GSB# 2003-1862, 2003-1863, 2003-1864, 2003-1865, 2003-1866, 2003-1867, 2003-1868, 2003-1869, 2003-1870, 2003-1871

UNION# 2003-0341-0016, 2003-0341-0017, 2003-0341-0018, 2003-0341-0019, 2003-0341-0020, 2003-0341-0021, 2003-0341-0022, 2003-0341-0023, 2003-0341-0024, 2003-0341-0025

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Wiltshire 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 30, 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.

Nine Correctional Officers and a Cook who were working at Millbrook Correctional Centre in May of 2003 filed grievances that alleged mileage and travel time were owing during their “temporary assignments”.

The grievors had received their assignments to work at Central East Correctional Centre. However, a “Temporary Assignment Opportunities” bulletin was posted in the work place on April 14, 2003. In that announcement the following was stated, in part:

The TRILCOR Industrial Operations will require the services of interested individuals who are employed at Millbrook CC as of April 9, 2003 to undertake a temporary assignment in the Marker Plant and Tailor Shop to assist with the transition of the shop operation from Millbrook CC to Central East Correctional Centre.

If there are more classified employees than available temporary assignments, the assignments will be awarded on the basis of seniority. Please note that the surplus period of employees who accept a temporary assignment will not be triggered until the end of their temporary assignment.

One of the grievors, Douglas Porter applied for the assignment and received the following letter dated May 1, 2003:

I am pleased to advise you that your application to remain at Millbrook CC subsequent to the decommissioning of the Centre to undertake a temporary assignment with the ongoing TRILCOR Industrial Operations has been accepted.

This temporary assignment will supercede any other reporting date you may be advised of today, if applicable, which will be amended to take effect in conjunction with the end of your temporary assignment. Instead, please report to Mr. Jim Nairn, Industrial Manager, TRILCOR, on May 5, 2003, at 0800 hrs to begin orientation to your duties.

During this temporary assignment, you will be compensated at the rate of Industrial Officer 1, or at your own current salary level, whichever is higher. Please note that as this temporary assignment is entirely “voluntary” in nature, no travel time or other temporary expenses shall apply for the duration of this temporary assignment. A temporary assignment agreement will be completed outlining the details of your assignment and will be provided to you in the very near future.

It was the position of the grievors that “no temporary assignment is voluntary, even if one competes for it”. Further, the employees did not mutually agree that there would be no travel time and mileage for this period. The Employer asserted that temporary assignment opportunity was as the result of a MERC agreement to allow a number of employees to remain at the Millbrook location for a further period. Employees were reminded in advance that voluntary assignments did not bring about payment of travel time and mileage. Further, the employees did not have their home position changed and therefore the grievances should be denied.

The grievances are dismissed. In reading through the material provided it is clear that the Employer and the Union agreed to allow as many employees as possible to remain at the Millbrook Correctional Centre and stave off having to change locations to the CECC. It is worthy of note that many of these grievors actually received an increase in salary during the period of the temporary assignment. Further, no employee was assigned to this duty. Each applied and accepted the work. There is no doubt that the work was voluntary and for that reason no travel time and mileage are owing.

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