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HomeMy WebLinkAbout2020-2353.Union.21-03-23 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2020-2353 UNION# 2020-0999-0024 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) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General and Ministry of Children, Community and Social Services) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Dan Sidsworth Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Michelle LaButte Treasury Board Secretariat Employee Relations Advisor HEARING December 11, 2020, February 18 and March 19, 2021 -2- DECISION [1] Since the spring of 2000 the parties have been meeting regularly to address matters of mutual interest which have arisen as the result of the Ministry of Community Safety and Correctional Services (now, the Ministry of the Solicitor General) as well as the Ministry of Children and Youth Services restructuring initiatives around the Province. Through the MERC (Ministry Employment Relations Committee) a subcommittee was established to deal with issues arising from the transition process. The parties have negotiated a series of MERC agreements setting out the process for how organizational changes will unfold for Correctional and Youth Services staff and for non-Correctional and non-Youth Services staff. [2] The parties agreed that this Board would remain seized of all issues that arise through this process and it is this agreement that provides me the jurisdiction to resolve the outstanding matters. [3] Over the years as some institutions and/or youth centres decommissioned or reduced in size others were built or expanded. The parties have made efforts to identify vacancies and positions and the procedures for the filling of those positions as they become available. [4] The parties have also negotiated a number of agreements that provide for the “roll-over” of fixed term staff to regular (classified) employee status. [5] Hundreds of grievances have been filed as the result of the many changes that have taken place at provincial institutions. The transition subcommittee has, with the assistance of this Board, mediated numerous disputes. Others have come before this Board for disposition. [6] It was determined by this Board at the outset that the process for these disputes would be somewhat more expedient. To that end, grievances are presented by way of statements of fact and succinct submissions. On occasion, clarification has been sought from grievors and institutional managers at the request of the Board. This process has served the parties well. The decisions are without prejudice but attempt to provide guidance for future disputes. [7] On December 7, 2020 the Union filed a grievance with the Ministry of the Solicitor General and the Ministry of Children, Community and Social Services (Youth Justice Division) claiming that the Employer had violated various articles of the Collective Agreement including, Article 2, Appendix COR8 (Fixed Term Rollovers CO & YSO); Appendix COR 16 (Rollovers of Fixed-Term PO & PPO), COR19 (FXT Seniority in Institutions, Facilities, P & P&P); and MERC Memoranda of Agreement (“MOA”) dated October 16, 2018, July 15, 2019, and July 27, 2020. The grievance relates to disputes of the Ministry Employee Relations Committee (“MERC”) (Sol/Gen) regarding the Memorandum of Agreement re rollovers at the Kenora Jail. [8] The Union has four main areas of concern that are raised in this grievance: -3- - That the Employer is in violation of the one year requirement of a Fixed Term (“FXT”) Correctional Officer (“CO”) being in a facility before they are eligible for rollover; - That the Employer violated the MOA the parties had concluded regarding the temporary assignment of FXT COs to the Kenora Jail (the “Kenora Jail Temporary Assignment MOA”) from other institutions by including such individuals in Expressions of Interest (“EOI”) for rollovers; - That the Employer had included FXT members for rollover when they were not working in a CO position at the time of the EOI, and were instead working outside the bargaining unit as Sergeants; and, - That the Employer has violated Appendix COR19 by including hours worked outside the bargaining unit in the calculation of accumulated hours. [9] The Union is also concerned that the Employer is seeking to undermine a long- established agreement that the parties have adhered to. In both a master rollover agreement regarding eligibility, and in individual rollover agreements reached through the MERC at each institution, those eligibility criteria have been agreed upon by the parties. The Union argues that it is in the mutual interest of the parties to ensure that FXT COs do not simply make lateral moves from larger to smaller and more remote institutions in order to rollover faster, and then move back to their original institutions as classified employees. Such actions lead to significant discord among local FXT COs who then cannot fill the permanent vacancies that arise in their local home institution. [10] According to the Union, the Kenora Jail Temporary Assignment MOA was negotiated between Al Quinn, Manager, Employee Transition Unit, and Zoe Jackson, Transition Analyst, Employee Transition Unit, acting for the Employer, and Chris Jackel, MERC Chair, and Sandra Harper, Negotiator, acting for the Union. At the time, the Kenora Jail was experiencing staff shortages which