GSB#2015-2647, 2015-2706

UNION#2015-0369-0021, 2015-0369-0033

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

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 and Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

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

Linda Elliott Ministry of Community Safety and Correctional Services Employee Transition Coordinator

HEARING

March 8, May 9, 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.

7In October of 2015 Ms. Gail Lajoie filed that grievance that alleged the Employer has violated the above noted GSB decision by hiring new RPNs at CNCC. A Union grievance was also filed and each asked that the practice of hiring RPNs cease immediately. A request that three new positions being filled by RPNs be changed to “RN lines and filled with RNs currently in casual positions.”

8Some background information is required in order to understand this dispute. When first built, Central North Correctional Centre (CNCC) was managed by a private American company (MTC). At the conclusion of the contract with that company, CNCC was repatriated into the Ontario Public Service. During the time of its private management it was the only correctional facility in Ontario to hire Registered Practical Nurses.

9On September 9, 2006, the parties signed a transition agreement setting out terms for repatriation into the OPS including provisions for certain employees to come into (or return to) the Ontario Public Service.

10The implementation of some of the conditions of this agreement was the matter at issue in Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Union) #2006-2241 (Briggs). The scope of the dispute was explained on page 1. It stated:

Prior to November of 2006, the government of Ontario contracted Management and Training Corporation Canada (“MTC”) to operate its jail in Penetanguishene, Central North Correctional Centre (“CNCC”). MTC employed the majority of employees working at the jail. However, it did sub-contract out some of the work, such as nursing services to First Correction Medical (“FCM”). While MTC operated CNCC it had its own policies and procedures governing the workplace, not those of the Ministry of Community Safety and Correctional Services. When the Ontario government decided to not review this arrangement and take over the operations of the CNCC, the Ministry and the Union negotiated a Memorandum of Agreement dated September 18, 2006. The date of the transfer (“the Transition Date”) was November 9, 2006 and after that date the MTC and FCM ceased to exist in Ontario.

11As noted above, the parties at that time negotiated a Transition Agreement. At paragraph 3 of that Memorandum the terms for offers of employment were set out. Article 3.7 specified that:

The Employer will reduce the current RPN overage via attrition. As RPNs leave, RNs will be hired to fill the number of positions outlined in the Transition Staffing Model.

12The Transition Staffing Model provided for 15 RNs and 9PRNs with 4 unclassified “Nursing Relief”. At the time of the transfer there were 10 classified RPNs; 7 unclassified PRNs; 4 classified RNs; and 10 unclassified RNs.

13According to a recent position inventory document provided by the Employer there are currently 14 RPNs (with one vacancy) and 15 RN positions.

14The Employer submitted that it met its obligations under the Transition Agreement in 2006 and 2007 and that no violation has occurred.

15I am of the view that the grievances must fail. The September 2006 Transition Agreement was – simply put – just that. An agreement setting out the terms for the transition of CNCC from MTC to the MCSCS. It was not a document that set out how CNCC would be run forever after the transfer date of November 2006.

16The parties addressed how the Employer would deal with the overage of RPN and the shortfall of RNs. That was achieved at some point given that the current staffing of RNs is 15 as set out in the Transition Staffing Model.

17The grievance is attempting to assert that the Employer can never have more than 9 RPNs. I must disagree. There was nothing in the Transition Agreement or any other document that was put before this Board that fetters the Employer’s usual rights to determine the make-up of the workforce beyond what it agreed to do as set out above. That goal was achieved. Indeed, if that agreement was to remain in place forever – which appears to be the obvious conclusion of what the grievor contends – no RPN or RN could be hired if such a hiring went beyond the numbers set out in the Transition Staffing Model. Such a result would be absurd.

18I was provided with documents regarding the business case for the recruitment of three additional RPNs. Additional workload issues were addressed making clear more staff was required. It was suggested that three additional RPNs could provide the work needed to be done. I have no reason - or jurisdiction – to quarrel with that business plan.

19For those reasons the grievances are dismissed.