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HomeMy WebLinkAbout2002-0295.Union 05-04-06 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-2095 UNION# 2002-0999-0028 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Union - and - The Crown III RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE FelIcIty D Bnggs Vice-Chair FOR THE UNION Scott Andrews Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Greg GledhIll Staff RelatIOns Officer Mimstry of Commumty Safety and CorrectIOnal ServIces HEARING Apnl 4 2005 2 DeCISIon SInce the summer of 2002 I have been heanng and determInIng all of the gnevances filed from employees of the Mimstry of Commumty Safety and CorrectIOnal ServIces regardIng what the partIes have come to refer to as TransItIOn Issues These TransItIOn gnevances have ansen from the Mimstry's decIsIOn, made ongInally In 1996 to reorgamze the delIvery of ItS servIce throughout the ProVInce The Mimstry decIded that some InstItutIOns would be decommIssIOned, some would be retrofitted whIle others would be newly bUIlt or expanded. ThIS decIsIOn brought about extraordInary workplace dIsruptIOns In accordance wIth the CollectIve Agreement the partIes negotIated and agreed upon certaIn terms and condItIOns to manage the Impact of thIS TransItIOn actIvIty on both employees and the correctIOnal operatIOns SInce that tIme the partIes establIshed a MERC sub-commIttee whIch has assIsted hundreds of employees to receIve theIr collectIve agreement entItlements IncludIng alternatIve posItIOns or early retIrement packages TheIr work, whIch IS largely unseen by bargaInIng umt or front lIne managers, has been an exerCIse In progressIve and proactIve labour relatIOns It appears to be largely forgotten by some members of the bargaInIng umt that one of the sIgmficant benefits of the MERC agreements was the rollover of many unclassIfied staff Into the classIfied servIce For example the MERC agreements wIth respect to resolvIng ArtIcle 6 and 31A15 1 gnevances have resulted In more than four hundred (400) unclassIfied CorrectIOnal Officers beIng rolled over Into classIfied posItIOns It IS Important to recall that the vast maJonty of these correctIOnal employees who achIeved classIfied status under these agreements would not have otherwIse been entItled to be converted under ArtIcle 31A15 1 whIch states Where the same work has been performed by an employee In the UnclassIfied ServIce for a penod of at least (18) consecutIve months, except for sItuatIOns where the unclassIfied employee IS replacIng a classIfied employee on a leave of absence authonzed by the Employer or as provIded for under the Central CollectIve Agreement, and where the mImstry has determIned that there IS a contInuIng need for that work to be performed on a full-tIme baSIS, the mImstry shall establIsh a posItIOn WIthIn the ClassIfied ServIce to perform that work. There are many who wIll recall that as the result of the nature of the work performed by CorrectIOnal Officers, and the schedulIng of unclassIfied CorrectIOnal Officers, there has been an 3 hIstoncal dIfficulty for these employees to be converted to classIfied status In the MERC agreements the partIes recogmzed thIS Issue and agreed to a process to rollover many members of the bargaInIng umt. The mechamcs of these agreements have been Implemented by the Workforce AdJustment Umt. To further complIcate the task, the MERC ImplementatIOn Sub-CommIttee has had the dIfficult responsIbIlIty of ensunng that theIr agreements benefit both the Employer and employees That challenge was, and contInues to be, further complIcated by the Umon's need to balance both IndIVIdual and collectIve nghts In late December of 2004 the Mimstry notIfied the Umon that, contrary to ItS earlIer announcements, the Ontano CorrectIOnal InstItute and the BrockvIlle JaIl would remaIn open for the foreseeable future It was also announced that there would be no further constructIOn on the St. Lawrence Valley CorrectIOnal and Treatment Centre Further the future management and operatIOn of the St. Lawrence Valley CorrectIOnal and Treatment Centre and the BrockvIlle JaIl would be merged under one admInIstratIOn wIthIn a new Integrated shared servIces staffing model On January 28 2005 members of the Workforce AdJustment Umt and the MERC ImplementatIOn Sub-CommIttee met wIth the affected staff at the St. Lawrence Valley Centre Dunng thIS meetIng employees were told of the upcomIng electIOn process and the tIme frames related thereto It IS not surpnSIng that thIS news was not well receIved by members of the bargaInIng umt. WithIn weeks, over eIghty-five gnevances were filed by more than sIxteen employees from the St. Lawrence Valley CorrectIOnal and Treatment Centre At our most recent heanng day the Umon brought forward these matters for determInatIOn. The gnevances fell Into three general categones The first group could be described as requests for a reconsIderatIOn of matters already determIned by the Board. A number of these gnevances state the folloWIng I gneve