led to unacceptable and unsafe conditions for both the inmates and staff at that institution. The Employer had done a call out to try to get FXT COs to transfer to the Kenora Jail. It did not get enough interest to address its staffing crisis. [11] The Collective Agreement has no provision for temporary assignments of COs on FXT contracts to other institutions. In order to make it more palatable to consider moving to the north, the parties agreed on a protocol to try to entice FXT COs from anywhere in the province to take a temporary assignment to the Kenora Jail to bring staffing to an acceptable level. [12] To that end, the parties agreed in the July 15, 2019 MOA that the Employer could do a “call-out to staff” to apply for a temporary Transfer of Contract to the Kenora Jail. The duration of the temporary Transfer of Contract may vary depending on the Employer’s operational pressures at the Kenora Jail, and the ability of the applicant’s “Releasing Facility” to sustain the FXT CO’s continued absence. They agreed that: - For the purpose of FXT CO rollover eligibility, those who accepted a temporary Transfer of Contract to the Kenora Jail under the Temporary Transfer of Contract Agreement would remain eligible for rollover at their releasing facility at any time -4- during the temporary transfer, and immediately upon return to their releasing facility. - They further agreed that those FXT COs who accepted a temporary Transfer of Contract to the Kenora Jail would not be eligible for rollover consideration at the Kenora Jail during the period of the temporary transfer there. [13] According to the Union, the purpose of these provisions was to ensure that FXTs could not have the right to rollover in both institutions at the same time, and to protect those who were already FXTs at the Kenora Jail from having their hours of service there potentially overtaken by FXTs who were coming from larger and busier institutions where they had amassed more hours. [14] The parties also agreed that anyone who volunteered to take a temporary assignment to the Kenora Jail would be paid various expenses for the duration that they were in that temporary assignment. [15] Some individuals who accepted a temporary Transfer of Contract to the Kenora Jail later advised that institution that they wanted to make their transfer there permanent. When that occurred, such an individual stopped receiving expenses associated with being on a temporary assignment to the Kenora Jail, received a FXT contract at the Kenora Jail, and became part of the regular FXT CO compliment at the institution. [16] In an October 16, 2018 MOA, the Union and the Ministry of Community Safety and Correctional Services Institutional Services had reached agreement about what constituted FXT CO Rollover Eligibility. In particular, they agreed as follows: - An FXT CO must have a minimum of 1904 straight time hours (the equivalent of one year of service per Appendix COR19) in the position of a CO to be eligible for a rollover. This requirement must be met by the time of the Expression of Interest for rollovers was posted; - In addition, at the time of the EOI being posted, the FXT CO must be working as a CO, and they must have been employed at the respective institution where the EOI is posted for a minimum period of one year; - Any disputes would be resolved by a Vice-Chair of the Grievance Settlement Board who is assigned to the Transition-related MOAs and matters. [17] On July 27, 2020 OPSEU and the Ministry of the Solicitor General Institutional Services, Kenora Jail, concluded a MOA for the rollover of three FXT COs to vacancies at the Kenora Jail in accordance with COR 8 of the Collective Agreement. The EOI relating to this rollover issued on August 17, 2020. [18] Para. 2 of the MOA states that FXT COs who have entitlements to these positions at the Kenora Jail are FXT COs who have been employed and continue to be employed at the Kenora Jail for one year prior to the date of the signing of the agreement. Para. 3 required the FXT CO to have a minimum of 1904 straight time hours, as stipulated in -5- the October 16, 2018 MOA. Finally, the parties agreed that I would be seized with resolving any disputes that arose out of the implementation of the agreement. [19] As a result of the July/August 2020 rollover exercise, there is a dispute about two of the three individuals (Kelly Mitchell and Luke Garrow), who the Employer considered eligible to rollover into classified service. The Union believes that one or both of them did not qualify for rollover as they had not been on FXT CO contracts at the Kenora Jail for one year before the date of the EOI, and/or that they had been working as Sergeants outside the bargaining unit at the time, so were not working as COs. As a result of the dispute, no one has been rolled over yet while this matter is being adjudicated. [20] The parties have used the facts about Ms. Mitchell as an example of the problem that the Union believes has occurred. However, similar issues have been raised with respect to Mr. Garrow. [21] Ms. Mitchell was a CO who accepted a temporary Transfer of Contract from her institution, Central North Correctional Centre (“CNCC”) in Penetanguishene to the Kenora Jail to assist with the staffing issue at the latter institution. She started working at the Kenora Jail on July 24, 2019. According to the Employer, on May 18, 2020 