GSB# 2003-2176
UNION# 2003-0229-0033
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Heathcote)
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
Gregory Gledhill Staff Relations Officer Ministry of Community Safety and Correctional Services
HEARING
December 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. The parties continued to negotiate and agree upon further conditions regarding the transition matters. MERC 3 was signed by the parties 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 Memoranda of Settlement.
When I was initially invited to hear these transition disputes, the parties agreed that the 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 grievances 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 number 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 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 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.
The parties have asked for clarification to a decision dated July 6, 2004, regarding the disposition of the grievance of John Heathcote. The MERC agreement of March 11, 2002, Section C, Paragraphs 11, 12, 13 and 14 state:
The Employer will determine the effective date of the relocation of the employee.
All Correctional Officers who decline the change in headquarters location may benefit from other provisions of this Agreement and/or those of the Collective Agreement, including Article 20.
All OCI Correctional Officers who accept the change in headquarters location to St. Lawrence Valley will retain their Appendix 13 entitlements as long as they maintain a home position at OCI.
The parties agree that when an OCI Correctional Officer who has accepted Appendix 13 entitlements to St. Lawrence Valley permanently leaves their position at OCI for any reason they relinquish their Appendix 13 entitlements. The entitlements associated with the vacated position will be offered to another eligible OCI employee, based on seniority, who has not already declined Appendix 13 entitlements to St. Lawrence Valley in accordance with this Agreement. This offer will be made within fifteen days of the arising of the vacancy.
Appendix 13 – Relocation of Operation beyond 40 Kilometre Radius states:
The Employer and the Union herewith agree that, when a ministry decides to change an operation’s headquarters to a location outside a forty (40) kilometre radius of that operation’s current headquarters, the following terms and conditions will apply:
affected employees will be notified, in writing, of the ministry’s decision to change the operation’s headquarters location and the date when such change will take place;
(a) employees may accept the change in headquarters location, in which case they will be eligible for reimbursement of relocation costs in accordance with the Employer’s relocation policy; or
(b) employees may reject the change in headquarters location, in which case they will be given six (6) months’ notice of lay-off pursuant to Article 20.2.1 (Notice and Pay in Lieu) and have full access to the provisions of Article 20 (Employment Stability) and Appendix 9 (Employment Stability) of the Central Collective Agreement.
if several employees hold the same position and fewer of their positions are required in the new headquarters location, the employees with the greatest seniority will be given the opportunity to go to the new headquarters location first.
it is understood that when an employee accepts the change in headquarters location in accordance with this Memorandum of Agreement, the provisions of Article 6 (Posting and Filling of Vacancies or New Positions) shall not apply.
Accordingly, the home position of Mr. Heathcote is Ontario Correctional Institute.
Dated in Toronto this 4th day of January, 2005.