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Home My WebLink About2002-2952.Dempster.04-10-26 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# 2002-2952 UNION# 2002-0453-0037 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Dempster) Grievor - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectlOnal 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 StaffRelatlOns Officer Mimstry of Commumty Safety and CorrectlOnal ServIces HEARING September 7 2004 2 DeCISIon In September of 1996 the Mimstry of CorrectlOnal ServIces notIfied the Umon and employees at a number of provIncIal correctlOnal InstltutlOns 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 polIcy and IndIVIdual gnevances that alleged vanous breaches of the collectIve agreement IncludIng artIcle 6 and artIcle 31 IS as well as gnevances relatIng to the fillIng of correctlOnal officer posltlOns In response to these gnevances the partIes entered Into dlscusslOns and ultImately agreed upon two Memoranda of Settlement concermng the applIcatlOn of the collectIve agreement dunng the "first phase of the Mimstry's transltlOn" One memorandum, dated May 3 2000 (hereInafter referred to as "MERC 1" (Mimstry Employment RelatlOns CommIttee)) outlIned condltlOns for the correctlOnal officers whIle the second, dated July 19 2001 (hereInafter referred to as "MERC 2") provIded for the non-correctlOnal officer staff Both agreements were subJect to ratlficatlOn by respectIve pnnclples and settled all of the gnevances 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 posltlOns eIther the umon or the employer may take on the same Issues In future dlscusslOns" the partIes recogmzed that dIsputes mIght anse regardIng the ImplementatlOn of the memoranda. AccordIngly they agreed, at Part G paragraph 8 The partIes agree that they wIll request that FelIcIty Bnggs, Vice Chair of the Gnevance Settlement Board wIll be seIzed wIth resolvIng any dIsputes that anse from the ImplementatlOn of thIS agreement. It IS thIS agreement that provIdes me wIth the JunsdlctlOn to resolve the outstandIng matters Both MERC 1 and MERC 2 are lengthy and comprehensIve documents that provIde for the IdentlficatlOn of vacanCIes and posltlOns and the procedure for fillIng those posltlOns as they become avaIlable throughout vanous phases of the restructunng. GIven the complexIty and SIze of the task of restructunng and decommlsslOmng of InstltutlOns, It IS not surpnSIng that a number of gnevances and dIsputes arose ThIS IS another of the dIsputes that have ansen under the MERC Memorandum of Settlement. 3 When I was Imtlally InvIted to hear theses transltlOn dIsputes, the partIes agreed that process to be followed for the determInatlOn 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 gnevance by medlatlOn. If the partIes are unable to settle the gnevance by medlatlOn, the medIator/arbItrator shall determIne the gnevance by arbltratlOn. When determInIng the gnevance by arbltratlOn, the medIator/arbItrator may lImIt the nature and extent of the eVIdence and may Impose such condltlOns as he or she consIders appropnate The medIator/arbItrator shall gIve a SUCCInct declslOn WIthIn five (S) days after completIng proceedIngs, unless the partIes agree otherwIse The transltlOn commIttee has dealt wIth dozens of gnevances and complaInts pnor to the medlatlOn/arbltratlOn process There have been many other gnevances 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 gnevances that I have decIded, In accordance wIth my JunsdlctlOn to so determIne that gnevances are to be presented by way of each party presentIng a statement of the facts wIth accompanYIng submlsslOns NotwIthstandIng that some gnevors 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 anse from the contInuIng transltlOn process Not surpnsIngly In a few Instances there has been some confuslOn about the certaIn facts or sImply InSUfficIent detaIl has been provIded. On those occaSlOns I have dIrected the partIes to speak agaIn wIth theIr pnnclples to ascertaIn the facts or the ratlOnale behInd the partIcular outstandIng matter In each case thIS has been done to my satlsfactlOn. It IS essentIal In thIS process to aVOId accumulatIng a backlog of dIsputes The task of resolvIng these Issues In a tImely fashlOn was, from the outset, a formIdable one With ongOIng changes In Mimstenal boundanes and other orgamzatlOnal alteratlOns, the task has lately become larger not smaller It IS for these reasons that the process I have outlIned IS appropnate In these CIrcumstances 4 Paul Dempster was a CorrectlOnal Officer at Ottawa Carleton DetentlOn Centre when he filed a group gnevance, dated November 29 2002 on hIS own behalf and on behalf of fifteen others TheIr allegatlOns are clearly set out In the gnevance It stated We gneve that the Cornwall JaIl was closed prematurely on November 18 2002 Cornwall JaIl and Pembroke JaIl have the same closure date Pembroke JaIl IS stIll operatIng and Cornwall JaIl was moved to Ottawa Carleton DetentlOn Centre ThIS created temporary assIgnments untIl both JaIl closures could be completed. By way of remedy he requested "mIleage and other travel expendItures from Cornwall JaIl to Ottawa Carleton DetentlOn Centre" He asserted the remedy should have begun November 18 2002 and contInued untIl "the officIal closure of both JaIls" In the MERC 3 Memorandum of Agreement, dated March 11 2002, the partIes agreed that, for the purposes of ImplementatlOn of the agreement, the Pembroke JaIl and the Cornwall JaIl would have the same surplus date The MERC agreement also IdentIfied 6 vacanCIes at the BrockvIlle JaIl to be filled through the lateral transfer lIst. Those posltlOns were offered to the most semor CorrectlOnal Officers The Cornwall JaIl closed on November 18 2003 However the Pembroke JaIl has yet to close It was the posltlOn of the gnevors that because the Pembroke JaIl remaInS open whIle some posltlOns at the BrockvIlle JaIl are beIng filled by "roll-overs" that MERC 3 IS "negated" The gnevors asserted that It was Improper that Jumor unclassIfied CorrectlOnal Officers at BrockvIlle should be offered posltlOns before them AccordIngly they consIder theIr posltlOns temporary and therefore mIleage and travel tIme should be paid. In my VIew the gnevors cannot deem theIr posltlOns at OCDC as temporary and therefore they are not entItled to travel tIme and mIleage There was no dIspute between the partIes that the SIX posltlOns at the BrockvIlle JaIl were filled In accordance wIth the MERC 3 agreement. CorrectlOnal Officers wIth home posltlOns at the Pembroke JaIl and Cornwall JaIl were automatIcally added to the Lateral Transfer LISt for the BrockvIlle JaIl Lateral transfers were assIgned In accordance wIth paragraph 4 SectlOn A of Part 5 1 of MERC 3 on the basIs of semonty Once the lateral transfer IS accepted, paragraph 5 of SectlOn A, Part 1 ofMERC 3 prevaIls It states When an employee In a decommlsslOmng InstltutlOn (Cornwall JaIlIPembroke JaIl) accepts a lateral transfer to the BrockvIlle JaIl, the employee wIll then be deemed to be a laterally transferred employee and wIll remaIn at theIr current locatlOn untIl theIr respectIve InstltutlOn no longer houses any Inmates or another date agreed to by the Employer and the Employee Upon mutual agreement employees may be temporanly assIgned elsewhere untIl theIr placement occurs (reference Part 5 paragraph 12) There mIght be some confuslOn regardIng the terms "surplus date" and "closure date" The partIes specIfically used two dIfferent terms and thIS IS, no doubt, because there are two dIfferent meamngs The gnevors' posltlOn would have me Interpret surplus date and closure date to be the same date I cannot. Therefore I can find no vlOlatlOn of the MERC 3 agreement or any other provlslOns that applIes AccordIngly the gnevance IS demed. Dated In Toronto thIS 26th day of October 2004