GSB# 2819/02, 2848/02, 3033/02, 0050/03, 0997/03, 0998/03

UNION# 2003-0218-0032, 2003-0218-0031, 2002-0229-0026, 2003-0229-0007, 2003-0229-0019, 2003-0229-0020

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sostar 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 & Barry Scanlon, MERC Co-Chair Ontario Public Service Employees Union

FOR THE EMPLOYER

Linda Elliott Senior Transition Specialist Ministry of Public Safety and Security

HEARING

May 29, 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 the second decision that considers some of the disputes that have arisen under the MERC Memoranda of Settlement.

Similar to the process utilized for the first decision 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.

Grievance of Robert Oliver – Guelph Correctional Centre

The first grievance in dispute was filed by Robert Oliver who is a Correctional Officer originally employed at Guelph Correctional Centre. Both he and his spouse received their surplus notice on the same day. Subsequent to receiving their notice he was assigned to OCI while his wife was assigned to work at Maplehurst. Both of these locations are within forty kilometers of their original worksite.

Once at OCI the grievor applied for a job trade for a position at Maplehurst. The parties had agreed to a number of job trades between OCI and Maplehurst employees but the grievor’s request was denied. Those who did receive job trades had greater seniority than Mr. Oliver.

The grievance alleges a breach of article 10.3.6 that states:

Notwithstanding seniority, an employee will be considered for job trading prior to other employees registered for job trading if his or her spouse is also employed in the Ontario Public Service and was relocated to continue such employment at a different headquarters location.

It is the grievor’s position that he should have received the job trade to allow him to be at the same institution as his spouse. Further, it’s the grievor’s view that because OCI is ultimately to be closed it is possible that he will be assigned to an institution that is farther from his spouse.

I have considered the submissions of the parties and must dismiss the grievance. It was the grievor’s assertion that he and his spouse were “relocated to continue” employment as considered in article 10.3.6. I disagree. The grievor and his spouse were “redeployed” in accordance with article 20.5.1 and not “relocated”. Further, according to Appendix 13 the term “relocation” is utilized for those moves that are beyond the 40 kilometers and such was not the case in this instance. Accordingly Mr. Oliver was not entitled to have his job trade request approved over those of other more senior correctional officers.

Finally, in my view, the fact that OCI will eventually close has no relevance or significance to my determination of this matter.

For those reasons the grievance is denied.

Group Grievances – Temporary Assignment & Travel Time and Mileage Allowances – Guelph Correctional Centre & Wellington Detention Centre

A number of grievances filed by Correctional Officers alleged a violation of articles 13 and 14. It was the grievor’s position that the Employer breached the collective agreement by failing to pay proper travel time, mileage and other expenses. Each of the grievors were originally assigned to work at either the Guelph Correctional Centre or Wellington Detention Centre but were redeployed to OCI.

It was the Employer’s contention that the grievors were permanently assigned to work at OCI and therefore not entitled to such allowances.

The grievors were entitled to rights under article 20 of the collective agreement and were all redeployed to work at OCI, an institution that is within forty kilometers of their original worksite. It is the position of the grievors that their assignment at OCI is, in fact, a temporary assignment because it has been announced that OCI will close at some future date.

After consideration I am of the view that the grievances must fail. The mere announcement that an institution will close at some point in the future does not, in and of itself, change a permanent assignment to a temporary assignment.

At paragraph 6 of the Memorandum of Settlement dealing with Transition Issues signed on May 3, 2001, the parties agreed that employees might be temporarily assigned until permanent placement by mutual agreement. There was no evidence before me that the parties had made such an agreement in this instance.

In my view, the grievors were redeployed under Article 20 and are now permanently assigned to OCI. Accordingly there is no violation of the collective agreement and the grievors are not entitled to the various allowances found for temporary assignments found at articles 13 and 14. The grievances are dismissed.

