GSB# 2002-2095
UNION# 2002-0999-0028
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Union Grievance)
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
Greg Gledhill Staff Relations Officer Ministry of Community Safety and Correctional Services
HEARING
January 26, 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.
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.
In a letter dated December 22, 2004, John Rabeau, Deputy Minister of Ministry of Community Safety and Correctional Services, wrote the following letter to Leah Casselman, President of the Union:
In 1996 the government began a multi-year transformation and modernization of the province’s correctional system.
I am writing today to advise you that in early 2005, the Ministry plans to announce that the Ontario Correctional Institute and the Brockville Jail will continue to operate for the foreseeable future.
Further, construction at the St. Lawrence Valley Correctional and Treatment Centre is now complete and the facility is fully operational. There will be no further construction at St. Lawrence Valley Correctional and Treatment Centre.
In light of this announcement, I am requesting that the MERC Implementation Sub-Committee meet to discuss employee entitlements with regard to the MERC 3 agreement and the OPSEU Collective Agreement.
As always, I would appreciate that this information be kept in confidence until the affected staff at notified. Should you have any questions about the above, please do not hesitate to contact me.
At a MERC Implementation meeting held on January 4, 2005, the Employer disclosed the following to the Union:
On December 23, 2004, the Employer advised OPSEU that in early 2005, the Ministry plans to announce that the Ontario Correctional Institute and the Brockville Jail will continue to operate for the foreseeable future.
The Employer also advised that the St. Lawrence Valley Correctional and Treatment Centre is now fully operational and there will be no further expansion.
In light of the above, the Employer advises that the management and operation of the Brockville Jail and the St. Lawrence Valley Correctional and Treatment Centre locations will be merged under one administration.
I attended at the January 4, 2005 MERC Implementation meeting and the parties posed certain questions regarding employee entitlements that arise from the above announcements. I provided oral ruling regarding the outstanding matters and I now set out those questions and my ruling to writing. This allowed the Implementation Committee an opportunity to meet later in the same week to negotiate a further MERC Memorandum of Agreement that encompasses matters flowing from the Employer’s announcements.
Question # 1
What is the home position of employees who:
(a) worked at the Rideau Correctional and Treatment Centre, and
(b) accepted a lateral transfer to St. Lawrence Valley, and
(c) are temporarily assigned to other facilities at this time.
Ruling – Question # 1
The home position of the above employees is St. Lawrence Valley Correctional and Treatment Centre. This accords with the sixth and seventh paragraph of Part 1, Section D of MERC 3 which states:
When an employee in a decommissioning institution (Rideau Correctional and Treatment Centre/Brockville Jail) accepts a lateral transfer to the St. Lawrence Valley, the employee will then be deemed to be a laterally transferred employee and will be remain (sic) at their current location until their respective institution no longer houses any inmates or another date agreed to by the Employer and the Employee. Upon mutual agreement employees may be temporarily assigned elsewhere until their placement occurs (reference Part 5 paragraph 12).
A laterally transferred employee will be governed by the provisions of the Collective Agreement which are applicable to their new position.
Question #2
What is the home position of employees who:
(a) worked at the Rideau Correctional and Treatment Centre and
(b) were surplussed at the Rideau Correctional and Treatment Centre, and
(c) were assigned to a position at St. Lawrence Valley, and
(d) are temporarily assigned to other facilities at this time.
Answer Question # 2
Again, the answer is that the home position for these employees is St. Lawrence Valley Correctional and Treatment Centre. In early 2004, employees who elected to make use of their Article 20 rights received a letter similar, if not identical to the following:
In accordance with Article 20 of the OPSEU Collective Agreement you have chosen to exercise your redeployment entitlements. As a result, the following position within 40 kilometers of your permanent worksite has been identified:
Position Title: General Duty Officer
Classification: Correctional Officer 2
Work Location: St. Lawrence Valley Correctional & Treatment Centre
Superintendent: Ms. Marg Welch
You will be notified at a later date as to the effective date of this assignment.
As you have been assigned to this position, you are not eligible to exercise any other rights under Article 20 of the Collective Agreement.
Upon receipt of this letter, please acknowledge and return a copy of this letter by fax to the Employee Transition Unit.
Dated in Toronto this 27th day of January, 2005.