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Home My WebLink About2003-3688.Guylee.06-07-17 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# 2003-3688, 2003-3689, 2003-3690, 2003-3691 UNION# 2003-0119-0015, 2003-0119-0016, 2003-0119-0017, 2003-0119-0018 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Guylee) 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 Stephen Giles Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Lucy Neal Senior Staff Relations Officer Ministry of Community Safety and Correctional Services HEARING May 25, 2006. 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. On February 21, 2003, Mr. Steve Guylee, a Correctional Officer at the Stratford Jail, entered into a Memorandum of Agreement resolving a job posting grievance with the Employer. The relevant provisions stated: • The parties recognize that the vacancy must be approved for posting, and that any and all forthcoming agreements at the MERC level, and all provisions of the Collective Agreement, e.g. Article 20, must first be met and operationalized before this agreement is triggered. 5 • If clearance is received, Management agrees to post the next available permanent General Duty Officer position, with the area of search restricted to classified and unclassified staff working at the Stratford Jail. On December 27, 2003 and October 6, 2003, Mr. Guylee filed a number of grievances that alleged the Memorandum of Settlement was violated because there were positions that became available that were not posted. On behalf of the grievor, the Union provided clear and extensive documentation regarding the staffing situation at the Stratford Jail. While that documentation was appreciated, it does not lead me to uphold the grievances. The documentation provided by the Employer confirms that at the time of the filing of these grievances all positions had been taken up by the MERC transition process. Therefore there were no “available permanent General Duty Officer” positions. Indeed, throughout that period the Stratford Jail was operating in an overage position with respect to Correctional Officers. Accordingly, “no vacancies have been approved”. In order for the grievor’s rights under the Memorandum of Agreement to be triggered, there must be a vacancy and it must have been approved. It is not triggered simply because some Correctional Officers leave positions at the Jail. While I appreciate that this must have caused considerable frustration for the grievor, there is no violation of the Memorandum of Agreement. 6 Dated in Toronto this 17th day of July 2006. Felicity D. Briggs Vice-Chair