserts that the union has said on more than one occasion that the pension plan is being “impacted as a result of the employer not filling positions on a permanent basis”. The applicant states that the applicant has suggested to the union leadership that the ULP complaint could be resolved by “working out an MOU with the employer on converting temporary staff to permanent positions”, but that the union has not addressed this suggestion. The applicant states that at a General Members Meeting of the union on January 30, 2021, there was “extensive discussion” about the “pension issue”.

8. The applicant also states that the applicant is a racialized person, and that when the employer offered the applicant a permanent position, it wanted to “promote diversity and inclusion within the organization”. The applicant states that the current leadership of the union is not “diverse and inclusive” and asks “Given this, how can OPSSU fairly represent me?”

9. The union submits that the applicant has not established a prima facie case, and requests that the Board dismiss the application. It submits that it is under no obligation to discuss filing a ULP with the members, nor is it permitted to divulge confidential settlement discussions.

10. The union submits that it has taken actions to ensure that temporary positions are filled in accordance with the collective agreement and filed a grievance and the above-noted ULP regarding this issue. It submits that it has worked to resolve the matter on an amicable basis, including participating in mediation with the employer regarding the issue. The union submits that it is obliged to represent all members, and states that the applicant has pled “nothing to suggest that the union wanted the Applicant specifically removed” from the applicant’s position.

11. The union submits that the applicant has not plead anything which would establish that the union treated the applicant in a way that was arbitrary, discriminatory or in bad faith. The union submits that though the applicant states that the union leadership cannot represent the applicant as its leadership is not diverse and inclusive, the applicant has provided “no basis whatsoever to support this claim” and the applicant asks a hypothetical question without any basis in fact.

12. In support of its position that the applicant has not made out a prima facie case, the union cites several decisions: Savage Shoes Ltd., [1983] OLRB Rep. Dec 2067; Bartlett v. Amalgamated Clothing and Textile Union. Local 307, 1983 CanLII 791 (ON LRB) (“Bartlett”); Kezia Motluk v. Halton District Educational Assistants Association, 2013 CanLII 15756 (ON LRB), and Sukhoo v. Labourers International Union of North America, Local 506, 2001 CanLII 20549 (ON LRB).

Analysis and Decision

13. At this stage, the question to be answered is whether any of the applicant’s allegations, if true, make out a violation section 74 of the Act. Section 74 reads:

74. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

14. The Board has the authority under Rule 39.1 of the Board’s Rules of Procedure to dismiss an application without a hearing where it does not make out a prima facie case. To plead a prima facie violation of the duty of fair representation under section 74 of the Act, the applicant must plead facts capable of supporting a conclusion that the union acted in a manner that is arbitrary, discriminatory, or in bad faith.

15. The Board in Hill v Canadian Union of Public Employees, Local 793, 2006 CanLII 7208 (ON LRB) summarized the Board’s jurisprudence considering the terms arbitrary, discriminatory and bad faith as follows:

(a) “arbitrary’ means conduct which is capricious, implausible or unreasonable, often demonstrated by a consideration of irrelevant factors or a failure to consider all relevant factors;

(b) “discriminatory” is broadly defined to include situations in which a trade union distinguishes between or treats employees differently without a cogent reason or labour relations basis for doing so;

(c) “bad faith” refers to conduct motivated by hostility, malice, ill-will, dishonesty, or improper motivation.

16. The Board has held repeatedly that the threshold for pleading a prima facie case is not particularly high. In J. Paiva Foods Ltd., [1985] OLRB Rep. May 690, at page 691, the Board held as follows:

The Board’s discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged.

17. In assessing whether an application states a prima facie case, the Board must assume that the applicant’s allegations are true and could be established if the matter proceeded to a hearing or consultation. The Board does not consider any explanation or defense offered by a responding party in making this determination.

18. While it is clear that the applicant is not happy that the union has filed a ULP compliant which could have an impact on the applicant’s position, there is nothing in the application which would establish that the union has acted in a manner which is arbitrary, discriminatory or in bad faith.

19. The union is not obliged to consult with the members prior to filing a ULP, nor is it required to discuss the substance of settlement discussions with members in these circumstances. Though the applicant believes that the union should conclude an agreement with the employer which would convert temporary staff to permanent positions, and asserts that the union has not addressed this suggestion, the applicant has not made allegations which would establish that by not discussing settlement strategies with the applicant, the union has acted arbitrarily, discriminatorily, or in bad faith. In fact, the applicant has asserted that the union spent three days in settlement discussions regarding the ULP: there is no basis to conclude that in doing so it behaved in a way which was arbitrary or in any way that was contrary to its obligations under the Act.

20. The applicant has asserted that the union wants to remove the applicant from the applicant’s permanent position. As the Board observed in Bartlett:

36. Section 68 requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee’s bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. “Bad faith” and “discriminatory”, therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. “Arbitrary”, on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.

21. The applicant has provided no indication of how the union has taken action to target the applicant in a way which was due to any personal animosity or took actions for reasons which were unrelated to legitimate collective bargaining concerns. I am not persuaded that the applicant’s allegations would establish that the union acted in a way which was arbitrary or in bad faith or discriminatory.

22. The applicant also asserts that the leadership of the union is not diverse or inclusive and draws the conclusion that the leadership will not be able to represent the applicant fairly. The applicant has provided no particularized assertion to establish that the union has not represented the applicant fairly, and there is nothing in the applicant’s hypothetical question to establish that the union has acted contrary to its obligations under the Act.

23. The applicant has not pleaded facts which are capable of establishing capable of supporting a conclusion that the union acted in a manner that is arbitrary, discriminatory, or in bad faith. For all of the reasons above, this application is dismissed as stating no prima facie case that the union has contravened its duty of fair representation under the Act.

“Maureen Doyle” for the Board


Bargaining update 4.0

Hello OPSSU members,

The bargaining team met with the employer on March 22 for our first day of bargaining.

The parties exchanged proposals, engaged in discussions and will meet again next week on March 29, 30, and April 1.

We will continue to keep you updated and suggest you monitor your email regularly next week.

Stronger, Solid, United!

With warm regards from your OPSSU bargaining team.


Vision Care Reminder

Hi everyone,

This is a reminder that the current window for vision care expenses ends on March 31 and a new period starts on April 1.

Article 22 Insurance, Health and Dental

22.02 e) Vision Care

(i) Eyeglasses, frames and/or contact lenses, per person, per eighteen (18) month period commencing October 1, 1996 to a combined total of four hundred dollars ($400). Dependent children under the age of eighteen (18) are eligible for this benefit annually (twelve months). The plan will pay for all eye tests.

(ii) Provide contact lenses or glasses following surgery (maximum 2 pairs per lifetime). Effective January 1, 2013.

(iii) One additional pair of eyeglasses, frames and lenses, per eighteen (18) month period commencing October 1, 1996, for employees who use a computer, up to a maximum of four hundred dollars ($400) per employee, who is required to operate a computer for two (2) hours or more a day on average; and who is required to undergo a special eye examination once per year, as per Article 26 of this Agreement.

