GSB# 2002-2400

UNION# 2002-0218-0007, 2002-0218-0008, 2002-0218-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Muth)

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

August 11, 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.

Peter Muth grieved that “the transition team did conspire to mislead those employees with Article 18 rights by supplying to them a list of vacancies from institutions that was not a true and complete list from all provincial institutions”. It was further asserted that “by not providing this list to us in a timely manner it allowed Article 20 employees to take those vacancies that would have been available to Article 18 employees if the completed list was available”.

By way of remedy Mr. Muth requested that there be a “reset of the RFP date establishing Article 20 rights to correspond with the exact closing date of Burtch Correctional Centre” and an assignment of his choice within the OPS.

There is a lateral transfer list and the grievor had a right to be put on that list in accordance with the collective agreement. Indeed, the transition committee did put the grievor’s name and others on the list for those institutions within reasonable driving distance of Burtch Correctional Centre such as Elgin Middlesex Detention Centre, OCI, Hamilton Wentworth Detention Centre, Sarnia Jail, Mimico Correctional Centre, Toronto East Detention Centre and the Toronto Jail on October 25, 2002. This was done in an effort to give those Appendix 18 correctional officers an opportunity to continue employment with the OPS.

At that time it was not known exactly how many vacancies existed because the number fluctuated. In fact, these Appendix 18 employees always had the right to put their names on the lateral transfer list for any facility they desired at any time.

Once established, the list had to be applied in accordance with seniority. There is nothing in the Memorandum of Settlement that would oblige the Employer to provide the list to any individual employees. Indeed, it made sense that the list was not provided at any particular time because of the considerable fluctuation. Further, not all institutions were put onto the list.

As the result of various circumstances the Union asked the Employer to add employees to the lateral list of other institutions impacted by the RFP and the Employer agreed to do so.

At the time there were meetings held at Burtch Correctional Centre and employees were advised to put their names on the later transfer lists all over the province to ensure placement. Unfortunately, some like the grievor failed to take that advice. Once the committee became aware that individuals did not heed its advice, the committee agreed to put the names of Appendix 18 employees on various lateral transfer lists to maximize their opportunities. In the case of the grievor, Mr. Muth was on the Hamilton list and he was subsequently offered a position at the Hamilton Detention Centre which he declined.

In my view, there is nothing in the Memorandum of Settlement or the collective agreement that obliged the Employer to provide the lateral transfer lists. Further, I am frankly astonished that there is an allegation that the transition committee conspired against any employee or group of employees. Since the MERC 1 Memorandum of Settlement was signed I have been involved in all of the disputes that have arisen during the transition period. It has been my observation that the committee is not only hard working but careful to ensure that rights are protected.

In this process there are a number of difficult circumstances. There are groups of employees who have competing interests. There are fewer positions than those that would have them. Situations are ever changing and some timetables for closing have been delayed or otherwise not timely. However, those are not the fault of the transition committee and they should not be expected to bear the brunt of every frustration.

I find not a scintilla of evidence of a transition team conspiracy. The grievance is denied.

Dated in Toronto, this 28th day of October, 2003.