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HomeMy WebLinkAbout1988-1506.Union.89-08-11 ., ;. ~\ ',. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS T80 DUNDAS STREET WEST TORONTO. ONTARIO, M5G lZ8 SUITE 2100 TEL EPHONE I TeLEPHONE 180. RUE DUNDAS OUEST TORONTO. (ONTARIO) M5G 128 BUREAU 2TOO (416) 598-0688 1506/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between .. OPSEU (Union Grievance) Grievor . - and - The Crown in Right of Ontario (~inistry of Correctional Services) Employer Before: M W. Wright Vice-Chairperson I . Freedman Member .A Merri tt, Member For the Grievor: B. Rutherford Counsel Gowling, Strathy & Henderson Barristers & Solicitors 0 Murphy president ontario Public Service Employees Union, Local 341 For the Employer; J. Benedict Manager Staff Relations and Compensation Ministry of Correctional Services Hearing; June 22, 1989 .. ( , . DEe I 5 ION This matter deals with a Policy Grievance filed by OPSEU The Union claims that the Ministry of Correctional Services has violated Article 4 1 of the Collective Agreement inasmuch as it failed to post and fill three vacancies which had occurred in accordance with the provisions provided in Article 4 1 of the Collective Agreement The Grievance asks us firstly to make a declaration that the Employer has violated Article 4 of the Co 11 ect i ve Agreement and secondly that the Employer be directed to post and fill vacanacies at Mi 11 brook Correct i ana 1 Centre in accordance with the provi s ions of Artic.1e 4 ~ The Mi ni stry says that for the reasons herei nafter set forth vacancies did not occur at Mil1brook as alleged In addition, the Employer has raised a preliminary objection based on the question of timeliness, that is to say, that the Grievance was not filed within the time , i mits prescribed by the Co 11 ect i ve Agreement and particularly Article 27.12 1 thereof We decided to deal first with the preliminary objection and both sides called evidence directed to the preliminary objection H27 12 1 Where any difference between the Employer and the Un ion ar i ses from the i nterpretat ion. application, administration or alleged contra- vention of the Agreement, the Union shall be entitled to file a grievance at the second stage of the grievance procedure provided it does so wi thi n thi rty (30) days fo 11 owi n9 the occurrence or ori 91 nati on of the ci rcum- stances giving rise to the grievance II (underlining added) , . - 2 - Mr Gary B Preston testified on behalf of the Employer Mr Preston is the Superintendent of the Millbrook Correctional Centre He testified that on October 27th, 1988 he sent a memorandum to "All Shift Supervi sors II whi ch was headed IIFi nanci a 1 Constrai nts Eastern Region" In his memorandum Mr Preston pointed out that the number of inmates would be reduced from 260 to 234 He went on to say the fo 11 owi ng IIThis wi 11 result in one 36 bed wing being shut down, on a permanent basis We presently have 3 cprrectional officer vacancies that wi 11 remain vacant Am embargo has been placed on these positions -by the Eastern Regional Office II Mr Preston testified that on October 31st, 1988 he met with Mr Dan Murphy who was then the Secretary -- and now the President -- of the Union Local 341 as well as with Mr Nattress who was Vice-President of Local 341 He says that the meeting which took place in his office was held in order to discuss budget issues whi ch affected Mi 11 brook Mr Preston advi sed Messrs Murphy and Nattress that management had deci ded to close No 11 wi ng whi ch involved the reduction of 26 inmates in the institution He told them of the budget restraints which necessitated the reduction in staffing of the three Correctional Officers He says that he made it clear to Messrs Murphy and Nattress that the three CO positions would not be filled because of the reduction in the workload On November 14, 1988 Mr Preston recei \led a 1 etter from Mr I~urphy dated November 12, 1988 which read as follows - 3 - h "Mr Preston I would 1 i ke to request written specifi cs about what restraints are being imposed here at Mil1brook C C Please include staffi n9 reductions. staff training reductions etc This would enable this executive to fully explain to our members how the restraints are specifi- oally affecting each department I await your reply" Mr Preston testified that on