GSB#2011-2800, 2011-2804, 2011-2806

UNION#2011-0224-0016, 2011-0224-0015, 2011-0224-0017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Johnstone 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

Tim Mulhall Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Greg Gledhill Ministry of Government Services Centre for Employee Relations Employee Relations Advisor

HEARING

January 9 & March 12, 2012.

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.

9Over a number of years the transition committee has faced various and continuing organizational changes within this Ministry and has worked tirelessly to attempt to reduce or at least significantly limit the impact on members of the bargaining unit. Recently further jail closures have been announced and the committee is making every effort to resolve disputes in a timely fashion.

10Mr. Paul Johnstone is a classified Correctional Officer who worked at the Owen Sound Jail. He and two other Correctional Officers, Phillip Trepanier and Joseph Murphy filed grievances that alleged a violation of the Collective Agreement because the Employer changed their work schedule without sufficient notice.

11I will review the facts of Mr. Johnstone’s grievance. The other two grievors have similar facts but they went to different facilities after the closing of Owen Sound Jail.

12On November 25, 2011, Mr. Johnstone was issued a letter from Linda Elliott, Employee Transition Coordinator, that stated:

Further to my letter dated August 30, 2011 advising you of your assignment as General Duty Officer/Correctional Officer 2, this will confirm the following:

NEW WORK LOCATION: Hamilton-Wentworth Detention Centre

START DATE: December 5, 2011

START TIME: 0830 Hours

REPORT TO: Mr. Roger Long

Should you have any questions, please contact of a member of the Employee Transition Union.

I would like to take this opportunity to wish you every success in this position.

13This assignment was as the result of a lateral transfer.

14The Owen Sound Jail closed on December 2, 2011. It was the position of the grievors that they were not properly informed about their change in work schedule.

15The grievors relied on Article UN 5.1 which states:

Shift schedules shall be posted not less than fifteen (15) days in advance and there shall be no change in the schedule after it has been posted unless notice is given to the employee one hundred and twenty (120) hours in advance of the starting time of the shift as originally scheduled. If the employee concerned is not notified one hundred and twenty (120) hours in advance he or she shall be paid time and one half (1 ½) for the first eight hours (8) worked on the changed shift provided that no premium shall be paid where the change of schedule is caused by events beyond the ministry’s control.

16It was the Employer’s position that shift schedules of the grievors did not change because there was no posted schedule for them to work at Owen Sound Jail beyond December 2, 2011. Accordingly, there has been no “change” in the working schedules of the grievors. Further, the grievors were informed of their new workplace far in advance and notified as to when to report. If the were interested in their schedule beyond the reporting date and time, they could have and should have contacted the facility to which they were newly assigned. Finally, the Employer urged that UN5.1 does not apply in instances of lateral transfer.

17Not surprisingly, the Union’s view was somewhat different. It stated that the grievors were scheduled to work in accordance with a master schedule. By its very nature, their schedule continued, virtually without change, far into the future. Therefore, the grievors considered their schedule, according to the master, to be changed by their reassignment.

18After consideration, I agree with the Employer’s view and therefore the grievances are dismissed.