GSB#2014-2933

UNION#2014-5112-0116

Additional Files listed in Appendix “A”

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Agustin 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

Nick Mustari Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Greg Gledhill Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

March 9, June 9, 2015

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 principals 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.

9Anthony Agustin and others filed grievances that alleged the Employer violated the Collective Agreement as a result of failure to provide notice of various scheduling changes that occurred during their move to Toronto South Detention Centre.

10The Employer was of the view that there has been no violation because the grievors were told in their letters assigning them to TSDC that they would be reporting for work on June 6, of 2014 at a particular time. Further, their schedule was posted at the new workplace.

11This matter has been considered previously by this Board. In Re Ministry of Community Safety and Correctional Services & OPSEU (Johnstone) GSB#2011-2800 (Briggs), it was noted, beginning at paragraph 16:

It 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 schedule of the grievors. Further, the grievors were informed of their new workplace far in advance and notified as to when to report. If they were interested in their new schedule beyond the reporting date and time, they could have and should have contracted the facility to which they were newly assigned. Finally, the Employer urged that UN5.1 does not apply in the instances of lateral transfer.

Not 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.

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

12I have heard nothing in the facts presented in this matter that would cause me to alter my view.

13The grievances are dismissed.

Dated in Toronto this 16^th day of June 2015.

Appendix A

Grievor

GSB#

OPSEU File#

Archer, Elizabeth

2014-2934

2014-5112-0117

Ayles, Lorrie

2014-2935

2014-5112-0118

Baynham, Steven

2014-2936

2014-5112-0119

Beerdat, Alicia

2014-2937

2014-5112-0120

Bhalla, Ashok

2014-2938

2014-5112-0121

Cadogan, Mariesa

2014-2939

2014-5112-0122

Curran, Brooke

2014-2940

2014-5112-0123

Dhaliwal, Bir Surinder Kaur

2014-2941

2014-5112-0124

Farol, Maria

2014-2942

2014-5112-0125

Francis, Jay

2014-2943

2014-5112-0126

11

Agner-Groves, Nicole Teresa

2014-2944

2014-5112-0127

Lloret, Alexandra

2014-2945

2014-5112-0128

Manes, John

2014-2946

2014-5112-0129

Moss, Jillian

2014-2947

2014-5112-0130

Pacar, Nedilijka

2014-2948

2014-5112-0131

Paplinskie, Shawn

2014-2949

2014-5112-0132

Petrakova, Jitka

2014-2950

2014-5112-0133

Polanski, Grzegorz

2014-2951

2014-5112-0134

Salmon, Loraine

2014-2952

2014-5112-0135

Schneider, Michael

2014-2953

2014-5112-0136

Sivalingam, Karan

2014-2954

2014-5112-0137

Sohal, Harjinder

2014-2955

2014-5112-0138

Tavares, Dianne

2014-2956

2014-5112-0139

Terrey, Joshua

2014-2957

2014-5112-0140

Villamar Delvalle, Omar

2014-2958

2014-5112-0141

Villeneuve, Robert

2014-2959

2014-5112-0142

Walsh, James

2014-2960

2014-5112-0143

Yeboah, Frederick

2014-2961

2014-5112-0144

Zekarias, Filmon

2014-2962

2014-5112-0145