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HomeMy WebLinkAbout2009-1838.McDougall.12-07-11 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2009-1838 UNION#2009-0108-0068 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McDougall) 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 Tim Mulhall Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Greg Gledhill Ministry of Government Services Centre for Employee Relations Employee Relations Advisor HEARING DATE May 22, 2012. - 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] 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 - 3 - 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 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 - 4 - larger, not smaller. It is for these reasons that the process I have outlined is appropriate in these circumstances. [9] Ms. Kendra McDougall is a Correctional Officer at the Elgin Middlesex Detention Centre. She filed a grievance that alleges she was improperly bypassed in a roll-over exercise that was undertaken in the spring of 2009. [10] The parties negotiated a roll-over agreement that stated fifteen Correctional Officers would be rolled over utilizing Appendix 24 of the Collective Agreement. The agreement stated that “fixed term correctional officers employed by EMDC as of May 3, 2009, will be eligible for rollover. All hours up to and including May 3, 2009, will be utilized for the purposes of roll- over. These employees will be classified no later than June 15, 2009.” [11] The Competition notice flowing from this agreement stated that “fifteen (15) General Duty Officer positions will be open to all fixed term Correctional Officers who have been working at the Elgin Middlesex Detention Centre since May 14, 2008 (one year). [12] It is the requirement to have been working at EMDC for a one year period that is at the heart of this dispute. The grievor was of the view that the Employer has imposed a condition that is in violation of the Memorandum of Agreement. [13] The Board was provided with an email exchange between the parties in May of 2009 wherein it was agreed that there would be a one-year requirement at EMDC for eligibility for roll-over. According to the agreement this requirement was to “ensure that fixed term Correctional Officers are not transferring contracts simply to obtain classification.” It was also stated in this agreement that this condition should apply to the positions at EMDC. - 5 - [14] Given the agreement of the parties, the grievance is dismissed. Dated at Toronto this 11th day of July 2012. Felicity D. Briggs, Vice-Chair