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HomeMy WebLinkAbout2002-2095.Union Grievance.05-04-06 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2002-2095 UNION# 2002-0999-0028 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 Grievance) 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 Scott Andrews Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Greg Gledhill Staff Relations Officer Ministry of Community Safety and Correctional Services HEARING April 4, 2005. 2 Decision Since the summer of 2002 I have been hearing and determining all of the grievances filed from employees of the Ministry of Community Safety and Correctional Services regarding what the parties have come to refer to as Transition issues. These Transition grievances have arisen from the Ministry’s decision, made originally in 1996, to reorganize the delivery of its service throughout the Province. The Ministry decided that some institutions would be decommissioned, some would be retrofitted while others would be newly built or expanded. This decision brought about extraordinary workplace disruptions. In accordance with the Collective Agreement the parties negotiated and agreed upon certain terms and conditions to manage the impact of this Transition activity on both employees and the correctional operations. Since that time the parties established a MERC sub-committee which has assisted hundreds of employees to receive their collective agreement entitlements including alternative positions or early retirement packages. Their work, which is largely unseen by bargaining unit or front line managers, has been an exercise in progressive and proactive labour relations. It appears to be largely forgotten by some members of the bargaining unit that one of the significant benefits of the MERC agreements was the rollover of many unclassified staff into the classified service. For example, the MERC agreements with respect to resolving Article 6 and 31A.15.1 grievances have resulted in more than four hundred (400) unclassified Correctional Officers being rolled over into classified positions. It is important to recall that the vast majority of these correctional employees who achieved classified status under these agreements would not have otherwise been entitled to be converted under Article 31A.15.1, which states: Where the same work has been performed by an employee in the Unclassified Service for a period of at least (18) consecutive months, except for situations where the unclassified employee is replacing a classified employee on a leave of absence authorized by the Employer or as provided for under the Central Collective Agreement, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Classified Service to perform that work. There are many who will recall that as the result of the nature of the work performed by Correctional Officers, and the scheduling of unclassified Correctional Officers, there has been an 3 historical difficulty for these employees to be converted to classified status. In the MERC agreements the parties recognized this issue and agreed to a process to rollover many members of the bargaining unit. The mechanics of these agreements have been implemented by the Workforce Adjustment Unit. To further complicate the task, the MERC Implementation Sub-Committee has had the difficult responsibility of ensuring that their agreements benefit both the Employer and employees. That challenge was, and continues to be, further complicated by the Union’s need to balance both individual and collective rights. In late December of 2004, the Ministry notified the Union that, contrary to its earlier announcements, the Ontario Correctional Institute and the Brockville Jail would remain open for the foreseeable future. It was also announced that there would be no further construction on the St. Lawrence Valley Correctional and Treatment Centre. Further, the future management and operation of the St. Lawrence Valley Correctional and Treatment Centre and the Brockville Jail would be merged under one administration within a new integrated shared services staffing model. On January 28, 2005 members of the Workforce Adjustment Unit and the MERC Implementation Sub-Committee met with the affected staff at the St. Lawrence Valley Centre. During this meeting employees were told of the upcoming election process and the time frames related thereto. It is not surprising that this news was not well received by members of the bargaining unit. Within weeks, over eighty-five grievances were filed by more than sixteen employees from the St. Lawrence Valley Correctional and Treatment Centre. At our most recent hearing day, the Union brought forward these matters for determination. The grievances fell into three general categories. The first group could be described as requests for a reconsideration of matters already determined by the Board. A number of these grievances state the following: I grieve that management has violated Article 22.14.6 of the Collective Agreement in that the GSB Arbitrator (Felicity Briggs) whether intentional or through misinformation, has arbitrated in favour of an employee located outside 40 kms, at RCTC to displace a staff member who holds a position at the Brockville Jail. 4 By way of remedy the following was requested: I desire that all GSB decisions be revisited and be based on the terms and provisions of the current collective agreement. Also, a labour lawyer, agreed upon by both parties, be used to validate the legal standing of all signed contracts, having regard to the cancellation of Phase 2 construction, the continual operation of the Brockville Jail and their applications under the current collective agreement. Decisions of the Grievance Settlement Board are final and binding on the parties. They are not a platform for debate. Further, the Board does not reconsider its decisions. The decision referred to above was issued on January 26, 2005 with a supplementary decision dated March 7, 2005. Contrary to the allegation set out in the grievance, I was neither misinformed nor wrong. I understand, and it has been acknowledged by the parties, that the most recent decision of the Ministry regarding St. Lawrence Valley has caused much distress amongst members of the bargaining unit. I further appreciate that this government decision has significant impact on both employees and their families. Nevertheless, the parties have agreed to a process to navigate through these difficult waters and they have given me the jurisdiction to arbitrate disputes that may arise. That jurisdiction flows from statute, the Collective Agreement and from the various MERC agreements. The Board has been asked in the past to reconsider its decisions. The Chair of the Board in Re The Crown in Right of Ontario (Ontario Human Rights Commission) and OPSEU (Fox et al) (September 5, 2001), GSB#0507/01 stated the following at page 6: ….Moreover, a different analysis by another approach taken by the Grievance Settlement Board. As was noted by Mr. Shime, the former Chair of this Board in Toronto Area Transit Operating Authority and Amalgamated Transit Union (Blake et al), 1276/87, decisions of a panel of the Board are decisions of the Board and are not subject to reconsideration or appeal. The Grievance Settlement Board speaks in one voice, providing the parties with a consistent direction and discouraging the relitigation of issues that have been ruled upon. It is only in exceptional circumstances, circumstances that extend beyond manifest error, that the Grievance Settlement Board would depart from the path established in a previous decision. The second category of grievances asks that the MERC agreements or the benefits flowing therefrom be nullified. Such a grievance stated: I grieve that management has violated Article 11.4( c) of the collective agreement in that the anticipated work location for the Brockville Jail staff has not changed or ceased to exist as a Ministry facility. 5 I desire that management follow the collective agreement and that I maintain my position and title at the Brockville Jail. There is no question that Article 16 and Appendix COR 4 of the Collective Agreements provide the parties with the authority to negotiate the MERC agreements. Accordingly these agreements constitute bona fide legal documents that bind the parties. To be clear, neither party disputes this fact. In my view, it is not helpful to the overall Transition process for members of the bargaining unit to attempt to re-negotiate agreements or to attempt to re-litigate Grievance Settlement Board decisions. Indeed, if the requests of these members were granted, other Ministry bargaining unit members, and in particular more senior bargaining unit members, would be adversely affected. I say this, not only because an attempt to “re-visit” these matters would have no hope of success but also because it is necessary for the affected employees to face the reality of this Transition. The third type of grievances asks for a remedy in the absence of a violation of the collective agreement. In other words, the situation addressed has not occurred and therefore the grievances have been prematurely filed. Members remain entitled to raise alleged violations through the grievance and arbitration procedures of the Collective Agreement. Finally, there were grievances filed by Unclassified employees that alleged violations of provisions in the Collective Agreement that apply only to Classified employees. The Employer raised an objection with respect to arbitrability and suggested that these grievances should be dismissed on that basis. There has been much jurisprudence from this Board regarding the more restrictive rights of Unclassified employees. This expedited process for Transition grievances will not bring about a different result in that regard. In view of the foregoing I direct the Union to review all of these recently filed grievances and notify me as to its intention, if any, to proceed. Dated in Toronto this 6th day of April, 2005. Felicity D. Briggs Vice-Chair