Ms. Mitchell requested to have her FXT CO contract transferred to the Kenora Jail. That transfer became effective on May 18, 2020, when the Employer permitted her to do so. At that juncture, she stopped receiving expenses associated with being temporarily assigned to Kenora from the CNCC. As of January 4, 2021 Ms. Mitchell has accepted a FXT Sergeant contract. [22] According to the Employer there is no difference between a FXT CO and a temporarily assigned FXT CO. In its view, once Ms. Mitchell got her permanent FXT contract at the Kenora Jail on May 18, 2020, all her hours of work from both CNCC and Kenora counted. As well, because she had initially transferred, albeit on a temporary Transfer of Contract, on July 24, 2019, by the time of the posting of the EOI in Kenora on July 27, 2020, she had been at the Kenora Jail for one year. As such, in its view, she was eligible for rollover in Kenora as she met the requirements of the rollover MOA. [23] Considering the October 16, 2018 MOA that sets out the basic eligibility criteria for FXT CO rollovers, the Employer argues that the parties did not define “employed at the respective institution” and since it did not contemplate temporary transfers, therefore Ms. Mitchell should be considered as having been employed at the Kenora Jail. It states that when a FXT starts, they are considered employed at that institution. So that when Ms. Mitchell became permanent at the Kenora Jail, she was no longer a temporary transfer, and her hours would be calculated in the same way as anyone who had just walked in the door and started at the Kenora Jail. [24] Furthermore, the Employer asserts that when Ms. Mitchell was accepted as having transferred permanently to the Kenora Jail, she was no longer eligible for rollover at the CNCC. It states that the hours she had already worked had to count somewhere or she would be disadvantaged in relation to every other FXT CO in the province. -6- [25] The Union argues that once Ms. Mitchell accepted a permanent transfer to the Kenora Jail in May 2020, she began to be governed by the master eligibility agreement between the parties, and the clock would have begun to run on the one year requirement before she could apply for rollover at the Kenora Jail. [26] With respect to the Union’s assertion that Ms. Mitchell was working in an acting Sergeant capacity at the time of the EOI, the Employer asserts that while Ms. Mitchell was working in an acting Sergeant capacity during that time, she had not accepted a formal Sergeant contract, which would have resulted in her being paid at the Sergeant’s higher rate of pay for that work. She therefore remained under a FXT CO contract, and all hours she worked, whether as a CO or an acting Sergeant, would have continued to accrue as a CO. [27] The Union provided evidence of a CO Duty Memo book page for August 21, 2020 which shows Ms. Mitchell as the Duty Sergeant on the shift in question. As well, it maintains that was the date she applied for the EOI. As such, the Union argues that Ms. Mitchell was the Duty Sergeant, not a CO, and therefore ineligible for rollover. [28] According to the Union, Mr. Garrow was a FXT CO at the Kenora Jail. He too was working in acting Sergeant roles, and had done so since around June 3, 2020. It is alleged that Mr. Garrow was picking his shifts from the Sergeant schedule by the time of the EOI. However, it also appears that at some point in early July 2020 Mr. Garrow commenced a parental leave. The Union states that if Mr. Garrow was on parental leave as a CO at the time he put his name on the EOI, then he should be considered as a CO. However, if he took his parental leave as a Sergeant, then he would not be eligible for the August EOI. [29] The Employer confirmed that neither Mr. Garrow nor Ms. Mitchell had been receiving the extra 3% that is paid to acting Sergeants, and it seems clear therefore that both were still in their respective CO positions. As such, I am satisfied that whatever hours they may have worked as acting Sergeants would be counted as hours for the purposes of Appendix COR19. [30] The Employer argues that the situation that has arisen in this case was not covered by the Kenora Jail Temporary Assignment MOA. It argues that there is no way to temporarily relocate a FXT contract. While the Employer agrees that the parties signed the Temporary Assignment MOA, and that the Employer benefited from that agreement as it was able to address its significant staffing crisis at the Kenora Jail, it also believes that the Union benefited by having its members try out working at the Kenora Jail risk free because they did not have to give up their home position. [31] Having considered the submissions of the parties and the language of the various MOAs between the parties, for the brief reasons to follow, I find that the provisions of the October 16, 2018 MOA govern the rollover of FXT COs at the Kenora Jail. That is the overarching agreement between the parties as to how rollovers are to occur. [32] Based on the October 16, 2018 MOA, and for the purposes of the issue in this grievance, for any FXT CO to be eligible for rollover, they must have been working as -7- a CO, and must have been “employed” at the institution where the EOI is posted for a minimum period of one year. [33] Ms. Mitchell accepted a temporary Transfer of Contract from the CNCC to the Kenora Jail in July 2019. CNCC