GSB# 2002-2133
UNION# 2002-0517-0055
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Barbora 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
Greg Gledhill Staff Relations Officer Ministry of Community Safety and Correctional Services
HEARING
November 10, 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.
Ms. Barbora filed a group grievance on behalf of a number of Correctional Officers at the Metro West Detention Centre. The grievors had continued to work at Metro West awaiting their transfer under Article 2 to the new Vanier Centre for Women in Milton.
At that time, the old Vanier Centre for Women (in Brampton) was still in operation.
There was a group of Correctional Officers who, in accordance with Article 20, had been permanently assigned to the new Vanier Centre for Women (Milton) from various decommissioned institutions. Based on operational requirements, these Correctional Officers were temporarily placed at the old Vanier Centre in Brampton. These employees were paid for their travel time and mileage while they temporarily worked at the old Vanier Centre in Brampton while awaiting their permanent assignment to the new Vanier Centre for Women in Milton.
At the same time, a number of Correctional Officers who previously owned positions at the Guelph Correctional Centre had been assigned to the old Vanier Centre for Women (Brampton). As a result of the permanent lateral transfer to the old Vanier Centre for Women (Brampton), they were not entitled to and did not receive travel time and mileage while working at the old Vanier Centre for Women (Brampton).
During this period there was a Correctional Officer originally from the Guelph Correctional Centre who had been assigned to the old Vanier Centre for Women by way of lateral transfer but did not stay. He was almost immediately assigned on a temporary basis to Metro West Detention Centre. The Employer provided him with compensation for travel time and mileage for that assignment. The grievors learned of this arrangement and now ask to be similarly treated, that is, they grieve for travel time and mileage. There was no dispute that at some point subsequent to this grievance being filed, the Employer stopped paying this Correctional Officer for travel time and mileage.
While I understand and appreciate the frustration of the grievors who worked alongside an individual who was getting a benefit that they were not receiving, there is no doubt that the grievors are not entitled to travel time and mileage for their work at Metro West Detention Centre. Indeed, I fail to understand why the Employer provided the travel time and mileage to the Correctional Officer who did not stay at the new Vanier Centre in the first instance. There is no such entitlement under the Collective Agreement or any other Memorandum of Agreement. Therefore, I cannot provide the remedy requested by the grievors.
The grievors also allege that they should have been moved to the new Vanier Centre for Women in accordance with overall seniority. The MERC 1 agreement, dated May 23, 2001, identifies employees to be assigned to the new Maplehurst Female Institution which later became the Vanier Centre for Women. The actual timing with respect to reporting dates was within management’s rights to determine in accordance with Article 2 of the Collective Agreement.
In accordance with MERC 1 certain employees, including the grievors were asked to indicate their interest in assignment to Maplehurst Female Institution. After expressing their interest in writing each was issued a letter indicating that they “will be assigned to Maplehurst Female Institution”.
It was the position of the grievors that their assignment to Maplehurst Female Institution was effective the date of that letter, that is, December 18, 2001. The Employer’s view was that the grievor were told to report to their new assignment in accordance with operational requirements and seniority which is congruent with their rights under Article 2 of the Collective Agreement. Further, the evidence indicated that the reporting date was made clear to each individual in subsequent letters.
After consideration, I agree with the Employer’s submissions and therefore the grievance is denied.
Dated at Toronto, this 10th day of January 2005.