(iv)Provide for a second pair per lifetime for contact lenses or glasses following surgery. Effective January 1, 2013.

Thank you

Lois


Unfair Labour Practice complaints resolved

It is with great pleasure that I write to report that following several weeks of ongoing discussions between OPSSU and OPSEU, the Parties have resolved both of OPSSU’s ULPs and OPSEU’s ULP, along with many outstanding grievances relating to the ULPs. We are very pleased with the outcome of our discussions and the settlement that we were able to achieve.

For the past few weeks, OPSSU and OPSEU have had constructive discussions regarding improving labour relations; these included, in large part, working to resolve the outstanding ULPs and related grievances. On the morning of Mar 9, 2022, the Parties executed a Memorandum of Settlement resolving the ULPs (and related grievances).

Here’s the text of the agreement, along with a PDF.

MEMORANDUM OF SETTLEMENT

BETWEEN:

Ontario Public Service Employees Union/Syndicat des employés de la fonction publique de l’Ontario(the “Employer” or “OPSEU/SEFPO”)

– and –

Ontario Public Service Staff Union (the “Union” or “OPSSU”)

WHEREAS

the Employer and the Union are Parties to a Collective Agreement, effective March 10, 2019 to March 9, 2022 (“the Collective Agreement”);

  • the Parties wish to continue to foster positive labour relations between them, including by making best efforts to communicate regularly;
  • the Union filed two (2) applications alleging unfair labour practices under the Labour Relations Act, 1995, with the Ontario Labour Relations Board (“OLRB”), bearing OLRB File Numbers 2839- 20-U and 0134-21-U (“Union ULPs”);
  • the Union filed several grievances, alleging contraventions of the Collective Agreement; the Employer filed an application alleging unfair labour practices under the Labour Relations Act, 1995, with the OLRB, bearing OLRB File Number 2860-20-U (“Employer ULP”);
  • the Parties have already fully and finally resolved some of the issues in their respective ULPs; on January 14, 2022, the OLRB issued a written decision deferring both the Union ULPs and the Employer ULP to a number of ongoing arbitrations under the Collective Agreement;
  • the Union has filed both a Request for Reconsideration and a Judicial Review application of the January 14, 2022 OLRB decision;
  • in the interest of good labour relations, the Parties wish to resolve certain outstanding matters between them, including the Union ULPs and the Employer ULP, without further recourse to litigation.

NOW THEREFORE, the Parties do hereby agree without prejudice and precedent and without any admission of wrongdoing to the following:

1. The Union ULPs and the Employer ULP are fully and finally settled and resolved.

2. Within ten (10) working days of executing this Settlement, the Union and the Employer shall separately write to the OLRB, with a copy to the other Party, and advise that their respective ULPs are fully and finally settled and resolved and that the ULPs are withdrawn. Further, the Union will advise the OLRB that it abandons its Request for Reconsideration filed in respect of the OLRB’s January 14, 2022 decision. Further, the Union will advise the Divisional Court that its application for Judicial Review has been abandoned without costs and on consent.

3. Both Parties unconditionally retract the allegations that were made in their unfair labour practice applications. Further, neither Party will seek any further remedy with respect to any of the allegations raised in the settled ULPs in future, including in any litigation involving OPSSU and OPSEU/SEFPO.

Vacation Overages and Coverage

4. The Parties agree to consider the 2019 and 2021 calendar years as discrete vacation accrual/overage periods for the purposes of Article 19.03 of the Collective Agreement.

5. The Parties agree to address the issue of “vacation carry-over” during the current round of bargaining, set to commence in March 2022.

6. The Employer will pay out vacation overages that were clawed back from employees in 2019. Payment will be made at the applicable 2019 rates under the Collective Agreement, will be less all statutory deductions and tax withholdings and will be paid with forty-five (45) days of the execution of this Settlement.

7. Within thirty (30) days of the date of full execution of this MOS, the Employer shall review its records to determine whether any OPSSU members have carried over vacation for the 2021 calendar year, in excess of that allowable pursuant to Article 19.03 of the Collective Agreement. Should the Employer determine that an OPSSU member has carried over excess vacation, the Employer shall pay to that member the monetary value of the excess accrued vacation, except as otherwise previously agreed by the Parties.

8. Should there be any disputes with respect to the Employer’s calculations at Paragraph 7, and should the Parties be unable to resolve these disputes, the Parties agree that such disputes shall be resolved using the Mediation/Arbitration Procedure outlined at Article 8.09 of the Collective Agreement.

9. The Parties agree that in accordance with Article 19.03(a), and except as provided for in 19.03(c), employees may not accumulate more than two (2) years of vacation credits. The Parties agree that commencing the date of full execution of this MOS and until the expiry of the current

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Collective Agreement, for the purposes of Article 19, December 31st of each calendar year will be used to calculate the employee’s carry-over, in accordance with the Collective Agreement. The Parties agree to refer the issue of the effective date of this calculation to their respective Bargaining teams with a recommendation that December 31 of each calendar year be used for this calculation. Further, the Parties agree to refer any inconsistencies in the language between Article 19.03(a) and 19.03(b) to bargaining with the goal of resolving these inconsistencies.

10. For the purposes of vacation entitlement and overage when going off on pregnancy and/or parental leave: a) Vacation Bank as of the Commencement of the Leave: The employee is to work with their Supervisor to reduce their vacation bank prior to their leave, such that upon return to active work, they will not exceed the vacation overage as set out in Collective Agreement Article 19.03, except in circumstances beyond the employee’s control.

b) Vacation Accumulation during the Leave(s): Any vacation accumulated while on the leave(s) will not be reduced in accordance with Article 19. At the end of the leave, the employee will work with their Supervisor and will be able to extend this leave by using vacation. Regardless, the Employee’s vacation balance must be reduced to the levels detailed in Article 19 within one year of returning from the leave.

11. The Parties agree that the Union grievance (2020-25) is fully and finally settled and resolved.

12. Any grievances related to vacation overage are fully and finally settled and resolved, without limitation: Union (2020-02); Norman (2020-13); Rosales (2020-14); Darazi (2020-15); Nicu (2020- 16); Danbrook (2020-17); Bahn (2020-18); Walker (2020-19); Malik (2020-20); Sostar (2020-21); Banerjee (2020-22); Gilchrist (2020-23); Union (2020-25); Adach (2020-28); Fraser (2020-31); Grenci (2020-36); Boggs (2020-38); and Mulhall (2020-39).

13. Within one (1) week of the execution of this Settlement, the Employer agrees to rescind its direction requiring that OPSSU members obtain their own coverage while on vacation or their vacation will not be approved, and shall approve vacation pursuant to the Collective Agreement. Grievance Union (2020-24) is fully and finally settled and resolved.

