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HomeMy WebLinkAbout2003-1415.Murphy et al.07-12-05 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 Nj ~ Ontario GSB# 2003-1415,2003-1436 UNION# 2003-0234-0235,2003-0234-0222 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Murphy et al.) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Felicity D. Briggs Tim Mulhall, Scott Andrews, Stephen Giles Grievance Officers Ontario Public Service Employees Union Greg Gledhill and Lucy Neal Staff Relations Officers Ministry of Community Safety and Correctional Services October 14, November 15, 2005; May 24,2007. Union Employer Vice-Chair 2 Decision In September of 1996 the Ministry of Correctional Services notified the Union 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 Union filed policy and individual grievances that alleged various breaches of the Collective Agreement including Article 6 and Article 31.15 as well as grievances relating to the filling of Correctional Officer positions. In response to these grievances the parties entered into discussions and ultimately agreed upon two Memoranda of Settlement concerning the application of the collective agreement during the "first phase of the Ministry's transition". One memorandum, dated May 3, 2000 (hereinafter referred to as "MERC 1" (Ministry 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 principles and settled all of the grievances identified in the related MERC appendices, filed up to that point in time. While it was agreed in each case that the settlements were "without prejudice or precedent to positions either the union or the employer may take on the same issues in future discussions", the parties recognized that disputes might arise regarding the implementation of the memoranda. Accordingly, they agreed, at Part G, paragraph 8: The parties agree that they will request that Felicity Briggs, Vice Chair of the Grievance Settlement Board will be seized with resolving any disputes that arise from the implementation of this agreement. 3 It is this agreement that provides me with the jurisdiction 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 various phases of the restructuring. Given the complexity and size of the task of restructuring and decommissioning of institutions, it is not surprising that a number of grievances and disputes arose. This is another of the disputes that have arisen under the MERC Memorandum of Settlement. When I was initially 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 grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. 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 grievances and complaints prior to the mediation/arbitration process. There have been many other grievances 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 grievances that I have decided, in accordance with my jurisdiction to so determine, that grievances are to be presented by way of 4 each party presenting a statement of the facts with accompanying submissions. Notwithstanding that some grievors 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 arise from the continuing transition process. Not surprisingly, 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 principles 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 Ministerial boundaries and other organizational alterations, the task has lately become larger, not smaller. It is for these reasons that the process I have outlined is appropriate in these circumstances. Mr. Danny Cox and Ms. Brenda Murphy hold the position of Industrial Officer 2 at Maplehurst Trilcor. They filed grievances that allege the Employer has violated various provisions of the Collective Agreement including Article 6, 8 and 20. By way of remedy they seek "proper application" of those articles and full redress. According to the Union, both Ms. Murphy and Mr. Cox are of the view that they should have been entitled to bid on a "vacant" position for Industrial Officer 3 - Laundry Supervisor at Maplehurst Trilcor. 5 Mr. Robert Mercer presently has the position of Industrial Officer 3 - Laundry Supervisor at Maplehurst Trilcor. Although it took a number of days of hearing to answer all of the questions I had surrounding this matter, there is little dispute on the facts. In 2001 Mr. Robert Mercer was an Industrial Officer 2 at the Guelph Correctional Centre when he received notice of his Article 20 rights. He elected to bump into a Correctional Officer position at Maplehurst. However, prior to actually working in his new home position of Correctional Officer at Maplehurst, he applied for and was awarded a temporary Industrial Officer 3, Senior Laundry Officer position at the Guelph Correctional Centre. By all accounts this temporary position continued for a period much than was originally anticipated. After occupying the position of I03 for a period in excess of two years, Mr. Mercer complained to his manager that he should be permanently assigned to the position. That dispute was resolved with the result that Mr. Mercer was awarded the position on a permanent basis. Shortly after that agreement he was again surplussed as of May 8, 2003 as Laundry Supervisor from Guelph Correctional Centre. At the time Mr. Mercer received his surplus notice, Ms. Sharon McNabb was working as a Laundry Supervisor at Maplehurst Trilcor, although she had been absent from the workplace due to illness. It was known by the transition committee that Ms. McNabb was interested in retiring. Ms. Linda Elliot, Senior Translation Specialist, contacted Ms. McNabb to establish whether she was, in fact, contemplating retirement. Ms. McNabb made it known that she wanted to retire. She returned to the workplace in March of 2003, but was again absent due to illness in early July of 2003 and she did not return until approximately November of 2003. She then worked off and on until her ultimate retirement date in March of 2004. 6 On May 28, 2003 Mr. Mercer received a notice in accordance with Article 20 of the Collective Agreement. By letter dated June 4, 2003 he was informed that, "in accordance with Article 20 of the OPSEU Collective Agreement you have chosen to exercise your redeployment entitlements. As a result, the following position within 40 kms of your permanent work site has been identified: Laundry Supervisor, Industrial Officer 3, Trilcor, Maplehurst." He was later directed to report for that work effective June 16,2003. According to the Employer, Mr. Mercer was moved into the Industrial Officer 3 position as an "overage" because, as mentioned above, while the position was a single incumbent position, it was known to the transition unit that Ms. McNabb would soon retire. It was asserted by the Employer that in these circumstances it had the right to so assign Mr. Mercer. Further, the assignment was completely in line with the overall objectives of the transition process. It was the Union's contention that at the time Mr. Mercer moved into this position the Employer had actually created a new position of Industrial Officer 3 at Maplehurst Trilcor. Accordingly, that vacant position ought to have