GSB#2013-2658

UNION#2013-0530-0030

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Henry)

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

January 22, March 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 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.

9Herman Henry is a Correctional Officer who worked at the Toronto Jail. He filed a grievance that he was improperly placed at Toronto South.

10Mr. Henry had wanted a lateral transfer to TEDC. On March 8, 2012 he was offered the lateral transfer to TEDC but four days later in a telephone conversation he declined this offer wanting to stay at the Toronto Jail as long as possible. During this phone call he was told that his name would be removed from the lateral transfer list as the result. He was also told that he could re-apply which he did – fourteen months later - on May 5, 2013.

11The grievor was at Toronto Jail at the time of its closing. According to the MERC agreement, all officers at the Toronto Jail at the time of closing would be moved to Toronto South. Once the jail closed, the grievor was moved to Toronto South with the other officers.

12Mr. Henry alleged that he was denied his lateral transfer because of discrimination. There was a white officer who went to TEDC and he was of the view his lateral transfer was denied because of his race.

13The Employer explained that on April 15, 2013 a Memorandum of Agreement was signed agreeing to access the lateral transfer list for four regular classified COs. The Employer advised the Union that one of the lateral positions would be assigned in accordance with an order of the Grievance Settlement Board. After the Memorandum of Agreement was signed the parties used the then current lateral list for the assignment of these positions. The grievor was not on that list because he did not reapply for a lateral position until May 5, 2013.

14On May 29, 2013 the remaining three lateral transfers were given to three COs all of whom had more seniority than the grievor.

15As has been noted by the Union on behalf of the grievor, one of the COs who got one of the lateral transfer positions was allowed to stay at Toronto Jail until it closed and then his lateral transfer position took effect. The grievor alleged he was discriminated against because a white CO was allowed to stay and he was not.

16A review of the facts does not support such an allegation. Months after the assignment of the three lateral positions, the parties held discussions regarding employees remaining at the Toronto Jail. Those discussions led to a Memorandum of Agreement that was signed on September 17, 2013. This agreement allowed Toronto Jail classified COs to remain at the jail until closure if they wished to do so and there was an operational need. Like most other agreements between the parties, this assignment was to be carried out in accordance with seniority. The white officer referred to by the grievor was allowed to stay longer at the Toronto Jail as the result of the September 17, 2013 agreement of the parties notwithstanding his eventual lateral transfer.

17There has been no violation of the Collective Agreement or any MERC agreement. Further there was no evidence that lead to a finding of discrimination.

18For those reasons, the grievance is denied.