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HomeMy WebLinkAbout2003-0289. Boyd et al.04-12-16 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-0289 2003-0290 2003-0291 2003-0292,2003-0293 2003-0294 2003-0397 2003-0398 2003-0399 2003-0400 2003-0402,2003-0405 2003-0406 2003-0410 2003-0411 2003-0412,2003-0413 2003-0415 2003-1652,2003-2999 2003-3310 UNION# 2003-0359-0001 2003-0359-0002, 2003-0359-0003 2003-0359-0004 2003-0359-0005 2003-0359-0006 2003-0359-0033 2003-0359-0034 2003-0359-0035 2003-0359-0041 2003-0359-0029 2003-0359-0031 2003-0359-0032,2003-0359-0036 2003-0359-0037 2003-0359-0040 2002-0359-0051,2003-0359-0038 2003-0359-0048 2003-0359-0050 2003-0368-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Boyd et al ) Union - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE FelIcIty D Bnggs Vice-Chair FOR THE UNION Scott Andrews Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Greg GledhIll Staff RelatIOns Officer Mimstry of Commumty Safety and CorrectIOnal ServIces HEARING May 21 and June 4 2004 2 DeCISIon In September of 1996 the Mimstry of CorrectIOnal ServIces notIfied the Umon and employees at a number of provIncIal correctIOnal InstItutIOns that theIr facIlItIes would be closed and/or restructured over the next few years On June 6 2000 and June 29 2000 the Umon filed polIcy and IndIVIdual gnevances that alleged vanous breaches of the collectIve agreement IncludIng artIcle 6 and artIcle 31 15 as well as gnevances relatIng to the fillIng of correctIOnal officer posItIOns In response to these gnevances the partIes entered Into dIscussIOns and ultImately agreed upon two Memoranda of Settlement concermng the applIcatIOn of the collectIve agreement dunng the "first phase of the Mimstry's transItIOn" One memorandum, dated May 3 2000 (hereInafter referred to as "MERC 1" (Mimstry Employment RelatIOns CommIttee)) outlIned condItIOns for the correctIOnal officers whIle the second, dated July 19 2001 (hereInafter referred to as "MERC 2") provIded for the non-correctIOnal officer staff Both agreements were subJect to ratIficatIOn by respectIve pnncIples and settled all of the gnevances IdentIfied In the related MERC appendIces, filed up to that pOInt In tIme The partIes contInued to negotIate and agree upon further condItIOns regardIng the transItIOn matters MERC 3 was sIgned by the partIes on February 25 2002 WhIle It was agreed In each case that the settlements were "wIthout preJudIce or precedent to posItIOns eIther the umon or the employer may take on the same Issues In future dIscussIOns" the partIes recogmzed that dIsputes mIght anse regardIng the ImplementatIOn of the memoranda. AccordIngly they agreed, at Part G paragraph 8 The partIes agree that they wIll request that FelIcIty Bnggs, Vice Chair of the Gnevance Settlement Board wIll be seIzed wIth resolvIng any dIsputes that anse from the ImplementatIOn of thIS agreement. It IS thIS agreement that provIdes me wIth the JunsdIctIOn to resolve the outstandIng matters Both MERC 1 and MERC 2 are lengthy and comprehensIve documents that provIde for the IdentIficatIOn of vacanCIes and posItIOns and the procedure for fillIng those posItIOns as they become avaIlable throughout vanous phases of the restructunng. GIven the complexIty and SIze of the task of restructunng and decommIssIOmng of InstItutIOns, It IS not surpnSIng that a number 3 of gnevances and dIsputes arose ThIS IS another of the dIsputes that have ansen under the MERC Memorandum of Settlement. When I was ImtIally InvIted to hear theses transItIOn dIsputes, the partIes agreed that process to be followed for the determInatIOn of these matters would be vIrtually IdentIcal to that found In ArtIcle 22 16.2 whIch states The mediator/arbItrator shall endeavour to assIst the partIes to settle the gnevance by medIatIOn. If the partIes are unable to settle the gnevance by medIatIOn, the medIator/arbItrator shall determIne the gnevance by arbItratIOn. When determInIng the gnevance by arbItratIOn, the medIator/arbItrator may lImIt the nature and extent of the eVIdence and may Impose such condItIOns as he or she consIders appropnate The medIator/arbItrator shall gIve a SUCCInct decIsIOn wIthIn five (5) days after completIng proceedIngs, unless the partIes agree otherwIse The transItIOn commIttee has dealt wIth dozens of gnevances and complaInts pnor to the medIatIOn/arbItratIOn process There have been many other gnevances and Issues raised before me that I have eIther assIsted the partIes to resolve or arbItrated. However there are stIll a large number that have