14. The Union will, within thirty (30) days of the execution of this Settlement, advise the Employer what, if any, losses are claimed by Grievor Fraser (2021-08). Within fifteen (15) days, the Employer will respond with respect to these claims. Any disputes shall be resolved using the Mediation/Arbitration Procedure outlined at Article 8.09 of the Collective Agreement. If there are no losses being claimed, the Union agrees to withdraw the grievance.

Job Posting and Filling

15. The Parties agree that bargaining unit positions shall be filled in accordance with the Collective Agreement.

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16. The Union withdraws the following grievances: 2020-46, 2021-05, and 2021-28, which are fully and finally settled and resolved.

17. The Union agrees it is no longer challenging the post and fill process used by the Employer for competitions fully completed between June 30, 2020 and January 10, 2022, and the employees who were awarded permanent full-time jobs during that time are full-time permanent employees in those positions. The Union will not file or pursue any grievances, or any other legal proceedings, related to or arising out of the post and fill process used for competitions completed between June 30, 2020 and January 10, 2022.

18. The Parties agree that Article 11.02.01 (a) and (b) of the Collective Agreement are interpreted as follows:  Permanent employees with more than eighteen (18) months shall be given first consideration, in accordance with the Collective Agreement.  Qualified temporary employees and applicants from outside the OPSSU bargaining unit, in accordance with the Collective Agreement, shall compete for bargaining unit positions in the same manner as permanent employees, including using the same testing, interviews, and/or scoring.  The Parties agree that the Employer need not grant interviews to temporary employees and applicants from outside the OPSSU bargaining unit if they do not pass the testing that forms part of the job competition. 19. The Parties agree that unless and until the relevant Collective Agreement language is changed, Paragraph 18 shall remain in force. The Parties agree that the remainder of Article 11 remains in full force and effect.

20. The Parties agree to develop a working group to review staffing levels and consider where increases in the OPSSU-represented staffing complement are necessary; the working group shall be comprised of three (3) OPSEU/SEFPO representatives and three (3) OPSSU representatives, chosen by the respective Parties. The Parties will have their initial meeting within thirty (30) days of the full execution of this settlement, and will meet at least once monthly, with the goal of having a proposal to take to the Executive Board by the September 2022 board meeting for their consideration.

21. The Employer agrees to contribute five hundred and twenty thousand dollars ($520,000) to the Parties’ joint pension plan and thirty thousand dollars ($30,000) in dues in accordance with Article 4.03 of the Collective Agreement to OPSSU. The Employer will provide written confirmation that this has been completed within forty-five (45) days of the execution of this Settlement.

22. The Union will, within thirty (30) days, advise the Employer what, if any, losses are claimed by Grievors Noakes (2021-09), Lewis (2021-10), Lucente (2021-11), Hall (2021-22), Evans (2021-23),

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Lumley (2021-24), Mahon (2021-26), and Liddle/Campbell (2021-07). Within fifteen (15) days, the Employer will respond with respect to these claims. Any disputes shall be resolved using the Mediation/Arbitration Procedure outlined at Article 8.09 of the Collective Agreement. If there are no losses being claimed, the Union agrees to withdraw these grievances.

Pandemic Exit Initiative

23. The Union agrees to withdraw the following grievances: Near (2021-12); Mason (2021-13); Ledwidge (2021-14); Janson (2021-15); Guppy (2021-17); Simms (2021-18); Szymanski (2021-19); Robinson (2021-20); Clayton (2021-21); and Orzel (2021-27). These grievances are fully and finally settled and resolved. Save and except for enforcement of the Pandemic Exit Initiative (“PEI”) on behalf of the bargaining unit members who were granted the PEI and subject to paragraph 25, the Union will not file or pursue any grievances, or any other legal proceedings, related to or arising out of the PEI.

24. Within forty-five (45) days of the execution of this Settlement and signing the release, the Employer agrees to pay the Grievors listed in paragraph 23 thirty thousand ($30,000) dollars, less statutory deductions, as a retiring allowance in accordance with the Pandemic Exit Initiative/Agreement. Each employee receiving the PEI will sign a release, attached hereto as Schedule A.

25. Should Grievor Ingriselli wish to retire within the next ninety (90) days of the execution of this Settlement, the Employer agrees to pay her thirty thousand ($30,000) dollars, less statutory deductions, as a retiring allowance, in accordance with the Pandemic Exit Initiative/Agreement and Ingriselli (2021-16) shall be deemed to be fully and finally settled and resolved. Should Ingriselli not want to retire within that time frame, the Union agrees to withdraw Ingriselli (2021- 16).

26. The Employer will not re-open the PEI.

Hours of Work

27. The Memorandum of Agreement regarding hours of work signed by the Parties on or about February 26, 2021 continues in full force and effect.

ERFP

28. The Employer acknowledges that it entered into merger and employment agreements with another union and its full time staff, and it did not discuss the impact of those agreements on staffing with the Union in advance of the merger’s completion. The Employer agrees that in any future merger agreements with other unions and/or employee associations, it will discuss any impacts on the staffing complement in OPSSU with the Union in advance of the merger being finalized, and will not enter into any employment agreements directly impacting the Collective Agreement of the OPSSU bargaining unit without the Union’s knowledge and consent.

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General

29. The Employer agrees to withdraw all outstanding Employer grievances which shall be deemed fully and finally settled and resolved.

30. The Union agrees to withdraw grievance Union (2021-31).

31. OPSEU/SEFPO confirms that it has instructed its legal counsel, Mark Mendl that he is not to communicate directly via email to the Union’s Executive Committee regarding outstanding legal matters involving the Parties, unless required by law. OPSSU confirms that it has instructed its legal counsel that it is not to communicate directly with OPSEU/SEFPO’s Executive Board regarding outstanding legal matters involving the Parties, unless required by law.

32. The Employer confirms in accordance with paragraph 3 of this Settlement that it unconditionally withdraws its allegation that Lois Boggs “lied on the witness stand.”

33. The Parties agree that in the event of any breach or alleged breach of this MOS by any of the Parties, this MOS will be enforced by the Union or the Employer by way of grievance and arbitration, as per the provisions of the Collective Agreement, and that arbitration will be the exclusive forum for resolution of such disputes.

34. The Parties acknowledge and agree that nothing in this MOS affects any position that either Party may take in the hearing of the Inglis (2021-06) grievance.

