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HomeMy WebLinkAbout2003-3817.Martin et al.06-11-23 Decision Crown Employees Grievance Settlement Board Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 2003-3817,2003-3967,2003-3984,2005-0826, 2005-0830, 2005-0831, 2005-0834 UNION# 2004-0234-0022,2003-0368-0013, 2003-0368-0030, 2005-0234-0125, 2005-0234-0129, 2005-0234-0130,2005-0234-0133 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Martin et al.) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Stephen Giles Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Lucy Neal Staff Relations Officer Ministry of Community Safety and Correctional Services HEARING June 19,2006. 2 Decision In September of 1996 the Ministry of Correctional Services notified the Union 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 Union filed policy and individual grievances that alleged various breaches of the Collective Agreement including Article 6 and Article 31.15 as well as grievances relating to the filling of Correctional Officer positions. In response to these grievances the parties entered into discussions and ultimately agreed upon two Memoranda of Settlement concerning the application of the collective agreement during the "first phase of the Ministry's transition". One memorandum, dated May 3, 2000 (hereinafter referred to as "MERC 1" (Ministry 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 principles and settled all of the grievances 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 union or the employer may take on the same issues in future discussions", the parties recognized that disputes might arise regarding the implementation of the memoranda. Accordingly, they agreed, at Part G, paragraph 8: The parties agree that they will request that Felicity Briggs, Vice Chair of the Grievance Settlement Board will be seized with resolving any disputes that arise from the implementation of this agreement. 3 It is this agreement that provides me with the jurisdiction 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 various phases of the restructuring. Given the complexity and size of the task of restructuring and decommissioning of institutions, it is not surprising that a number of grievances and disputes arose. This is another of the disputes that have arisen under the MERC Memorandum of Settlement. When I was initially 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 grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. 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 grievances and complaints prior to the mediation/arbitration process. There have been many other grievances 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 grievances that I have decided, in accordance with my jurisdiction to so determine, that grievances are to be presented by way of 4 each party presenting a statement of the facts with accompanying submissions. Notwithstanding that some grievors 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 arise from the continuing transition process. Not surprisingly, 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 principles 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 Ministerial boundaries and other organizational alterations, the task has lately become larger, not smaller. It is for these reasons that the process I have outlined is appropriate in these circumstances. During this long transition process many Correctional Officers who worked at various institutions around the province, including Mr. Todd Hudson, have been "rolled over" into classified positions as the result of a number of MERC agreements. In each of these agreements the parties agreed to a common date for the Correctional Officers to be given classified status. These agreements provide that unclassified employees be rolled-over to classified employee status. It was common ground between the parties that these agreements are greater than the 5 entitlements found in the Collective Agreement. To be clear, there was no obligation upon the Employer to alter the status of these employees. In many instances by the time all of the paperwork was completed and delivered to the Correctional Officers the effective date of their change in status had passed. To be clear, many Correctional Officers were notified of their classified status with a retroactive effective date. In some instances those Correctional Officers filed grievances claiming that they missed overtime opportunities between the effective date of their assignment to classified status and the date they received notice of this change. It was the Union's position that because overtime is to be assigned on a fair and equitable distribution basis these Correctional Officers lost valuable overtime opportunities. There was no dispute between the parties that in most instances there were no undue delays in these assignments. Indeed, given the large number of roll-overs undertaken around the Province, it is not surprising that some delays were encountered. As mentioned earlier, the parties agreed, through the Transition Implementation Committee and various MERC agreements that a number of unclassified Correctional Officers would be rolled-over into classified status notwithstanding the fact that they did not necessarily qualify for such under the terms of the Collective Agreement. Accordingly, I can find no breach of the Collective Agreement because these individuals might have missed some overtime opportunities. 6 Accordingly, the grievances are dismissed. Dated in Toronto this 23rd day of November, 2006.