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HomeMy WebLinkAbout2006-2241.Union.07-06-11 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2006-2241 UNION# 2006-0369-0038 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 BEFOREVice-Chair Felicity D. Briggs FOR THE UNION Peter Shklanka Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER David Strang SeniorCounsel Ministry of Government Services HEARING May 22, 2007. 2 Decision Prior to November of 2006, the government of Ontario contracted Management and Training Corporation Canada (?MTC?) to operate its jail in Penetanguishene, Central North Correctional Centre (?CNCC?). MTC employed the majority of employees working at the jail. However, it did sub-contract out some of the work, such as nursing services to First Correction Medical (?FCM?). While MTC operated CNCC it had its own policies and procedures governing the workplace, not those of the Ministry of Community Safety and Correctional Services. When the Ontario government decided to not to renew this arrangement and take over the operations of the CNCC, the Ministry and the Union negotiated a Memorandum of Agreement dated September 18, 2006. The date of the transfer (?the Transition Date?) was November 9, 2006 and after that date MTC and FCM ceased to exist in Ontario. In the Memorandum of Agreement the parties agreed to a dispute resolution mechanism for mediation-arbitration. As a result of that provision I asked to assist the parties with the few remaining disputes CNCC entering the Ontario Public Service. The parties were successful at mediating some of the remaining disputes. However, there are a few outstanding matters. The first issue addressed by the parties is regarding offers of employment. During the discussions between the parties in preparing for an expeditious arbitration of this matter, it became apparent that the parties are disparate on the appropriate standard of review to be applied in these circumstances. It is this narrow question that is addressed in this decision. At the hearing the Union asserted, and the Employer did not disagree, that the parties negotiated terms and conditions ?for the hiring of employees from MTC 3 and FCM to work at CNCC. The intent of these negotiations, consistent with article 16 and the ?MERC Terms of Reference? (COR4) of the Central Collective Agreement, was to try to facilitate a smooth transition of the operation of CNCC to the Ontario Public Service and, from the perspective of the Union, to minimize job losses for employees at CNCC and attempt to secure credit for seniority and service of employees who would be hired from CNCC into the OPS.? The Memorandum of Agreement contemplates a variety of conditions the parties agreed upon concerning the transfer of operations. The relevant provisions for the purposes of the instant dispute are: Whereas the parties wish to effect a successful transfer of operations of Central North Correctional Centre to the Ontario Public Service (OPS) as of the transfer date on or about November 9, 2006; Therefore the parties agree to the following provisions on a without prejudice and precedent basis: 1.0 Introduction 1.1 This agreement is related exclusively to the transfer of operations of the Central North Correctional Centre (CNCC) to the OPS, specifically to the Ministry of Community Safety and Correctional Services (MCSCS). 1.2 It is understood that the term ?employees? refers to employees of MTCC who work at CNCC and who are hired in accordance with this agreement into the OPSEU represented positions at CNCC once it is transferred to the OPS. 2.0 Expression of Interest 2.1 Employees will be asked to submit a written expression of interest within five (5) working days of receiving an information package (consisting of a list of applicable positions, salaries and classifications) and consent form from MCSCS. The consent form must be signed and returned with the expression of interest. The purpose of the consent form is to transfer the employees? 4 personnel files to allow the Employer to determine whether or not the employees meet the screening criteria and qualifications of the position, perform security/CPIC checks in accordance with MCSCS policies, and ensure eligibility to work in Canada. Screening criteria will include a review of personnel files for significant substantiated discipline. It will also include a review of short-term sick leave usage over the last 12 months to ensure that usage is on par with the Ministry average. Justifiable absenteeism will not be considered. 2.2 The Employer will advise the Union if it determines that a job offer will not be made based on a review under 2.1 above. 2.3 Employees who have been previously dismissed with cause from the OPS will not be offered positions at CNCC. 3.0 Offers of Employment 3.1 The Employer will fill positions created at Central North Correctional Centre (CNCC) as a result of the transfer of operations from MTCC by making offers of employment to eligible employees of MTCC. Reasonable efforts will be made to offer employment to CNCC employees eligible for OPSEU- represented positions. Underfilling and conditional assignments may be utilized to assist in placement. 3.2 The OPSEU/MBC collective agreement terms related to job security and filling of vacancies in force between the parties at the time of the transfer will not apply to positions that are filled by employees at MTCC who receive offers of employment pursuant to this agreement. 3.3 The offer of employment shall contain, at a minimum, a description of the work, classification level, salary level, and a provision that the offer of employment is valid only if the employee remains an employee of MTCC up to his/her date of transfer. 3.4 The Employer will advise the Union if a job offer is rescinded. 