Ontario Public Service Employees Union (McGuire et al) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2009 CanLII 66572

GSB#2007-1750, 2007-1751, 2007-2471, 2007-2472, 2007-3466, 2007-3467

UNION#2007-0108-0049, 2007-0108-0051, 2007-0108-0073, 2007-0108-0074, 2008-0108-0016, 2008-0108-0017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McGuire 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

Stephen Giles Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Greg Gledhill Ministry of Community Safety and Correctional Services Staff Relations Officer

HEARING

May 28, 2009.

DECISION

1In 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.

2While 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.

3It is this agreement that provides me with the jurisdiction to resolve the outstanding matters.

4Both 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.

5When 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.

6The 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.

7Not 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.

8It 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.

9Mr. James McGuire and other Correctional Officers at the Elgin Middlesex Detention Centre have grieved that the Employer has violated the Collective Agreement by improperly calculating their continuous service date resulting in disadvantageous treatment regarding short term assignments. By way of remedy they request a CSD adjustment and retroactive compensation.

10The Employer suggests that the facts and submissions made by the Union are identical to those before Vice Chair Stephens in Re MCSCS & OPSEU (Robertson et al) GSB# 2006-2740 (November 17, 2008). In that decision Vice Chair Stephens said:

These grievances all raise the same issue. The grievors all claim that, when working as unclassified employees, they are/were not able to accumulate service credits towards their Continuous Service Dates (CSD) for weeks when they worked less than 40 hours. Some of the grievors point to the arrangement between the employer and the union that recognized the service of employees at CNCC, which was recently incorporated into the jurisdiction of MCSCS.

The grievances allege that the CNCC employees are receiving credit for service outside the ministry, while significant portions of the grievors’ service time has been discounted owing to the “40 hour rule”. The employer responds that the parties have agreed to the “40 hour rule” in the collective agreement, and similarly, reached a joint agreement with respect to the treatment of seniority of CNCC employees. As a result there is no breach of the collective agreement.

11In my view, the facts before me are virtually identical to those before Vice Chair Stephens and accordingly, the grievances are dismissed.