yet to be dealt wIth. It IS because of the vast numbers of gnevances that I have decIded, In accordance wIth my JunsdIctIOn to so determIne that gnevances are to be presented by way of each party presentIng a statement of the facts wIth accompanYIng submIssIOns NotwIthstandIng that some gnevors mIght wIsh to attend and provIde oral eVIdence, to date, thIS process has been efficIent and has allowed the partIes to remaIn relatIvely current wIth dIsputes that anse from the contInuIng transItIOn process Not surpnsIngly In a few Instances there has been some confusIOn about the certaIn facts or sImply InSUfficIent detaIl has been provIded. On those occaSIOns I have dIrected the partIes to speak agaIn wIth theIr pnncIples to ascertaIn the facts or the ratIOnale behInd the partIcular outstandIng matter In each case thIS has been done to my satIsfactIOn. It IS essentIal In thIS process to aVOId accumulatIng a backlog of dIsputes The task of resolvIng these Issues In a tImely fashIOn was, from the outset, a formIdable one With ongOIng changes In Mimstenal boundanes and other orgamzatIOnal alteratIOns, the task has lately become larger not smaller It IS for these reasons that the process I have outlIned IS appropnate In these CIrcumstances 4 The Mimstry determIned that the work of the WhItby JaIl would be transferred to Central East CorrectIOnal Centre under AppendIx 13 - RelocatIOn of OperatIOn Beyond 40 Kllometre RadIUs That provIsIOn states The Employer and the Umon herewIth agree that, when a mImstry decIdes to change an operatIOn's headquarters to a locatIOn outsIde a forty (40) kllometre radIUs of that operatIOn's current headquarters, the folloWIng terms and condItIOns wIll apply 1 affected employees wIll be notIfied, In wntIng, of the mImstry's decIsIOn to change the operatIOn's headquarters locatIOn and the date when such change wIll take place 2 (a) employees may accept the change In headquarters locatIOn, In whIch case they wIll be elIgIble for reImbursement of relocatIOn costs In accordance wIth the Employer's relocatIOn polIcy or (b) employees may reJect the change In headquarters locatIOn, In whIch case they wIll be gIven SIX (6) months' notIce of lay-off pursuant to ArtIcle 20.2 2 (NotIce and Pay In LIeu) and have full access to the provIsIOns of ArtIcle 20 (Employment StabIlIty) and AppendIx 9 (Employment StabIlIty) of the Central CollectIve Agreement. 3 If several employees hold the same posItIOn and fewer of theIr posItIOns are reqUIred In the new headquarters locatIOn, the employees wIth the greatest semonty wIll be gIven the opportumty to go to the new headquarters locatIOn first. 4 It IS understood that when an employee accepts the change In headquarters locatIOn In accordance wIth thIS Memorandum of Agreement, the provIsIOns of ArtIcle 6 (PostIng and FillIng of VacanCIes or New PosItIOns) shall not apply As the cloSIng date for WhItby JaIl was approachIng questIOns were raised regardIng what InstItutIOns were WIthIn forty kIlometers CorrectIOnal Officers wanted thIS InformatIOn pnor to takIng theIr electIOn under AppendIx 13 or ArtIcle 20 as It may apply In theIr IndIVIdual CIrcumstance The Employer posted the "dIstance rulIngs" on November 28 2000 The posted lIst had been a long standIng document that had not been prevIOusly challenged. That lIst stated Metro Toronto East DC 31 50 km Toronto JaIl 39 97 km Danforth ProbatIOn & Parole Office 33 65 km Scarborough P & P 30 81 km ThornhIll P & P 39 46 km WhItby P & P 4 48 km AJax-PIckenng P & P 13 08 km Don Mills P & P 34 50 km At the heanng, there was no dIspute between the partIes that the number of work locatIOns on the lIst were very Important to the employees at the WhItby JaIl because the lIst determInes the number of possIble optIOns AccordIngly the hIgher the number of possIble work locatIOns and 5 correspondIng posItIOns on the lIst, the more opportumtIes are avaIlable to for employees to maIntaIn theIr employment wIthIn a forty kIlometer dIstance of theIr cloSIng workplace locatIOn. Indeed, the focus of the transItIOn exercIse has been to maXImIze the number of employment opportumtIes for employees and thereby reduce the number of employees who would have no optIOns avaIlable to them for contInued employment In the OPS The deadlIne for CorrectIOnal Officers to elect under AppendIx 13 for work at Central East CorrectIOnal Centre was October 22, 2002 On October 21 2002 a gnevance was filed regardIng the composItIOn of the lIst. It was the gnevors' assertIOn that the Toronto JaIl should not be Included on the lIst as It