GSB# 2003-0529

UNION# 2003-0234-0101

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Mellun)

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

July 15, 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. The parties continued to negotiate and agree upon further conditions regarding the transition matters. MERC 3 was signed by the parties on February 25, 2002.

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.

Alex Mellun was a Hospital/Housekeeper 2 at the Guelph Correctional Centre (GCC). In accordance with the Memorandum of Agreement signed on May 3, 2001, he received rights under Article 20 of the Collective Agreement. When he was surplussed there were no Housekeeper 2 positions in the area so he bumped into a Housekeeper 1 position at OCI. Once in that position he filed a grievance that he was improperly classified and otherwise treated wrongly because he had not obtained a position as a Housekeeper 2 at Vanier Centre.

The second issue raised by the grievor was that he should been allowed to remain at the GCC until all of the Employer’s operations were moved. At the very least, he was entitled to remain at GCC beyond May of 2002 until the point in time when all other employees were moved to new locations. In the alternative, Mr. Mellun’s view was that at least one of his co-workers, who was allowed to remain at GCC, was less qualified and for that reason she should have been moved before he was obliged to relocate to OCI. In that regard the remedy requested was for travel time and mileage for the period that he worked at OCI until all employees had been moved from GCC.

I turn to the grievor’s first issue. Mr. Mellun was of the view that he was entitled to a Housekeeper 2 position at Maplehurst. There was no dispute between the parties that at the time that the grievor was surplussed there was no Housekeeper 2 positions available at Maplehurst. Therefore, in accordance with the agreement of the parties he was allowed to bump into the least senior housekeeping position that was equivalent or less within forty kilometers of GCC. The grievor elected to bump into a Housekeeper 1 position at OCI. Given that there was no Housekeeper 2 position that was available at the time the grievor was surplussed, I find that there was neither a violation of the Memorandum of Agreement nor a violation of the Collective Agreement.

I turn next to the matter of whether the Employer had the right to move the grievor before all the operations of GCC were moved. The inmates were moved from GCC during February of 2002. Paragraph 6 of the Memorandum of Agreement dated May 3, 2001 mentioned above stated:

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 elsewhere until their placement occurs.

In my view, there is no doubt that the Employer was complying with paragraph 6 when it moved the grievor to OCI in May of 2002. The fact that other employees remained at GCC beyond May of 2002 is not relevant to whether the Employer violated paragraph 6 of the Memorandum of Agreement. Indeed, the Agreement contemplates that some employees might have some arrangement other than moving when the inmates are sent to other institutions if both the Employer and the employee concur.

Paragraph 6 above also leads to me dismiss the grievor’s alternative argument in this regard. Employee qualifications were not considered by the parties to be a relevant factor for the timing of employee movement to new work locations. Therefore, while it might be accurate that the grievor was more qualified than another Housekeeper who remained at GCC for a longer period, that fact does not lead me to find that the Employer violated the Memorandum of Agreement.

For those reasons the grievance is denied.

Dated in Toronto this 27th day of August, 2004.