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HomeMy WebLinkAbout2009-1792.Crosmaz.11-05-11 Decision2011 - OPSEU (Crosmaz) and Ministry of Community Safety and Correctional Services, GSB#2009-1792, (Briggs) Crown 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#2009-1792 UNION#2009-0368-0123 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Crosmaz) Union -and -The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-ChairFOR THE UNION Stephen Giles Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Greg Gledhill Ministry of Government Services Centre for Employee Relations Staff Relations Officer HEARING January 24, 2011 and May 2, 2011. -2 -Decision [1] 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. [2] 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. [4] 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. -3 -[5] When I was initially invited to hear these 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. [6] 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 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. [7] 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. [8] 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. [9] Mr. Wayne Crosmaz was a Security Officer at Millbrook Correctional Centre in 2003. At the time he was being accommodated. -4 -[10] According to the grievor, prior to Millbrook closing he met with management personnel and was told that he would be going to work at Central East Correctional Centre and that there were “no accommodations of any kind for anyone at the New CECC.” He was also told there were to be no Security Officer positions at CECC. Further, according to the grievor, he was informed that if he did not accept a position as an Institutional Driver/Motor Vehicle Operator he would be without a job. He did become a Driver/Motor Vehicle Operator at CECC as the result of the transition to CECC. [11] By way of remedy the grievor requested compensation for the difference between an Operator position and a Security Officer position since he moved to CECC over five years ago. Further his wages should be increased to that of a Security Officer forthwith and he should receive any lost overtime monies. [12] Not surprisingly, the Employer queried why the grievor waited until August 2009 to file the instant grievance and contended that it was out of time. Regarding the merits, the Employer asserted that the Employer has accommodated employees at CECC since its opening. Having said that, it was conceded that the grievor might have been told that he could not be accommodated in a Security Officer position at CECC because that position has never existed at CECC. [13] After considering the facts and submissions, I must agree with the Employer that this grievance is considerably beyond the time limits set out in the Collective Agreement. I am of the view that I should not exercise my statutory authority to extend the time limits in this case. The grievance was filed more than five years after the facts giving rise to the dispute. I was offered no reasonable grounds for the extension. [14] Accordingly, the grievance is dismissed. Date at Toronto this 11th day of May 2011. Felicity D. Briggs, Vice-Chair - 2 - Decision [1] 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. [2] 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. [4] 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. - 3 - [5] When I was initially invited to hear these 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. [6] 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 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. [7] 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. [8] 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. [9] Mr. Wayne Crosmaz was a Security Officer at Millbrook Correctional Centre in 2003. At the time he was being accommodated. - 4 - [10] According to the grievor, prior to Millbrook closing he met with management personnel and was told that he would be going to work at Central East Correctional Centre and that there were “no accommodations of any kind for anyone at the New CECC.” He was also told there were to be no Security Officer positions at CECC. Further, according to the grievor, he was informed that if he did not accept a position as an Institutional Driver/Motor Vehicle Operator he would be without a job. He did become a Driver/Motor Vehicle Operator at CECC as the result of the transition to CECC. [11] By way of remedy the grievor requested compensation for the difference between an Operator position and a Security Officer position since he moved to CECC over five years ago. Further his wages should be increased to that of a Security Officer forthwith and he should receive any lost overtime monies. [12] Not surprisingly, the Employer queried why the grievor waited until August 2009 to file the instant grievance and contended that it was out of time. Regarding the merits, the Employer asserted that the Employer has accommodated employees at CECC since its opening. Having said that, it was conceded that the grievor might have been told that he could not be accommodated in a Security Officer position at CECC because that position has never existed at CECC. [13] After considering the facts and submissions, I must agree with the Employer that this grievance is considerably beyond the time limits set out in the Collective Agreement. I am of the view that I should not exercise my statutory authority to extend the time limits in this case. The grievance was filed more than five years after the facts giving rise to the dispute. I was offered no reasonable grounds for the extension. [14] Accordingly, the grievance is dismissed. Date at Toronto this 11th day of May 2011. Felicity D. Briggs, Vice-Chair