GSB# 2003-3837, 2003-3838
UNION# 2004-0517-0010, 2004-0517-0011
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Bahlieda 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
May 21, 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.
Ms. Christine Bahlieda and Ms. Roselle Beausoleil filed identical grievances in January 2004. Each alleged that they were not given proper credit for full seniority which affects their pay rate. By way of remedy, each requested credit for their service at the Barrie Jail and their service at Central North Correctional Centre with any monies owing as a result of the Employer’s failure to do so.
In the documentation provided by the Union the adverse effects of the grievor’s situation are set out as the following:
- little seniority so more susceptible to lay offs and a reduced ability to be awarded positions arising from job competitions
- lower wages
- previous training not recognized.
It was the Employer’s view that the CNCC is a privately operated institution and is therefore a separate employer. Therefore, these employees had a break in service and are now new employees. It was the position of the grievors that there was no real break in service because:
the employees were working with the very same inmates
the inmates population transfers in and out of CNCC
those working at CNCC are trained by the Ministry with other Ministry employed Correctional Officers
similar standards, policies, laws and procedures.
the CNCC building is owned by the Ontario government and sits on land it owns
CNCC is directly funded by the Ontario government.
there have been transfers of some officers back to the Ministry without barriers.
Simply put, the grievors take the position that CNCC is the same employer and therefore they should be allowed to transfer to another institution without penalty.
In response to a question the Union conceded that the grievors were put on the third level of the salary grid by the Employer as of their last date of hire.
In my view, it is beyond my jurisdiction to uphold the grievances. The Public Service Act states at section 8 the following:
(1) An individual is not considered to be a civil servant unless he or she has been expressly appointed as such by the Commission or by the Lieutenant Governor in Council on the certificate of the Commission.
(2) An individual is not considered to be a public servant unless he or she has been expressly appointed as such by the Lieutenant governor in Council, the Commission, a minister or a designee of a minister.
(3) An individual who is employed in the service of the Crown is not considered to be a Crown employee unless the individual has been expressly appointed as such by the Lieutenant Governor in Council, the Commission or a minister.
As I understand it, the grievors terminated their employment with the Ministry. They then worked for CNCC but ultimately returned to the Ontario Public Service. Simply put, I do not have the jurisdiction to declare the grievors employees during the period they worked for CNCC. Even if I did, I would not. CNCC is not operated by the Ontario government. Employees of CNCC are not members of the Ontario Public Service. Therefore there has been a break in service.
For those reasons the grievances are dismissed.
Dated in Toronto this 9th day of July, 2004.