GSB# 2002-2095

UNION# 2002-0999-0028

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union Grievance)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Scott Andrews Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Greg Gledhill Straff Relations Officer Ministry of Community Safety and Correctional Services

HEARING

November 5, 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 another of the disputes that have arisen under the MERC Memorandum of Settlement.

When I was initially invited to hear theses transition disputes, the parties agreed that the process to be followed for the determination of these matters would be virtually identical to that found in Article 22.16.2 which states:

The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise.

The MERC Implementation Committee has dealt with numerous grievances and complaints prior to the mediation/arbitration process. There have been many other grievances and issues raised before me that I have either assisted the parties to resolve or arbitrated. However, there are still a large number that have yet to be dealt with. It is because of the vast numbers of grievances that I have decided, in accordance with my jurisdiction to so determine, that grievances are to be presented by way of each party presenting a statement of the facts with accompanying submissions. Notwithstanding that some grievors might wish to attend and provide oral evidence, to date, this process has been efficient and has allowed the parties to remain relatively current with disputes that arise from the continuing transition process.

Not surprisingly, in a few instances there has been some confusion about certain facts or simply insufficient detail has been provided. On those occasions I have directed the parties to speak again with their principles to ascertain the facts or the rationale behind the particular outstanding matter. In each case this has been done to my satisfaction.

It is essential in this process to avoid accumulating a backlog of disputes. The task of resolving these issues in a timely fashion was, from the outset, a formidable one. With ongoing changes in Ministerial boundaries and other organizational alterations, the task has lately become larger, not smaller. It is for these reasons that the process I have outlined is appropriate in these circumstances.

A dispute arose in the Sudbury Jail. In the MERC 1 Agreement, signed June 16, 2003, the parties agreed to rollover three unclassified Correctional Officers at the Sudbury Jail. Unbeknownst to the transition team at the time, on May 12, 2003, the local parties signed an agreement resolving a number of grievances filed by Ray Jones, Correctional Officer. Included in that agreement was a provision that Mr. Jones would be appointed to the next available classified position as a Correctional Officer at the Sudbury Jail or he would be appointed to a classified position on January 5, 2004, “if a classified correctional officer 2 position has not been identified”. The local parties also arrived at a similar agreement for Dean Holmes, assigning him to a classified Correctional Officer position in July of 2003 after the signing of the June 16, 2003 MERC agreement.

The issue before me is whether the three classified Correctional Officer positions to be rolled over should include the positions given to Mr. Jones and Mr. Holmes.

In my view, there can be no doubt that the number of positions to be rolled over in accordance with the MERC Agreement are separate from any action taken by the local parties. Indeed, at page 2 of the MERC Memorandum of Agreement/Settlement signed on June 16, 2003, it is stated:

The parties agree to the following settlement of Ministry Union policy grievances in part, Union policy grievances, individual and group grievances, which will be listed and co-signed, regarding Article 31A.15 (Conversions) and Article 6 (Posting and filling of vacancies) excepting individual competition grievances, with regard to all Correctional Officer positions at decommissioned/non-decommissioning Institutions. All such grievances filed up to the date of signing of this Agreement are settled by virtue of the Agreement. The parties will list these grievances at Appendix A and will finalize this list no later than August 31, 2003. (emphasis mine)

Mr. Holmes and Mr. Jones filed individual competition grievances which the local parties resolved. The positions they received or are about to receive are not to be considered as part of the three positions the transition team agreed would be rolled over into classified positions. I understand the Employer’s confusion arose because the employee with the most seniority who would have been the first to be rolled over in accordance with the transition agreement would have been Mr. Jones. However this does not alter my view of the matter.

Accordingly, there should be three positions rolled over in the Sudbury Jail in addition to Mr. Holmes and Mr. Jones.

Dated in Toronto this 23^rd day of February, 2004.