GSB# 2004-0522, 2004-0523, 2004-0524, 2004-0525, 2004-0526

UNION# 2004-0218-0003, 2004-0218-0004, 2004-0218-0005, 2004-0218-0006, 2004-0218-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hynes)

Union

• 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

Lucy Neal Senior Staff Relations Officer Ministry Community Safety and Correctional Services

HEARING

October 27, 2005.

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.

Mr. Gary Hynes was a Motor Vehicle Repair Officer 2 at the Burtch Correctional Centre. By the end of March of 2003 there were no inmates at the Burtch Correctional Centre and the grievor’s position there ended as of April 4, 2003.

He received notice in accordance with Article 20 as there was no work for him to perform. Mr. Hynes had hoped to go through the COSTART (Correctional Officer basic training) but unfortunately he was not successful in this regard. However, the Employer provided a second opportunity for COSTART and on that occasion he passed and therefore was able to continue to work an additional six months at Elgin Middlesex Detention Centre.

He was originally scheduled to be laid off from his position at Burtch Correctional Centre but after a request to do so he was allowed to continue to work as a Correctional Officer 2 at Elgin Middlesex Detention Centre.

On June 3, 2004, the Employer sent the grievor a letter that set out his work history. It stated, in part:

On November 21, 2001 you were provided notice of surplus in accordance with the MERC agreement of the Burtch Correctional Centre. At that time, you selected Option 2 Redeployment under Article 20.2 of the collective agreement. On January 15, 2003 you were provided notice that the decommissioning of the Burtch Correctional Centre would occur by January 20, 2003 and were offered the opportunity to participate in the decommissioning of the Burtch Correctional Centre for a period of approximately one month with possible extension.

On April 3, 2003, you were advised that in accordance with Articles 24.9 and 24.13 (sic) of the current OPSEU Collective Agreement, the Ministry had attempted to identify a position into which you were eligible to displace or a vacancy to which you may be assigned for retraining. The Ministry was not able to identify such a position, and as a result, you would be laid off effective October 7, 2003. You participated in the COSTART program and were advised of your successful completion on April 4, 2003 and offered a temporary assignment (classified status) as a Correctional Officer at the Elgin-Middlesex Detention Centre. At the end of the six month period, you will be eligible for termination benefits.

Your temporary assignment opportunity is now being terminated and you are being released from the Ministry of Community Safety and Correctional Services in accordance with Article 20 of the OPSEU Collective Agreement with the following options:

As is apparent from the above, Mr. Hynes worked at the EMDC on a temporary basis. His salary was red-circled at the maximum salary rate of a Trade Instructor 3 for a six month period effective April 7, 2003.

On April 19, 2004 Mr. Hynes was appointed to the unclassified staff at the Stratford Jail.

On April 26, 2004 Mr. Hynes filed five grievances. The first alleged that he should have received travel time and mileage for the entire period of his temporary assignment. This grievance is denied because the temporary assignment was not required by the Employer as considered by the Collective Agreement.

The remaining grievances alleged that his shift schedule was changed without notification, he was improperly laid off, he was denied access to maintenance mechanic vacancies at Hamilton Wentworth Detention Centre and finally that his “seniority (length of continuous service) as per Article 18 specifically but not exclusively, be included” in his new position of “Correction Officer (unclassified) for the purpose of competitions, layoffs, transfers and conversion to full time status”.

A review of the documentation in this matter reveals that there was no violation of the collective agreement with respect to the treatment of this grievor. He was not improperly laid off or redeployed and there was no change in his schedule. Further, there was no evidence to substantiate that he was denied access to maintenance mechanic vacancies. The only vacancies during this period at HWDC were Maintenance Mechanic 3 positions and the grievor was a Maintenance Mechanic 2 and therefore not entitled to notification of these vacancies.

Finally, there is no Collective Agreement right for the grievor to carry forward his seniority in his unclassified position at the Stratford Jail. Unclassified employees do not enjoy this benefit as set out in my earlier decision of May 3, 2005 (Shipticki) GSB#2002-1119.

For those reasons, his grievances are denied.

Dated in Toronto this 14th day of December, 2005.