GSB# 2004-1933

UNION# 2004-0521-0069

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Taylor-Baptiste 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

January 16, 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.

Several classified Correctional Officers who were working at Mimico Correctional Centre were, either through the lateral transfer process or as the result of utilizing their rights under Article 20, obtained positions at various other institutions.

The grievances stated the following:

I grieve a violation of the collective agreement, in that my job posting at the Mimico Correctional Centre has been a de facto temporary assignment. During the time period from when I was re-deployed until the full decommissioning of the institution management has knowingly violated the G.S.B. settlement of Vice-Chair Felicity Briggs #2003-1981.

By way of remedy travel time and mileage, plus interest was requested.

Although the facts of each grievor are different, the common thread is that there was a period of time between when they were first advised of a new assignment and the date they actually began their new assignment. To be clear, the grievors continued to work at Mimico Correctional Centre after they had received a letter confirming a lateral transfer to a new institution. During this transition process it was not unusual that the period of time between the receipt of these letters and the actual move to their new permanent assignment was many months.

It was the Employer’s position that the grievors knew that while they continued to work at Mimico Correctional Centre they were not entitled to mileage and travel time. In this regard, the Employer submitted an example of a letter sent to Correctional Officers in November of 2002 wherein they were asked to accept or decline a position at Central East Correctional Centre. The following was included:

Employees assigned to a position at the Central East Correctional Centre as a result of this exercise will remain at their respective current work site until the effective date of the relocation of the employee is determined by the Employer.

It was the Employer’s position that the grievors continued to work at Mimico Correctional Centre due to operational requirements. It goes without saying that the Employer is entitled to have Correctional Officers remain at their home position for operational needs.

The Union contended that the facts pertaining to these grievors are identical to that of an earlier grievor in the transition process, Ms. Self. I disagree. After Ms. Self’s closing institution had closed but prior to her new permanent assignment, she was deployed to a different institution for a period of time. In the instant matter, these grievors are claiming travel time and mileage for work performed at their own institution prior to their new assignment taking effect.

Once the grievors made known their discontent with the work assignment because of the lack of travel time and mileage the Employer promptly assigned them work at their new institution. The Union asserted that this constituted anti-union animus. I found no evidence to substantiate that claim. In my view, the Employer acted quickly to ensure that the grievors were not further inconvenienced by working at an institution other than their new permanent assignment. Indeed, employers can rightfully assume that employees who file grievances want a particular situation redressed. In this instance the Employer did just that. For this Board to declare that the Employer acted with animus toward the grievors for granting part of their claim would be a result that would be confounding, to say the least.

It is interesting to note that these grievances were not filed until July 15, 2004, that is, just days prior to their new assignments. It was the Employer’s position that, in accordance with the Board’s jurisprudence, even if these grievances were successful, this Board could only award travel time and mileage paid for the period back to thirty days prior to the grievance filing date.

The grievances are dismissed.

Dated in Toronto this 26th day of April, 2006.