GSB# 2004-1172
UNION# 2004-0440-0009
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Dowdall 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 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.
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.
Thirty eight employees at the St. Lawrence Valley Correctional and Treatment Centre filed a group grievance that alleged they were entitled to travel time and mileage until “Phase 2 is completed”.
The grievors had previously worked at the Rideau Correctional Centre. In March of 2003 the parties signed a Memorandum of Agreement that stated twenty-eight Correctional Officers and other employees were required for “Phase 1” of the SLVCTC. When offered, the grievors elected to take those positions and were moved to SLVCTC in June of 2003.
In December of 2003 a Memorandum of Agreement was entered into that provided a number of employees a temporary assignment at SLVCTC because the Rideau Correctional Centre was decommissioning. As the result of that closing, some employees were temporarily assigned to SLVCTC in June of 2004.
It was the position of the grievors that “if we had been aware of all the facts were needed to make a decision about coming to SLV, I would have stayed at Rideau and come down with the second group with all expenses paid”. They claim that their differential treatment is a violation of the Collective Agreement.
For a variety of reasons that neither the Union nor the Employer had control of, political decisions were made that altered the plans for SLVCTC. Obviously, no one knew those changes would occur in 2003 when the grievors were offered permanent assignments at SLVCTC. Those offers were voluntarily accepted by the grievors. No party can be faulted for the change in plans for the facility. It should be noted however that the grievors could have elected to remain at Rideau Correctional Centre.
The Employer agreed with the Union to temporarily assign employee who had remained at Rideau Correctional Centre to various institutions and to pay their travel time and mileage. This agreement was made in good faith and cannot now retroactively oblige the Employer to pay travel time and mileage to those employees who were, by their own concurrence, permanently assigned to work at SLVCTC.
There has been no violation of Article 13 of the Collective Agreement and therefore the grievance is denied. It would wrong for this Board to find that the grievors did not and do no hold permanent positions and that is what would be required for this grievance to succeed.
Dated in Toronto this 261 day of April, 2006.