3.5 Where the Employer has not made a job offer or has rescinded a job offer based on an employee having been given significant substantiated discipline and that discipline is subsequently reduced or rescinded by an arbitrator, the Employer may reconsider its decision not to offer a job or to rescind a job offer based upon the findings of the arbitrator. 3.6 The Employer may also make job offers to employees of subcontractors at CNCC into health care, food services positions, 5 and the two positions currently being performed through TRILCOR in accordance with paragraph 3.1 above. In such cases, the provisions of this agreement shall apply. Any medical/dental professional services and vocational/educational services shall not be considered bargaining unit work in the OPS. 3.7 The Employer will reduce the current RPN overage via attrition. As RPNs leave, RNs will be hired to fill the number of positions outlined in the Transition Staffing Model. 3.8 It is understood that any reference to job offers means offers of employment at CNCC once it is transferred to the OPS. EMPLOYER SUBMISSIONS Mr. Strang, for the Employer asserted that this Board should look to Article 2, Management?s Rights, to determine the appropriate standard of review in this matter. According to the Collective Agreement, discipline and dismissal are subject to just cause while hiring is not. There is nothing in the Memorandum of Agreement that changes the Employer?s rights regarding hiring. So long as the Employer is acting in a fashion, this Board ought not to interfere with the bona fide Employer?s hiring decisions. The Employer conceded that there were a number of advantages for the Employer in the negotiated provisions found in the Memorandum of Agreement. In the absence of the transition process set out in the agreement, the Employer would have faced a number of time-consuming employment processes and this transition would have become a lengthy matter. Further, the jail had to continue to operate from the last day with MTC to the first day with this Ministry. It was for these reasons that that Employer agreed to an abbreviated hiring process that involved reviewing the personnel files and employee records. However, there was nothing in the Memorandum to suggest that the Employer agreed to fetter its discretion to offer employment to any particular employee. 6 The Employer contended that Paragraph 2.1 provides it with the right to review the files of employees. Further, the Employer?s screening criteria will include - a word that clearly implies an expansive definition ? significant substantiated discipline, sick leave usage and a CPIC check. Further, it is worthy of note that the word criteria is plural. If the parties intended to restrict the Employer to only one criterion they would have so stated. Mr. Strang submitted that this Board has, in the past, considered the appropriate standard of review for hiring and found that in the event that the Employer has acted with reasonableness and good faith, deference is to be given to the Employer?s decision. Once a determination has been made that the Employer acted on relevant facts for reasons that have a legitimate business purpose, the Employer?s decision is not overturned. The test to apply is not whether the Board would have made the same decision as the Employer, only whether the Employer acted reasonably. Accordingly, this Board can only review allegation of . mala fides Re British Columbia District Telegraph Co. Ltd. The Employer relied upon And International Brotherhood of Electrical Workers, Local 213 (1984), 17 d) Re Ontario allied Construction Trades Council and L.A.C. (3131 (Kelleher); Labourers? International Union of North America, Local 506 v. Ontario Hydro, Parsons Turbine Generator Canada Ltd. And The Electrical Power Systems Construction Association Re [1997], O.L.R.D. No. 4195 (Nairn); OPSEU and Ministry of Natural Resources (Bousquet) , File No. 51/90, March Re OPSEU and Ministry of Government Services 1, 1991 (Gorsky); (McIntosh)Re OPSEU , File No. 3027/92, December 15, 1993 (Dissanayake); and Ministry of Community and Social Services (Boulet et al) , File No. Re University of Manitoba and Canadian 1189/99 August 8, 2000 (Brown); and 7 Association of Industrial, Mechanical & Allied Workers, Local 9 (1989), th 6L.A.C. (4) 182 (Chapman). UNION SUBMISSIONS Mr. Shklanka, for the Union, began by conceding that the Employer?s submissions would be correct if there was no September 18, 2006 Memorandum of Agreement between the parties. If the Collective Agreement were the sole document before this Board, the Employer?s position would prevail. However, the parties did negotiate a Memorandum of Agreement that, for the discrete purposes of this employment relationship the Employer, results in a narrower discretion for the Employer than is set out in Article 2 of the Collective Agreement. Further, the Union indicated that it did not take issue with the jurisprudence put forward by the Employer. However, because all of those decisions contemplate the general test to be applied absent any language which fetters the Employer?s rights in the hiring process, it does not apply in this peculiar instance. The Union contended that the Memorandum of Agreement amends the general hiring process and as an adjunct it suspends the normal posting obligations which would otherwise apply under the Collective Agreement. It makes clear that employees of MTC and FCM are to be given priority for hiring. The parties established a process whereby employees gave consent to have their personnel files screened and then the Employer was to apply particular criteria. The ?screening criteria? are significant substantiated discipline, short-term sick leave usage, security/CPIC checks and no previous dismissal from the Ontario Public Service. Further, it is stated that, in the event that a job offer was not made ?based on a review under? that screening process, the Union was to be notified. 