Group Grievance – Travel Time and Mileage – Burtch Correctional Centre

A similar group grievance was filed by a number of Correctional Officers at Burtch Correctional Centre. These employees also claimed an entitlement to travel time and expenses although for different reasons. It was the position of these grievors that for a number of reasons they should have been paid the allowances found at articles 13 and 14.

Employees at Burtch Correctional Centre were given article 20 rights in accordance with the MERC agreement. That agreement provided, at paragraph 6:

The employees will remain at their current work site until the date the institution no longer houses any inmates or another date agreed to by the employer and the employee. Upon mutual agreement employees may be temporarily assigned elsewhere until their placement occurs.

The grievors remained at Burtch Correctional Centre and were never given an option of moving to a new work location. It was suggested by the grievors that because they were never given an option of moving to a new work location rather than remaining at Burtch there was no mutual agreement to continue to work at Burtch Correctional Centre. As a result of that assignment various grievors were affected negatively. For example, one grievor was unable to acquire a position with Probation and Parole because he was not available. Another was unable to accept an offered position with Toyota Canada. Accordingly, it was urged that travel time and mileage allowances should be paid from December 2001 (when some employees were redeployed to other institutions) until January 2003.

The grievors also submitted that such allowances should be granted because other employees from Waterloo Detention Centre and Guelph Correctional Centre were paid travel time and mileage to work at Burtch after being redeployed to other institutions. Employees at Burtch thought that closure was not imminent and indeed, days after redeployment letters were handed out to many staff it was announced that there would be an expansion of the intermittent operation.

It was the Employer’s position that the payment of travel time and mileage allowance should only be paid as set out in articles 13 and 14 of the collective agreement in accordance with the MERC 1 agreement. It was asserted that the facts in this instance do not bring about the payment of such premiums.

While I understand the frustration that occurs when closures and end dates do not occur at the anticipated times, those failures to meet projected time schedules do not, unless expressly stated, trigger the payment of allowances. There is no such provision in MERC 1. Paragraph 6 of the MERC 1 agreement is clear that employees will remain in their current assignment until there are no inmates unless another date is agreed to between the employer and the employee. Mutual agreement is needed for a temporary assignment elsewhere. Mutual agreement is not necessary for employees to remain in their current positions as was argued by the grievors.

The grievors continued to work in their positions until the facility closed. They were not temporarily assigned to work at a different location that would bring about the payment of travel time and mileage. Further, there is no provision that in the event that closures were delayed a penalty of travel time and mileage would be paid to employees. Accordingly, the grievance is denied.

Group Grievance – Technological Change – Burtch Correctional Centre

The final grievance at issue was filed by Correctional Officers from Burtch Correctional Centre. It was alleged that they were not on a temporary assignment as provided in the MERC 1 agreement and therefore they should have been given notice under Article 20.14.1 of technological change. Article 20.14.1 states:

Where it is necessary to release an employee who has completed his or her probationary period, because of the introduction of technological change in equipment or methods of operation, at least three (3) months’ notice in advance of the change shall be given to the employee affected and to the Union. For greater certainty, it is understood that such notice shall not operate so as to extend any other notice to be given under this Agreement, and it may run concurrently with any such other notice.

It was the grievor’s position that the decision to close Burtch Correctional Centre was due to the opening of a “State of the Art” “super jail” in Penetang. Burtch Correctional Centre is an older institution and therefore the opening of the “super jail” constituted a change in the “method of operation” as that phrase is used in article 20.14.1. The Employer disagreed with the submissions made on behalf of the grievors and contended that there was no violation of the collection agreement.

After considering the submissions of the parties I am of the view that neither the closure of Burtch Correctional Centre nor the opening of the “super jail” trigger the provisions of article 20.14.1. The closure of Burtch Correctional Centre cannot be said to be a mere “change in equipment or method of operation”, technological or otherwise. It is a cessation of operation and accordingly other provisions of the collective agreement apply.

For those reasons, the grievance is denied.

Dated in Toronto this 17^th day of July, 2003.