GSB#2002-3062, 2003-1886, 2003-3986

UNION# 2002-0233-0040, 2001-0233-0130, 2004-0233-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Morrison)

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

Stephen Giles Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Greg Gledhill Ministry of Government Services Centre for Employee Relations Employee Relations Advisor

HEARING SUBMISSIONS

December 17, 2007, October 31, 2008, September 19, 2009. December 8, 2010.

Decision

1In 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.

2While 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.

3It is this agreement that provides me with the jurisdiction to resolve the outstanding matters.

4Both 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.

5When 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.

6The 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.

7Not 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.

8It 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.

9John Morrison is an Industrial Officer 2 (Welder) who was working at Rideau Correctional and Treatment Centre until March of 2001. He has filed three grievances that have been discussed on many occasions over a significant period of time at the transition table. Attempts were made to resolve the matters but without success. Additionally, there were a number of instances when clarification of various facts was requested and provided.

10Mr. Morrison applied for and was successful in a job competition to work at the Fabrication shop at the Guelph Correctional Centre in February of 2001. He began this position shortly thereafter. According to the grievor, he was told by a manager not to relocate to Guelph as his stay there would be relatively short because this institution would soon be closing and his position would be moved to Central East Correctional Centre (CECC). It was Mr. Morrison’s contention that he never agreed to delay or defer relocation entitlements. It was not in dispute that during this time the grievor received various expenses including travel time and mileage and the Employer paid for him to stay at a hotel in Guelph.

11It was the grievor’s assertion that he applied for this position in the first instance because he had been led to believe that Trades were no longer going to be part of the Ministry and because he had been informed that the Rideau Correctional and Treatment Centre would be closing shortly. Therefore, he had to look for work elsewhere. Indeed, in his letter of application for this position he noted that while he enjoyed RCTC “due to the announced closure I have initiated a search to continue my career.”

12In the early summer of 2001 the grievor learned of a temporary job posting for a Welding Trade Instructor at RCTC. He applied for this position saying that “in light of the new possibilities of the position continuing in Brockville” he was “extremely interested in re-establishing” his “old job”.

13Around the same time the grievor sent his letter of application regarding this position he also wrote to the Regional Director suggesting that he only left the position earlier because he had been told the position “would not be refilled” and that he could return to his “original position should I change my mind about relocating”.

14The grievor received a response to this letter with the comment that the Employer could “find no evidence to support your statement that this position would be held for you should you decide to return to Rideau, or that it would remain vacant until decommissioning.”

15Mr. Morrison learned that he was not the successful candidate in December of 2001 and he filed a grievance in this regard. In the letter informing him of his failure to achieve the posting the following comments were made:

In your letter (dated November 22, 2001) you indicated a concern that you have been living in hotels and separated from your family; that is was a needless waste of taxpayers money and an undue hardship on your family. Further, you stated that winter travel is difficult and dangerous.

I am aware that you were successful and accepted a permanent position as an Industrial Officer 2, at Guelph Correctional Centre at which time you left your position at Rideau. Accordingly, you would have been provided with the option of relocating under the Ministry Relocation policy. If you declined this relocation opportunity or made alternate arrangements, it would have been as a result of your decision and not a ministry requirement that you commute. I strongly recommend you discuss these concerns with your immediate supervisor in order to find a resolution to your dilemma.

16The Employer agreed to re-run the competition this time for a permanent Trade Instructor at Rideau.

17The grievor applied for but did not receive this position. After being told in November of 2002 of the competition results, he again grieved the Employer’s decision. During this time Mr. Morrison remained at GCC.

18In December of 2003 the parties entered into a Memorandum of Settlement regarding the November 21, 2001 grievance. In that settlement the parties agreed to temporarily assign Mr. Morrison to work as an IO2 at RCTC on a temporary assignment. Further, it was agreed:

The grievor agrees that there shall be no travel time and/or travel costs associated with this temporary assignment except in the course of day to day business approved by the Employer.

The Employer acknowledges that the grievor shall receive his full entitlements with regard to Trilcor MERC Agreements and the OPSEU Collective Agreement upon the relocation of the Trilcor Fabricating Shop at the Guelph site to another location and the grievor’s entitlements shall flow from the Guelph site. Relocation entitlements shall flow from the grievor’s permanent residence.

The Union and the grievor agree that this is full and final settlement of any and all issues arising from the above. The grievor agrees that he has been fully informed of and understand the consequences of this settlement, enters into it voluntarily and further agrees that the union has fairly represented him.

19He stayed in that temporary assignment at the RCTC until its closure. He returned to GCC in mid January of 2004 and remained at that location until it closed. According to the grievor, during his final period at GCC, he informed the Employer of medical issues that were arising resulting from his commuting. In September of 2004 the grievor was notified that GCC was closing and he elected to follow the work to CECC. His position at CECC began in April of 2005.

20According to all of the documentation provided by the parties during the litigation of this matter, Mr. Morrison never sold his home in Kemptville until he moved in 2005 after he was assigned to work at Central East Correctional Centre.

21In a document dated March 6, 2003 one Employer representative from Trilcor set out his recall of events. In that memo it was stated:

About three years ago John was successful in a competition for a position as Industrial Officer II in our fabrication shop at Guelph C.C. At the time John was in the process of upgrading his home in preparation for sale and indicated his desire to hold off on relocation until this work was complete and ensure he would receive the best return on the sale of his home. In addition John was not anxious to relocate his son during the school year and so we agreed to hold off on the process until the spring.

