GSB# 2002-2383, 2002-2753, 2002-2815
UNION# 2003-0218-0002, 2003-0218-0025, 2003-0218-0026, 2003-0218-0020, 2003-0218-0021, 2003-0218-0022
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Gilham et al.)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Public Safety and Security)
Employer
BEFORE
Felicity D. Briggs
Vice-Chair
FOR THE UNION
Scott Andrews Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Greg Gledhill Staff Relations Officer Ministry of Public Safety and Security
HEARING
August 12, 2003.
DECISION
In September of 1996 the Ministry of Correctional Services notified the Union and employees at a number of provincial correctional institutions that their facilities would be closed and/or restructured over the next few years. On June 6, 2000 and June 29, 2000 the Union filed policy and individual grievances that alleged various breaches of the collective agreement including article 6 and article 31.15 as well as grievances relating to the filling of correctional officer positions. In response to these grievances the parties entered into discussions and ultimately agreed upon two Memoranda of Settlement concerning the application of the collective agreement during the “first phase of the Ministry’s transition”. One memorandum, dated May 3, 2000 (hereinafter referred to as “MERC 1” (Ministry Employment Relations Committee)) outlined conditions for the correctional officers while the second, dated July 19, 2001 (hereinafter referred to as “MERC 2”) provided for the non-correctional officer staff. Both agreements were subject to ratification by respective principles and settled all of the grievances identified in the related MERC appendices, filed up to that point in time.
While it was agreed in each case that the settlements were “without prejudice or precedent to positions either the union or the employer may take on the same issues in future discussions”, the parties recognized that disputes might arise regarding the implementation of the memoranda. Accordingly, they agreed, at Part G, paragraph 8:
The parties agree that they will request that Felicity Briggs, Vice Chair of the Grievance Settlement Board will be seized with resolving any disputes that arise from the implementation of this agreement.
It is this agreement that provides me with the jurisdiction to resolve the outstanding matters.
Both MERC 1 and MERC 2 are lengthy and comprehensive documents that provide for the identification of vacancies and positions and the procedure for filling those positions as they become available throughout various phases of the restructuring. Given the complexity and size of the task of restructuring and decommissioning of institutions, it is not surprising that a number of grievances and disputes arose. This is a further decision that considers some of the disputes that have arisen under the MERC Memoranda of Settlement.
Similar to the process utilized for earlier decisions regarding these transition matters, the parties attended at an arbitration hearing and provided facts and submissions concerning the outstanding issues. In large measure the facts were in agreement and it was not necessary to call evidence.
Grievances were filed by three Correctional Officers, C. Barnard, S. Gilham and P. Muth. Each grievance alleges that the Ministry and “transition team” did not follow the procedures for posting and filling of vacancies or new positions as outlined in Article 6 of the collective agreement.
The Burtch Correctional Centre is within forty kilometers of Brantford Jail. Employees from both the Brantford Jail and those who were eligible at the Burtch Correctional Centre were surplussed on the same date. In the fall of 2002 the employees at the Brantford Jail were told that their closure date would be significantly delayed until at least 2005. As a result, the parties agreed to rescind surplus notices if individual employees so chose. There was an election process in this regard and most employees elected to have their notices withdrawn. Virtually all of the people that were bumped as the result of the original Brantford Jail surplus notices were put back into their positions.
However, at the conclusion of this process there were some remaining vacancies at the Brantford Jail. In an effort to address this situation the people who were surplussed from Sprucedale who had no other assignment were assigned to work at Brantford which is within forty kilometers of Sprucedale.
Article 6.6.2 of the collective agreement states:
The assignment of an employee to a vacancy in accordance with Article 7 (Pay Administration), 20 (Employment Stability), 25 (Leave – Special), 42 (Long Term Income Protection), 50 (Pregnancy Leave) and 51 (Parental Leave) shall have priority over an assignment under Article 6.6.1.
As I understand the rationale applied at the time that the Sprucedale employees were assigned to work at the Brantford jail it was done in an effort to assign employees who had not yet received an assignment under Article 20 an employment opportunity. That motivation certainly cannot be said to be either discriminatory or otherwise improper. Indeed, it makes good labour relations sense.
In a Memorandum of Settlement signed on October 8, 2002 by the parties, it was agreed that:
Effective September 30, 2002 the employer shall withdraw surplus notices issued to current employees who had received surplus notices as employees of the Brantford Jail. Also, effective September 30, 2002 the employer shall withdraw surplus notices to current employees at other facilities who received surplus notices as a direct result of the Brantford Jail surplussing. It is agreed that these withdrawals of notice do not apply to those employees who chose to exit the OPS under Article 20.7 or who chose to exit and have exited as of September 30, 2002 under Article 20.2.
In my view there was no violation of the collective agreement and so the grievances must be denied.
Dated in Toronto this 29th day of October 2003.