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HomeMy WebLinkAbout1989-0717.Hall et al.90-06-06 ONTARIO EMPL O Y~S DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 TELEPHONE/T£1. EPHONE: (416) 326-~388 180, RUE DUNOAS OUEST, BUREAU 2100, TORONTO {ONTARIO). M$G 1.~8 FACSIMSLE/TEL~COPlE ; {4~5) 326-1396 717/89 & 867/89 IN THE MATTER OF AN ARBIT~ATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Hall et al) Grievor - an4 - The Crown in Right of Ontario (Ministry of Correctional Services) Employer - and - BKFORE: R.J. Roberts Vice-Chairperson G. Majesky Member R. Scott Member FOR THE K.Whitaker GRIEVOR: Counsel Ryder, Whitaker, Wright and Chapman Barristers & Solicitors FOR THE J. Whibbs EMPLOYER: Regional Personnel Administrator Ministry of Correctional Services BEJt~ING: December il, 1989 HEADNOTE Arbltrabilit_y-Grievance Procedure - Competition - Posting: Claim that grievors would have applied if job had been posted insufficient to give them standing as individual grievors. Grievance denied AWARD At the outset of the hearing in this matter counsel for the Ministry objected to jurisdiction on the ground that the subject matter of the complaints of the two grievors was not arbitrable in individual grievances. Rather, it was submitted, the matter should have been raised in a policy grievance filed by the Union. By agreement, the parties deferred argument upon this submission and we proceeded to hear evidence upon the merits. At the end of the evidence, we heard submissions from the parties upon both the preliminary objection and the merits; however, because in response.to the preliminary objection we find that we do not have jurisdiction, we decline to address the merits in the context of this award. The two grievors filed grievances which, in essentially identical terms, claimed that the Ministry was in violation of, inter alia, Article 4.1 of the Collective Agreement by-failing to post two vacancies which' occurred at the Annex of the Millbrook Correctional Centre. In order to place this complaint in context, we undertake a brief review of the relevant background: 2 The Millbrook Correctional Centre is a maximum security institution located 18 miles southwest of Peterborough. The main Dart of the Centre is surrounded by a 22 foot high brick wall. It has a maximum capacity of 260 inmates. Outside the wall, there is a 12 bed minimum security Annex which, is in the nature of a small dormitory. It is adapted to house a select group of inmates during the last 90 days of their incarceration. These inmates are carefully screened from both the general and protective custody (P.C.) inmate populations. The idea is to ease the transition from institutionalization to life on the "outside" by giving these inmates a more.relaxed minimum security environment. Prior to October 31, 1988, the complement of staff at Millbrook included 96 classified correctional officers, 19 casuals and 5 "overages". The five "overages" were also classified correctional officers. The term "overage" was used to indicate that Millbrook was over complement by 5 positions. On October 31, 1988, Mr. G. B. Freston, the Superintendent at Millbrook was instructed to eliminate these 5 "overage" positions as part of a program of constraint. It was. suggested that this elimination come about by attrition, i.e., by not filling the next 5 vacancies which occurred in the ra~ks of classified correctional officers. 3 Two of these vacancies occurred in the Annex. This left only 3 correctional officers at this facility. Obviously, they constituted an insufficient number to secure the facility 24 hours a day, 7 days a week. Mr.' W. Cooney, the Deputy Superintendent at Millbrook, testified that management'then faced' two options. The first was to close the Annex. The second was to obtain the two additional staff who were needed to keep 'it running by declaring the two vacancies at the Annex to be developmental positions through which qualified correctional officers from the main facility could rotate at intervals of up to 6 months. Mr. Preston said that management chose the second, option. The Annex was considered to be a worthwhile and effective rehabilitative facility. Moreover, it seemed worthwhile to enable correctional officers from the maximum security facility to rotate through a minimum 'security facility both from the standpoint of enjoying a change of pace and developing further in their careers. On April 20, 1989, Mr. Preston, the Superintendent sent the following memorandum to Mr. A. J. Roberts, the Regional Manager., Eastern Region, requesting that the two vacancies at the Annex be designated developmental positions: 4 MEMORANDUM TO: MR. A. J. ROBERTS REGIONAL MANAGER EASTERN REGION RE: DEVELOPMENT OPPORTUNITIES MILLBROOK C.C. ANNEX At the present time we have two vacancies for correctional officers at the-Annex. The position at the A~nex has a separate position specification from that of the General Duty officers in the Institution. In the past when a vacancy occurred at tke Annex, a competition was held, restricted to Millbrook C.C., and the successful candidate was assigned to the Annex for an indefinite period. As you are aware, the duties of a correctional officer working in the minimum security Annex are different than those of an officer working in the maximum security Institution. When discussing Annex assignments with correctional staff, some have indicated that they enjoy the change when working in the Annex on a short term basis, however, are reluctant to apply in a competition to work there on a continual basis. There have been times in the past when correctional staff from this facility applied for competitions at minimum security Institutions and did poorly, as all their training and experience was in a maximum security facility. We are proposing that the two Annex positions not be filled on a permanent basis, and utilized for developmental purposes. Two staff at a time would be assigned to the Annex for up to six months. Staff would be exchanged at the beginning of August and the beginning of February, each year, to ensure they each received an equal period of good weather, as most of their duties are outside. utilizing these positions as developmental assignments, would be a benefit for both staff and management. Some of the benefits are outlined below: 1. Staff would enhance their skills of dealing with inmates on a one to one basis. 2. Staff would become involved in community work programs and have more contact with the community. 3. It would dispel the fears of some individuals about working in minimum security. 5 4. It would provide additional experience for staff, which will be-useful in future competitions. 5. It would provide the Institution with a trained body of individuals who have experience in community work programs and working within a minimum security setting. 