GSB# 2004-2495

UNION# 2004-0229-0019

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Dosanjh)

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 of Community Safety and Correctional Services

HEARING

June 29, 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.

Latinder Dosanjh is a Correctional Officer at OCI. His grievance concerns a failed job trade.

On February 26, 2004, a memorandum was issued to all OPSEU employees in the Ministry from the Transition Unit with copies to all appropriate managerial employees. That memorandum clearly sets out the policy and practice of Job Trades. The memo stated, in part:

The Job Trading Program provides an opportunity for a Correctional Services employee to exchange jobs and work locations with another Correctional Services employee. The Job Trading provisions as outlined apply only to classified OPSEU employees.

A classified employee is eligible to trade jobs with another classified employee who is in the same job, the same classification, and in the same category (e.g., a full-time employees trades with a full-time employee, and a regular part-time employee trades with another regular part-time employee). Both employees must be within the same ministry and must be able to perform the duties of the desired position without training.

Correctional Services employees interested in Job Trading should complete the attached Job Trading Registration Form and forward it to the cost centre manager of their home position. Once their manager has completed the “Home Position Information” section of the form, it should be forwarded to:

The Workforce Adjustment Unit will acknowledge receipt of the Registration Form in writing, and will retain the registrant’s name on the Job Trade Registry for a one-year period. Incomplete Registration Forms and/or information will be returned to the employee. Job Trade registrations must be renewed annually as they will be deleted at the end of a one-year period from the date of the last registration.

The Job Trade Registry will periodically be reviewed as registrations are received. If a Job Trade match is identified, a Job Trade Registration Agreement will be prepared by the Workforce Adjustment Unit and will be forwarded to the proposed parties to the agreement (the two job trading employees, and the two cost centre managers). All four of the parties must be in agreement for the Job Trade to be final. If any of the parties do not agree to the Job Trade, the Workforce Adjustment Unit will write to the employees and cost centre managers, and will advise them of this fact.

Mr. Dosanjh filled out the Registration form indicating his desire to trade to a position at Toronto West Detention Centre. Ms. Johna Lee Widmann, a Correctional Officer at Toronto West also filled out a Registration form stating her wish to trade into a position at OCI. In accordance with the policy as stated above, the parties completed and signed a Job Trading Agreement in July of 2004. It was agreed that the effective date for the Job Trade would be August 23, 2004. The Agreement stated, “this agreement is final and binding on all parties”. The grievor was sent confirmation of the job trade in a letter dated July 30, 2004 from his Deputy Superintendent, Mary Capobianco.

In accordance with the agreed upon arrangements the grievor reported to work on August 23, 2004 at Toronto West Detention Centre. For reasons that were not made clear to this Board, he was told to return to his position at OCI.

On June 28, 2004 this Board issued a decision regarding the matter of job trades. A question was posed as to the appropriate method of proceeding once the Job Trade Agreement had been signed in the event one of the parties wanted to rescind agreement. In that decision it was said at page 4:

A job trade was found for this Correctional Officer and the paper work was completed. At some time after the trade was concluded he sought to revoke his agreement to trade jobs.

I would not be prepared to allow such a revocation. On virtually any day in almost any workplace, it is accepted as good labour relations that deals made are deals kept. That has certainly been my experience in dealing with these parties. In my view, this general principle is particularly true in the context of the transition process. There are many employees having to change positions and workplaces due to the significant restructuring that has occurred and that continues to occur. Job changes in this context are not actions without consequences to others. For example, when one employee elects to take a VEO there is often an impact on other employees. The second employee might elect an employment option that will have significant meaning to a third employee and so on.

It is no doubt for this reason that the parties agreed to provisions of Article 10.3. It is certainly for these reasons that I dismiss any such grievance.

As is evident from the above excerpt, I am of the view that once such an agreement is made none of the four parties can rescind agreement. In this case the Employer was obliged to allow the job trade to take place as it was set out in the agreement. Therefore, the grievance is allowed. The parties are directed to discuss and determine the most appropriate date for the job trade to take place. To be clear, this job trade will take place within a reasonable period of time. Further, the Employer is ordered to pay any compensation that flows from this breach. I remain seized in the event of implementation difficulties.

Dated in Toronto this 18th day of October 2005.