GSB# 2002-3108, 2003-2176, 2003-2504

UNION# 2003-0229-0002, 2003-0229-0033, 2003-0229-0035

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Stickle et al.)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

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 Community Safety and Correctional Services

HEARING

May 13, 2004.

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. The parties continued to negotiate and agree upon further conditions regarding the transition matters. MERC 3 was signed by the parties on February 25, 2002.

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 another of the disputes that have arisen under the MERC Memorandum of Settlement.

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.

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.

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.

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.

John Heathcote filed a grievance, dated February 17, 2003, alleging that his home position was “re-assigned to the St. Lawrence Valley Correctional and Treatment Centre” contrary to his wishes. He requested compensation for all monies lost and for stress and financial hardship. Two other Correctional Officers, Mr. Cuncins and Mr. Stickle have virtually identical grievances that are before me. I will outline the facts for Mr. Heathcote which are representational of the others.

On November, 27, 2002, Mr. Heathcote, a Correctional Officer at OCI, received a letter informing him that he had an opportunity to take a change in “location of headquarters” to the St. Lawrence Valley Correctional and Treatment Centre in Brockville. The letter also stated the following:

Signing this document indicates that you are Accepting or Declining an assignment to the 350 bed Unit at the St. Lawrence Valley Correctional and Treatment Centre, Brockville, Ontario, which may be available to you on the basis of seniority. This document is final and binding upon receipt by the Employer. If you do not respond to this letter by 4:30 on December 4, 2002, or the letter is returned incomplete or unsigned, you will be deemed to have declined Appendix 13 rights. The Employer considers its obligations in accordance with Part 1, Section C of the Memorandum of Agreement/Settlement to be fulfilled.

On December 17, 2002, the grievor was informed the following:

This will confirm receipt of your response to my letter dated November 27, 2002, indicating you interest in an assignment to the 350 Bed Unit at the St. Lawrence Valley Correctional and Treatment Centre.

I am pleased to advise you that based on your seniority you will be assigned to the St. Lawrence Valley Correctional and Treatment Centre as a Correctional Officer 2.

Mr. Heathcote was informed in a letter dated April 25, 2003, of the following:

An initial group of a minimum of twenty-eight (28) Correctional Officer positions will be required to open Phase 1, and the Employer and the Union have agreed to a process for the staffing of these initial twenty-eight (28) positions. After Phase 1 has been completed, it is anticipated no additional Correctional Officers will be required for approximately one and a half years, or until Phase 2 of the St. Lawrence Valley facility is operational.

After receiving the April 25, 2003 letter, Mr. Heathcote declined the offer to an assignment to St. Lawrence Valley at that time. He signed an agreement the stated, in part:

I understand my assignment to the St. Lawrence Valley Correctional and Treatment Centre will take place at a later date to be determined by the Employer.

Simply put, it was the grievor’s view that the Employer was obliged to tell him at the time of this assignment of the date of his impending move in accordance with paragraph 1 of Appendix 13 that states:

(1) affected employees will be notified, in writing, of the ministry’s decision to change the operation’s headquarters location and the date when such change will take place.

In the MERC Agreement between the parties signed on March 11, 2002, paragraph 11 states:

The Employer will determine the effective date of the relocation of the employee.

There was no dispute between the parties that paragraph 11 of the MERC agreement supersedes the provisions of Appendix 13.

It is not surprising that the parties agreed to paragraph 11 of the MERC agreement. The parties agreed to work together during the long and complicated decommissioning period to establish a workable process that would provide the highest possible number of employees to remain in the Ontario Public Service. To that end, and no doubt because of the often changing closing dates, the Union agreed in the March 11, 2002, MERC to eliminate the obligation upon the Employer to inform all employees of the actual date of changes when it gives notice headquarter changes. There are significant implications and costs that would flow from an employee not being moved on the assigned date. Given those potential costs, if the Employer was not sure of the date of headquarter changes it might have been more likely to give notice to employees under Article 20. This would not have been in the interests of Correctional Officers around the Province and, no doubt it was for this reason the Union decided to agree to paragraph 11 of the MERC agreement. The parties determined that it made sense to allow the Employer to notify employees that they will have a headquarter change but inform them of the date when that time is actually known.

Mr. Heathcote took the position that his home institution changed to St. Lawrence Valley Correctional and Treatment Centre as of November 27, 2002. He submitted a claim for travel time and mileage because he “could not make any important decisions because any day the employer can order me to report to my home institution in Brockville”.

I disagree. Indeed, I have some difficulty understanding the grievor’s point of view. The Union entered into negotiations with the Employer when it became clear that there would be significant wide spread changes including institutional closings within the Ministry. Various MERC agreements were agreed upon. Those agreements represent a reasonable approach to ensuring the best opportunity for the largest number of correctional employees to continue to maintain an employment relationship.

In the instant matter, the grievor was given proper notice in accordance with the agreement of the parties. He claimed that he was significantly disadvantaged by not knowing the timing of his impending move and yet, on April 25, 2003, the grievor declined the opportunity to move to St. Lawrence Valley in Phase 1. That inconsistency is baffling.

For those reasons, the grievances of the three grievors must fail.

Dated in Toronto, this 6th day of July, 2004.