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Home My WebLink About2003-3837.Bahlieda et al.04-07-09 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# 2003-3837 2003-3838 UNION# 2004-0517-0010 2004-0517-0011 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (BahlIeda 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 May 21 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 The partIes contInued to negotIate and agree upon further condItIOns regardIng the transItIOn matters MERC 3 was sIgned by the partIes on February 25 2002 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 3 of gnevances and dIsputes arose ThIS IS another of the dIsputes that have ansen under the MERC Memorandum of Settlement. 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 4 Ms ChnstIne BahlIeda and Ms Roselle BeausoleIl filed IdentIcal gnevances In January 2004 Each alleged that they were not gIven proper credIt for full semonty whIch affects theIr pay rate By way of remedy each requested credIt for theIr servIce at the Barne JaIl and theIr servIce at Central North CorrectIOnal Centre wIth any momes OWIng as a result of the Employer's faIlure to do so In the documentatIOn provIded by the Umon the adverse effects of the gnevor's sItuatIOn are set out as the folloWIng 1 lIttle semonty so more susceptIble to lay offs and a reduced abIlIty to be awarded posItIOns anSIng from job competItIOns 2 lower wages 3 prevIOus traInIng not recogmzed. It was the Employer's VIew that the CNCC IS a pnvately operated InstItutIOn and IS therefore a separate employer Therefore, these employees had a break In servIce and are now new employees It was the posItIOn of the gnevors that there was no real break In servIce because 1 the employees were workIng wIth the very same Inmates 2 the Inmates populatIOn transfers In and out of CNCC 3 those workIng at CNCC are traIned by the Mimstry wIth other Mimstry employed CorrectIOnal Officers 4 sImIlar standards, polIcIes, laws and procedures 5 the CNCC bUIldIng IS owned by the Ontano government and SItS on land It owns 6 CNCC IS dIrectly funded by the Ontano government. 7 there have been transfers of some officers back to the Mimstry wIthout barners SImply put, the gnevors take the posItIOn that CNCC IS the same employer and therefore they should be allowed to transfer to another InstItutIOn wIthout penalty In response to a questIOn the Umon conceded that the gnevors were put on the thIrd level of the salary gnd by the Employer as of theIr last date of hIre In my VIew It IS beyond my jUnSdIctIOn to uphold the gnevances The Public Service Act states at sectIOn 8 the folloWIng (1) An IndIVIdual IS not consIdered to be a cIvIl servant unless he or she has been expressly appoInted as such by the CommIssIOn or by the LIeutenant Governor In CouncIl on the certIficate of the CommIssIOn. 5 (2) An IndIVIdual IS not consIdered to be a publIc servant unless he or she has been expressly appoInted as such by the LIeutenant governor In CouncIl, the CommIssIOn, a mImster or a desIgnee of a mImster (3) An IndIVIdual who IS employed In the servIce of the Crown IS not consIdered to be a Crown employee unless the IndIVIdual has been expressly appoInted as such by the LIeutenant Governor In CouncIl, the CommIssIOn or a mImster As I understand It, the gnevors termInated theIr employment wIth the Mimstry They then worked for CNCC but ultImately returned to the Ontano PublIc ServIce SImply put, I do not have the jUnSdIctIOn to declare the gnevors employees dunng the penod they worked for CNCC Even If I dId, I would not. CNCC IS not operated by the Ontano government. Employees of CNCC are not members of the Ontano PublIc ServIce Therefore there has been a break In servIce For those reasons the gnevances are dIsmIssed. oronto thIS 9th day of July 2004 . S