P-2001-0025, P-2001-0032, P-2001-0033, P-2001-0034, P-2001-0035, P-2004-3968, P-2004-3969

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Tim Asselin, Brian Patterson, David Lalonde, Terry Kutchaw, Robert Nixon, Michael Verch, Dave MacGregor

Grievors

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Deborah J. D. Leighton

Vice-Chair

FOR THE GRIEVORS

Andrew Camman Polishuk, Camman and Steele Barristers and Solicitors

FOR THE EMPLOYER

Sean Kearney Senior Counsel Ministry of Government Services

HEARING

January 10, 2006.

Decision

The issue before me is whether the employer has breached a memorandum of settlement signed on October 16, 2002 by the parties. The parties agreed in the memorandum to full and final settlement of remedial issues arising as a result of a decision of the board rendered on January 14, 2002, Williams et al and Ministry of Public Safety and Security, P/0008/01 et al. The parties agreed in paragraph seven that I would remain seized with respect to any dispute arising from the memorandum. Such a dispute arose in early 2005, and the grievors filed their grievances with the board on April 12, 2005. The parties also agreed that Mr. Dave MacGregor’s grievance [P-2004-3969], initially grouped with the grievors here, is different and should be heard separately. Given the need for disclosure, this grievance did not proceed. With regard to Mr. Michael Verch’s grievance [P-2004-3968], the employer raised a motion to dismiss his grievance at the outset of the hearing. This motion will be addressed at the end of the decision.

The grievors, all Operational Managers (OM16’s) assigned to St. Lawrence Valley Correctional and Treatment Centre, take the position that the employer has breached the memorandum by requiring them to participate in a recent selection process for thirteen OM16 positions at Brockville Jail/St. Lawrence Valley. The employer’s position is that it has complied fully with the memorandum of settlement and the selection process used to eliminate the staffing overage was appropriate and fair to all affected managers.

The facts before me are not in dispute and were agreed upon by the parties orally at the hearing into this matter. The memorandum agreed to by the parties followed a decision of the board in Williams that found that the grievors were entitled to rely on section 14(2) of Regulations 977, under the Public Service Act (amended in 2002). This meant that competition # CS-9047-01 held in July 2001, insofar as it required the grievors to compete with non-OM16’s, was contrary to the PSA. Following the decision in Williams, by way of the memorandum, the affected grievors were offered home positions at various institutions in the Province. The grievors – Mr. Tim Asselin, Mr. Terry Kutchaw, Mr. David Lalonde, Mr. Robert Nixon and Mr. Brian Patterson - were all offered positions at St. Lawrence Valley. The memorandum of settlement also provides at paragraph two:

Where this settlement creates staffing imbalances at particular institutions, such imbalances will not be resolved through a competition process between the grievors and current operational managers appointed pursuant to competition #CS-9047-01 held on or about July 2001.

At the time of the settlement the employer planned to expand the capacity of St. Lawrence Valley. However, in January 2005, having completed part of the expansion, the government made a decision not to finish it. The ministry alleged that it also decided to amalgamate the administration of both St. Lawrence Valley and the Brockville Jail. The grievors’ counsel took issue with whether this amalgamation is legitimate, but this issue does not need to be decided in order to answer the question that I have before me. The decision not to further expand St. Lawrence Valley led the employer to conclude that it only required thirteen operational managers to run the facilities. Since there were twenty-six Operational Managers who held permanent positions at St. Lawrence Valley and Brockville Jail, the employer invited those with permanent positions to indicate whether they wanted to remain or keep a home position at the facilities. The grievors were also advised of the procedure that would be followed to reduce the numbers from twenty-six to thirteen OM16’s. A letter to one of the grievors provided in part:

The procedure indicates that where there is a reduction in the number of employees performing the same work, the determination of who receives a layoff (or surplus) notice and who is retained in the effected position(s) must be based on merit. All affected employees must be assessed using normal staffing practices, including interviews, to determine the best qualified for the position(s) to be staffed. Those employees not selected will receive a layoff (or surplus) notice. For the purposes of the operating procedure, merit refers to the selection of a candidate whose qualifications best meet employment-related selection criteria.