been posted in accordance with the Collective Agreement. Such a posting would have given both Mr. Cox and Ms. Murphy a chance to apply for a promotional opportunity. It was an agreed fact that during this period it was the normal practice in situations such as this for Ms. Elliot to confer with Union members of the transition committee about moving employees into positions. However, such a discussion did not take place in this instance. The parties further agreed that vacancy management 7 in the transition process occasionally included the designation of certain positions as "overages". The Budget Allocation Model (the "BAM"), from the salient time indicated that Ms. McNabb was retiring at the end of the summer. However, that notation was struck out and while she was not actually attending in the workplace for the full period, her employment did not actually terminate until March of 2004. The BAM also stated that the position held by Mr. Mercer was an "overage" and that he was "redeployed from GTC effective June 3, 2003." Normally, the Union would have had access to this document however, the Union asserted, and the Employer did not contest, that the Union representatives did not see this particular document at the salient time. To be clear, the Employer takes the position that it created an overage position which it assigned to Mr. Mercer but concedes that it did so without notification to the Union. The Employer informed the Board that records dating back to 1995 indicate that prior to Mr. Mercer's overage assignment there has been only one I03 position at Maplehurst Trilcor. It should be noted that there was no allegation of bad faith made by the Union. It was the Employer's submission that if Ms. McNabb had not retired Mr. Mercer would have been surplussed again. By putting Mr. Mercer into this position at the time it did, the Employer directly assigned him into an overage position and doing so does not constitute a violation of any MERC agreement or of any provision of the Collective Agreement. It was conceded that it would have been optimal if the 8 Union was made aware of Mr. Mercer's assignment. However, the inadvertent failure to ensure the Union knew of this assignment should not bring the result now requested by the grievors. The Union contended that either the newly created I03 position that was given to Mr. Mercer or I03 position resulting from the retirement of Ms. McNabb should have been posted as a vacant position. According to the Union, by arbitrarily assigning Mr. Mercer to the position, the Employer violated Article 6 of the Collective Agreement and various MERC agreements. The letter sent to Mr. Mercer informing him of his assignment to the I03 position in the Trilcor Laundry does not refer to the position as either "temporary" or as an "overage". The Union urged this Board to declare that a vacancy was created. Once such a declaration is made, the Board should simply remain seized and allow the parties to determine the appropriate remedy. DECISION The parties have asked this Board to address the question of whether there was a vacancy created by the Employer at the time it moved Mr. Mercer into the overage position of I03 at Trilcor. In the alternative the Union asked that I declare that once Ms. McNabb retired her position was a vacant position which the Employer should have posted thereby allowing Ms. Murphy and Mr. Cox to apply for a promotion. I have given this question much consideration. I understand the Union's concern that a promotional opportunity was lost for some members of the bargaining unit when the Employer decided to put Mr. Mercer into an "overage" position as I03 at 9 Trilcor. There are few such opportunities in the normal course of events, and therefore the Union makes every effort to protect such instances. However, this whole period of time was not the normal course of events. This fact situation took place in the middle of the re-organizational and transition period. Throughout all of the mediation and arbitration sessions that I have held with these parties, it has been clear that the mandate of the transition process was to limit, to the extent possible, job losses and other employment changes. It seems to me, that is precisely what the Employer did in this instance. This matter was heard over a number of days to allow me to hear directly from various people. Linda Elliot led the transition efforts for the Employer and she conceded that she did not speak with Barry Scanlon, her Union counterpart at the time, in the transition process about what she intended to do regarding Mr. Mercer. Indeed, it was accepted by the Employer at the hearings into this matter that Mr. Scanlon did not know of the Employer's decision at the time. Mr. Scanlon was equally forthright that he did not think that there was any bad faith involved in the Employer's actions. In my experience this lack of communication between the parties was most unusual during this process. I have been impressed throughout the transition process and these proceedings with the level of ongoing and forthright discussions held by the parties. These parties have dealt with employment changes for literally hundreds and hundreds of employees. It is not surprising that there would be few situations where full communication was not achieved. In my view, it is most significant that there were no allegations of bad faith put forward by the Union. Ms. Elliot had an employee who had elected to exercise his redeployment rights under Article 20. She knew of a situation which would facilitate his redeployment in a relatively non-disruptive fashion. She confirmed 10 that Ms. McNabb would be retiring within a relatively short period of time and that would provide Mr. Mercer with an identical position within 40 kilometers of his permanent worksite. While it would have been ideal if she had discussed the assignment of an "overage" position with Mr. Scanlon or another Union official, her failure to do so does not lead me to declare a vacant position as requested by the Union. I am of the view that the assignment of Mr. Mercer is congruent with the vacancy management mandate of the transition process. Although a promotional opportunity was lost for some according to the Union, I must find that Mr. Mercer, who already had the position of I03, was properly moved. The Union urged that I should find that at the time Ms. McNabb retired there were two I03 positions at Trilcor and Ms. McNabb's retirement caused one to become vacant. I cannot. There was one I03 position that was permanent and one that was an overage. Once Ms. McNabb retired there was the one position of I03 held by Mr. Mercer and no vacant I03 positions. I understand that Mr. Cox and Ms. Murphy will be disappointed with this decision because they lost an opportunity to apply for a promotion. I am sympathetic to their view. However, given the mandate and the overall objectives of the transition process and the lack of any mala fides, I cannot agree with the Union's submissions. Dated in ,oronto thi th day of December, 2007. elicity D. Brigg , Vice-Chai ~-.