November 25th, 1988 he had posted a memq.randum whi ch was addressed to II A 11 S taffll deal i ng wi th the subject of llBudget Issuesll In reply to Mr Murphy I s 1 et ter of November 12th, 1988 Mr Preston wrote to Mr Murphy on November 28th, 1988 enclosing a copy of his memorandum of November 25th The November 25th memorandum dealt with ten i terns. two of whi ch are relevant to this case The two items in question were items 3 and 10 which read as follows 113 At the present time we have three correctional officer vacancies and an embargo has been placed on filling these vacancies at this time, due to the reduction of staff on days and afternoons, because of the wing closure 10. The fi ve class ifi ed correct i ona 1 offi cer overages that are ut i1 i zed for sick relief wi 11 be converted to unclassified establishment as vacancies occur The next five correctional officer vacancies wi 11 not be fill ed . but as each occurs, an overage position wi 11 be abolished and the unclassified establishment will be increased The abolishment of the five correctional officer overages will be reviewed following a post audit of this Institution, whi ch wi 11 take place ; n the future " ~ , 4 'I - - I ~lr Preston testified that one CO had resigned on August 27th~ 1988~ a second CO won a competition at the Lindsay Jail and went to that job on October llth~ 1988~ a third CO won a competition with respect to another posit; on and he 1 eft on November 11 th ~ 1988 i Because of the fiscal problems referred to above~ none of the three , COIS were replaced nor were steps taken by the Employer to post the i jobs as provided in Article 4 1 of the Collective Agreement I I I The Union says that three vacancies existed and that the posti n[ procedures called for in Article 4 1 should have been followed by management Management, on the other hand, denies that I there were any vacanci es due to the reorgani zati on whi ch had been taking place I As has already been stated, the Employer says that the Grievance is untimely in that it was not fil ed "withi n 30 days following the occurrence or origination of the circumstances giving rise to the Grievance" The Employer says that Mr. Preston's memorandum to "All Staff" dated November 25th~ 1988 gave full notice to the employees and to the Union as to the factual situation and that if the Union considered that vacancies had occurred within the meaning of Article 4 1 then the Grievance should have been filed within a period of 30 days from November 25th, 1988. as provided in Article 27 12 1 However~ the Unionls Grievance was not filed until February 15th, 1989 whi ch was 57 days after November 25th. 1988 The Employer points out that the provisions of Article 27 12 1 are - s - mandatory and not directory and the Union agrees with that position The Ministry takes the position, therefore, that since the Grievance , is untimely it must be dismissed and that we have no Jurisdiction to deal with it The Employer says that the Union and the Employees were kept fully informed of the Emp1 oyer I s s~eps and the Employer points to three specific occasions when the necessary information was brought to the attention of the Employer The first occasion was when the Emp1 oyer I s memorandum to IIA11 Shift Supervisors" went out on October , 27th, 1988 and was subsequently enlarged upon by Mr Preston when he met with Mr Murphy and Mr Nattress on October 31st, 1988 The second occasion was when Mr Preston posted hi s memorandum of November 25th, 1988 addressed to IIA11 Staff" The third occasion was when t'lr. Preston wrote to Mr Murphy enclosing the memorandum of November 25th [.Ir Murphy testified that he understood the position of management to be that the steps which they were taking were "interim measuresll only In this respect he points to Mr Preston1s memorandum of November 25th in which Mr Preston describes the steps as "interim measures" and Murphy says it was reasonable for him to assume that no vacancies had I) j - 6 - been created at that point No meaningful explanation. however. is given as regards the fact that the Hovember 25th. 1988 memorandum by Mr Preston stated clearly that "At the present time we have three correctional officer vacancies and an embargo has been pl aced on filling these vacancies at this time " We find. therefore. that management made its position