GSB# 2113/02

UNION# 2002-0999-0035

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union Grievance)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Public Safety and Security)

Employer

BEFORE

N. Dissanayake

Vice-Chair

FOR THE UNION

John Brewin Counsel Ryder Wright Blair & Doyle

FOR THE EMPLOYER

Andrew Baker Counsel Management Board Secretariat

HEARING

April 14 & 23, 2003.

DECISION

This decision deals with an application for interim relief under S. 48(12) of the Labour Relations Act. The union has filed a union grievance dated December 2, 2002 alleging that “the Employer has violated specifically, but not exclusively, articles 2, 3, 9, 10, 16, 46 and Appendix COR 4 of the collective agreement with regards to the vacation protocol”. The interim relief is sought pending the disposition of the grievance on its merits.

For purposes of this interim relief application, it is not useful to review in detail the parties’ respective positions on the merits of the grievance. It suffices to note the following facts. Prior to 2001, the number of correctional officers permitted to be on vacation at any given time was determined at each institution by local management. However, for the year 2001, the employer implemented a new vacation protocol (the new protocol) on a province-wide basis. Under this, a formula (total number of vacation entitlement under the collective agreement of correctional officers at the institution, divided by 354) was applied to derive the maximum number of officers allowed to be on vacation on any given day of the year. It is common ground that a goal, and a result, of the new protocol, was to avoid large numbers of officers being away on vacation at peak periods (such as Christmas/New Year, summer and March break) and to spread out vacations more evenly throughout the year. The union grieved. From its point of view, the new protocol unreasonably, and contrary to the collective agreement, denied officers the opportunity to take their vacations at their preferred times. On May 23, 2001, that grievance was resolve by the signing of minutes of settlement wherein, inter alia, the employer agreed to revert back to the old vacation protocol for the year 2002. However, the employer explicitly reserved the right to exercise its management rights with respect to scheduling vacations subsequent to December 31, 2002. For its part the union specifically retained its right to grieve any such future management decision.

It is common ground that the new vacation protocol was applied throughout 2001. In compliance with the minutes of settlement, for the year 2002, the employer reverted back to the old vacation protocol. However, in 2003 the employer re-instituted the new vacation protocol, purportedly in the exercise of its management rights. In the present union grievance, the union has exercised its right to grieve that management decision.

The determination to be made here is whether or not an order for interim relief should be granted. The parties agree on the two-fold test that applies:

(1) The existence of an arguable case on the merits of the grievance.

(2) The balance of potential harm or inconvenience.

On the “arguable case” criterion, the union alleged that the implementation of the new vacation protocol violated the collective agreement in several ways. First, it was submitted that the discretion given by article 46.7 to the Deputy Minister to approve vacations was exercised arbitrarily and unreasonably, in that it was done on the basis of a rigid application of a mathematical formula without a consideration of whether or not the vacation periods preferred by individual correctional officers could be accommodated without adversely affecting the operational requirements of the particular institution. The union submitted that such exercise of discretion was subject to review by the Board.

Secondly, the union took the position that by unilaterally imposing a new vacation protocol, the employer had circumvented the MERC and LERC processes contemplated by article 16.1 and Appendix COR 4.

Thirdly, the union contends that the new vacation protocol would deny many correctional officers the opportunity to enjoy their vacation time with their families, and also expose them to additional financial costs such as child care expenses. This will cause emotional stress, and in the long term, may potentially affect their health. It was the union’s position that the employer had no valid business reasons that would justify exposure of employees to such health risk, and that in the circumstances, its unilateral action constituted a violation of article 9 of the collective agreement.

Finally, the union argued that the employer was estopped from implementing the new vacation protocol during the term of the current collective agreement.

The jurisprudence establishes that for the union to be entitled to interim relief, it must satisfy both parts of the two-fold test set out above. In that I have concluded that the balance of harm test does not favour the granting of the requested interim relief, I need not address the issue of whether the union has presented an arguable case on the merits of the grievance.

