GSB# 2001-0936, 2002-1075

UNION# 01C609, 02C863, 02C865, 02C870, 02C873, 02C871, 02C869, 02C866

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Moore)

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

Lucy Neal Senior Staff Relations Officer Ministry Community Safety and Correctional Services

HEARING

October 27, 2005.

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.

On September 12, 2003, the parties entered into a Memorandum of Settlement resolving a number of grievances filed by Dale Moore, a Correctional Officer who worked at the Ottawa Carleton Detention Centre. In that Memorandum the parties agreed that Vice Chair L. Mikus would remain seized with respect to the interpretation of the settlement. Notwithstanding that agreement, the parties have agreed to put this matter before me because the issue in dispute is a direct result of transition.

It was agreed in the Memorandum that the grievor would be given a “fresh start” as a Correctional Officer at the Brockville Jail commencing September 29, 2003. At paragraph 2 of the Memorandum the parties agreed:

(a) Effective September 29, 2003, the Grievor’s home position will be at the Rideau Correctional and Treatment Centre.

(b) On September 29, 2003, the Grievor will not report to work at Rideau Correctional and Treatment Centre rather, the Grievor will be temporarily assigned to the Brockville Jail effective September 29, 2003.

(c) This temporary assignment will continue until the St. Lawrence Valley Correctional and Treatment Centre – Phase 2, commences operation at which the Grievor will commence working SLVCTC. Moreover it is understood that the Grievor is not entitled to any temporary or permanent relocation expenses of travel reimbursement etc. as a result of this memorandum of settlement other than that identified in item 9(b).

(d) It is expressly understood that the Grievor’s terms of employment are not affected by these changes i.e. wages, seniority, etc.

The terms and conditions of the Memorandum were, in total, complied with by all accounts.

On January 28, 2005, it was announced that Phase 2 at St. Lawrence Valley would not be implemented. Subsequently the grievor alleged that the terms of the Memorandum of Settlement have been violated because he has an entitlement to a position at SLVCTC.

When employees were notified of the cancellation of Phase 2 they were asked to indicate their preferred options with respect to workplace location. It is interesting to note that the grievor’s first choice was Ottawa Carleton Detention Centre while SLVCTC was his second choice. The grievor’s first choice was allowed and he presently works at OCDC.

I disagree with the grievor’s assertion. According to the Memorandum of Settlement the grievor was temporarily assigned to the Brockville Jail while his home position continued to be at Rideau Correctional and Treatment Centre. That temporary assignment was to change once Phase 2 of SLVCTC took effect. Unfortunately for the grievor and a number of others, Phase 2 was cancelled.

The grievor asserted that this memorandum protects him from the ramifications of the Phase 2 cancellation. I think not. The grievor is to be treated like other employees as set out in two previously issued Board decisions in this regard dated January 27, 2005 and April 6, 2005. He is not entitled to maintain an entitlement to a position at SLVCTC if the Employer’s business plan was altered and those changes were not known at the time the parties negotiated the Memorandum of Settlement.

Dated in Toronto this 15^th day of December, 2005.