Dated in the City of Toronto this 9th day of March 2022

__________________________ __________________________ For OPSSU – Lois Boggs For OPSEU/SEFPO – Ilana Goodman

__________________________ __________________________ For OPSSU – Tim Mulhall For OPSEU/SEFPO – Stephen Giles

__________________________ For OPSSU – Alison Nielsen-Jones

 

 

6 | 6

SCHEDULE “A”

RELEASE IN CONSIDERATION OF the payments and undertakings to be provided by Ontario Public Service Employees Union to, or for the benefit of, NAME as set out in the attached Minutes of Settlement, the receipt and sufficiency of which is hereby acknowledged I, NAME, DO HEREBY RELEASE AND FOREVER DISCHARGE ONTARIO PUBLIC SERVICE EMPLOYEES UNION, ONTARIO PUBLIC SERVICE STAFF UNION and their associated, affiliated, predecessor, successor and parents, their respective officers, servants, agents and directors (both in their official and personal capacities) and their respective administrators, successors and assigns, (collectively, the “Employer” and “Union”) of and from all present and future grievances, actions, causes of action, claims and demands (“Claim” or “Claims”) which I, or any of my heirs, executors, administrators or assigns has against them, upon or by reason of any matter, cause or thing whatsoever existing up to the present time, whether legal or equitable, and arising in contract or tort, including without limitation, negligence, and without limiting the generality of the foregoing, specifically of and from all such Claims arising out of my employment and the end of my employment with the Employer. I agree that once I have received the payments and benefits set out in the Memorandum of Settlement, I shall have received all wages, salary, incentive payments, credits, overtime pay, severance pay, pay in lieu of notice of termination, termination pay, vacation pay, holiday pay, pensions or any other employment benefits to which I am entitled, including, but not limited to, any amount to which I may have been entitled under the Collective Agreement. I hereby agree that I have no Claim and therefore will not commence any Claim under any applicable law, including but not limited to the Employment Standards Act, the Labour Relations Act, the Human Rights Code, the Pay Equity Act, or the Occupational Health and Safety Act, with respect to any aspect of my employment (including but not limited to the salary or wages provided to me during such employment) or the end of my employment or alleging breach of any of the provisions of such statutes, including, but not limited to, those provisions which prohibit reprisals by an employer. Further, any and all grievances filed by me and/or the Union on my behalf, or in any way related to my employment with OPSEU, including the PEI and harassment/discrimination grievance, are fully and finally settled and resolved. I agree that I shall be liable for the full amount of any payments or repayments, including, but not limited to, any tax, penalties or interest, which may be demanded pursuant to the Employment Insurance Act, the Income Tax Act, and/or the Canada Pension Plan and/or any similar applicable provincial laws as a result of any payment contemplated in this Agreement, or any payment which may, in future, be found to be payable by the Employer in respect to, and I hereby agree to indemnify and save harmless the Employer from any claim made against it under such statutes I agree that I have canvassed any and all human rights concerns or issues which may have arisen out of my employment with the Employer, the end of such employment and/or the execution of the attached Memorandum of Settlement and this Release. Furthermore, I agree that I am aware of my rights under the Human Rights Code and the anti-discrimination provisions of the Collective Agreement, and I confirm that I have not and will not assert such rights or advance any human rights claim in respect of any matter which arose out of my employment with the Employer, the end of such employment and/or the execution of the attached Memorandum of Settlement or this Release. I acknowledge that the Employer has freely offered the payments and undertakings in the Memorandum of Settlement without admission of any liability and that the payments and undertakings are the sole consideration for this Release.

I acknowledge and agree that:

(i) I have obtained independent legal advice with respect to the execution of this Release and the attached Memorandum of Settlement, or I have freely taken the decision not to do so;

(ii) I have read, understood and agree with all of the terms and conditions contained herein;

(iii) I fully understand that this document contains a FULL AND FINAL RELEASE of all Claims that I have or may have against the Employer and/or Union; and,

(iv) I have signed this Release freely and voluntarily.

Dated at the City of Toronto , Province of Ontario, this day of March , 2022.

SIGNED IN THE PRESENCE OF

____________________________ ______________________________ WITNESS NAME

Name and Address of Witness: [someone other than the Grievor’s spouse] _____________________________

_____________________________

_____________________________

 


Bargaining Update 3.0

Hello OPSSU members,

We will be engaging in negotiations with our employer later this month.

We have secured the following dates to meet with the employer March 22, 29, 30 and April 1st.

Your Bargaining Team is ready to go, and we hope to have a very productive first day on March 22. The employer bargaining team is comprised of: Tara Maszczakiewicz – Chair, Edie Strachan – Vice Chair, Ilana Goodman, Kenneth MacLam, Linda Mariani, Ted Panagiotoulias, Ken Steinbrunner, and Brock Suddaby.

We will continue to provide you with updates during this process. If you have any questions for the team, please email us at bargaining2022@opssu.ca.

With warm regards from your OPSSU Bargaining Team,

Cheryl Wing, Chair
Lois Boggs, President OPSSU
Mirla Alvarado Fenn
Ceceil Beckford
Jean-Philippe Maher
Bryan Stamm


Return to work

As our return to the workplace is fast approaching (commencing March 7 for Support Staff and March 14 for Pro-Tech Staff), I’m reaching out to provide you with further information. I apologize for the lateness of this communication, but we wanted to ensure that we had as much information as possible before communicating; we met with OPSEU yesterday in order to raise our members’ concerns, and OPSEU was able to answer almost all of our questions.

You have all received an email today from Ted Panagiotoulias, outlining some important information about the return to the workplace.

In our meeting with OPSEU yesterday, we heard loudly and clearly that OPSEU’s plan for the return to workplace is based on flexibility and understanding, taking into consideration that each employee will have different comfort levels in the return to the workplace; OPSEU advised that it is considering both physical health and safety and psychological health and safety. As such, if you require flexibility or accommodation in the return to work, you should reach out as soon as possible to your Supervisor to request the necessary assistance, flexibility, and/or accommodation. Some solutions may be flexible start/end times, a gradual build-up of days in the office, attending meetings virtually, etc. If you need assistance in this regard, please contact your Steward.

As Ted outlined in his email, all employees (whether permanent or temporary) will continue to be paid if they are unable to attend the workplace due to having COVID-19 symptoms or they need to self-isolate, etc. We were heartened when OPSEU advised us that this has been – and will continue to be – its practice. We also want to remind you that all OPSSU members (whether permanent or temporary) have 10 sick days per calendar year, paid at 100%.

As you may already be aware, OPSEU members are not – at this time – able to physically attend any OPSEU offices (or membership centres attached to OPSEU offices). If you believe that you are being directed or pressured to meet with members in person, please contact your Steward. In addition, OPSEU has advised us that ALL persons entering an OPSEU worksite (including visitors, contractors, etc.) are subject to OPSEU’s COVID-19 Safe Workplace Directive AND its masking policy; if any concerns arise with respect to this, please contact your Supervisor, Steward, Health and Safety Representative and/or email healthandsafetycommittee@opssu.ca. There is a JOHS committee meeting on Monday, March 14th so if you have questions our committee representatives can take those questions directly to the Employer.

I hope that this information provides you with additional clarity and comfort in the return to the workplace.

We are committed to continuing dialogue with OPSEU through the return to the workplace process. If you encounter any issues or have any outstanding questions, please reach out and we will try to get an answer and/or solve the problem.

