GSB# 2003-3977

UNION# 2003-0368-0023

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Wilkie)

Union

• 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

October 29, 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. Gerald Wilkie is a Correctional Officer at Central East Correctional Centre. He filed a grievance asserting that he should have been paid relocation costs. Further, he alleged that he was treated in a discriminatory fashion because a number of his co-workers were paid those monies.

The grievor was a Correctional Officer at the Barrie Jail when he and his co-workers were provided an opportunity to “opt in” or “opt out” of an RFP with the Central North Correctional Centre in Penetang. Employees who chose to “opt in” understood that this election meant that they might be offered a position with CNCC. An offer of employment was not a certainty. Mr. Wilkie elected to “opt in”. On this point, it was the grievor’s position that at the time of the second election the CNCC should have made known to all how many employees they would be hiring. If that information had been provided, the grievor might have made different choices. Be that as it may, there is nothing in the Collective Agreement that would have obliged the CNCC to make such information known.

At some point after the first election there was a second opportunity offered to some Correctional Officers including the grievor and at that time, he chose to “opt out”. Therefore he was entitled to the rights under Article 20 of the Collective Agreement. It was the grievor’s view that he “had no choice” in this regard because he lacked the firm knowledge of whether he would have received a job opportunity from CNCC. Additionally, because no one could tell him about the terms and conditions of work at CNCC including whether there would be union representation and pension, he felt compelled to make remaining within the OPS as his “focus”.

In accordance with Article 20, Mr. Wilkie listed, in order of preference, facilities he would be prepared to be moved to. During this time there was an agreement that certain employees could laterally transfer to open positions if they had made their desire to do so known in writing by a particular date. The grievor wrote to the Employer that he wanted to go to Niagara Detention Centre even though he had not indicated his interest previously. He was granted a transfer to Niagara in June of 2001. However, when the Employer realized that Mr. Wilkie’s request had not been within the specified time period, the lateral transfer was cancelled. Ultimately there was a Memorandum of Settlement dated September 17, 2001 allowing Mr. Wilkie a lateral transfer to Niagara Detention Centre effective December 3, 2001.

Shortly thereafter, the grievor requested a lateral transfer to CECC. This request was originally denied. It was the grievor’s view that because others with less seniority were being granted transfers to Lindsay, his requests were either overlooked or “simply ignored”. He again asked for the assistance of the Union and shortly thereafter he was granted a lateral transfer to CECC in accordance with Article 6.6.1 of the Collective Agreement.

Once he arrived at CECC he became aware that other Correctional Officers were given relocation costs for their move to Lindsay. This grievance was filed at that time because Mr. Wilkie was of the view that whether a Correctional Officer “transferred from the first closing institution or the last closing institution should make no difference in the financial arrangements made available to staff”. In his view, his failure to receive the same monies as others constitutes discrimination under the Collective Agreement.

It is not surprising to me that some of Mr. Wilkie’s co-workers would have received relocation costs. Some of the Correctional Officers working at CECC would have received that work assignment as the result of rights they were entitled to in accordance with Appendix 13 while others, like the grievor arrived at CECC as the result of Article 6.6.1 which 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 Articles 6.1.1, 6.2, 6.3, 6.4 and 6.5 shall not apply).

In accordance with the terms of the Collective Agreement, those employees who were assigned to CECC as the direct result of Appendix 13 were entitled to re-location costs while the grievor was not. Simply put, there is no entitlement to relocation costs under Article 6.6.1.

Accordingly, the grievance is denied.

Dated in Toronto this 14^th^ day of December, 2004.