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HomeMy WebLinkAbout2002-2819.Sostar et al.03-07-17 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# 2819/02,2848/02,3033/02,0050/03 0997/03 0998/03 UNION# 2003-0218-0032,2003-0218-0031 2002-0229-0026 2003-0229-0007 2003-0229-0019 2003-0229-0020 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Sostar et al ) Grievor - and - The Crown In RIght of Ontano (Mimstry of PublIc Safety and Secunty) Employer BEFORE FelIcIty D Bnggs Vice-Chair FOR THE UNION Scott Andrews, Gnevance Officer & Barry Scanlon, MERC Co-Chair Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER LInda EllIott Semor TransltlOn SpecIalIst Mimstry of PublIc Safety and Secunty HEARING May 29 2003 2 DECISION In September of 1996 the MmIstry of CorrectIOnal ServIces notIfied the Umon and employees at a number of provmcIaI correctIOnal mstItutIOns that theIr facIlItIes would be closed and/or restructured over the next few years On June 6, 2000 and June 29, 2000 the Umon filed pohcy and mdIvIdual gnevances that alleged vanous breaches of the collectIve agreement mcludmg artIcle 6 and artIcle 31 15 as well as gnevances relatmg to the filhng of correctIOnal officer posItIOns In response to these gnevances the partIes entered mto dIscussIOns and ultImately agreed upon two Memoranda of Settlement concernmg the apphcatIOn of the collectIve agreement dunng the "first phase of the MmIstry's transItIOn" One memorandum, dated May 3, 2000 (heremafter referred to as "MERC 1" (MmIstry Employment RelatIOns CommIttee)) outhned condItIons for the correctIOnal officers willie the second, dated July 19, 2001 (heremafter referred to as "MERC 2") provIded for the non-correctIOnal officer staff Both agreements were subject to ratIficatIOn by respectIve prmcIples and settled all of the gnevances IdentIfied m the related MERC appendIces, filed up to that pomt m tIme WhIle It was agreed m each case that the settlements were "wIthout prejUdICe or precedent to posItIOns eIther the umon or the employer may take on the same Issues m future dIscussIOns", the partIes recogmzed that dIsputes mIght anse regardmg the llnplementatIOn of the memoranda. Accordmgly, they agreed, at Part G, paragraph 8 The partIes agree that they wIll request that FehcIty Bnggs, VIce Chair of the Gnevance Settlement Board wIll be seIzed wIth resolvmg any dIsputes that anse from the ImplementatIOn of thIS agreement 3 It IS thIS agreement that provIdes me wIth the jUnSdIctIOn to resolve the outstandmg 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 filhng those posItIOns as they become aVailable throughout vanous phases of the restnlctunng GIven the complexIty and SIze of the task of restructunng and decommIssIOmng of mstItutIOns, It IS not surpnsmg that a number of gnevances and dIsputes arose ThIS IS the second decIsIOn that consIders some of the dIsputes that have ansen under the MERC Memoranda of Settlement SllnIlar to the process utIhzed for the first decIsIOn regardmg these transItIOn matters, the partIes attended at an arbItratIOn heanng and provIded facts and submIssIOns concernmg the outstandmg Issues In large measure the facts were m agreement Grievance of Robert Oliver - Guelph CorrectIOnal Centre The first gnevance m dIspute was filed by Robert Ohver who IS a CorrectIOnal Officer ongmally employed at Guelph CorrectIOnal Centre Both he and hIS spouse receIved theIr surplus notIce on the same day Subsequent to receIvmg theIr notIce he was assIgned to OCI whIle hIS wIfe was assIgned to work at Maplehurst Both of these locatIOns are wIthm forty kIlometers of theIr ongmal worksIte Once at OCI the gnevor apphed for a job trade for a posItIOn at Maplehurst The partIes had agreed to a number of job trades between OCI and Maplehurst 4 employees but the gnevor's request was denIed. Those who dId receIve job trades had greater senIonty than Mr Ohver The gnevance alleges a breach of artIcle 10 3 6 that states NotwIthstandmg senIonty, an employee wIll be consIdered for job tradmg pnor to other employees regIstered for job tradmg If hIS or her spouse IS also employed