6. It would provide an opportunity for staff to Get away from the maximum security setting for a period'of time. This'proposal is consistent with the recommendation on page 31 of our OperatiOnal Review. You will recall that it was recommended that the Superintendent, in consultation with Regional Management, examine the possibilities to expand and promote development opportunities for staff at this Institution. In order to implement this proposal, we will need Regional approval to not fill the Annex vacancies on a permanent basis, but to retain them for developmental purposes. No additional complement or funds will be required as we will still be operating within our correction officer establishment. I have discussed this with Mr. J. V. Whibbs and he supports our request. Could you please advise me as soon as possible should our request meet with Regional approval. Your assistance in this matter is appreciated. {signed) G. B. Preston Superintendent. Shortly thereafter, Mr. Roberts approved the proposed change. On May 9, 1989, Mr. Preston circulated the followfn~ memorandum to all correctional ~taff: MEMORANDUM TO: ALL CORRECTIONAL STAFF RE: DEVELOPMENTAL OPPORTUNITIES MILLBROOK C.C. ANNEX Approval has been granted to utilize two of the correctional officer positions at the Annex for developmental assignments. Two correctional officers will be assigned to the Annex, for up to six months, at a time. Staff will be exchanged at the beginning of August and the beginning of February each year, to ensure they each receive an equal period of good weather, as most of the duties are outside. Utilizing these positions for developmental assignments will give additional staff an opportunity to become involved in community work programs, and to have more contact with the community. It will give' staff an opportunity to work in a minimum security setting, which will be useful if applying for future competitions. It will also provide the institution with a ,trained body of staff who have experience in working in a minimum security setting and dealing with inmates on a one to one basis. Correction staff at the Correctional Officer 2 level, who are interested in participating in these developmental assignments, are to submit their names to the undersigned by June 1, 1989. Selections will then be made based on suitability and previous track record. (signed) G. B. Preston, Superintendent This memo advised that the developmental positions were available and that interested correctional officers should submit their names to Mr. Preston by June 1, 1989. On June i0, 1989, Mr. Hall filed one of the grievances leading to this proceeding. On June 26, 1989, Mr. Powers filed the second. Both requested as Settlement the posting and filling of the two vacancies in the Annex. 7 At least twice before, this Board has had occasion to consider whether individual grievors have standing to grieve for this kind of relief. Both involved the same grievor, Mr. J. Glenny. In the first case, Re Glenn¥ and. Ministry of Government Services (1987), G.S.B. #564/84 (Slone), it was grieved, that management was "filling vacancies with prolonged selective secondments and contract staff." Id~ at p. 1. The relief requested was that Article 4 be complied with "and that competitions be held for the existing vacancies." Id___~. As in the present case, the Ministry took the position that such a complaint "should have been brought (if at all) as a union grievance." Id___~. It was not, it was submitted, arbitrable as an individual grievance because the action of management did not specifically affect the grievor "in an immediate and tangible' way." Id__~. at p. 5-6, citing Palmer, Collective Agreement to Arbitration in Canada (2nd edition, 1983) at page 175. The Board accepted the submission of the Ministry. The majority award stated: We are of the view that this Grievor was not so affected. He was in a position to observe certain management practices of which he does not approve. He had the option of complaining to the Union and requesting that a Union grievance be launched. To permit this Grievor standing would be to broaden the scope of individual grievances beyond what is necessary or desirable to give effect to the spirit and letter of the Collective Agreement .... Id. 8 It was concluded that the matter was not properly arbitrable at the instance of the grievor. In the second case, Re Glenny and the Ministry of Government Services (1988), G~S.B. ~0368/$8 (Dissanayake), the grievor attempted to buttress a virtually identical grievance by claiming that he was affected "in an immediate and tangible way" by the action of management because "he would have applied if that position has been posted." Id. D. 6. Apparently dissatisfied with the hypothetical nature of this assertion, the Board.:said: However, we are not in a position to assess whether the facts support such a claim. What we do have before us is the claim made in the grievance. There is no mention there to any particular position. Nor is there any assertion that the grievor was personally denied an opportunity to apply for a job. Also, it was the Employer's position that no particular job had been mentioned by the grievor at any time in the · grievance procedure. In the circumstances, we are not satisfied that this situation is distinguishable from the situation in the 1987 grievance and the same result must apply .... Id~ r~ p. 6. The Board did not accept the grievor's hypothetical postulation as to what he would have done if management had posted the job. It was not a complaint about "management action which specifically affects the grievor in an immediate and tangible way." We cannot discern any meaningful distinction between the facts of the present case and those already considered by the Board in 9 the second Glenny award. The jobs never were posted. The grievors could do no more than claim hypothetically that if they had been posted, they would have applied. The Board has already ruled that such assertions do not suffice to meet the threshold, level for standing to grieve as an individual grievor, i.e., "management action which specifically affects the grievor in an immediate and tangible way." Moreover, we note in passing that as far as the evidence discloses, the two jobs in the Annex would not have been posted if the grievors were successful upon the merits of their grievances. According to the evidence of Mr. Cooney, inability to fill the two vacancies through short-term developmental assignments would likely have forced management to take its first option, i.e., closing the Annex. We must decline jurisdiction. This matter is not properly arbitrable at the instance of these grievors. 10 DATED at London, Ontario, this 6th day of June 1990. Rf~/~rts, V~ce Chaxrpers~ G. , Member Majesky R. Scott, Member