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HomeMy WebLinkAbout2003-0289.Boyd et al.04-12-16 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# 2003-0289, 2003-0290, 2003-0291, 2003-0292, 2003-0293, 2003-0294, 2003-0397, 2003-0398, 2003-0399, 2003-0400, 2003-0402, 2003-0405, 2003-0406, 2003-0410, 2003-0411, 2003-0412, 2003-0413, 2003-0415, 2003-1652, 2003-2999, 2003-3310 UNION# 2003-0359-0001, 2003-0359-0002, 2003-0359-0003, 2003-0359-0004, 2003-0359-0005, 2003-0359-0006, 2003-0359-0033, 2003-0359-0034, 2003-0359-0035, 2003-0359-0041, 2003-0359-0029, 2003-0359-0031, 2003-0359-0032, 2003-0359-0036, 2003-0359-0037, 2003-0359-0040, 2002-0359-0051,2003-0359-0038, 2003-0359-0048, 2003-0359-0050, 2003-0368-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Boyd et al.) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Scott Andrews Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Greg Gledhill Staff Relations Officer Ministry of Community Safety and Correctional Services HEARING May 21 and June 4, 2004. 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. The parties continued to negotiate and agree upon further conditions regarding the transition matters. MERC 3 was signed by the parties on February 25, 2002. 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. 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 3 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 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. 4 The Ministry determined that the work of the Whitby Jail would be transferred to Central East Correctional Centre under Appendix 13 – Relocation of Operation Beyond 40 Kilometre Radius. That provision states: The Employer and the Union herewith agree that, when a ministry decides to change an operation’s headquarters to a location outside a forty (40) kilometre radius of that operation’s current headquarters, the following terms and conditions will apply: 1. affected employees will be notified, in writing, of the ministry’s decision to change the operation’s headquarters location and the date when such change will take place; 2. (a) employees may accept the change in headquarters location, in which case they will be eligible for reimbursement of relocation costs in accordance with the Employer’s relocation policy; or (b) employees may reject the change in headquarters location, in which case they will be given six (6) months’ notice of lay-off pursuant to Article 20.2.2 (Notice and Pay in Lieu) and have full access to the provisions of Article 20 (Employment Stability) and Appendix 9 (Employment Stability) of the Central Collective Agreement. 3. if several employees hold the same position and fewer of their positions are required in the new headquarters location, the employees with the greatest seniority will be given the opportunity to go to the new headquarters location first. 4. it is understood that when an employee accepts the change in headquarters location in accordance with this Memorandum of Agreement, the provisions of Article 6 (Posting and Filling of Vacancies or New Positions) shall not apply. As the closing date for Whitby Jail was approaching questions were raised regarding what institutions were within forty kilometers. Correctional Officers wanted this information prior to taking their election under Appendix 13 or Article 20 as it may apply in their individual circumstance. The Employer posted the “distance rulings” on November 28, 2000. The posted list had been a long standing document that had not been previously challenged. That list stated: Metro Toronto East D.C. 31.50 km Toronto Jail 39.97 km Danforth Probation & Parole Office 33.65 km Scarborough P & P 30.81 km Thornhill P & P 39.46 km Whitby P & P 4.48 km Ajax-Pickering P & P 13.08 km Don Mills P & P 34.50 km At the hearing, there was no dispute between the parties that the number of work locations on the list were very important to the employees at the Whitby Jail because the list determines the number of possible options. Accordingly, the higher the number of possible work locations and 5 corresponding positions on the list, the more opportunities are available to for employees to maintain their employment within a forty kilometer distance of their closing workplace location. Indeed, the focus of the transition exercise has been to maximize the number of employment opportunities for employees and thereby reduce the number of employees who would have no options available to them for continued employment in the OPS. The deadline for Correctional Officers to elect under Appendix 13 for work at Central East Correctional Centre was October 22, 2002. On October 21, 2002 a grievance was filed regarding the composition of the list. It was the grievors’ assertion that the Toronto Jail should not be included on the list as it was outside forty kilometers. To resolve that dispute, the parties through the MERC transition committees, agreed in a Memorandum of Understanding, dated October 25, 2002 to a process. That agreement stated: The parties agree that an independent firm will be utilized to determine the GPS distance calculation between Whitby Jail and the Toronto Jail. A maximum of two witnesses for the Union and for the Employer may be present during the distance calculation. Latitudinal and Longitudinal co-ordinates will be shared with the parties. The findings with respect to the distance calculations between Whitby Jail and the Toronto Jail will be binding on the parties. The above process was followed and on January 31, 2003 it was found that the distance between the Whitby Jail and the Toronto Jail was 40.065 kilometers. The Employer altered its position with the result that the Toronto Jail was no longer considered an employment opportunity within forty kilometers of the Whitby Jail. The parties then reviewed the surplussing to ensure that no employee from Whitby Jail had been improperly placed at the Toronto Jail as a result of the change in distance. Employees not previously assigned to Central East Correctional Centre were eventually surplussed in April of 2003. A number of grievances were filed in the early winter of 2003 by various Correctional Officers. Those grievances allege that the Employer misrepresented the options available to Correctional Officers by asserting that the Toronto Jail was within forty kilometers. Further, the grievors claimed that they would have possibly made different choices if they had known the “true” distance. In large measure, these grievances contemplate improper 6 work allocation, claims for travel time and mileage costs. Some of the grievances stated as follows: I grieve that the Ministry did not afford me the proper choice of destination upon notice of Whitby Jail closure. I was not properly advised that the Toronto Jail is more than 40 km and would have meant that I could have gone to the Toronto East Detention Centre (excluding the Toronto Jail due to staff shortage there). Unfair labour practice was presented to me in an inaccurate manner regarding my options in transition from Whitby Jail. I grieve that Management violated the Collective Agreement but not limited to the Change of Headquarter Notice in regards to me moving to CECC from Whitby Jail. By way of remedy most asked for travel time and mileage costs. A number requested “payment of mileage, meals and travel time until I reach Factor 90. I have included a list of all the grievances filed as Appendix A. I was provided with no evidence that there were any requests from employees prior to alter their election choice before their surplus date. Indeed, it was the Employer’s evidence that there were no such requests. Further, there was no evidence that the original determination that the Toronto Jail was within 40 kilometers of the Whitby Jail was made in an arbitrary or discriminatory manner or in bad faith. This is not surprising because the effect of the Employer’s decision to include the Toronto Jail did not limit choices for employee. Rather, it increased the number of available options. I first want to say that I am not convinced that the Employer made an error in the first instance. The difference between 39.97 kilometers and 40.65 later measured is due, in large part, to advanced technology. In any event, much of the requested remedy set out by the grievors is, simply put, beyond my jurisdiction. The employees lodged a complaint through the MERC Transition process regarding the distance to the Toronto Jail. The matter was investigated and resolved in accordance with the original request of the members of the bargaining unit. After that agreement was implemented some employees filed grievances flowing directly from the agreed upon resolution. The Employer was asked to reconsider its decision to have Toronto Jail on its list of possible job opportunities within forty kilometers. It agreed with the wishes of the bargaining unit and deleted Toronto Jail from that list. The Employer cannot now be found to be at fault for doing precisely 7 what it was asked to do in the first instance. While I appreciate that the results of this exercise might have proven frustrating for employees, had the Toronto Jail been included in the forty kilometer radius for the purposes of redeployment under Article 20, it would have given employees at the Whitby Jail a greater benefit. For all of those reasons, the grievances are dismissed. Dated in Toronto, this 16th day of December, 2004. Felicity D. Briggs