that management has vIOlated ArtIcle 22 14 6 of the CollectIve Agreement In that the GSB ArbItrator (FelIcIty Bnggs) whether IntentIOnal or through mIsInformatIOn, has arbItrated In favour of an employee located outsIde 40 kms, at RCTC to dIsplace a staff member who holds a posItIOn at the BrockvIlle JaIl 4 By way of remedy the folloWIng was requested I desIre that all GSB decIsIOns be reVIsIted and be based on the terms and provIsIOns of the current collectIve agreement. Also a labour lawyer agreed upon by both partIes, be used to valIdate the legal standIng of all sIgned contracts, havIng regard to the cancellatIOn of Phase 2 constructIOn, the contInual operatIOn of the BrockvIlle JaIl and theIr applIcatIOns under the current collectIve agreement. DecIsIOns of the Gnevance Settlement Board are final and bIndIng on the partIes They are not a platform for debate Further the Board does not reconsIder ItS decIsIOns The decIsIOn referred to above was Issued on January 26 2005 wIth a supplementary decIsIOn dated March 7 2005 Contrary to the allegatIOn set out In the gnevance I was neIther mIsInformed nor wrong. I understand, and It has been acknowledged by the partIes, that the most recent decIsIOn of the Mimstry regardIng St. Lawrence Valley has caused much dIstress amongst members of the bargaInIng umt. I further apprecIate that thIS government decIsIOn has sIgmficant Impact on both employees and theIr famIlIes Nevertheless, the partIes have agreed to a process to navIgate through these dIfficult waters and they have gIven me the JunsdIctIOn to arbItrate dIsputes that may anse That JunsdIctIOn flows from statute, the CollectIve Agreement and from the vanous MERC agreements The Board has been asked In the past to reconsIder ItS decIsIOns The Chair of the Board In Re The Crown in Right of Ontario (Ontario Human Rights Commission) and OPSEU (Fox et al) (September 5 2001) GSB#0507/01 stated the folloWIng at page 6 .Moreover a dIfferent analysIs by another approach taken by the Gnevance Settlement Board. As was noted by Mr ShIme, the former Chair of thIS Board In Toronto Area TransIt OperatIng Authontv and Amalgamated TransIt Umon (Blake et aI), 1276/87 decIsIOns of a panel of the Board are decIsIOns of the Board and are not subJect to reconsIderatIOn or appeal The Gnevance Settlement Board speaks In one VOIce, provIdIng the partIes WIth a consIstent dIrectIOn and dIscouragIng the relItIgatIOn of Issues that have been ruled upon. It IS only In exceptIOnal cIrcumstances, cIrcumstances that extend beyond mamfest error that the Gnevance Settlement Board would depart from the path establIshed In a prevIOUS decIsIOn. The second category of gnevances asks that the MERC agreements or the benefits floWIng therefrom be nullIfied. Such a gnevance stated I gneve that management has vIOlated ArtIcle 11 4( c) of the collectIve agreement In that the antIcIpated work locatIOn for the BrockvIlle JaIl staff has not changed or ceased to eXIst as a Mimstry facIlIty 5 I desIre that management follow the collectIve agreement and that I maIntaIn my posItIOn and tItle at the BrockvIlle JaIl There IS no questIOn that ArtIcle 16 and AppendIx COR 4 of the CollectIve Agreements provIde the partIes WIth the authonty to negotIate the MERC agreements AccordIngly these agreements constItute bona fide legal documents that bInd the partIes To be clear neIther party dIsputes thIS fact. In my VIew It IS not helpful to the overall TransItIOn process for members of the bargaInIng umt to attempt to re-negotIate agreements or to attempt to re-lItIgate Gnevance Settlement Board decIsIOns Indeed, If the requests of these members were granted, other Mimstry bargaInIng umt members, and In partIcular more semor bargaInIng umt members, would be adversely affected. I say thIS, not only because an attempt to "re-vIsIt" these matters would have no hope of success but also because It IS necessary for the affected employees to face the realIty of thIS TransItIOn. The thIrd type of gnevances asks for a remedy In the absence of a vIOlatIOn of the collectIve agreement. In other words, the sItuatIOn addressed has not occurred and therefore the gnevances have been prematurely filed. Members remaIn entItled to raise alleged vIOlatIOns through the gnevance and arbItratIOn procedures of the CollectIve Agreement. FInally there were gnevances filed by UnclassIfied employees that alleged vIOlatIOns of provIsIOns In the CollectIve Agreement that apply only to ClassIfied employees The Employer raised an obJectIOn wIth respect to arbItrabIlIty and suggested that these gnevances should be dIsmIssed on that basIs There has been much Junsprudence from thIS Board regardIng the more restnctIve nghts of UnclassIfied employees ThIS expedIted process for TransItIOn gnevances wIll not bnng about a dIfferent result In that regard. In VIew of the foregoIng I dIrect the Umon to reVIew all of these recently filed gnevances and notIfy me as to ItS IntentIOn, If any to proceed. Dated, Toronto.~hI~s",,~th day o~ Apnl, 2005 , . ;1i I ~. ,. l . .