GSB# 2003-0175

UNION# 2003-0521-0027

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Tessier)

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

March 1, 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.

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.

Mr. Dan Tessier is a Correctional Officer working at Toronto Youth Assessment Centre. He grieved that the Employer has violated the collective agreement because he has not yet received a requested lateral transfer on compassionate grounds to Sudbury.

I received a statement of facts drafted by the grievor which described his personal circumstances. It is not necessary to detail those facts in this decision.

According to Employer, the grievor did put his name on the list for lateral transfers. Further, it was conceded that there have been vacancies in the Sudbury region since the grievor asked for a transfer. However, the vacancies that arose were offered to those employees with rights under Appendix 13 of the collective agreement. Other vacancies were offered to employees who were rolled over in accordance with the Memorandum of Agreement signed between the parties dated June 16, 2003.

In an August 26, 2002 memorandum to all OPSEU staff within the Ministry the Transition Unit explained the procedure for requesting and receiving lateral transfers. The grievor submitted his request for transfer on the same day. As set out in the memorandum, all such requests remain on an employee’s file for a period not longer than one year if not renewed. That Memorandum stated, in part:

The Employee Transition Unit will acknowledge receipt of the request and log the request into the lateral transfer database. The request will be retained on file for a one year period from the date of receipt of the request. The employee must renew lateral transfer requests annually.

The grievor did not renew his request. Accordingly, as of January of 2004, there was not current request for a lateral transfer from Mr. Tessier.

There is no automatic right under the collective agreement for a lateral transfer. While I accept that the reasons for the grievor’s request are bona fide and important to the grievor, there is no such thing as lateral transfers based on compassionate grounds under the collective agreement. A vacancy must first be identified and there must be agreement between the union, the facility and the individual that a transfer will occur. In the instant matter, the grievor did not receive a transfer because there was no vacancy that was identified for lateral transfer by the Employer during the time that he had a request for transfer on file. According to the records of the parties, he does not have a current request on file.

For those reasons, the grievance is dismissed.

Dated in Toronto, this 23^rd day of March, 2004.