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HomeMy WebLinkAbout2002-2095.Union.12-04-04 Decision Crown Employees rieva nce Settlement oard 1Z8 l. (416) 326-1388 x (416) 326-1396 t des griefs es employés de la t Z8 l. : (416) 326-1388 léc. : (416) 326-1396 UNION#2002-0999-0028 IN THE MATTER OF THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ETWEEN G B Suite 600 180 Dundas St. West Toronto, Ontario M5G Te Commission de règlemen d Couronne Bureau 600 180, rue Dundas Oues Toronto (Ontario) M5G 1 Té Té Fa GSB#2002-2095 AN ARBITRATION Under B Ontario Public Sployees Union (Union) Union - and - (Ministry of Community Safety and Correctional Services) Employer ervice Em The Crown in Right of Ontario BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION ice Employees Union FOR THE EMPLOYER Stephen Giles O G ntario Public Serv rievance Officer s s Greg Gledhill Ministry of Government Service C E entre for Employee Relation mployee Relations Advisor HEARING 11, January 9, March 12, 2012. November 21, 20 - 2 - Decision [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 are to be presented by way of each party presenting a statement of the facts - 4 - 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] Over a number of years the transition committee has faced various and continuing organizational changes within this Ministry and has worked tirelessly to attempt to reduce or at least significantly limit the impact on members of the bargaining unit. Recently further jail closures have been announced and the committee is making every effort to resolve disputes in a timely fashion. [10] In July of 2003 I wrote a decision regarding the calculation of sick time hours for unclassified employees that stated, in part: - 5 - For the purposes of calculating full time straight time hours for unclassified employees under Appendix 24 for this agreement the parties have agreed that authorized leaves granted to unclassified employees during their unclassified employment will be treated as follows: …. (B) Unpaid Sick Leave (i) scheduled shifts: Credit number of hours in the schedule shifts missed due to illness (ii) other periods: utilize “Leave Formula”: “calculate employee’s average weekly hours from the last day the employee worked before going on the leave going back 13 weeks. Credit weekly average over the 13 weeks for each week of the leave. Medical documentation as per the collective agreement will be required. [11] On July 28, 2008 this Board issued a decision regarding clarification of two earlier decisions that dealt with seniority for unclassified employees. I noted that both parties conceded that, notwithstanding my decision of 2003, some institutions were properly granting seniority for sick leave days for the unclassified employees. That is to say, it was agreed that some facilities failed to implement the decision originally it issued in 2003. [12] I also said at page 1: The parties also agreed that retroactive adjustments need not be made for any institution that has completed a roll-over exercise prior to the release of this decision. However, on a prospective basis, the Employer shall take sick leave into account as set out above for the purposes of calculating seniority under Appendix 24. To be clear, the parties have agreed that on a prospective basis only, any unpaid sick leave shall be included in the Appendix 24 calculations. There shall be no entitlement for credit under Appendix 24 where medical documentation has been requested by the Employer in accordance with Article 31A.8.2 and 31.A.8.3 and has not be provided by the employee. - 6 - [13] This matter returned to the Board recently when it became apparent that there is a dispute between the parties regarding the interpretation of the July 28, 2008 decision. [14] It is the Employer’s view that the decision set out above made clear that the parties agreed that any and all adjustments to be made to sick leave as the result of the award were to be prospective only. There was no agreement to go back into the sick leave history of the unclassified employees to make any adjustments. All entitlements were to be on a go forward basis. [15] The Employer argued that it would not have agreed to such a provision if it meant that they had to retroactively adjust the seniority of much of the unclassified workforce. To do so would entail a major undertaking and it would not and did not agree to do so. [16] The Union was strongly of the opposite view. The Union reminded the Board that it originally agreed that it was not going to force the Employer to “undo” various Roll-Over appointments made as the result of a number of MERC agreements because of the incorrect seniority adjustments. However, this concession was made on the basis that retroactive adjustments would be made so that correct seniority would be determined and applied in all future appointments. [17] The Union submitted that it was a major concession in 2008 for it to agree to allow the Roll-Over appointments already made to stand. There is no way that it would also have “given away” the seniority rights of all its unclassified Correctional Officers that were awarded as the result of the - 7 - 2003 decision of the Board. It should not be forgotten or taken lightly that the Employer had been already ordered by this Board to do so make those seniority adjustments. The Union noted that it took a pragmatic view of the Roll-Over appointments already made. It determined that the chaos that would be caused by “undoing” those appointments