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HomeMy WebLinkAbout1987-1516.Brand.90-07-23CPMMISSION DE REGLEMENT DES GRIEFS * 1516/87 IN TEE MATTER OF AN ARBITRATION Under THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEHENT BOARD BETWEEN BEFORE: FOR THE GRIEVOR FOR TEE EMPLOYER OPSEU (Brand) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) - end - Employer S. Stewart Vice-Chairperson P. Izlym Member I-l. Roberts member N. Luczay Grievance Officer Ontario Public Service Employees Union J. F. Benedict manager Human Resources management Ministry of Correctional Services HEARING: February 21, 1990 march 16, 1990 June 11, 1990 The grievor, Mr. 8. Brand, is classified as a Correctional Officer 2 and at the time of the grievance was employed at the Peterborough Jail. Mr. Brand's grievance was filed on May 27, 1987 and alleges that he has "been improperly identified as a surplus employee in violation of the Collective Agreement Article 24 and any other applicable articles". To a large extent, the facts giving rise to the grievance are not in dispute. Mr. Brand commenced his employment with the Ministry of Correctional Services at the Peterborough Jail in 1983 as a part-time Correctional Officer. Prior to March or April of 1985 adult inmates and young offenders were housed together in the Peterborough Jail. In the spring of 1985, new federal legislation provided for offenders sixteen and seventeen years of age to be incarcerated in separate units in designated institutions. Peterborough Jail was one of the institutions designated to have a young offender unit. At the time the institution had twenty Correctional Officer positions. Due to the increased manpower requirements resulting from the establishment of the young offender unit the institution was allocated eight additional Correctional Officer positions and eight unclassifed Correctional Officers were hired. In January 1986 the unclassified positions were replaced by eight classified Correctional 2 Officer positions. Seven Correctional Officers~ were regularly assigned to the young offender unit while the eighth Correctional Officer was regularly assigned to work with adult offenders, filling a vacancy resulting from the transfer of the supervisor of the young offender unit from within the institution. Mr. Brand applied for one of the Correctional Officer positions advertised and filled in .January 1986 however he was unsuccessful. The position specifications and job advertisement for the Correctional Officer postions indicated that the positions involved work with adults and young offenders. In March 1986 there was a position that became available as a result of the disablement of a Correctional Officer who worked with the' adult inmates. The advertisement for this position also stipulated that it involved work with adults and young offenders. Mr. Brand was the successful applicant for this position. His seniority date is April 14, 1986. .The job specifications for his position indicate that the position involved work with young offenders and adult offenders. Mr. Brand testified that from the time of his appointment to a permanent position until November, 1987, he was assigned to the adult section of the prison. He was assigned to the young offender unit only on an occasional shift, approximately once a month. Mr. Brand stated that Correctional Officers who worked on the young offender unity on a full-time basis were given training that Correctional 3 Officers assigned to the adult units did not receive. The evidence also established that there are a larger number of programmes made available to the young offenders and that the Correctional Officers assigned regularly to the young offender unit are directly involved in the management of the young offender's programme while this is not the case with the adult inmates. As well, there is a proportionately larger number of Correctional Officers assigned to the young offenders as compared to the adult population. Correctional Officers were classified in the same manner, they worked pursuant to the, same position specificatione and they were compensated in the same manner whether they worked in the young offender unit or with the adult population. According to the evidence of Mr. W. Raper, deputy superintendent of the Peterborough Jail, the Correctional Officers assigned to the young offender unit had the same general mandate and responsibilities with respect to the care, custody and supervision of young offenders as Correctional Officers assigned to work with adult offenders. Services such as ,nursing were provided to all offenders from the same source and supervision of the young offender unit after 4:00 p.m. and on weekends was provided by the shift IC who also provided supervision for the adult units. In the spring of 1987 it was decided that the young 4 offender unit at the Peterborough Jail would be closed and that young offenders who had previously been incarcerated there would be transferred to Brookside Youth Centre. Due to the closing of the unit the institution was advised that its funding for the eight additional positions would terminate necessitating a reduction in personnel. Eight Correctional Officers with the least seniority in the institution were advised that they would become surplus employees subject to lay-off. Mr. Brand had the least seniority of all of these employees. Mr. Brand, along with the other Correctional Officers affected, was sent a letter dated April 3, 19'87, the relevant portion of which states as follows: Mr. A. Roberts, Regional Manager (E), attended the Peterborough Jail, this date, to formally advise staff that the Young Offenders Unit will be closing sometime after June 1987. As described by Mr. Roberts, the precise closing date is unknown at the present and contingent upon completion of renovations currently underway to accomodate young offenders. at Brookside Youth Centre in Cobourg. Closure of the Young Offender unit will eliminate the need for your position and you will become a surplus employee subject to lay-off unless alternate employment opportunities become available. Mr. J. V. Whibbs, Regional Personnel Administrator, Peterborough, will be meeting individually with all staff affected by this closure to discuss what employment opportunties are available in accordance with provisions described in Article 24 of the Collective Agreement. 