Stay safe,

Lois Boggs
President, OPSSU


Vacation Approval

Hi everyone,

I’m writing regarding a recent communication to Local Services and the Collective Bargaining Division from Steve Saysell.  I want to clarify OPSSU’s position on the matter of finding your own vacation coverage.

Steve’s statement that “this has been the accepted practice” is false and misleading. 

Article 19.10 (a) clearly states that vacation requests “will be granted on the basis of seniority within a particular regional office or Head Office department.”

OPSEU is well aware of our position on this issue and OPSSU has filed a policy grievance, an individual grievance, and has included this in our Unfair Labour Practice charges against OPSEU.  Just because the Employer has unilaterally and erroneously implemented a direction in contravention of the Collective Agreement for several years does not, in any way, mean that OPSSU has accepted this practice.  OPSSU has in fact continuously challenged this practice since its inception.

Unfortunately, if you want your vacation approved, based on Steve Saysell’s direction, you will need to find coverage until such time as the issue is resolved by mutual agreement or determined by an arbitration decision.

I am saddened that OPSEU continues to issue direction in clear violation of our Collective Agreement.

I will keep you updated as we move forward.

Thanks and take care,

Lois

President, OPSSU 


Bargaining update 2.0

Hello OPSSU members,

The bargaining team is ready to meet with the employer to negotiate a renewal collective agreement. We have secured the following dates to meet with the employer: March 22, 29, 30 and April 1. 

As always, if you have any questions for the team, please email us at bargaining2022@opssu.ca.

Stronger, Solid, United!

With warm regards from your OPSSU Bargaining Team

Mirla Alvarado Fenn

Ceceil Beckford

Lois Boggs, President OPSSU

Jean-Philippe Maher

Bryan Stamm

Cheryl Wing, Chair


Arbitrator defers ULP pending arbitrations

Hi everyone,

I’m writing to provide an update on the Unfair Labour Practice (ULP) applications. As you may be aware, there was a hearing at the OLRB (by Zoom) on November 13, 2021 before Vice-Chair Maureen Doyle.

At that hearing, the Employer argued that every issue contained within our ULP where OPSSU had also filed a grievance be deferred until the conclusion of all of the grievance arbitration proceeding, including one such grievance that has a first hearing date in 2023; OPSSU argued against such deferral. I should point out that both OPSEU and OPSSU agreed that the deferral request by OPSEU did not include issues from the ULP that had not been grieved.

Please see attached Vice-Chair Doyle’s award; she decided to defer all three ULPs until the conclusion of all arbitrations. Either Party may return to the OLRB within 18 months.

We are very disappointed with her decision because at arbitration hearings, we will not be able to “connect the dots” between each unfair labour practice that OPSSU and its members have had to endure for the last two-and-a-half years.

We have had a discussion with our lawyer as how to proceed and will discuss our options with the grievance committee at our next meeting (January 27). We will likely ask for reconsideration on the entire decision, but – at the very least – reconsideration of the decision with respect to the several complaints that were not grieved.

OPSSU is committed to ensuring we have an open and shared conclusion to the events that have taken place over the last two-and-a-half years.

As always, OPSSU remains open to settlement discussions in the hopes that the Parties can resolve these issues and move forward with improving our labour relations. I personally hope this discussion will take place with Smokey given that these unfair labour practices took place under his watch; however, if Smokey is not interested in engaging in such discussions, then I hope we can have meaningful discussions with the new OPSEU President in April.

Take care and we will continue to update you through this process.

Lois Boggs
President OPSSU


Deferral Decision OLRB Jan 2022

PDF version here

The Registrar
Ontario Labour Relations Board

Website: www.olrb.gov.on.ca
Address all communication to:

ONTARIO LABOUR RELATIONS BOARD

Labour Relations Act, 1995

OLRB Case No: 2839-20-U
Unfair Labour Practice
Ontario Public Service Staff Union, Applicant v Ontario Public Service
Employees Union, Responding Party

OLRB Case No: 2860-20-U
Unfair Labour Practice
Ontario Public Service Employees Union, Applicant v Ontario Public Service
Staff Union, Lois Boggs, Tim Mulhall, Cheryl Wing and Emily Visser,
Responding Parties

OLRB Case No: 0134-21-U
Unfair Labour Practice (Bad Faith)
Ontario Public Service Staff Union, Applicant v Ontario Public Service
Employees Union, Responding Party

COVER LETTER
TO THE PARTIES LISTED ON APPENDIX A:

The Board is attaching the following document(s):
Decision – January 14, 2022
DATED: January 14, 2022

Catherine Gilbert
Registrar

Pg. 1 of 2


505 University Avenue, 2nd Floor
Toronto, Ontario M5G 2P1
Tel: 416-326-7500
Toll-free: 1-877-339-3335
Fax: 416-326-7531

 

Pg. 2 of 2

 

ONTARIO LABOUR RELATIONS BOARD

 

 

OLRB Case No: 2839-20-U

 

Ontario Public Service Staff Union, Applicant v Ontario Public Service
Employees Union, Responding Party

 

 

OLRB Case No: 2860-20-U

 

Ontario Public Service Employees Union, Applicant v Ontario Public
Service Staff Union, Lois Boggs, Tim Mulhall, Cheryl Wing and Emily
Visser, Responding Parties

 

 

OLRB Case No: 0134-21-U

 

Ontario Public Service Staff Union, Applicant v Ontario Public Service
Employees Union, Responding Party

 

 

APPEARANCES: Katy O’Rourke and Joanne McMahon appearing for
Ontario Public Service Staff Union et al; Michael Mendl appearing for
Ontario Public Service Employees Union

 

 

BEFORE: Maureen Doyle, Vice-Chair

 

 

DECISION OF THE BOARD: January 14, 2022

 

 

1. These are applications alleging unfair labour practices under the
Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the “Act”).
Two applications, 2839-20-U and 0134-21-U were filed by the Ontario
Public Service Staff Union (the “union”) and 2860-20-U was filed by the
Ontario Public Service Employees Union (the “employer”).

 

 


– 2 –

 

 

2. Each application contains numerous allegations. Each
allegation is the subject of at least one preliminary objection by the
opposing party. In addition to the other preliminary objections it made,
the employer also submitted that many of the issues are currently
placed before arbitrators for determination, and the Board should defer
consideration of those matters.

 

3. The union takes the position that there should be no deferral
and that the Board should proceed to hear its applications. Generally,
it takes the position that the matters should not be deferred, as the
Board is in a position to hear all of the allegations together, and this is
important in order to discern what it characterizes as a “pattern” of
employer behaviour which is contrary to the Act.

 

4. In a decision dated October 21, 2021, the Board directed the
parties to provide their positions on the opposing party’s preliminary
objections and to be prepared to address them at the Case Management
Hearing. It also directed the parties to be prepared to address the
significance of the grievances, if any, related to the allegations
contained in these applications, including their current status and any
decisions or interim decisions.

