GSB#2016-1477

UNION#2016-0369-0037

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Loach)

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

Dan Sidsworth

Ontario Public Service Employees Union

Grievance Officer

FOR THE EMPLOYER

Greg Gledhill

Treasury Board Secretariat

Centre for Employee Relations

Employee Relations Advisor

HEARING

November 3 & November 25, 2016

Decision

1Since the spring of 2000 the parties have been meeting regularly to address matters of mutual interest which have arisen as the result of the Ministry of Community Safety and Correctional Services as well as the Ministry of Children and Youth Services restructuring initiatives around the Province. Through the MERC (Ministry Employment Relations Committee) a subcommittee was established to deal with issues arising from the transition process. The parties have negotiated a series of MERC agreements setting out the process for how organizational changes will unfold for Correctional and Youth Services staff and for non Correctional and non Youth Services staff.

2The parties agreed that this Board would remain seized of all issues that arise through this process and it is this agreement that provides me the jurisdiction to resolve the outstanding matters.

3Over the years as some institutions and/or youth centres decommissioned or reduced in size others were built or expanded. The parties have made efforts to identify vacancies and positions and the procedures for the filling of those positions as they become available.

4The parties have also negotiated a number of agreements that provide for the “roll-over” of fixed term staff to regular (classified) employee status.

5Hundreds of grievances have been filed as the result of the many changes that have taken place at provincial institutions. The transition subcommittee has, with the assistance of this Board, mediated numerous disputes. Others have come before this Board for disposition.

6It was determined by this Board at the outset that the process for this disputes would be somewhat more expedient. To that end, grievances are presented by way of statements of fact and succinct submissions. On occasion clarification has been sought from grievors and institutional managers at the request of the Board. This process has served the parties well. The decisions are without prejudice but attempt to provide guidance for future disputes.

7Ms. Cindy Loach was a Cook 2 at the Owen Sound Jail who was moved to a Cook 2 position at Central North Correctional Centre after the closure of the OSJ.

8On April 26, 2016 the Employer notified the Union that subsequent to the introduction of Cook-Chill technology, Cook 2 positions would be reclassified to Helper, Food Services at nine institutions including CNCC. This change was as the result of kitchens in these facilities no longer making the food for inmates. Instead, the making of the meals was contracted out and the Helper, Food Service workers would be involved in the role of re-heating the food.

9The following day, the Sudbury Jail submitted a business case to fill a Cook 2 vacancy. This was approved on April 29, 2016.

10The parties agreed to a Memorandum of Agreement on May 11, 2016 which included the following provision at Section 1:

The Employer and the Union agree that regular/classified Cook 2 employees who have been reclassified to Helper, Food Services under this agreement shall be eligible to apply and be considered for lateral transfers as a Cook 2 for a period of six months from August 1, 2016.

11The grievor was given personal notification of her reclassification on May 18, 2016. Two days later she submitted a lateral transfer request form asking for a transfer from CNCC to either the Sudbury or North Bay Jail. Her request was acknowledged four days later.

12The Employer filed the position at the Sudbury Jail by way of a competition rather than relying on the lateral transfer list. The grievor did not receive her requested lateral transfer. It was not disputed that in the event the lateral transfer list had been utilized for this purpose, the grievor would have obtained the position at the Sudbury Jail.

13It is the Employer’s view that it did not yield its inherent management right to fill the position through a competition. It suggested that the Memorandum of Agreement signed by the parties in May of 2016 states only that reclassified employees “shall be eligible to apply and be considered” for a lateral transfer. It does not give those reclassified employees the right to such a lateral transfer, it merely gives them the right to a lateral transfer in the event the Employer elects to utilize that process for filling of the position.

14The Union argued that at the time of the signing of the Memorandum of Agreement the Employer knew that the business case for the Sudbury Jail had been approved and if this position was not to be captured by Section 1 the parties would have – and should have – expressly stated that exclusion.

15While I understand the Union’s frustration with how this process unfolded, there is nothing in the Memorandum that restricts or limits the Employer’s ability to determine if a position shall be filled through job competitions or through the lateral transfer list. Indeed, the agreement states employees will be eligible to apply for and be considered for lateral transfers. It does not say that all Cook 2 positions shall be filled utilizing the lateral transfer list. In this instance the Employer determined that it would post the position of Cook 2 at the Sudbury Jail and therefore there was no lateral transfer for the grievor to apply and be considered for.

16Accordingly, the grievance is denied.