5 Mr. Brand was ultimately offered and on June 23, 1987, accepted a transfer to Brookside Youth Centre, effective January 18, 1988. Mr. Brand accepted this position without prejudice to~this grievance and his position that he was not properly subject to lay-off in accordance with the provisions of the Collective Agreement. In November 1987 Mr. Brand was assigned to the young offender unit at the Peterborough jail on a regular basis, after one of the Correctional Officers who had been assigned to the young offender unit commenced his reassignment to Brookside Youth Centre. Prior to the closing of the young offender unit at the Peterborough Jail a Correctional Officer 2, Mr. W. Brass, who was regularly assigned to work with the adult population, resigned his position effective January 17, 1988. This res ignation resulted in a memorandum dated January 6, 1988 from Mr. S. Shoom, Regional Director, to Mr. G. Thibault , Superintendent of the Peterborough Jail, the relevant portions of which states: The resulting vacancy will have an impact on those 'individuals who have been identified as surplus and have been reassigned to Brookside Youth Centre. As discussed with you by Mr. J. V. Whibbs, Regional Personnel Administrator, Peterborough, I am prepared to rescind reassignment for the most senior staff member who wishes to remain at Peterborough Jail... Mr. Shoom goes on in this memorandum to direct Mr. Thibault to interview the two most senior Correctional Officers who .6 had been identified as surplus and who had an identical seniority date to determine whether either of these persons wished to remain at the Peterborough Jail. Both of these employees ultimately decided that they did not wish to remain at the Peterborough Jail. The other employees who had been identified as surplus and all of whom had greater seniority than Mr. Brand were also interviewed and all initially indicated that'they did not wish to remain at Peterborough Jail. They were re-interviewed and two employees indicated‘that they wished to fill the vacancy created by the resignation of Mr. Brass. Due to the fact that the seniority date o,f these two employees was indentical it was-determined who would fill the vancancy on the basis of drawing a card. Mr. Brand's complaints about the process are firstly that he should have been interviewed at the same time the other employees who had been identified as surplus were interviewed and secondly that upon the more senior employees indicating that they did not wish to fill the vacancy he should have been contacted and asked for his preference immediately rather than these employees being re-interviewed. Even accepting that the matter of hw a vacancy was filled and a reassignment rescinded some eight months after the grievance was filed is relevant, we are satisfied that the exercise that was undertaken by the employer did not reflect any bias toward Mr. Brand but, rather, was an 7 endeavour to ensure that the employees identified as surplus that were more senior to Mr. Brand had a full opportunity to indicate whether they wished to fill the vacancy created by Mr. Brass' resignation. Mr. Brand's wishes were already known to management as he had previously indicated that he wished to.remain at Peterborough Jail. The provision of the Collective Agreement which is directly relevant to to the determination of this grievance is Article 24. Article 24.1 provides as follows: Where a lay-off may occur by reason of shortage of work'or funds or the abolition of a position or other material change in organixation, the identification of a surplus employee in an administrative district or unit, institution or other such work area arid the subsequent assignment, displacement or lay-off shall be in accordance with seniority subject to the conditions set out in this Article. Whether the events in this case can be characterised as a shortage of work, the abolition of a position or other material change in organisation we are satisfied that circumstances that trigger the operation of Article 24.1 of the Collective Agreement came into existence when it was determined that the young offender unit at the Peterborough Jail would be closed. It is clear that these circumstances resulted in the cancellation of funding for eight 8 Correctional Officer positions and the result that it was necessary to provide notice to the eight most junior Correctional Officers that they would become surplus employees and subject to lay-off. The essence of Mr. Brand's position is that although he was the Correctional Officer with the least seniority at the Peterborough Jail at the relevant time he should not have been identified as a surplus employee for purposes of lay-off because his regular assignment had not been to the young offender unit, but, rather, he had been assigned to the adult unit. Mr. Luczay argues that the duties performed on the young offender unit are substantially difierent from those assumed by Correctional Officers assigned to work regularly with adult inmates. We cannot accept that Mr. Brand was improperly identified as an employee subject to lay-off in accordance with the provisions of Article 24.1 of the Collective Agreement on this basis. While there is a clear differ,ence in philosophy in the young offender unit and some other differences in the operation of this unit as compared to the adult units as outlined above, we are not convinced that the differences are significant. The position that Mr. Brand applied for and accepted indicates that the successful applicant would work with both young 9 offenders and adults. The young offender unit was intricately integrated within the overall operation of the Peterborough Jail. This integration included the assignment of Correctional Officers who regularly worked with the adult population to the young offender unit. Mr. Brand had carried out such a work assignment himself on occasion, prior to his notice of April 3, 1987. The implication of the argument advanced on behalf of Mr. Brand is that Mr. Brand was not qualified to assume the' duties of a Correctional Officer assigned to a young offender unit. In view of Mr. Brand's application for and acceptance for a position that indicated that it involved duties related to young offenders, his assignment to work in this unit on a periodic basis as well as his assumption of the duties of a Correctional Officer on a young offender unit on a full time basis both at Peterborough Jail and Brookside, with no indication of any difficulties in the assumption of these duties, we are unable to conclude that Mr. Brand-was not qualified to perform the duties of a Correctional Officer that involved assignment to a young offender unit. As previously noted, Mr. Brand had the least seniority of all Correctional Officers employed at Peterborough Jail at the time of the decision to close the young offender 10 unit and the resulting decision that eight Correctional Officers had become surplus. We are in agreement with the decision of the Employer that Mr. Brand was properly identified as a surplus employee subject to lay-off in accordance with the provisions of the Collective Agreement. For these reasons, the grievance is dismissed. Dated at Toronto, thie.2,3 day of July, 1990 Q\>,:, ,,& S. L. Stewart - Vi&Chairperson P. Klym Member I- H. Roberts Member