known to the employees and to the Union and that both the Union and the employees generally knew by November 25th. 1 988. at the latest, exactly what the situation was and that vacancies existed Article , 27 12 1 entitles the Union to fi le a Grievance "provided it does so within 30 days follow; n9 the occurrence or origination of the ci rcumstances gi vi ng ri se to the Gri evance 11 The 1I0rigination of the ci rcumstances II would take place at a time earlier than the occurrence We find that, at the very latest, the occurrence took place on November 25th. 1988 when Mr Prestonls memorandum was posted to "All Staff II and that the Grievance was filed more than 30 days following lithe occurrencell. Counsel for the Union, however, makes an alternative sub- mission She says that the violation of the Collective Agreement by the Employer was of a continuing nature such that the violation by the Emp 1 oyer continued on a day-to-day basis In other words, counsel for the Union argues that management1s conduct represented a continuing offence and continued on a day-to-day basis from November 25th. 1988 unt i 1 the day on which the Grievance was f i 1 ed on 'h . i - 7 - I , ; J I February 15th, 1989 In support of her submission counsel referred to GSB 498/85 OPSEU (Union Grievance) and The Crown in ri ght of Ontario (Ministry of Correctional Services)" (Verity) Counsel for the Union relies upon a single sentence in a single paragraph at page 4 of that decision which reads as follows "'The , Union Grievance filed on ~lay 24, 1985 is f almost two months subsequent to the Memorandum i Clearly, the Grievance was not fil ed in a timely fashion, and it does appear that the time limits I 1 are mandatory rather than directory However, I , in our op; ni on, the alleged vi 01 at i on of the Agreement ! . of continuing nature, and accord1ngly strict 1S a q"ompliance wlth the time 1 i mits 1 s of less signlfl- cance The Employer candidly admitted that it ~not raised the timeliness issue prior to the I Hearing In our opinion, this second preliminary I objection must fail II (underlining added) With the greatest of respect, we find that the foregoi ng I ! decision gives no explanation as to why the vi 01 at ion in that case was of a continuing nature and we do not consider that I i I that deci sian provides any guidance such that it should be , fo 11 owed automatically For whatever it is worth, in the case before Mr Verity the Employer had not raised the timeliness issue before the hearing, in our case the timeliness issue was raised by the Employer in its formal reply to the Union in the Grievance procedure prior to arbitration We were also referred to the case of Re Parking Authority of Toronto and Canadian Union of Public Employees. Local 403, 5 LAC . . - 8 - (2d) 150 (Adell ) in which the arbitration board rejected the Employer's objection that the Grievance was untimely The arbitrat ion board in that case held that the violation by the Employer was of a continuing nature but the facts in that case are noteworthy That was a case involving scheduling of work P,pparently the Collective Agreement called for an 8-hour day 5-day work \veek The Employer decided to use part-time employees and, in the result, regular employees in the bargaining unit found themse)ves working less than 8 hours in a day and less than 5 days in a week. The repercussions as regards the regular employees were. therefore. dependent on the use made by the employer of part-timers on a day-to-day basi s That was clearly a situation involving a continuing offence and the facts are hardly comparable with those in our case We agree with the statements made by the arbitration board based upon the facts of that ease The facts of our case are quite different Management made a deci si on and posted it on Noverllber 25th, 1988 and took no further steps si nee then That hardly constitutes a violation of a continuing nature which is revived on a day-to-day basis as alleged by the Union In the circumstances. therefore. we find that the Un; on I s Grievance is untimely in that the Grievance was not filed within the time limits prescribed by Article 27 12 1 . :~I ~. - 9 - The Grievance is dismissed DATED AT OTTAWA this 11th day of Aug ~ 1989 ,\ ~-;?~ .-- r~ W WRIGHT. -_ Vice Cha& ( E J',~ I. FREED N, Member " .. G.lt. ~-~~ A MERRITT, Member