GSB# 2001-0646, 2002-2861
UNION# 01A726, 2003-0218-0010, 2003-0218-0011, 2003-0218-0012, 2003-0218-0013, 2003-0218-0014
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Druchok)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Public Safety and Security)
Employer
BEFORE
Felicity D. Briggs
Vice-Chair
FOR THE UNION
Scott Andrews Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Greg Gledhill Staff Relations Officer Ministry of Public Safety and Security
HEARING
September 29, 2003.
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.
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 one of the numerous decisions dealing with disputes under the MERC Memoranda of Agreement.
Mike Druchok was a correctional officer at Burtch Correctional Centre who filed three grievances. All relate to the similar situations and alleged that he was improperly denied a job trade.
In February of 2001 he applied for a job trade. However, he did not follow the process set out at article 10.3.4 of the collective agreement. At the same time he asked for a lateral transfer under Part B of the MERC 1 Memorandum of Settlement. Unfortunately, his lateral request was not accessed due to his lack of seniority.
The grievor filed another grievance on January 15, 2003 that he was denied a subsequent job trade request. In this grievance Mr. Druchak properly noted that he was denied job trades "due to my lack of seniority". He alleged discrimination because of his age and suggested that people who were less qualified and had less seniority were being granted job trades. There was no evidence before me of any such discrimination. For this Board to find discrimination on a prohibited ground there must be clear and cogent evidence.
Finally Mr. Druchak alleged that he was improperly denied his "right to lateral transfer per article 6.6.1"of the collective agreement. Article 6.6.1 states:
With the agreement of the Union, the employee and the Employer, an employee may be assigned to a vacancy where:
(a) the vacant position is identical to the position occupied by the employee, and
(b) the vacant position is in the same ministry as the position occupied by the employee, and the provisions of Article 6.1.1, 6.2, 6.3, 6.4 and 6.5 shall not apply.
Article 6.6.1 is a discretionary provision of the collective agreement. As such, employees do not have a "right" to such a transfer. I was provided with considerable correspondence between the grievor and the Employer. According to that documentation there was no violation of either MERC 1 or the collective agreement.
Accordingly, these grievances are denied.
Dated at Toronto this 30th day of October 2003.