The application of the “balance of harm” test requires a comparison of “harm” that will result to the employer if the relief requested is ordered, with the adverse consequences to the union if such relief is denied. It is to be noted that the employer has already implemented and enforced the new vacation protocol for the year 2003. Therefore, between January 1, 2003 and the present, many correctional officers would already have taken their vacations under the new protocol. Others would have picked their vacation periods in accordance with the maximums resulting from the application of the new protocol, and may already have made specific vacation plans. For example, they may have already purchased airline tickets, vacation packages etc. The union recognizes that no order for interim relief can redress those officers who have already had their vacations in 2003. Nor does the union take the position that it is appropriate for an interim order to disturb the vacation plans already made by officers. Therefore the union contemplates an interim order that will restore the old vacation protocol only with respect to those officers who have not yet taken vacation, and that those officers who had picked a vacation period under the new protocol will have the option of retaining that period. Union counsel argued that an interim order was required to save the old protocol for as many correctional officers as possible.

The employer led evidence as to the potential harm it will suffer if the requested interim relief is granted. Mr. Don Poynter, a member of management in the Corporate Office testified that if the employer is ordered to revert to the old protocol pending the disposition of the grievance, it would take at least two months to cancel the vacations already approved under the new protocol, and to schedule vacations again under the old protocol. That would mean that by the time the old protocol is re-instituted, it will be the end of June, and about half of the correctional officers would already have taken vacations under the old protocol. Employer counsel submitted that if the Board order contemplates that officers who have already planned vacations under the new protocol would have the option of retaining their vacations (instead of cancelling all vacations approved under the new protocol) the process becomes even more complicated. It would take much longer than two months to complete that process.

Mr. Poynter testified further that if an interim order is issued, the employer would have to hire and train additional unclassified correctional officers to cover peak vacation periods, including the summer. He felt that it would be impossible to put a sufficient number of unclassified officers into place for the summer. The positions have to be advertised, the applicants have to be screened, tested, and trained. Then they have to be selected and provided orientation. This whole process would take about 4 months. The new hires will not be available until September and therefore of no use for the summer peak. Mr. Poynter was also of the view that appointees in September will receive little work until the Christmas peak period and many will likely quit because of insufficient work.

Mr. Poynter also testified that all training of correctional officers takes place at the Blencairn Centre in Hamilton. If the employer is to train the unclassified officers necessitated by an interim order, the employer would have to abandon the training schedule it had planned for at Blencairn.

The evidence indicates that the granting of interim relief will benefit only a minority of correctional officers. The order would not assist approximately half of the workforce who already would have taken their 2003 vacations. Also, reverting to the old formula at this point of time may in fact disadvantage those officers who may have drawn vacation periods to their satisfaction under the new protocol. Permitting individual officers to decide whether they wish to retain the already approved period or to revert to the old protocol would create confusion and present an administrative nightmare for the employer. I am satisfied that it is not a workable option. I accept that some officers will be inconvenienced during the balance of 2003 if no interim order is issued. If that inconvenience is determined to be the result of a breach of the collective agreement, there may be no satisfactory redress available. Nevertheless, I am convinced that comparing the relative “harm”, the balance clearly favours the employer.

Compared to the potential harm to the employer described above, only half of the correctional officer population stands to gain anything from the requested interim relief. Such an order may be to the detriment of some. For example, the evidence is that in smaller institutions such as Sudbury and Monteith, the new vacation formula in fact permitted more officers to be on vacation during peak times than under the old formula. In the absence of any evidence, I am also not convinced that the denial of preferred vacation periods in one calendar year would pose any immediate health risks to the affected employees, beyond inconvenience and disappointment.

For all of those reasons, the motion for interim relief is denied. The grievance will be heard on its merits as scheduled.

Dated this 6th day of May, 2003 at Toronto, Ontario.