GSB# 2003-2517, 2003-2708, 2003-2830, 2003-3540, 2003-3542, 2003-3544, 2003-3549

UNION# 2003-0234-0424, 2003-0234-0505, 2003-0234-0517, 2003-0234-0600, 2003-0234-0602, 2003-0234-0604, 2003-0234-0609

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Yole 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 1, 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. William Yole, Ms. Leighann MacDonald, Ms. Judy Acker, Mr. James Richards, Mr. Byran Cassidy and Mr. Grant Whelan are Correctional Officers at Maplehurst Correctional Complex. They filed identical grievances that stated that they were “not treated in a fair and equitable manner with regard to continuous service date calculations”.

The parties negotiated an agreement that ensured employees on pregnancy and parental leave would not be subject to adverse impact discrimination with respect to their continuous service dates. In a Memorandum of Understanding dated June 3, 2001, the parties agreed to the following:

1. The parties agreed that the period of pregnancy/parental leave taken by an employee during his or her unclassified service immediately prior to appointment to the classified service back to the first break in employment that is greater than 13 weeks, shall be included in the continuous service date (“CSD”) calculation.

2. In determining the CSD credit for the period of pregnancy/parental leave while employed as an unclassified employee, the Parties agree to apply the following formula:

(a) The total number of regular, non-overtime hours worked in the work weeks immediately preceding the pregnancy/parental leave, that are equal in length to the number of weeks of the approved leave as described in Paragraph (1) above, will be determined.

(b) The total number of hours as determined in (a) above will be divided by the normal work week hours, i.e. thirty-six and one quarter or forty hours as appropriate, to determine the number of full-time weeks that will be credited to the employee’s CSD. No credit will be given to a partial week where there remains 0.5 weeks or less in the calculation. One week of credit will be given where the calculation yields more than 0.5 of a week.

3. The Parties agree that any unpaid, authorized leave that is taken in conjunction with an unclassified employee’s pregnancy/parental leave will not constitute a break in employment.

There is no dispute between the parties that the agreement is not discriminatory. Further, the parties agree that the above provision makes labour relations sense.

The grievors assert that they were scheduled to work, as an example, thirty hours per week as unclassified employees. Other employees on pregnancy or parental leave were credited with forty hours for some weeks of their leaves. That dissimilar treatment was discriminatory treatment according to the grievors.

In my view, the agreement set out above was not discriminatory. Indeed, it ensured that all employees across this Ministry who were absent due to pregnancy and parental leave were not disadvantaged by their absence and were treated in a similar manner. The fact that the grievors received credit for actual hours worked and those hours might have been less hours that an employee on pregnancy leave was credited in that particular week, is neither unfair nor inequitable treatment that would bring a finding of discrimination.

Accordingly, the grievances are denied.

Dated in Toronto this 2^nd day of April, 2004.