 

5. At the Case Management Hearing, the parties provided an
exhaustive list of the grievances which touch upon the allegations
contained in these applications, including their status. With some
exceptions, noted below, the parties were in agreement with respect to
the relationship of the grievances to the allegations contained in the
applications.

 

6. The parties were directed to provide their submissions
regarding the question of deferral of the applications. The Board did not
invite submissions on the possibility of proceeding with the allegations
for which there is no “related” grievance, and indeed such an approach
would appear to be inconsistent with the union’s stated goal of having
all of the allegations being placed together before the Board.

 

2839-20-U

 

7. In Board File No: 2839-20-U (“ULP 1”), the union asserts that
the employer has violated sections 70, 72, 73, and 76 of the Act. The
allegations span the time period from approximately June 2020 to late
April, 2021. The union alleges that the employer held “captive
audience” meetings regarding an arbitral award and that it made
disparaging remarks about the union at the meetings. It further alleges


– 3 –

 

 

that following remarks they made at the meetings, its First Vice
President Cheryl Wing and its former First Vice President Emily Visser
were terminated due to union activity. It alleges that the employer and
some of its members who were in acting supervisory positions to
“infiltrate” a zoom meeting it held regarding the arbitral award, and the
acting supervisors reported back to the employer. It alleges that the
employer changed long-standing practices regarding correspondence to
the union, such as sending copies of discipline and dismissal letters to
its president, sending notice of hiring and contract extension letters to
its president and ending the practice of denoting which employees were
in acting assignments by using “A” or “acting” on emails etc. It alleged
that the employer demanded that its President Boggs and Chief Steward
Mulhall return the laptops and cellphones it had issued to them. It
alleges that unless employees arranged their own vacation coverage,
the employer would not grant their vacation requests, despite seniority
provisions in the collective agreement. It alleges that the employer
refuses to consolidate related grievance, increasing its costs
unnecessarily. It alleges that the employer has not posted vacancies
since June 2020, leaving 40 positions unfilled on a permanent basis. It
further alleges that the employer merged with the Educational Resource
Facilitators of Peel (ERFP) and as part of an agreement with the ERFP,
the employer awarded permanent positions to its members. The union
also alleges that following discussions with it, the employer unilaterally
announced a “Pandemic Exit Initiative” (“PEI”) to employees, though
there is no agreement regarding the process or approval of individuals,
nor is it something which can be grieved. The union also alleges that
its Membership Secretary Alyssa Walker was denied reimbursement for
courses subsequent to having provided testimony on behalf of the union
in proceedings against the employer, and it alleges that this was in
violation of the Act. Finally it asserts that the employer terminated
several other individuals, Shawn Koza, Stacey Tamblin and Jeff Westin,
due to union activity.

 

2860-20-U

 

8. Board File Number No: 2860-20-U (the “employer ULP”) is an
application filed by the employer, in which it alleges that the union has
violated sections 76 and 96(7) of the Act.

 

9. The employer alleges that the union has abused the “Full Time
Book Offs” of President Boggs and chief steward Mulhall, who have been
excused from their full-time duties as employees in order to fulfill their
obligations to the union, because they did not attend special events it
expected them to attend, and was slow in providing it with a draft of the


– 4 –

 

 

collective agreement. It also alleges that President Boggs was slow in
providing it with a reconciliation of paid time off for union members on
union business, and she under-reported members’ time off for union
business. It alleges that with respect to the implementation of the
above-noted arbitral award, the union encouraged members to inundate
supervisors with requests regarding work hours, and that union
President Boggs told the workers to blind copy the union on all such
requests, using an email address it had set up “surreptitiously” to
monitor the requests and responses, without permission from the
employer. Finally, it alleges that Cheryl Wing “verbally berated and
challenged the authority” of senior management in front of staff at the
above-noted meetings it convened to discuss the arbitral award with
employees, and that President Boggs had Emily Visser do the same. It
alleges that the union engaged in a “transparent scheme to thwart the
implementation” of the award in violation of the Act. It also alleged that
in making allegations about the meetings in ULP 1, the union resiled on
its commitments in relation to a Memorandum of Agreement (MOA) it
signed regarding the award. It further alleges that the union
commenced ULP 1 for the improper purpose of intimidating the
employer and its leadership, and using it as a propaganda tool. It also
provides its response to allegations contained in ULP 1. It alleges that
the union has abused the mediation process, citing a lengthy
unsuccessful mediation for which it paid. It alleges that the union’s
communications regarding the PEI were coercive and intimidated
employees, causing fear and anxiety in order to thwart the
implementation of the PEI.

 

10. The employer filed a request to amend its application, providing
additional allegations. The first additional allegation it seeks to provide
is that the union has filed the ULP for the purpose of interfering with the
employer’s leadership elections. It also makes two additional
allegations which do not directly relate to the union’s ULPs or issues
raised therein. In particular, it alleges that the union attempted to gain
access to privileged information by virtue of its choice of law firms, and
also alleges that the union disclosed confidential settlement discussions.

 

0134-21-U

 

11. In 0134-21-U (“ULP 2”), the union alleges that the employer
violated sections 70, 72, 73, and 76 of the Act.

 

12. It alleges that the employer engaged in bad faith negotiations,
because during an extension for filing a response, the employer made
offers of full-time employment to approximately 24 temporary


– 5 –

 

 

employees, without posting the positions. It also alleges that the
employer failed to provide it with answers about the hires, preventing it
from being able to advise and represent its members. It alleges that
two temporary employees have now filed Duty of Fair Referral
complaints against it, due to the employer having violated the Act.

 

13. The union alleges that president Boggs sent an email to the
employer’s counsel regarding litigation and that he responded, copying
members of Boggs’ union executive, in an effort to embarrass union
President Boggs.

 

14. The union alleges that after April 21, 2021, the employer sent
an email to employees in which it made “barely veiled accusations that
the union has disputed OPSEU’s assignment of permanent jobs (in clear
violation of the Collective Agreement) because they are trying to uphold
white supremacy”. It alleges that this is continued interference and
undermining of the union, contrary to the Act.

 

Grievances

 

15. The parties are bound by a Collective Agreement which expires
on March 9, 2022. Article 32.01 of the Collective Agreement provides
as follows:

 

32.01 Discrimination
There shall be no discrimination, restraint, or intimidation
practised or permitted by the Employer or the Union or any
of the officials or officers of the Employer or the Union
against any employee because of sex, sexual orientation,
gender identity, gender expression, age, martial status,
race, colour, creed, ancestry, place of origin, political
opinions, ethnic origin, citizenship, family status, receipt of
public assistance, record of offences, on account of any
Union activity, or because of disability or upon any other
grounds referenced in the Ontario Human Rights Code.