I believe this was about the time of the first MERC agreement that clearly excluded Trilcor staff from the IRP process. At this point, we were expecting to have access to CNCC for our industries and in discussions with my then Director it was agreed to hold off on the relocation and move John only once. I enquired of the relocation unit in Orillia if there were any negative ramifications to this decision and they replied that there was a one year window for the staff member to make their move with consent from the involved Director but if the Ministry did not want to move the individual and the staff member agreed then the time limits could be waived for considerations that would benefit the Ministry.

During all of this time we simply left John on travel expenses because it seemed the best for all concerned. John had asked on several occasions for clarification of the situation but as you know we could not obtain that information. In addition I was reluctant to move the man and his family to Guelph if he was to be surplussed as it was felt he was better off in his home surroundings than in a city where he knew no one.

John Morrison did not relocate from Rideau to Guelph at the request of Trilcor and this was following consultations with the parties responsible for relocation at Orillia and with the express agreement of the Director responsible for Trilcor.

22According to the Union I have three grievances before me. These were filed on September 18, 2001; December 11, 2002; and February 26, 2004. The Employer argues that none of the grievances are properly before the Board.

23To be clear, the Employer argued that three grievances were resolved by a Memorandum of Agreement dated December 1, 2003 which noted that there was a full and final settlement of all outstanding matters. Further, the February 26, 2004 grievance which alleged a violation of Article 2 by failing to provide relocation costs was filed far beyond the time limits set out in the Collective Agreement.

24Regarding the merits, the Union submitted that there was an agreement, albeit tacit, that the grievor would not relocate from Ottawa to Guelph. Therefore he delayed relocation entitlement. Although he did receive travel time and mileage as well as other costs, those payments do not compensate for the time Mr. Morrison did not have with his family. When asked to particularize the losses incurred by the grievor as a result of the above facts, the Union could not. Further, according to the documents presented, he was in agreement not to relocate to Guelph for at least some of the time that he was there. The Union said that while he did not have “specific losses” he did suffer as a result of being away from his family for a significant period of time and damages should be paid for those circumstances.

25Beyond the timeliness and res res judicata arguments put forward by the Employer, it was further contended that there has been no violation of the Collective Agreement. The Employer contended that the grievor had the ability to extend the time limits for relocation costs and he failed to apply. Indeed, the Employer noted that it was set out in correspondence that the grievor did not want to sell his home at the time he was working in Guelph because he wanted to undertake some renovations.

26I have given this matter much consideration. As noted above, there was much discussion at the transition table about the facts of this case and I have frequently sent the parties back to their principles to obtain further information. This has taken time and has been occasionally frustrating for all concerned.

27I turn first to the matter of the Employer’s various preliminary objections. I disagree that any of the three grievances before me was resolved as a result of the Memorandum of Agreement signed on December 1, 2003. That memorandum refers to one grievance (#02A063) that was filed on November 21, 2001. While it is accurate that the Memorandum states that “this is full and final settlement of any and all issues”, it goes on to note that the full and final resolution is regarding matters “arising from the above”. There was only one grievance noted above. I am of the view that the parties agreed to resolve any and all issue relating only to the grievance filed on November 21, 2001. If the agreement between the parties were more far reaching than this one grievance, they would have said so. They did not. Therefore, the grievance is properly before me.

28The Employer also urged that the grievance dated February 26, 2004 that alleged failure to pay relocation costs was filed outside of the time limits set out in the Collective Agreement. While it is not completely clear what facts prompted the filing of this grievance, I note that the grievor returned to GCC after his temporary position at Rideau Correctional and Treatment Centre in approximately January of 2004. I am not convinced that the Employer is correct regarding the timeliness of the grievance filed in 2004. In any event, I am of the view that in the peculiar circumstances of this case, the merits of this long-standing dispute should be addressed in this decision.

29The Union was asked on a number of occasions to indicate precisely which provisions of the Collective Agreement have been violated. It failed to do so. Further, there were repeated requests for the actual monetary losses suffered by the grievor to be particularized. It was ultimately conceded that there were no actual losses. However, the Union urged that an award of damages should be given because of the considerable period of time the grievor spent away from his family.

30I am of the view that all of these grievances must fail. There has been no provision of the Collective Agreement that has been violated. The grievor first went to GCC as the result of a job competition. He chose to do so because he wanted to “continue his career” with the Ministry. While he was at GCC he was not paid relocations costs because he did not relocate. There is no evidence that he was precluded from relocating by the Employer during this period. Further, he was paid for travel time and mileage and other expenses. There was no evidence of any actual out of pocket expenses that Mr. Morrison incurred that were not reimbursed during this period.

31It is important to underscore that Mr. Morrison did not relocate until April of 2005 when he began to work at CECC and actually relocated. According to the Union, “once the relocation occurred the grievor did receive his full entitlements under Article 20 of the Collective Agreement.”

32Throughout our many discussions of these grievances I have had some sympathy for this grievor. It must have been difficult to be away from his family. However, given that there is no violation of the Collective Agreement, or any MERC Agreement, this is not a case where damages should be awarded.

33The movement of the Mr. Morrison from one facility to another occurred during a time of great transition for the Employer. As was the case for many others, significant efforts were made to ensure that the grievor kept his employment in the Ontario Public Service. While that process might have been more difficult for this grievor, the Employer has done nothing that would attract an award of damages.

34Accordingly, the grievances are dismissed.