m the OntarIO Pubhc ServIce and was relocated to contmue such employment at a dIfferent headquarters locatIOn It IS the gnevor's posItIOn that he should have receIved the job trade to allow hlln to be at the same mstItutIOn as IllS spouse Further, It'S the gnevor's VIew that because OCI IS ultImately to be closed It IS possIble that he wIll be assIgned to an mstItutIOn that IS farther from hIS spouse I have consIdered the submIssIOns of the partIes and must dIsmIss the gnevance It was the gnevor's assertIOn that he and hIS spouse were "relocated to contmue" employment as consIdered m artIcle 10 3 6 I dIsagree The gnevor and hIS spouse were "redeployed" m accordance wIth artIcle 20 5 1 and not "relocated" Further, accordmg to AppendIx 13 the term "relocatIOn" IS utIhzed for those moves that are beyond the 40 kIlometers and such was not the case m tlllS mstance Accordmgly Mr Ohver was not entItled to have hIS job trade request approved over those of other more senIor correctIOnal officers Fmally, m my VIew, the fact that OCI wIll eventually close has no relevance or sIgnIficance to my determmatIOn of thIS matter F or those reasons the gnevance IS denIed. 5 Group Grievances - Temporary Assignment & Travel Time and Mileage Allowances - Guelph CorrectIOnal Centre & Wellington DetentIOn Centre A number of gnevances filed by CorrectIOnal Officers alleged a vIOlatIOn of artIcles 13 and 14 It was the gnevor's posItIOn that the Employer breached the collectIve agreement by faIhng to pay proper travel tIme, mIleage and other expenses Each of the gnevors were ongmally assIgned to work at eIther the Guelph CorrectIOnal Centre or Wellmgton DetentIOn Centre but were redeployed to OCI It was the Employer's contentIOn that the gnevors were permanently assIgned to work at OCI and therefore not entItled to such allowances The gnevors were entItled to nghts under artIcle 20 of the collectIve agreement and were all redeployed to work at OCI, an mstItutIOn that IS wItllln forty kIlometers of theIr ongmal worksIte It IS the posItIOn of the gnevors that theIr assIgnment at OCI IS, m fact, a temporary assIgnment because It has been announced that OCI wIll close at some future date After consIderatIOn I am of the VIew that the gnevances must fall The mere announcement that an mstItutIOn wIll close at some pomt m the future does not, m and of Itself, change a permanent assIgnment to a temporary assIgnment At paragraph 6 of the Memorandum of Settlement dealmg wIth TransItIOn Issues sIgned on May 3, 2001, the partIes agreed that employees mIght be temporanly assIgned untIl permanent placement by mutual agreement There 6 was no eVIdence before me that the partIes had made such an agreement m tlllS mstance In my VIew, the gnevors were redeployed under ArtIcle 20 and are now permanently assIgned to OCI Accordmgly there IS no vIOlatIOn of the collectIve agreement and the gnevors are not entItled to the vanous allowances found for temporary assIgnments found at artIcles 13 and 14 The gnevances are dIsmIssed. Group Grievance - Travel Time and Mileage - Burtch CorrectIOnal Centre A sImIlar group gnevance was filed by a number of CorrectIOnal Officers at Burtch CorrectIOnal Centre These employees also claimed an entItlement to travel tllne and expenses although for dIfferent reasons It was the posItIOn of these gnevors that for a number of reasons they should have been paid the allowances found at artIcles 13 and 14 Employees at Burtch CorrectIOnal Centre were gIven artIcle 20 nghts m accordance wIth the MERC agreement That agreement provIded, at paragraph 6 The employees wIll remam at theIr current work sIte untIl the date the mstItutIOn no longer houses any mmates or another date agreed to by the employer and the employee Upon mutual agreement employees may be temporanly assIgned elsewhere untIl theIr placement occurs The gnevors remamed at Burtch CorrectIOnal Centre and were never gIven an optIOn of movmg to a new work locatIOn It was suggested by the gnevors that because they were never gIven an optIOn of movmg to a new work locatIOn rather than remammg at Burtch there