Some of the grievors participated in the selection process, and others chose not to, taking the position that they ought not have to compete for their jobs. Mr. Asselin has opted to retire. Mr. Lalonde, Mr. Nixon and Mr. Kutshaw have chosen to go to Ottawa Carleton Detention Centre. Mr. Patterson has selected a surplus package.

THE GRIEVORS’ SUBMISSION

Counsel for the grievors submitted that the memorandum of settlement signed in 2002 created a staffing imbalance at the two institutions, Brockville Jail and St. Lawrence Valley and he argued further that the employer can not resolve the overages through a competition, because of the language of paragraph two of the memorandum of settlement, which states that staff imbalances “will not be resolved through a competition process between the grievors and current operational managers appointed pursuant to competition #CS-9047-01 …” Thus he argued the competition that was held in 2005 which assessed both the grievors and OM-16s appointed by the 2001 competition is contrary to the memorandum of settlement. Counsel argued further that the imbalance in staffing was not realized until the further decision was made not to continue to expand St. Lawrence Valley. It was counsel’s view that paragraph two was not ambiguous and the employer’s position on this matter, in a sense, read in a temporal or time restriction to the language, which was incorrect. Thus the competition in 2005 was contrary to the memorandum of settlement and is, therefore, prohibited.

THE EMPLOYER’S SUBMISSION

Counsel for the employer noted that the Williams decision was made during a major restructuring of the correctional services in Ontario. This was going on during the late 1990s and early 2000s. Small jails were being closed and “super” jails were being built. With these closures some people were job threatened and there were competitions to fill fewer positions. However this was not the situation in 2005. Counsel argued that the thirteen OM16’s who were not successful in this recent selection process in 2005 could all have jobs if they are willing to move. He argued that re-deployment is a viable option.

Counsel argued further that the memorandum of settlement signed in 2002 was not intended to give the grievors priority for all future positions. He submitted that the grievors’ position that they should never have to compete against people who were successful in the 2001 competition was implausible. Counsel urged me to find that neither the people who were successful in the 2001 competition, nor the grievors who were assigned through the memorandum of settlement to home positions in the area, should be given a priority to get jobs in 2005. Since the employer had to decide how to reduce the numbers from twenty-six to thirteen Operational Managers, it used a selection process established under the Workforce Adjustment Policy.

Counsel argued that the memorandum of settlement provided offers of home positions to the grievors. Paragraph two of the agreement then went on to provide that any imbalance at an institution would not be resolved through a competition process. However, counsel argued that the imbalance in staffing occurred as a result of a decision by the government not to finish building St. Lawrence Valley. There is no evidence in counsel’s submission that the memorandum of settlement led to any staffing imbalance in 2002. The decision not to finish St. Lawrence Valley was a political and financial one that affects everyone in the two institutions.

In summary, counsel argued that the employer could not simply leave all twenty-six OM16’s in home positions for the two institutions. They had no choice but to assess the twenty-six and pick thirteen OM16’s for the remaining positions. The interests of all twenty-six had to be addressed fairly. Counsel relied on the following cases in support of his submission: Re Ottawa Hospital and Ontario Public Service Employees Union (2002) 2002 CanLII 79020 (ON LA), 105 L.A.C. (4th) 134 (Kaplan); Ontario Public Service Employees Union (Young) and the Ministry of the Attorney General (2003) GSB 2001/0660) (Abramsky).

THE GRIEVORS’ REPLY ARGUMENT

Counsel for the grievors argued in reply that the employer had not been fair to the grievors here. If a manager were not competent then it would be reasonable to fire that OM16. But if an OM16 was competent, and had worked for the Ministry for many, many years, as the grievors have in this case, then they deserved to be protected in counsel’s submission. They ought not have to compete for their positions with much more junior staff. The staffing imbalance occurred after the competition in 2001, in counsel’s submission. The imbalance was established when the employer chose to keep individuals who were successful in getting positions in the 2001 competition. In summary, counsel argued that the grievors should never have been made to compete against those who had been successful in the 2001 job competition, who were then acting OM16’s and members of the bargaining unit.

DECISION

The question before me is whether the employer violated the 2002 memorandum of settlement by using a selection process in 2005 to downsize from twenty-six to thirteen Operational Managers at St. Lawrence Valley/Brockville. There is no doubt that as a general rule the employer can require employees in the same position- in effect – to compete for their own position, when some jobs must be eliminated. It is also well-established law that the process must be fair to all affected employees. The only way that the grievors may avoid this well-established jurisprudence is if the memorandum of settlement signed as a result of Williams prohibits a competition to downsize in 2005.

