GSB# 2002-2403, 2003-0517

UNION# 2002-0218-0005, 2002-0218-0006, 2003-0218-0040

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Metcalfe)

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 5, 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.

Ian Metcalfe was a Correctional Officer at Burtch Correctional Centre. He filed three grievances. The first was disposed of in an earlier decision. The second alleged that he was improperly denied a job trade request. It was Mr. Metcalfe’s contention that his request for a job trade was denied because he lacked the Young Offender training.

While it is accurate that the grievor did not, at the time, have Young Offender training that was not the reason for the denial. According to the evidence, he was denied the job trade request because the Correctional Officer that he wanted to trade jobs with had elected to take a Voluntary Exit Option and had matched with a correctional officer who had Article 20 rights and who had more seniority than the grievor. Accordingly, the denial was not improper.

The final grievance considers that Mr. Metcalfe had a temporary assignment as a maintenance plumber for a twelve month period. As he declined rights under Article 20, he had rights under Appendix 18. Initially all of the employees at Burtch Correctional Centre were offered a job at Central North Correctional Centre in accordance with Appendix 18. However, the grievor declined that offer and was then entitled to the rights provided at Article 6C.2 of Appendix 18. He elected to leave the employ of the Ministry with a package as provided under article 6C.2.

In the meantime, a decision of Vice Chair Brown was released. Additionally the parties negotiated the MERC Memoranda. In accordance with Part A of MERC 1, those with entitlements under Appendix 18 were offered Article 20 rights with a lateral transfer to a transition cost centre. Again, the grievor declined.

Mr. Metcalfe grieved that the “rules had changed”. It was suggested that other employees were in possession of more information than he had at the time. There is simply no evidence to substantiate that claim.

There was no dispute that this was a turbulent time with various employees changing their minds about whether to elect a VEO.

The grievor asserted that had he been in possession of more information he would have done things differently. That might well be. However, when he opted out his rights and elected to take the package under article 6C.2 of Appendix 18, there was no further obligation to apprise him of information even if there were a change from the original plan. Accordingly, this grievance is dismissed.

Dated in Toronto this 29th day of October 2003.