GSB# 2002-2952

UNION# 2002-0453-0037

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Dempster)

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 Staff Relations Officer Ministry of Community Safety and Correctional Services

HEARING

September 7, 2004.

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 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 transition committee has dealt with dozens of 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 the 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.

Paul Dempster was a Correctional Officer at Ottawa Carleton Detention Centre when he filed a group grievance, dated November 29, 2002 on his own behalf and on behalf of fifteen others. Their allegations are clearly set out in the grievance. It stated:

We grieve that the Cornwall Jail was closed prematurely on November 18, 2002. Cornwall Jail and Pembroke Jail have the same closure date. Pembroke Jail is still operating and Cornwall Jail was moved to Ottawa Carleton Detention Centre. This created temporary assignments until both jail closures could be completed.

By way of remedy he requested “mileage and other travel expenditures from Cornwall Jail to Ottawa Carleton Detention Centre”. He asserted the remedy should have begun November 18, 2002 and continued until “the official closure of both jails”.

In the MERC 3 Memorandum of Agreement, dated March 11, 2002, the parties agreed that, for the purposes of implementation of the agreement, the Pembroke Jail and the Cornwall Jail would have the same surplus date.

The MERC agreement also identified 6 vacancies at the Brockville Jail to be filled through the lateral transfer list. Those positions were offered to the most senior Correctional Officers.

The Cornwall Jail closed on November 18, 2003. However, the Pembroke Jail has yet to close. It was the position of the grievors that because the Pembroke Jail remains open while some positions at the Brockville Jail are being filled by “roll-overs”, that MERC 3 is “negated”.

The grievors asserted that it was improper that junior unclassified Correctional Officers at Brockville should be offered positions before them. Accordingly, they consider their positions temporary and therefore mileage and travel time should be paid.

In my view, the grievors cannot deem their positions at OCDC as temporary and therefore they are not entitled to travel time and mileage.

There was no dispute between the parties that the six positions at the Brockville Jail were filled in accordance with the MERC 3 agreement. Correctional Officers with home positions at the Pembroke Jail and Cornwall Jail were automatically added to the Lateral Transfer List for the Brockville Jail. Lateral transfers were assigned in accordance with paragraph 4, Section A of Part 1 of MERC 3 on the basis of seniority. Once the lateral transfer is accepted, paragraph 5 of Section A, Part 1 of MERC 3 prevails. It states:

When an employee in a decommissioning institution (Cornwall Jail/Pembroke Jail) accepts a lateral transfer to the Brockville Jail, the employee will then be deemed to be a laterally transferred employee and will remain at their current location until their respective 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 (reference Part 5 paragraph 12).

There might be some confusion regarding the terms “surplus date” and “closure date”. The parties specifically used two different terms and this is, no doubt, because there are two different meanings. The grievors’ position would have me interpret surplus date and closure date to be the same date. I cannot. Therefore, I can find no violation of the MERC 3 agreement or any other provisions that applies. Accordingly, the grievance is denied.

Dated in Toronto this 26th day of October, 2004.