remained the institution that she was employed at, and she had only been temporarily transferred to the Kenora Jail, pursuant to the parties’ agreement to the temporary transfers of FXT COs. She knew at the time of that transfer that she maintained all her rollover rights at the CNCC for the duration of the temporary transfer. As such, until May 2020, she continued to be employed at and have the right to rollover at the CNCC. [34] In May 2020, Ms. Mitchell asked to transfer permanently to the Kenora Jail. When any FXT CO asks to transfer to another institution, and they are accepted there, they begin a new FXT CO contract at that institution and it becomes the place of their employment. As well, and this is the reason for the one year rule, they are then not eligible for an EOI to rollover in the new institution until they have completed one year or more at that institution. [35] As the Union pointed out, that rule was put in place in order to protect the local FXT COs in that institution from having FXT COs ask for transfers to smaller remote institutions, bring with them the greater number of hours they are able to accumulate at their previous larger institution, and then essentially bump out the local FXTs from getting permanent classified positions in their home institution. The purpose of the rule is to ensure that for at least one year after a transfer, the local FXT COs continue to have a chance of rolling over into a classified position rather than being ousted by someone who may transfer in with more hours worked. [36] Thus, while the Employer suggested that Ms. Mitchell would have been at a disadvantage that no other FXT CO in the province would have, that is in fact not the case at all. Any FXT CO who wants to transfer to a location of their choice from another institution is in exactly the same position: they are not eligible for an EOI for rollover until they have been at their new institution for at least one year. After that, their hours all count and they are eligible, subject to the other requirements, but not until that point. [37] I cannot accept the Employer argument that the parties had not considered what would happen with a temporarily transferred FXT CO who asked to transfer permanently to the Kenora Jail from their releasing institution. The July 15, 2019 MOA did address the one year requirement in that it ensured that when a temporarily transferred FXT CO returned to their own facility, they would be eligible for rollover immediately, and would not have to wait for a year before being eligible. Thus, it is obvious that the parties had in fact contemplated what should happen regarding the one year eligibility requirement with those returning. They did not need to reiterate the one year requirement for those who may choose to transfer permanently to the Kenora Jail as the parties are acutely aware of the October 16, 2018 MOA regarding eligibility for rollovers, which makes clear that an FXT CO must have been “employed at the respective institution where the EOI is posted for a minimum period of one (1) year” (at para. 2). That is the rule that applies for any FXT CO who transfers to another institution. The parties only had to deal specifically with what may happen, or arise as -8- a concern, regarding the anomaly of having returning FXT COs to their home institution. Again, this was an incentive to get people to accept the call out to the Kenora Jail, so that FXT COs who were interested would know in advance that they would not in any way be prejudiced from participating in an EOI for rollover upon their return to their releasing institution. [38] Since Ms. Mitchell had only taken the temporary transfer from July 2019 until May 2020, she had retained her rollover rights at the CNCC until that time. She was therefore not prejudiced in any way. In my view the experiment of the Kenora Jail Temporary Assignment MOA accomplished exactly what the parties hoped it would: it got FXT COs to try out a transfer to another institution without having given up their rights at their releasing institution, and it was only if the FXT CO knew that they liked their new institution that they had to make the decision about giving up their contract at the releasing institution and staying at the new institution. The Union never intended, and indeed there is no evidence that the Employer intended, that the Kenora Jail Temporary Assignment MOA should override the general rules as they have been agreed to in the October 16, 2018 MOA regarding FXT CO rollover eligibility. [39] Considering Ms. Mitchell as an example then, she had not been at the Kenora Jail for one year by the time of the July/August 2020 EOI for the three person rollover. As such, she was not eligible for the EOI for the rollover in July/August 2020. [40] I have only referred to Ms. Mitchell as an example of the problem that was raised in the Union’s Policy grievance. If there were other candidates in a similar position to Ms. Mitchell in the July/August 2020 EOI for rollover, all such candidates must be considered in the same manner, having regard to whether they met the eligibility requirements as set out in the October 16, 2018 MOA. [41] I will remain seized in the event that there are any issues arising out of the implementation of this decision. Dated at Toronto, Ontario this 23rd day of March, 2021. “Gail Misra” _____________________ Gail Misra, Arbitrator