8 According to Mr. Shklanka, Paragraph 3.2 of the Memorandum of Agreement suspends the terms and conditions of the collective agreement to allow priority hiring for employees at CNCC. Indeed, it provides special terms for CNCC employees hired on by the Ministry so that they will not be treated in the same manner for the purposes of seniority and service as ?new? hires. The Union submitted that if the Employer were right about the standard of review for this Board, why would the parties have bothered to negotiate a Memorandum of Agreement in this instance. In order to give any meaning to the screening process and the criteria set out in Paragraph 2.1 of the Memorandum of Agreement this Board must conclude that the Employer?s discretion with regarding to hiring is fettered. The Union did not disagree with the Employer that paragraph 2.1 of the Memorandum of Agreement indicates that criteria ?includes? the significant substantiated discipline and sick leave and the CPIC check. However, the other criteria to take into account are set out in the paragraphs that follow and include whether employees were previously dismissed from the OPS or have imposed discipline overturned by an arbitrator. The word ?include? should not be interpreted so as to allow the Ministry to rely upon their usual unfettered management?s right to hire. Surely the criteria would not be set out in the Memorandum of Agreement if the Employer could then make an unfettered decision that is beyond essentially arbitral review. Re Dunham-Bush of Canada Ltd. And United The Union relied upon Steelworkers, Local 3998Re School (1975), 9 L.A.C. (2d) 401 (Weatherill); District No. 70 (Albernie) and British Columbia Teachers? Federation (2002), th Re Voice Construction Ltd. v. Construction & 103 L.A.C. (4) 395 (Jackson); 9 General Workers Union, Local 92Re [April 8, 2004] SCC Court File 29547; and Blouin Drywall Contractors Ltd. And United Brotherhood of Carpenters and Joiners of America, Local 2486 (1973), 4 L.A.C. (2d) 254 (O?Shea). EMPLOYER REPLY The Employer stated that normally employers do not look at discipline and sick leave in determining whether to hire employees so it is not surprising that these criteria are specifically set out in Paragraph 2.1 of the Memorandum of Agreement. However, to specify these criteria does not restrict the Employer?s broad discretion to hire as set out in the Collective Agreement. Mr. Strang suggested that all of the case law provided by the Union was decided based on the unique language found in those collective agreements and is therefore of little utility to this Board. Simply put, in the instant case there is no language that would allow this Board to find for the Union. DECISION Like counsel for the Union, I do not disagree with the general principles set out in the arbitral jurisprudence provided by the Employer. However, I am of the view that the facts of this matter are significantly different and certainly unusual, if not unique. The Government of Ontario decided to discontinue the contracting out the operations at CNCC. As a result of this decision the Employer negotiated terms and provisions for ?a successful transfer of operations? of CNCC to the OPS as of November 9, 2006. In the second paragraph of the Memorandum of Agreement the 10 parties set out how employees of MTC would make it known to the Ministry if they were interested in employment. To do so they had to sign consent forms that would allow their employment records to be sent to the Ministry ?to allow the Employer to determine whether or not the employees meet the screening criteria and qualifications of the position.? The Employer was to advise the Union if it determined that a job offer would not be made ?based on a review under 2.1 above.? It was also made clear in paragraph 3 that job offers were to be made ?to eligible employees of MTCC.? Further, ?reasonable efforts? were to be made to ?offer employment to CNCC employees eligible for OPSEU-represented positions.? Paragraph 3 also provides that if an arbitrator alters imposed discipline that the Employer may reconsider its decision not to offer a job ?based on an employee having been given significant substantiated discipline?. In my view, all of these provisions establish that the Employer did not have its usual broad discretion, found at Article 2 of the Collective Agreement, to hire in these circumstances subject only to reasonableness and . I agree with bona fides the Union that it would make no sense for the parties to detail specific criteria in the Memorandum of Agreement if the proper result was that the Employer retained its usual broad Collective Agreement rights. To find for the Employer would be to give virtually no meaning to paragraphs 2 and 3 of the Memorandum of Agreement. Re Dunham Bush Of the case law provided the one of most assistance was . In that case the parties had negotiated a Memorandum of Agreement dealing specifically with the settlement of a strike. In that document the parties had agreed to, amongst other things, how employees would be recalled to work. The grievance before 11 Arbitrator O?Shea alleged that the grievors should have been recalled in accordance with the terms and provision of the Collective Agreement. The Board disagreed and found, at page 404, ?that the Union, having agreed to the special provisions for recall set out in the memorandum, cannot now rely, for the purposes of this grievance, on the provisions of the Collective Agreement.? In this case the parties were facing a unique situation. Indeed, the Union referred to this arrangement as a ?one off?. In order to deal with a seamless transition of operations, which would be essential in a jail, they negotiated provisions beyond those found in the Collective Agreement. There must have been a purpose for setting out the screening criteria for offers of employment. I am of the view that by doing so the parties agreed to fetter the Employer?s normal broad discretion with respect to hiring. th Dated in Toronto, this 11 day of June, 2007. Felicity D. Briggs, Vice-Chair