 

32.02 Harassment
There shall be no discrimination, restraint, or intimidation
practised or permitted by the Employer or the Union or any
of the officials or officers of the Employer or the Union
against any employee because of sex, sexual orientation,
gender identity, gender expression, age, marital status,
race, colour, creed, ancestry, place of origin, political
opinions, ethnic origin, citizenship, family status, receipt of
public assistance, record of offences, on account of any


– 6 –

 

 

Union activity, or because of disability or upon any other
grounds referenced in the Ontario Human Rights Code.

 

16. Article 8.05 of the Collective Agreement permits that grievances
related to Articles 32.01 and 32.02 may be filed in a reasonable period
of time after the alleged discrimination or harassment occurred.

 

17. The parties agree that the union has filed grievances regarding
the following:

 

• The termination of Cheryl Wing – ongoing grievance
alleging unjust termination and violation of Article
32;

 

• The termination of Emily Visser – first day of
arbitration grievance scheduled, alleging unjust
termination and a violation of Article 32;

 

• Alleged change in practice of sharing discipline and
hiring/contract extension letters – grievance
referred to arbitration under section 49 of the Act;

 

• Employer’s requirement that Union President and
Chief Steward return their computer equipment and
phones to OPSEU – grievance includes allegation of
violation of Article 32, grievances held in abeyance
at union request pending resolution of related
grievances currently ongoing;

 

• Alleged change in practice regarding vacation
approval process – grievance ongoing;

 

• Alleged failure to post and fill vacancies referenced
in ULP 1 and 2 – grievance ongoing;

 

• Employer’s announcement of Pandemic Exit
Initiative – no parallel grievance, PEI suspended by
employer, but Union has filed 10 grievances on
behalf of individuals to whom it says employer
should have extended payment – first day of
arbitration scheduled, grievance includes allegation
of violation of Section 32;

 


– 7 –

 

 

• Grievances on behalf of Shawn Koza, Stacey
Tomblin, and Jeff Weston – Koza’s termination
grievance and grievance of violation of section 32,
award pending; Tomblin suspension and dismissal
grievances both ongoing; Weston grievance
regarding dismissal ongoing;

 

• Awarding of permanent positions to temporary
staff, referenced in ULP 2 – first hearing day
scheduled; additional grievances filed on behalf of
individuals who awarded permanent positions but
had the offers revoked – first hearing day
scheduled;

 

Amendments to ULP 1

 

18. The union has now written to the Board advising that the parties
have settled some of the issues contained in ULP 1 and that they have
agreed to remove those allegations from the pleadings. In particular,
the parties have agreed that the following allegations be removed from
ULP 1: the allegation that the termination of Cheryl Wing was due to her
participation in a trade union; the allegation that the termination of
Emily Visser was due to her participation in a trade union; and the
allegation that Jeff Weston was terminated contrary to the Act. Further,
the union no longer seeks an order that the employer reinstate Ms.
Wing, Ms. Visser, or Ms. Weston and make them whole.

 

19. The parties’ request that ULP 1 be amended to remove the
above-noted allegations and various references to them in ULP 1, is
granted.

 

Decision regarding Deferral

 

20. The employer submits that the Board’s practice of deferral
encourages the practice and procedure of collective bargaining under
the Act and the dispute resolution mechanism contained in the collective
agreement and it cites Board decisions including Valdi Inc., 1980 CanLII
884 (“Valdi”), INVISTA Canada Company, 2008 CanLII 4768 (ON LRB)
(“INVISTA”), and Maple Leaf Consumer Foods Inc., 2006 CanLII 37797,
(ON LRB) (“Maple Leaf Consumer Foods”), and Conestoga College, 2004
CanLII 13850 (“Conestoga”). The employer submits that the Board only
departs from its general practice of deferring a dispute to arbitration in
exceptional cases, such as where the arbitration process is unavailable
or unsuitable to resolving issues in dispute. It cites Montebello Metal


– 8 –

 

 

Inc., 1982 CanLII 998 (ON LRB) (“Montebello”). It submits that the
Board’s practice is founded on a preference to avoid a multiplicity of
proceedings and to promote the expeditious and efficient determination
of labour relations disputes. It submits that the potential for
inconsistent findings of fact is also a “critical consideration”.

 

21. It submits that the fact that the union has raised a series of
complaints against the employer is not a sufficient reason for the Board
to hear the complaint. It submits that the Board must be satisfied that
the arbitration process is clearly unavailable or unsuitable to resolving
the issues in dispute, and it cites Dupont Canada Inc., 2001 CanLII 9561
(ON LRB) (“Dupont”).

 

22. It submits that deferral would promote the most efficient
determination of the disputes and would avoid the potential for
inconsistent findings of fact. It also submits that there is no doubt that
a labour arbitrator appointed under a collective agreement can deal with
the alleged breaches of the Act with the same force and effect as can
the Board, and it cites INVISTA, especially as here where Article 32
prohibits discrimination on the basis of Union membership or activity.

 

23. The employer submits that the parties have completed many
hearing days over the above-noted grievances, and have expended
considerable time and resources in those grievance processes. The
employer submits that this is duplicative litigation and that there is no
purpose in proceeding, but that in any event, the matters ought to be
deferred to arbitration. It does not submit that the matters ought to be
dismissed outright, but that it is appropriate for the Board to “stand
down” the ULPs and retain jurisdiction to deal with any residual issues
that may not be resolved through the grievance arbitration process.

 

24. The employer submits that the union’s submission that, as it
alleges a pattern of behaviour, the Board should not defer, is not a
relevant consideration under the Board’s deferral process. It submits
that simply labelling allegations as a pattern is not probative in
determining whether to defer. Rather, it submits that according to Valdi,
the Board should be persuaded by the fact that the parties have a
dispute resolution process in place, and that the parties have and
continue to deal with their disputes under the mechanisms provided
under the collective agreement. The employer submits that the process
under the collective agreement is working and that nothing has been
done to stand in the way of that process. It also noted that in Valdi, the
probationary employee did not have access to the arbitration provisions,
and the Board declined to defer as it was not satisfied that there was


– 9 –

 

 

another process available. The employer notes that that is not the case
here.

 

25. The employer noted that in Dupont, the Board deferred where
there were numerous allegations of wrongdoing by the employer. It
noted that the Board noted that the parties’ relationship was a
longstanding one, as is the one here. It submits that labelling disparate
events as a pattern of conduct does not change the analysis of whether
deferral is appropriate.

 

26. The employer also submits that in large part, the remedies
sought by the union at arbitration are remedies it seeks from the Board
in the ULPs. It submits that where the grievances make reference to
Article 32 of the collective agreement, the arbitrator’s analysis will be
very similar to that which the Board would undertake and the arbitrator
will determine whether anti-union animus has tainted the employer’s
actions.

