GSB# 2003-1435

UNION# 2003-0234-0221

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cox)

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

Stephen Giles Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Lucy Neal Senior Staff Relations Officer Ministry of Community Safety and Correctional Services

HEARING

May 24, 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.

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.

On May 5, 2005 this Board issued a decision concerning a grievance filed by Mr. Danny Cox (GSB# 2002-1455). That decision stated at page 3:

The grievor, Daniel Cox, filed a grievance alleging an improper application of Article 20 of the Collective Agreement. It is the grievor's view that he was moved prior to other staff and prior to all of the inmates being removed from his home institution.

The facts were not in dispute Mr. Cox worked at the Guelph Correctional Centre in the Industrial Officer 2 classification. In accordance with the Memorandum of Agreement signed on May 3, 2001, he received rights under Article 20 of the Collective Agreement. he was surplussed on the common surplus date of November 21, 2001.

The grievor exercised his right to displace and he received an Industrial Officer 2 position at the TRILCOR laundry in Milton. In February 2002 the GCC's inmates were moved to other institutions and Mr. Cox moved to TRILCOR in Milton shortly thereafter.

The TRILCOR shop at the GCC location remained open after the GCC inmates were moved and operated without the use of any inmate labour. The Guelph Assessment and Treatment Centre ("GATU") remained open but its inmates were not used to work at TRILCOR. For that reason, not all Industrial Officers were moved to their new positions.

It was the grievor's position that he should not have been moved prior to other Industrial Officers. Further, he alleged that the Employer's decision to move him before other employees was due to anti-union animus. Mr. Cox claimed that his order to move out of GCC came just before an anticipated OPSEU strike. He also alleged that local management at Guelph did not want him on the picket line and therefore ordered him to move.

Paragraphs 5 and 6 of the Memorandum of Agreement signed on May 3, 2001, stated:

Employees occupying the transition cost centre positions will be surplussed on the same date. These employees will have access to full Article 20 rights.

The employees will remain at their current work site until the date the 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.

In my view, the Employer has the right under paragraph 6 above to move employees once the institution's inmates are gone. While some inmates continued to be housed at the GCC location, those inmates were from GATU and therefore the Employer could oblige the grievor to move to his new position at TRILCOR in Milton.

Mr. Cox filed a further grievance on June 27, 2003 arising from the same fact situation. This grievance states that because he was moved from Guelph to Maplehurst prematurely he was denied overtime opportunities.

The instant grievance was filed prior to the Board's above decision. Given that I have already determined that Mr. Cox was not improperly or prematurely moved to Milton, this grievance must also be dismissed.

Dated in Toronto, this 27th day of June 2006.