was outsIde forty kIlometers To resolve that dIspute the partIes through the MERC transItIOn commIttees, agreed In a Memorandum of UnderstandIng, dated October 25 2002 to a process That agreement stated The partIes agree that an Independent firm wIll be utIlIzed to determIne the GPS dIstance calculatIOn between WhItby JaIl and the Toronto JaIl A maXImum of two wItnesses for the Umon and for the Employer may be present dunng the dIstance calculatIOn. LatItudInal and LongItudInal co-ordInates wIll be shared wIth the partIes The findIngs wIth respect to the dIstance calculatIOns between WhItby JaIl and the Toronto JaIl wIll be bIndIng on the partIes The above process was followed and on January 31 2003 It was found that the dIstance between the WhItby JaIl and the Toronto JaIl was 40065 kIlometers The Employer altered ItS posItIOn WIth the result that the Toronto JaIl was no longer consIdered an employment opportumty wIthIn forty kIlometers of the WhItby JaIl The partIes then revIewed the surplus SIng to ensure that no employee from WhItby JaIl had been Improperly placed at the Toronto JaIl as a result of the change In dIstance Employees not prevIOusly assIgned to Central East CorrectIOnal Centre were eventually surplussed In Apnl of 2003 A number of gnevances were filed In the early WInter of 2003 by vanous CorrectIOnal Officers Those gnevances allege that the Employer mIsrepresented the optIOns avaIlable to CorrectIOnal Officers by assertIng that the Toronto JaIl was wIthIn forty kIlometers Further the gnevors claimed that they would have possIbly made dIfferent chOIces If they had known the "true" dIstance In large measure, these gnevances contemplate Improper 6 work allocatIOn, claims for travel tIme and mIleage costs Some of the gnevances stated as follows I gneve that the Mimstry dId not afford me the proper chOIce of destInatIOn upon notIce of WhItby JaIl closure I was not properly advIsed that the Toronto JaIl IS more than 40 km and would have meant that I could have gone to the Toronto East DetentIOn Centre (excludIng the Toronto JaIl due to staff shortage there) Unfair labour practIce was presented to me In an Inaccurate manner regardIng my optIOns In transItIOn from WhItby JaIl I gneve that Management vIOlated the CollectIve Agreement but not lImIted to the Change of Headquarter NotIce In regards to me mOVIng to CECC from WhItby JaIl By way of remedy most asked for travel tIme and mIleage costs A number requested "payment of mIleage, meals and travel tIme untIl I reach Factor 90 I have Included a lIst of all the gnevances filed as AppendIx A I was provIded wIth no eVIdence that there were any requests from employees pnor to alter theIr electIOn chOIce before theIr surplus date Indeed, It was the Employer's eVIdence that there were no such requests Further there was no eVIdence that the ongInal determInatIOn that the Toronto JaIl was wIthIn 40 kIlometers of the WhItby JaIl was made In an arbItrary or dISCnmInatory manner or In bad faith. ThIS IS not surpnSIng because the effect of the Employer's decIsIOn to Include the Toronto JaIl dId not lImIt chOIces for employee Rather It Increased the number of avaIlable optIOns I first want to say that I am not convInced that the Employer made an error In the first Instance The dIfference between 3997 kIlometers and 4065 later measured IS due, In large part, to advanced technology In any event, much of the requested remedy set out by the gnevors IS, sImply put, beyond my JunsdIctIOn. The employees lodged a complaInt through the MERC TransItIOn process regardIng the dIstance to the Toronto JaIl The matter was InvestIgated and resolved In accordance wIth the ongInal request of the members of the bargaInIng umt. After that agreement was Implemented some employees filed gnevances floWIng dIrectly from the agreed upon resolutIOn. The Employer was asked to reconsIder ItS decIsIOn to have Toronto JaIl on ItS lIst of possible Job opportumtIes wIthIn forty kIlometers It agreed wIth the wIshes of the bargaInIng umt and deleted Toronto JaIl from that lIst. The Employer cannot now be found to be at fault for dOIng precIsely 7 what It was asked to do In the first Instance WhIle I apprecIate that the results of thIS exerCIse mIght have proven frustratIng for employees, had the Toronto JaIl been Included In the forty kIlometer radIUs for the purposes of redeployment under ArtIcle 20 It would have gIven employees at the WhItby JaIl a greater benefit. For all of those reasons, the gnevances are dIsmIssed. Dated In Toronto thIS 16th day of December 2004 S