GSB# 2024-00448; 2024-00449; 2024-00450; 2024-00451

UNION# 2024-0234-0085; 2024-0234-0086;

2024-0234-0087; 2024-0234-0088

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hartwell et al)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Danielle Rose Treasury Board Secretariat Employee Relations & Negotiations Employee Relations Advisor

HEARING

December 3, 2025

Decision

1The Employer and the Union at the Maplehurst Correctional Complex (MHCC) agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement; and it is without prejudice or precedent.

2This Award pertains to four individual grievances, arising from the same facts, advancing the same arguments, and seeking the same remedy.

3The underlying facts associated with the matter have a long and somewhat complicated history.

4Under the collective agreement, there are three classifications for the Correctional Officer position: CO1, CO2, and CO3.

5There is no dispute that employees progress from the CO1 to the CO2 position upon meeting the specified hours-of-service criteria. That is, a CO1 automatically progresses to the higher CO2 position upon meeting a length-of-service threshold.

6For an extended period, covering at least the last decade, the CO3 position has remained vacant.

7The Employer had historically employed individuals performing supervisory functions in a Sergeant position outside the Union’s bargaining unit.

8An issue arose as to whether all such individuals employed by the Employer as Sergeants were in fact performing managerial duties or were employed in a confidential labour relations capacity in accordance with the exclusionary criteria set out in Section 1 (3)(b) of the Ontario Labour Relations Act, 1995 (OLRA) and, as such, should be precluded from taking part in collective bargaining or being covered by a collective agreement. The Ontario Labour Relations Board, in a 2017 decision (2017 CanLII 51086 (ON LRB)), determined that the only unions that could potentially represent any individual employed as a Sergeant who was not precluded from taking part in collective bargaining in accordance with the Section 1 (3)(b) criteria of the OLRA were those of OPSEU (the “Union” for the purposes of this Award) or the Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO). Subsequently, in a decision issued by Arbitrator Brian McLean of the GSB, it was determined that OPSEU held bargaining rights for the employees in question (2023 CanLII 72160 (ON PSGB), 2022 CanLII 31316 (ON GSB)). Following that decision, the Employer created a Correctional Supervisor bargaining unit position.

9The Employer, over OPSEU's objection, unilaterally assigned certain incumbents in the Sergeant position to the Correctional Supervisor position. OPSEU filed a grievance arguing that the Correctional Supervisor position was a “new position” under the collective agreement; accordingly, the Employer was obligated to post all such Correctional Supervisor positions.

10In a decision dated May 12, 2023, Arbitrator McLean agreed with OPSEU's position that the Correctional Supervisor position was a new position for the purposes of the collective agreement (2023 CanLII 61433 (ON GSB)). Arbitrator McLean remitted issues regarding the appropriate remedy associated with that decision back to the parties.

11The thrust of the argument set forth in the grievances in this dispute rests on the premise that the Correctional Supervisor position is, or should be treated as, the CO3 position. Accordingly, it is ostensibly claimed that CO2s should advance to the Correctional Supervisor position based on a length-of-service threshold, in the same manner as the CO1 advances to the CO2 position.

12While, at one level, the frustration of the Grievors is understandable in that the Employer created a higher-rated Correctional Supervisor position, notwithstanding the fact that the CO3 position remained vacant. That frustration was no doubt exacerbated by the fact that employees who had been previously excluded from the bargaining unit filled some of the Correctional Supervisor positions. That said, there is no basis for a finding that the Employer's actions gave rise to a violation of the collective agreement. The fundamental and ultimately fatal flaw in the Grievors’ claim is that the Correctional Supervisor position is, in fact, not the CO3 position and has not been treated by the parties as such. In this regard, the Union’s argument before Arbitrator McLean, which was factually correct, was that the Correctional Supervisor was a new position under the collective agreement; moreover, it was not asserted that the Correctional Supervisor position was, in fact, the CO3 position or should be treated as such. Related to this point, as has been noted, the Union had argued that all Correctional Supervisor positions should be posted.

13In light of the above reasoning, the grievances are hereby dismissed.