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HomeMy WebLinkAbout2004-2094.Chamberlain et al.09-06-12 Decision Commission de Commission de Crown Employeess Grievance Settlement Grievance Settlement règlement des griefs règlement des griefs BoardBoard des employés de la des employés de la Couronne Couronne Suite 600 Suite 600 Bureau 600 Bureau 600 180 Dundas St. West 180 Dundas St. West 180, rue Dundas Ouest 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Tél. : (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Fax (416) 326-1396 Téléc. : (416) 326-1396 Téléc. : (416) 326-1396 GSB#2004-2094, 2004-2824, 2004-2825 GSB#2004-2094, 2004-2824, 2004-2825 UNION#2004-0368-0086, 2004-0368-0115, 2004-0368-0116 UNION#2004-0368-0086, 2004-0368-0115, 2004-0368-0116 IN THE MATTER OF AN ARBITRATION IN THE MATTER OF AN ARBITRATION UUnnddeerr THE CROWN EMPLOYEES COLLECTHE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT TIVE BARGAINING ACT BBeeffoorree THE GRIEVANCE SETTLEMENT BOARD THE GRIEVANCE SETTLEMENT BOARD BETWEENBETWEEN Ontario Public Service Employees Union (Chamberlain et al/Karmazyn) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREFelicity D. Briggs Vice-Chair FOR THE UNIONStephen Giles Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYERGreg Gledhill Ministry of Community Safety and Correctional Services Staff Relations Officer HEARING October 31, 2008 and May 28, 2009. -2- [1]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. [2]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- [3]It is this agreement that provides me with the jurisdiction to resolve the outstanding matters. [4]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. [5]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. [6]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 -4- are to be presented by way of 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. [7]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. [8]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. [9]Jennifer Chamberlain and others were Industrial Officers workers at TRILCOR, Millbrook. They grieve that they should have received travel and mileage for a significant period of time when their home positions were at Central East Correctional Centre but they continued to work at Millbrook. -5- [10]A review of some history is useful. The parties signed the MERC III Agreement on February 25, 2002. In the spring of 2003 the parties signed a Memorandum of Agreement regarding TRILCOR Industries. Part C of that Agreement dealt with the TRILCOR Operations at Millbrook moving to Central East Correctional Centre. That Agreement said, in part, the following: The employees under this Part of the Agreement with rights and entitlements to positions at Centre East CC are classified TRILCOR employees with a home position at Rideau CTC, Guelph CC and Millbrook CC. Qualified employees in each specialized shop who hold the same classification as the vacancies identified will be offered a change in headquarters location. Employees will be given five days to accept or decline the change in headquarters location to Central East CC. if more employees choose to accept the relocation to Central East CC than positions available, the most senior employees from each specialized shop of a TRILCOR will be offered the available positions first. For this particular purpose, a dovetailed seniority list will be created for all employees occupying a position in the TRILCOR Shops at Rideau CTC, Guelph CC and Millbrook CC. The Employer will determine the effective date of the relocation of the classified employee. ? The parties agree that where institutions have decommissioned or will decommission prior to the Central East CC TRILCOR operations being ready to accept the employee in the position, the employee may be offered a temporary assignment at another location of the Ministry based on operational requirements, until a reporting date is determined. Reimbursement of travel expenses in accordance with the Collective Agreement and the Employer?s travel directive will apply. In cases where there is no mutual agreement on a temporary assignment to another worksite until their permanent placement occurs, employees who remain at home will be considered to be on a leave of absence without pay. Temporary assignments will be offered on the basis of seniority. If the Employer does not offer a temporary assignment then the employee will not suffer any financial loss. [11]On May 1, 2003, the employees were notified in writing that Millbrook CC was being decommissioned. In that same letter it was stated, in part: -6- As you are aware, the TRILCOR Industrial Operation will continue to operate at the Millbrook CC site for a period of up to six months. TRILCOR employees will be informed in the very near future regarding the transition of the current industrial operation and the development of an Agreement between the Employer and the bargaining unit for TRILCOR employees. [12]On September 3, 2003 the parties signed a Memorandum of Agreement regarding an update on TRILCOR, that stated, in part: In accordance with the Memorandum of Agreement/Settlement (Part D.4) signed on April 9, 2003 and referred to as the TRILCOR Agreement, the Employer has disclosed the following tentative plans to relocate the TRILCOR operations as follows: Millbrook to CECC? projected operation date ? March 2004 [13]On September 23, 2004 the grievors received Notice of election letters and their elections were confirmed by letter on October 7, 2004. [14]In the September 23, 2004 letters employees were told, in part: In accordance with the Memorandum of Agreement/Settlement signed on April 9, 2003, the Employer and OPSEU agreed that classified TRILCOR employees with a home position at the Millbrook Correctional Centre will be provided with an opportunity to accept a change in location of headquarters to the TRILCOR Industrial Shops located at the Central East Correctional Centre in Lindsay, Ontario. Employees who accept a change in location of headquarters to the TRILCOR Industrial Shops located at the Central East Correctional Centre under Article 2 of the OPSEU Collective Agreement will not be entitled to relocation expenses as the TRILCOR Industrial Shops located at the CECC are within 40 kms. of the current worksite. Those employees who decline the change in headquarters location may benefit from other provisions of the Memorandum of Agreement/Settlement and/or those of the OPSEU Collective Agreement including Article 20 in accordance with Part C (6) of the April 9, 2003 Memorandum of Agreement/Settlement. Employees assigned to a position at the TRILCOR Industrial Shops at the CECC as a result of this exercise will remain at their respective current work site until the effective date of the relocation of the employee is determined by the Employer. -7- [15]The confirmations letters dated October 7, 2004 told employees that they ?will be assigned? to the TRILCOR Shop at CECC and that they would be contacted in the future to ?confirm your start date at the Trilcor Industrial Shops? at CECC. [16]In April of 2005, Guelph TRILCOR employees were temporarily assigned to Millbrook prior to going to their positions at CECC. Those employees were paid travel time and mileage until they are working at CECC permanently. [17]The grievors continued to work at Millbrook TRILCOR until September 19, 2005. [18]It is the position of the Union that the grievors were ?in essence? on a temporary assignment to Millbrook. Their home position became CECC once the Millbrook Jail was decommissioned. Accordingly, they are entitled to travel time and mileage for that period following decommission of the Jail and their commencement of work at CECC. In the alternative the Union contends that the Employer delayed the relocation of operations to an unreasonable extent and therefore travel time and mileage should be owing to the grievors. In the further alternative, once the grievors signed their election letters their home location was changed to the CECC and therefore Millbrook was a temporary assignment. In the final alternative, CECC must be found to be the home position for the grievors during this time because in November of 2005 they received correspondence listing their work location as CECC. -8- [19]The Employer submitted that this matter has, to all intents and purposes, Re MCSS and OPSEU been previously decided by this Board in (Wiltshire et al) GSB#2003-1862, (April 26, 2006). [20]I must dismiss these grievances. Contrary to the assertions of the grievors, their home location did not become CECC because they signed election letters indicating their desire to go to CECC. Neither was CECC their home position because of a delay in the actual re-assignment of the work or because letters were addressed to them care of CECC. th Dated in Toronto this 12 day of June 2009. Felicity D. Briggs, Vice-Chair