was no mutual agreement to contmue to 7 work at Burtch CorrectIOnal Centre As a result of that assIgnment vanous gnevors were affected negatIvely For example, one gnevor was unable to acqUIre a posItIOn WIth ProbatIOn and Parole because he was not aVailable Another was unable to accept an offered posItIOn WIth Toyota Canada. Accordmgly, It was urged that travel tllne and mIleage allowances should be paid from December 2001 (when some employees were redeployed to other mstItutIOns) untIl January 2003 The gnevors also submItted that such allowances should be granted because other employees from Waterloo DetentIOn Centre and Guelph CorrectIOnal Centre were paid travel tIme and mIleage to work at Burtch after bemg redeployed to other mstItutIOns Employees at Burtch thought that closure was not Immment and mdeed, days after redeployment letters were handed out to many staff It was announced that there would be an expanSIOn of the mtennIttent operatIOn It was the Employer's posItIOn that the payment of travel tIme and mIleage allowance should only be paid as set out m artIcles 13 and 14 of the collectIve agreement m accordance wIth the MERC 1 agreement It was asserted that the facts m thIS mstance do not bnng about the payment of such premmms WhIle I understand the frustratIOn that occurs when closures and end dates do not occur at the antIcIpated tImes, those failures to meet projected tIme schedules do not, unless expressly stated, tngger the payment of allowances There IS no such prOVISIOn m MERC 1 Paragraph 6 of the MERC 1 agreement IS clear that employees wIll remam m theIr current assIgnment untIl there are no mmates unless another date IS agreed to between the employer and the employee Mutual agreement IS needed for a temporary assIgnment 8 elsewhere Mutual agreement IS not necessary for employees to remam m theIr current posItIOns as was argued by the gnevors The gnevors contmued to work m theIr posItIOns untIl the facIhty closed. They were not temporanly assIgned to work at a dIfferent locatIOn that would bnng about the payment of travel tllne and mIleage Further, there IS no proVISIOn that m the event that closures were delayed a penalty of travel tIme and mIleage would be paid to employees Accordmgly, the gnevance IS denIed. Group Grievance - Technological Change - Burtch CorrectIOnal Centre The final gnevance at Issue was filed by CorrectIOnal Officers from Burtch CorrectIOnal Centre It was alleged that they were not on a temporary assIgnment as provIded m the MERC 1 agreement and therefore they should have been gIven notIce under ArtIcle 20 14 1 of technologIcal change ArtIcle 20 14 1 states Where It IS necessary to release an employee who has completed IllS or her probatIOnary penod, because of the mtroductIOn of technologIcal change m eqUIpment or methods of operatIOn, at least three (3) months' notIce m advance of the change shall be gIven to the employee affected and to the UnIon For greater certamty, It IS understood that such notIce shall not operate so as to extend any other notIce to be gIven under thIS Agreement, and It may run concurrently WIth any such other notIce It was the gnevor's posItIOn that the decIsIOn to close Burtch CorrectIOnal Centre was due to the openmg of a "State of the Art" "super Jail" m Penetang Burtch CorrectIOnal Centre IS an older mstItutIOn and therefore the openmg of the "super Jail" constItuted a change m the "method of operatIOn" as that phrase IS used m artIcle 20 14 1 The Employer dIsagreed wIth the 9 submIssIOns made on behalf of the gnevors and contended that there was no vIOlatIOn of the collectIOn agreement After consIdenng the submIssIOns of the partIes I am of the VIew that neIther the closure of Burtch CorrectIOnal Centre nor the openIng of the "super Jail" tngger the prOVISIOns of artIcle 20 14 1 The closure of Burtch CorrectIOnal Centre cannot be said to be a mere "change m eqUIpment or method of operatIOn", technologIcal or otherwIse It IS a cessatIOn of operatIOn and accordmgly other prOVISIOns of the collectIve agreement apply F or those reasons, the gnevance IS denIed. VIce-Chair