 

27. The union submits that in its ULPs it describes a pattern of
conduct in which the Employer has engaged, which has had the effect
of, among other things, undermining the Union and interfering with its
administration in violation of the Act. It submits that it is not a series
of isolated incidents which can be examined independently of each
other, as at arbitration the employer’s pattern of conduct would not be
addressed. It cites Ontario Public Service Employees Union, 2016 CanLII
81077 (ON LRB) (“Ontario Public Service Employees Union”), where the
Board declined to defer. It submits that by leaving the various
allegations to the grievance process, they would be heard separately by
different arbitrators and the “pattern of behaviour would not be
addressed”. It submits that while some allegations may appear less
serious than others, in the context of all of the allegations together, it
becomes clear that the employer’s actions have amounted to violations
of the Act. It submits that the allegations all relate to a common
workplace dispute and should be before one adjudicator.

 

28. It submits that in Ontario Public Service Employees Union, the
allegations were of a “broad and concerted effort of illegal activity,
involving numerous aspects, in order to undermine the staff union and
punish members for exercising their rights under the Act”. The Board
in that case stated that “…given the broad scope of alleged misconduct,
which falls squarely within the Board’s jurisdiction, this was not an
appropriate case to defer” and the Union submits that the same
reasoning ought to be applied in this case. It submits that the parties
here are the same as the ones in that case and similarly, there were


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complaints of “widespread misconduct”. It submits that here, as there,
the allegations relate to a “broad and concerted effort” to interfere with
rights under the Act.

 

29. The union also submits that where Article 32 has been
referenced in grievances, certain remedies available under the Act are
not before the arbitrators for consideration. It submits that it has an
obligation to represent its members and that “one of the primary aspects
of the duty is to file grievances” on behalf of its members. It submits
that if it had not done so, it would have “lost the right to represent” its
members. It also submits that some allegations listed in the ULPs are
not before arbitrators.

 

30. The union submits that the employer seeks to rely on
jurisprudence where a there was a “single issue ULP” which was deferred
in the face of arbitration, for example Maple Leaf Consumer Foods. The
union submits that such a situation is very different from these
applications. The union submits that this is “not an ordinary labour
relations conflict that can adequately be dealt with” by arbitration. The
union submits that the Board should prefer the decision in Ontario Public
Service Employees Union over the approach taken in Dupont and
Montebello.

 

31. With respect to remedies sought, the union acknowledges that
it has asked for some of the same remedies in various grievances as it
seeks from the Board, but submits that the declaratory remedies it
seeks at the Board are important to the union.

 

32. In reply, the employer submits that the volume of complaints
should not be determinative, as that would encourage litigants to “pad
their complaints and add issues that are not complaints”. It also notes
that though there are numerous allegations, they have not been proven
and cannot be presumed to have merit. The employer cites Montebello
and notes the Board’s interest in avoiding using its resources where
there is parallel litigation, as well as the Board’s interest in avoiding
inconsistent findings of fact and law.

 

Decision

 

33. The Board finds that this is an appropriate case for deferral to
the arbitration process.

 


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34. At paragraph 7 of Valdi, the Board canvassed a number of
factors that the Board will take into account in deciding whether to defer
to arbitration:

 

7. … However, where key provisions of The Labour
Relations Act require important elaboration and application
or where the employer’s or trade union’s conduct represents
a total repudiation of the collective bargaining process, it
becomes more difficult to characterize the complaint as
essentially contractual. It is in these situations that the
Board has asserted its jurisdiction. The former situation is
reflected in Thomas Built Buses Ltd., [1980] OLRB Rep. Feb.
264 and the latter can be seen in New Gregory
House, [1977] OLRB Rep. Sept. 584. Other circumstances
in which the Board has been unwilling to defer to grievance
arbitration involve cases where arbitration may have been
unavailable to the complainant or where relief in that forum
could have been inadequate. See Wallace Barnes Company
Ltd., (1961), 61 CLLC ¶16,198 and the general discussion
in Imperial Tobacco Products (Ontario) Limited,
supra. Moreover, where the Board defers to the arbitration
process it will nevertheless retain jurisdiction as the NLRB in
order to insure (a) that the dispute over the meaning of the
collective agreement is resolved with reasonable
promptness; (b) that the arbitration procedures have been
fair; and (c) that the outcome of arbitration is neither
repugnant to the purposes of the Act nor remedially
inadequate. See Imperial Tobacco Products (Ontario)
Limited, supra, for a full discussion of these subsidiary
principles. We are also of the view similar to positions taken
in Banyard and Stephenson, supra, that the Board will not
defer or will exercise its retained jurisdiction where the
grievance or board of arbitration fails to deal directly and
explicitly with the unfair labour practice issues.

 

35. The union relies heavily upon Ontario Public Service Employees
Union in which it says a similar situation, involving these same parties,
resulted in a decision not to defer. It is evident from that decision that
the various allegations against the employer dated from a compressed
period of approximately two months, at which time the parties were
engaged in bargaining. The allegations were that during that time
period, “four employees were discharged, five employees of the I.T.
department were suspended indefinitely, and other employees were
called into meetings with management and it is alleged were
threatened.” In addition, there were allegations that “the applicant’s
officials were excluded from the employer’s office, among other things”.


– 12 –

 

 

The Board stated that it found there were approximately 6 arbitration
proceedings either ongoing or about to be started, but stated that there
was “no practical way for the union to rely on volume and pattern of
alleged misconduct as evidence of a general scheme”. The Board also
stated that “while not a total repudiation of the collective agreement,
the allegations against the employer are akin to that”.

 

36. The union’s allegations in ULP 1 and ULP2 span a period of close
to one year and are varied. It is not evident that the allegations
presented in these ULPs support an inference of complete repudiation of
the collective agreement, or something akin to that, as the allegations
from a two-month period during bargaining, were found to have been
done in Ontario Public Service Employees Union. The parties have a
long-standing bargaining relationship which appears to be a functioning
one. The parties are experienced in matters of labour relations and have
a dispute resolution process in the collective agreement which the union
has engaged to deal with the matters which are before the Board. While
the Board in Ontario Public Service Employees Union found that there
was no practical way for the union to rely on the “volume and pattern
of alleged misconduct” at arbitration, it cannot be that a large number
of allegations over a more extended period, without more, will
automatically render arbitration insufficient for the resolution of
disputes.

 

37. Many of the allegations are also the subject of current
arbitration proceedings which appear to be fairly advanced in the
process. In addition to the general preference to avoid multiplicity of
proceedings, the risk of disparate findings of fact is accentuated in such
circumstances. Further, many of the allegations are contractual in
nature, for example, failure to post vacancies, the process for vacation
approval, and terminations of employment, and as such are amenable
to grievance arbitration. In my view, there is no need for elaboration
regarding a key provision of the Act, nor is there conduct representing
a total repudiation of the bargaining process.

 

38. Given the inter-relatedness of the union’s ULPs and the
employer’s ULP, it is also appropriate to defer consideration of the
employer’s application.

 

39. The applications are adjourned for a period of eighteen months
from the date of this decision. Unless within that period any party
requests that the Board process the applications or extend the period of
adjournment, the application may be terminated without further notice
to the parties.


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40. I am not seized.

 

 

 

 

“Maureen Doyle”
for the Board