GSB# 2005-0171, 2005-0190, 2005-0205, 2005-0209, 2005-0218, 2005-0247, 2005-0253
UNION# 2005-0440-0020, 2005-0440-0039, 2005-0440-0053, 2005-0440-0057, 2005-0440-0066, 2005-0440-0095, 2005-0440-0100
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Flegg et al.)
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.
A number of individual grievances were filed by various Correctional Officers that were virtually identical. The grievances stated:
I grieve that Article 8.6.1 regarding temporary assigned employees, since Rideau Correctional and Treatment Centre staff were temporarily assigned longer than six months to the Brockville jail, Article 6 should have applied.
By way of remedy the grievors requested:
That the vacancies be identified within St. Lawrence Valley Correctional and Treatment Centre (Phase I) and the Brockville Jail. Arbitrator Ms. F. Briggs stated in a previous document that there were no vacancies at the Brockville jail. I want to keep my position and classification at Brockville Jail.
The grievors were Correctional Officers working at the Brockville Jail. Various Correctional Officers at the Brockville Jail continued to work in temporary assignments beyond six months and, for that reasons, it was the grievor’s position that according to Article 8.6.1 of the Collective Agreement those positions ought to have been posted as provided at Article 6.
While I understand the frustration of the grievors, I must deny the grievance. Once the decision was made by the Employer to cancel Phase 2, the parties’ primary focus in the ongoing transition process was to negotiate job security issues with a view to avoiding lay-offs. In this regard, the parties have agreed that the provisions of the MERC Memorandum of Agreement, dated February 25, 2002 shall prevail. That agreement stated:
Upon receiving their surplus notice, and where employment opportunities exist, the employee may be offered an assignment by the Employer. The assignment will be mutually agreeable, furthermore, the assignment will suspend the notice period and the lay-off date of the employee. If the employee rejects the assignment offered, the notice period will be activated. The implementation committee will monitor this process.
The parties agree that in cases where there is no mutual agreement on a temporary assignment to another worksite until their permanent placement occurs, employees who remain at home will be considered to be on a leave of absence without pay. Temporary assignments will be offered on the basis of seniority. If the Employer does not offer a temporary assignment then the Employee will not suffer any financial loss.
Accordingly, the following grievances are denied:
Donald Cooper 2005-0440-0039
Anthony Morin 2005-0440-0066
Brad Fleming 2005-0440-0053
John Foreman 2005-0440-0100
Heather Robinson 2005-0440-0095
Nancy Flegg 2005-0440-0020
Stephen Robertson 2005-0440-0057
Dated at Toronto, this 16th day of December, 2005.