The grievors’ complaint in Williams was that they were forced to compete for OM16 positions with acting OM16’s, who were members of the bargaining unit. In Williams the grievors were able to persuade the board that they were entitled to the protection of section 14(2) of Regulation 977, which allowed them certain rights to transfer to open OM-16 positions. As a result of that decision the parties agreed on a memorandum of settlement that assigned the grievors before me in this matter to St. Lawrence Valley. The memorandum also provided at paragraph two as follows:

Where this settlement creates staffing imbalances at particular institutions, such imbalances will not be resolved through a competition process between the grievors and current operational managers appointed pursuant to competition #CS-9047-01 held on or about July 2001.

It is this language that must be interpreted. And the nub of the issue is when the staffing imbalance arises. The grievors’ position is that the “imbalance” or overage in staffing occurred when the memorandum was signed. The employer’s position is that the overage in staffing occurred when the government decided not to finish the expansion of St. Lawrence Valley and amalgamate it with Brockville Jail for the purposes of administration.

Having carefully considered the submissions of the parties, I am persuaded by the employer’s argument. There was no staffing imbalance in 2002 when the grievors were assigned with others to St. Lawrence Valley. There was a plan to expand this facility and the employer also had a plan for the number of managers required to run the facility. But that plan changed in 2005: it is this change that led to the staffing overage and the necessity to downsize. With this change fewer managers were required.

The grievors’ counsel emphasized that some of the grievors had not even got to their positions at St. Lawrence Valley. For example, some were working at Ottawa Carleton Detention Centre. However, I am not persuaded that this is material. The language of the agreement says clearly if the memorandum created a staffing overage, then the grievors could not be forced to compete against others who won an OM-16 position in the competition in 2001. But as noted earlier, it was the decision not to finish the expansion that lead to the overage. The situation here is really no different than if those assigned to an existing institution by way of the memorandum and those assigned by the competition in 2001, were facing the closing of half of their institution in 2005. Thus I am persuaded that the language in paragraph two was only intended to protect the grievors in 2002 if the assignment to an institution resulted in a staff overage.

Counsel for the grievors argued eloquently that the grievors, who were all senior Operational Managers, deserve better than to have to compete for their own positions and that their seniority should protect them. While this board is sympathetic to the grievors, and recognizes the difficulty for those who must live through the downsizing and the change, there is no seniority protection for Operational Managers. The only thing that this board can review is whether the process, like a job competition, has been fair to all—a question that was not put before me. Thus I must conclude that the employer did not violate the memorandum of settlement when it used a selection process to choose thirteen Operational Managers to continue at St. Lawrence Valley/ Brockville Jail. Therefore the grievances before me are hereby dismissed.

At the outset of the hearing counsel for the employer made a motion that Mr. Verch’s grievance should be dismissed as moot. Mr. Verch was assigned to Brockville Jail after a competition in 2003. He was also successful in the selection process in getting one of the thirteen positions at St. Lawrence Valley/Brockville Jail in 2005. Having got one of the thirteen jobs, counsel for the employer argued that the grievor could have no remedy. Counsel for the grievor argued that it was not moot for various reasons, but primarily because Mr. Verch was concerned that while he is currently in a position at the Brockville Jail, he might find himself assigned to St. Lawrence Valley. Counsel for Mr. Verch argued that the amalgamation was not legitimate. If it was not, then Mr. Verch should not have been required to compete for a position under an amalgamated administrative model. He had a home position at Brockville Jail.

Mr. Verch’s grievance [P-2004-3968] is not founded on an alleged breach of the memorandum of settlement dated 2002. It involves as far as I was advised an allegation that is factually an issue between the parties—whether the amalgamation is legitimate. Therefore, I have decided that I do not have enough evidence to decide whether this grievance is moot. Should the grievor wish to proceed he or his counsel may contact the Registrar for a further hearing date. I shall also retain jurisdiction as requested by the parties to deal with Mr. MacGregor’s grievance [P-2004-3969] should the grievor wish to proceed.

Dated at Toronto this 27th day of January, 2006.