The URL can be used to link to this page

Home My WebLink About2003-0529.Mellun.04-08-27 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# 2003-0529 UNION# 2003-0234-0101 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Mellun) Grievor - 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 July 15 2004 2 DeCISIon In September of 1996 the MmIstry of CorrectIOnal ServIces notIfied the Umon and employees at a number of provmcIaI correctIOnal mstItutIOns 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 mdIvIdual gnevances that alleged vanous breaches of the collectIve agreement mcludmg artIcle 6 and artIcle 31 15 as well as gnevances relatmg to the fillIng of correctIOnal officer posItIOns In response to these gnevances the partIes entered mto dIscussIOns and ultImately agreed upon two Memoranda of Settlement concernmg the applIcatIOn of the collectIve agreement dunng the "first phase of the MmIstry's transItIOn" One memorandum, dated May 3, 2000 (heremafter referred to as "MERC 1" (MmIstry Employment RelatIOns CommIttee)) outlIned condItIons for the correctIOnal officers whIle the second, dated July 19,2001 (heremafter referred to as "MERC 2") provIded for the non-correctIOnal officer staff Both agreements were subJect to ratIficatIOn by respectIve prmcIples and settled all of the gnevances IdentIfied m the related MERC appendIces, filed up to that pomt m tune The partIes contmued to negotIate and agree upon further condItIons regardmg the transItIOn matters MERC 3 was sIgned by the partIes on February 25, 2002 WhIle It was agreed m each case that the settlements were "wIthout preJudIce or precedent to posItIOns eIther the umon or the employer may take on the same Issues m future dIscussIOns", the partIes recogmzed that dIsputes mIght anse regardmg the unplementatIOn of the memoranda. Accordmgly, they agreed, at Part G, paragraph 8 3 The partIes agree that they wIll request that FelIcIty Bnggs, VIce Chair of the Gnevance Settlement Board wIll be seIzed wIth resolvmg any dIsputes that anse from the ImplementatIOn of thIS agreement It IS thIS agreement that provIdes me wIth the JunsdIctIOn to resolve the outstandmg 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 varIOUS phases of the restructunng GIven the complexIty and SIze of the task of restnlctunng and decommIssIOmng of mstItutIOns, It IS not surpnsmg that a number of gnevances and dIsputes arose ThIS IS another of the dIsputes that have ansen under the MERC Memorandum of Settlement When I was mItIally mVIted to hear theses transItIOn dIsputes, the partIes agreed that process to be followed for the detennmatIOn of these matters would be vIrtually IdentIcal to that found m 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 detennme the gnevance by arbItratIOn When determmmg 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 succmct decIsIOn wItlun five (5) days after completmg proceedmgs, unless the partIes agree otherwIse The transItIOn commIttee has dealt wIth dozens of gnevances and complamts 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, m accordance 4 wIth my JunsdIctIOn to so determme, that gnevances are to be presented by way of each party presentmg a statement of the facts wIth accompanymg submIssIOns NotwIthstandmg that some gnevors mIght wIsh to attend and provIde oral eVIdence, to date, thIS process has been efficIent and has allowed the partIes to rem am relatIvely current wIth dIsputes that anse from the contmumg transItIOn process Not surpnsmgly, m a few mstances there has been some confusIOn about the certam facts or sImply msufficIent detail has been provIded. On those occaSIOns I have dIrected the partIes to speak agam wIth theIr prmcIples to ascertam the facts or the ratIOnale behmd the partIcular outstandmg matter In each case thIS has been done to my satIsfactIOn It IS essentIal m thIS process to aVOId accumulatmg a backlog of dIsputes The task of resolvmg these Issues m a tImely fasluon was, from the outset, a fonnIdable one WIth ongomg changes m MmIstenal boundanes and other orgamzatIonal alteratIOns, the task has lately become larger, not smaller It IS for these reasons that the process I have outlmed IS appropnate m these CIrcumstances Alex Mellun was a HospItal/Housekeeper 2 at the Guelph CorrectIOnal Centre (GCC) In accordance wIth the Memorandum of Agreement sIgned on May 3, 2001, he receIved nghts under ArtIcle 20 of the CollectIve Agreement When he was surplussed there were no Housekeeper 2 posItIOns m the area so he bumped mto a Housekeeper 1 posItIOn at OCI Once m that posItIOn he filed a gnevance that he was Improperly classIfied and otherwIse treated wrongly because he had not obtamed a posItIOn as a Housekeeper 2 at Vamer Centre 5 The second Issue raised by the gnevor was that he should been allowed to rem am at the GCC untIl all of the Employer's operatIOns were moved At the very least, he was entItled to remam at GCC beyond May of 2002 untIl the pomt m tune when all other employees were moved to new locatIOns In the alternatIve, Mr Mellun's VIew was that at least one of Ius co-workers, who was allowed to remam at GCC, was less qualIfied and for that reason she should have been moved before he was oblIged to relocate to OCI In that regard the remedy requested was for travel tIme and mIleage for the penod that he worked at OCI untIl all employees had been moved from GCC I turn to the gnevor's first Issue Mr Mellun was of the vIew that he was entItled to a Housekeeper 2 posItIOn at Maplehurst There was no dIspute between the partIes that at the tIme that the gnevor was surplussed there was no Housekeeper 2 posItIOns aVailable at Maplehurst Therefore, m accordance wIth the agreement of the partIes he was allowed to bump mto the least semor housekeepmg posItIOn that was eqUIvalent or less wItlun forty kIlometers of GCC The gnevor elected to bump mto a Housekeeper 1 posItIOn at OCI GIven that there was no Housekeeper 2 posItIOn that was aVailable at the tune the gnevor was surplussed, I find that there was neIther a vIOlatIOn of the Memorandum of Agreement nor a vIOlatIOn of the CollectIve Agreement I turn next to the matter of whether the Employer had the nght to move the gnevor before all the operatIOns of GCC were moved. The mmates were moved from GCC dunng February of 2002 Paragraph 6 of the Memorandum of Agreement dated May 3, 2001 mentIOned above stated. The employees wIll remam at theIr current work sIte untIl the date the mstItutIOn no longer houses any mmates or another date agreed to by the employer and the employee Upon mutual agreement employees may be temporanly elsewhere untIl theIr placement occurs 6 In my VIew, there IS no doubt that the Employer was complymg wIth paragraph 6 when It moved the gnevor to OCI m May of 2002 The fact that other employees remamed at GCC beyond May of 2002 IS not relevant to whether the Employer vIOlated paragraph 6 of the Memorandum of Agreement Indeed, the Agreement contemplates that some employees mIght have some arrangement other than movmg when the mmates are sent to other mstItutIOns If both the Employer and the employee concur Paragraph 6 above also leads to me dIsmIss the gnevor's alternatIve argument m tlus regard. Employee qualIficatIOns were not consIdered by the partIes to be a relevant factor for the tunmg of employee movement to new work locatIOns Therefore, whIle It mIght be accurate that the gnevor was more qualIfied than another Housekeeper who remamed at GCC for a longer penod, that fact does not lead me to find that the Employer vIOlated the Memorandum of Agreement F or those reasons the gnevance IS demed. Dated m Toronto thIS 2ih day of August, 2004