GSB# 2003-2310, 2003-2311, 2003-2312, 2003-2313, 2003-2314, 2003-2315, 2003-2316, 2003-2317, 2003-2318, 2003-2319, 2003-2320

UNION# 2003-0252-0032, 2003-0252-0033, 2003-0252-0034, 2003-0252-0035, 2003-0252-0036, 2003-0252-0337, 2003-0252-0038, 2003-0252-0039, 2003-0252-0040, 2003-0252-0041, 2003-0252-0042

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Boccabella et al.)

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

March 16, 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.

Mr. James Boccabella is a Correctional Officer at the Niagara Detention Centre. He and ten others filed grievances alleging that various sections of the collective agreement regarding severance pay have been improperly denied. Further, they asserted that they should get the same terms as those found in a Memorandum of Settlement between the Employer and the Union for a grievance filed by another employee, Blaine Warden.

The grievors filed a Statement of Facts. It said:

1. At the time the grievances were filed, Niagara Detention Centre was on the list for decommissioning and closure.
2. All are eligible to qualify for Factor 80 retirement consideration as did Warden.
3. All grievors have grievances that are outstanding. B. Fraser has the same grievance outstanding that Warden signed off.
4. In Spring 2003, Niagara Detention Centre was granted a temporary reprieve from closure for the “foreseeable future” due to province wide shortages of available beds. Niagara was placed on the list in Fall 1996.
5. Warden’s settlement of March 10, 2003, is open and has not been signed off without prejudice.
6. All employees aforementioned as grievors, desire equal treatment as afforded to Warden in his settlement of March 10, 2003. All aforementioned grievors are long time civil servants, eligible for factor 80, and have been long time employees at the same work site (Niagara Detention Centre).

While the Employer was not in a position to agree to all of the above facts, I am prepared to accept them for the purposes of this decision.

I assume that the grievors are of the view that because the parties signed a Memorandum of Agreement that was not said to be without prejudice for one particular employee then it should be automatically applied to all others in similar circumstances. Simply put, that assertion is wrong. There is nothing that obliges this Employer to apply a Memorandum of Settlement concerning an individual grievance to any other employee unless the Memorandum of Agreement so indicates, irrespective of whether the Settlement is with or without prejudice. The fact that the agreement was not “without prejudice” does not convert Mr. Warden’s grievance into a policy grievance or a group grievance. Neither does it mean that others with identical grievances and similar circumstances are entitled to the same treatment. Generally speaking, “without prejudice” means that the parties to the agreement are exempted from its contents to the extent that those contents might be interpreted as containing admissions which could be used at a later time. It certainly does not mean that the contents of the agreement apply to anyone other than Mr. Warden.

There has been no violation of the collective agreement or any other agreement and therefore the grievances are denied.

Dated in Toronto this 1st day of April 2004.