The URL can be used to link to this page

Home My WebLink About2003-2310.Boccabella et al.04-04-01 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# 2003-2310 2003-2311 2003-2312,2003-2313 2003-2314 2003-2315 2003-2316 2003-2317 2003-2318 2003-2319 2003-2320 UNION# 2003-0252-0032,2003-0252-0033 2003-0252-0034 2003-0252-0035 2003-0252-0036 2003-0252-0337 2003-0252-0038 2003-0252-0039 2003-0252-0040 2003-0252-0041 2003-0252-0042 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Boccabella et al ) Grievor - and - The Crown In 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 March 16 2004 2 DeCISIon In September of 1996 the Mimstry of CorrectIOnal ServIces notIfied the Umon 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 Umon filed polIcy and IndIVIdual gnevances that alleged vanous breaches of the collectIve agreement IncludIng artIcle 6 and artIcle 31 15 as well as gnevances relatIng to the fillIng of correctIOnal officer posItIOns In response to these gnevances the partIes entered Into dIscussIOns and ultImately agreed upon two Memoranda of Settlement concermng the applIcatIOn of the collectIve agreement dunng the "first phase of the Mimstry's transItIOn" One memorandum, dated May 3 2000 (hereInafter referred to as "MERC 1" (Mimstry 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 pnncIples 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 posItIOns eIther the umon or the employer may take on the same Issues In future dIscussIOns" the partIes recogmzed that dIsputes mIght anse regardIng the ImplementatIOn 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 ImplementatIOn of thIS agreement. It IS thIS agreement that provIdes me wIth the jUnSdIctIOn 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 vanous phases of the restructunng. GIven the complexIty and SIze of the task of restructunng and decommIssIOmng of InstItutIOns, 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 ImtIally 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 gnevance by medIatIOn. If the partIes are unable to settle the gnevance by medIatIOn, the medIator/arbItrator shall determIne the gnevance by arbItratIOn. When determInIng the gnevance by arbItratIOn, the medIator/arbItrator may lImIt the nature and extent of the eVIdence and may Impose such condItIOns as he or she consIders appropnate 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 gnevances and complaInts pnor to the medIatIOn/arbItratIOn 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 jUnSdIctIOn to so determIne that gnevances are to be presented by way of each party presentIng a statement of the facts wIth accompanYIng submIssIOns 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 transItIOn process Not surpnsIngly 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 pnncIples 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 Mimstenal boundanes and other orgamzatIOnal alteratIOns, the task has lately become larger not smaller It IS for these reasons that the process I have outlIned IS appropnate In these CIrcumstances Mr James Boccabella IS a CorrectIOnal Officer at the Niagara DetentIOn Centre He and ten others filed gnevances allegIng that vanous sectIOns of the collectIve agreement regardIng 4 severance pay have been Improperly demed. Further they asserted that they should get the same terms as those found In a Memorandum of Settlement between the Employer and the Umon for a gnevance filed by another employee BlaIne Warden. The gnevors filed a Statement of Facts It said 1 At the tIme the gnevances were filed, Niagara DetentIOn Centre was on the lIst for decommIssIomng and closure 2 All are elIgIble to qualIfy for Factor 80 retIrement consIderatIOn as dId Warden. 3 All gnevors have gnevances that are outstandIng. B Fraser has the same gnevance outstandIng that Warden sIgned off 4 In Spnng 2003 Niagara DetentIOn Centre was granted a temporary repneve from closure for the "foreseeable future" due to proVInce wIde shortages of avaIlable beds Niagara was placed on the lIst In Fall 1996 5 Warden's settlement of March 10 2003 IS open and has not been sIgned off wIthout prejUdICe 6 All employees aforementIOned as gnevors, desIre equal treatment as afforded to Warden In hIS settlement of March 10 2003 All aforementIOned gnevors are long tIme cIvIl servants, elIgIble for factor 80 and have been long tIme employees at the same work sIte (Niagara DetentIOn Centre) WhIle the Employer was not In a posItIOn to agree to all of the above facts, I am prepared to accept them for the purposes of thIS decIsIOn. I assume that the gnevors are of the VIew that because the partIes sIgned a Memorandum of Agreement that was not said to be wIthout prejUdICe for one partIcular employee then It should be automatIcally applIed to all others In sImIlar cIrcumstances SImply put, that assertIOn IS wrong. There IS nothIng that oblIges thIS Employer to apply a Memorandum of Settlement concernIng an IndIVIdual gnevance to any other employee unless the Memorandum of Agreement so IndIcates, IrrespectIve of whether the Settlement IS WIth or wIthout prejUdICe The fact that the agreement was not "wIthout prejUdICe" does not convert Mr Warden's gnevance Into a polIcy gnevance or a group gnevance NeIther does It mean that others wIth IdentIcal gnevances and sImIlar cIrcumstances are entItled to the same treatment. Generally speakIng, "wIthout prejUdICe" means that the partIes to the agreement are exempted from ItS contents to the extent that those contents mIght be Interpreted as contaInIng admIssIOns whIch could be used at a later tIme It certaInly does not mean that the contents of the agreement apply to anyone other than Mr Warden. 5 There has been no vIOlatIOn of the collectIve agreement or any other agreement and therefore the gnevances are demed. Dated In Toronto thIS 1 st day of Apnl 2004