would be extraordinarily counter-productive in labour relations terms. However, there was no such labour relations deterrent that would cause it to entirely forgive past calculation errors. [18] The question for this Board to now address is what was the extent of the agreement entered into by the parties regarding this matter. That task is somewhat difficult because the parties made their concessions and agreements during the course of their somewhat informal oral submissions to the Board that resulted in the decision dated July 28, 2008. [19] After much consideration, I must agree with the Union. In 2008 the Union raised a complaint that the Employer had not consistently implemented the Board’s decision of July 17, 2003. The decision was implemented in some but not all institutions. At that time, while the Union was concerned about the fact that various Roll-Overs might have been implemented without recognizing complete Appendix 24 seniority for all of the unclassified Correctional Officers, it agreed that no organizational or labour relations purpose would be served by demanding all those potentially incorrect Roll- overs be unwound and done again. [20] While that concession made much practical sense and might have even have been somewhat self-serving, it should be acknowledged that it was a - 8 - concession that was not inconsiderable. Although the Union was astute enough to appreciate that much havoc would unfold if it insisted each and every Roll-Over exercise be redone, it could have done so given that the Employer had admittedly not followed a Board order in this regard. [21] In my view, the Union knew in July of 2008 when this matter was addressed again with this Board that it could have asked for a comprehensive remedy that would have included adjustments to the Roll-Over agreements. It chose not to do so. However, I am of the view that it was not prepared to give up everything it achieved in the July 17, 2003 decision. [22] Arguably, that would be the affect of the Employer’s position at this time. All gains made by the Union as a result of the July 17, 2003 decision would have no remedial affect until some five years later. I find it very difficult to believe that the Union would have intentionally conceded that much. There was no reason to do so. Indeed, it would have “given away” everything that it achieved in the 2003 decision. Had the Union agreed that no past seniority need be counted, not only would the calculation of seniority under Appendix 24 be wrong for a number of individual Correctional Officers, but the relative seniority ranking of Correctional Officers at various institutions would most likely be skewed. This skewing could be significant given that some institutions did implement the decision after it was issued in 2003. [23] For the Employer to be correct in this matter, the Union would have had to agree in the discussions in 2008 to forgo all gains that it achieved from the decision of July 17, 2003 for a period of five years for many but not all of its members. I do not think it did so. - 9 - [24] If I found for the Employer in this matter there would be two groups of Correctional Officers. Those who were lucky enough to have worked for an institution that implemented the July 17, 2003 decision and those who did not. Obviously, the first group would have higher seniority for the purposes contemplated in Appendix 24. This inconsistency buttressed my view that the Union would not have agreed to forgo all adjustments retroactively. [25] The Employer urged me to deny this matter arguing, in part, that it will be very difficult for the seniority to be re-calculated given the significant passage of time. I have much sympathy for that problem. However, I cannot be persuaded to deny the Union’s request on the basis of an inconvenience, albeit not insignificant, caused by the Employer’s failure to implement a Board decision in the first instance. [26] The Employer also argued that because of provisions in various MERC Agreements, the Union’s request must fail. It was noted that many of the Roll-Overs agreements included that a provision stating that unclassified Correctional Officers were informed of their seniority and then given an opportunity to dispute all hours up to and including a particular point in time. Surely the failure of individuals to raise incorrect hours must lead to a finding for the Employer, it was submitted. It was suggested that the Correctional Officers themselves have agreed to the Employer’s calculations. [27] While this argument has some superficial attraction, I am of the view that it cannot succeed. The matter before me is an overarching policy issue not individual grievances. The issue at hand arises as the result of an - 10 - interpretation dispute between the parties about the meaning of the July 28, 2008 decision of this Board. This interpretation issue about what the parties agreed to in July of 2008 cannot be determined based on what individual members of the bargaining unit may or may not complain about. I cannot agree that the failure of unclassified Correctional Officers to raise complaints during a Roll-Over process is determinative of this matter. Further, it is not unreasonable that Correctional Officers would have assumed that their Employer had followed a 2003 Board order in the calculation of their Appendix 24 seniority. [28] I believe that this sufficiently addresses the question raised. I remain seized. Dated at Toronto this 4th day of April 2012. Felicity D. Briggs, Vice-Chair