GSB# 2002-0229, 2002-0571, 2002-0573, 2002-0573, 2002-0767

UNION# 2002-0234-0005, 2002-0234-0006, 2002-0234-0009, 2002-0234-0004, 2002-0234-0014

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Mills 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 of Community Safety and Correctional Services

HEARING

November 14, December 1, 2005; January 18, 2006.

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.

Four classified Correctional Officers filed grievances in January and February of 2002 that alleged they were “wrongfully displaced” from Maplehurst Correctional Complex in contravention of Article 20 of the collective agreement.

Each of the grievors received a surplus notice on January 18, 2002. On February 18, 2002 the grievors each received assignment letters which confirmed a work assignment within forty kilometres. Three were assigned to work at Toronto West Detention Centre and one was to go the Guelph Assessment and Treatment Unit. On June 10, 2002 the grievors all received letters instructing them to report to their new work location on June 24th, 2002.

It was the grievors’ position that they were improperly displaced because the Employer was not providing the level of staffing at Maplehurst Complex Centre as set out in the staffing complement.

During this period of time the Union had filed a policy grievance alleging improper and unsafe staffing complements. In response to this assertion the parties undertook a workload analysis which took place over several months. Ultimately the matter of staffing complement was resolved by a decision of this Board, dated September 27th, 2004. That decision dealt with only prospective staffing relief and had no retroactive application. At page 4 of that award it was said:

The parties were not significantly disparate in their views of the appropriate resolution of this matter. I heard evidence regarding the nature of the operation, how the operational needs have changed in the last five years, the workload analysis, the Employer’s view of the appropriate staffing model and the Union’s concerns in that regard. It is not my intention to review that evidence in any detail. It is sufficient to say that any decision rendered herein is peculiar to these facts and will therefore have no application in any other institution. Further, this decision sets out the appropriate staffing complement for Maplehurst Complex as of the date of this decision as the result of this process.

Four of the grievors in the present matter were redeployed to various institutions at differing times based on the operational requirement of those facilities. One of the grievors required personal accommodation that allowed him to remain at Maplehurst Complex for a longer period. He was eventually given notice that his accommodation would come to an end, however prior to actually moving he participated in a job trade agreement which matched him to a position at Maplehurst Complex.

It was the position of one of the grievors that because eight months elapsed between his notice and his actual move to a new institution the staffing complement had changed and therefore he ought to have been allowed to continue at Maplehurst. There is nothing in the MERC agreements or the collective agreement that would have me find that argument compelling. In the absence of a retroactive remedy flowing from the policy grievance, the Employer had, according to Article 2.1, the express management’s right to determine the staffing complement for the period at issue.

Accordingly, the grievances are dismissed.

Dated in Toronto, this 25th day of January 2006.