GSB# 2003-3774
UNION# 2004-0999-0002
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)
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 Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Sean Kearney Senior Counsel Ministry of Government Services
HEARING
October 7, 2005.
Decision
From March 13th to May 6th 2002, the Union and its members were engaged in a legal strike. Prior to the beginning of this action the parties had negotiated a Memorandum of Agreement regarding the conditions of work in the event of a strike or a lockout (hereinafter referred to as the “Conditions Document”). In that agreement it was provided that “all collective agreement provisions apply to essential and emergency workers without interruption, save only that Appendix 9 and Appendix 18 shall not apply”. The Conditions Document also expressly provided the Union’s continued right under Article 22.13 of the Collective Agreement to file Union grievances on behalf of employees who were performing essential and emergency services.
During the course of the strike approximately 5000 grievances were filed by Union members across the Ontario Public Service. As part of the negotiations that ended the work stoppage, the parties negotiated a Return to Work Protocol. That agreement contemplated various provisions including how continuous service, pension, credits and seniority would be affected as a result of the strike. Additionally, the parties addressed other issues such as reprisal, discipline and the mechanics of the actual return of the bargaining unit members to the workplace.
It was further agreed these “strike related” grievances would be treated separately and litigated in an efficient manner. To that end, on June 27, 2002, OPSEU and the Ministry of Public Safety and Security (hereinafter referred to as “MPSS”) met to discuss a process in order to resolve the outstanding strike related grievances. Following that meeting a letter, dated October 11, 2002, confirmed the agreement that:
In order to deal with the strike related grievances in a proactive, expeditious and effective manner, the parties have agreed to the following:
No stage 2 hearings
No filing of strike related grievances at GSB, until agreed otherwise
Waiving of time limits
Respectively assigning dedicated resources to deal with the volume
Approximately 4500 grievances were filed by members employed by the MPSS. The parties agreed to a Dispute Resolution Protocol for MPSS that included Terms of Reference. It is not necessary to provide all of that agreement. It is sufficient to say that the parties agreed to an expedited process wherein each party provides to the Vice Chair written submissions which include the facts, provisions of the Collective Agreement, the Essential Services Agreement, legislation or any other document alleged to have been violated, arguments and requested remedy. Oral evidence would not be called although it was allowed that I could request further clarification if necessary. In the event of any confusion regarding the facts of the matter or the underlying rationale, I will direct the parties to speak again with their principles. Notwithstanding that some grievors might wish to attend and provide oral evidence, this process has been efficient and has allowed for a thorough canvassing of the facts and arguments with respect to the various issues. Other procedural issues were addressed to ensure that grievances would be dealt with in a timely fashion. The Terms of Reference also provided that I would remain seized of all outstanding strike related grievances filed by members working in MPSS. This process was developed in consideration of Article 22.16.2 of the collective agreement. It 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 majority of the 4500 grievances dealt with one of the following issues:
An allegation of delayed retroactive payments with a request for interest owing;
An allegation of failure to pay appropriate holiday pay for Good Friday and Easter Monday;
Entitlement to call back;
On-Call and Standby issues for emergency workers.
Those matters were separately litigated at the Grievance Settlement Board and decisions either have been issued or are pending.
In accordance with the agreement of the parties a number of hearing days were scheduled to hear and determine the outstanding strike related grievances. Many of the grievances have been resolved through mediation.
The final issue that remains in dispute is regarding appropriate hours of work and resulting compensation. It was agreed that this matter would be heard on a separate day and each party would provide fulsome submissions. This decision deals only with this matter.
Subsequent to the return to work over four hundred grievances were filed regarding the matter of whether the Employer violated the terms and provisions of various agreements by failing to pay Correctional Officers forty hours per week irrespective of actual hours worked. Some of the four hundred grievances were group grievances and therefore this decision will affect many within this bargaining unit. Attached as Schedule A is the list of grievances in this matter. An example of the grievances stated that “the Employer failed to schedule and pay the undersigned for 40 hours a week per for (FTE) full time equivalent required per signed agreements”. By way of remedy the grievors want to be compensated for forty hours per week.
The parties agreed to facts in this matter. Those facts are as follows:
On September 20, 2001, the parties signed off the Conditions for the 2001-2002 OPS-OPSEU Essential Services and Collective Agreement Negotiations (Conditions Document).
On October 30, 2001, the parties signed off on the Corrections Bargaining Unit Master Agreement for Essential Services (Corrections ESA).
On March 12, 2002, collective bargaining broke down and OPSEU commenced a legal strike in the OPS. At this time, the Conditions Document and ESA were activated.
A new collective agreement was ratified and the strike ended after 54 days on May 6, 2002.
Article C3 of the Conditions Document titled Terms and Conditions of Employment for Essential and Emergency Workers sub-article (a) Application of the Terms and Conditions of Employment reads:
“All collective agreement provisions apply to essential and emergency workers without interruption, save only that Appendix 9 and 18 shall not apply.”
And continues:
“For Employees who are designated and used for essential services the above terms and conditions shall apply.”
Similarly, Article C1 of the Conditions Document negotiated prior to the 1996 OPSEU strike provided that the collective agreement provisions applied to those performing essential and emergency services.
Article B10 of the Conditions Document states: “In the selection of essential/emergency service workers, the proportion of classified and unclassified employees chosen will be matched with the proportion of classified and unclassified employees in the worksite. The application of this principle will be determined at the bargaining unit table.
In Article C3(b) Waiver of Collective Agreement Clauses, the parties agree to waive Article 3.1 of the Bargaining Unit Collective Agreements (Days Off) for the first 48 hours of a strike and Article 5.1 and 5.5 of the Bargaining Unit Collective Agreements (Shift Schedules) for the first 120 hours of a strike.
Paragraph 3 of the Corrections ESA reads: “This Memorandum of Agreement is not based on a “business as usual” scenario and shall not be interpreted as what would be advocated by either party in a normal situation with a fully operating service.”
Paragraph p5 of the Corrections ESA reads: “The parties agree that the site/occupation specific agreements identify the bargaining unit positions and the full-time equivalents required to provide the agreed upon essential services, and remain subject to later determination as to the actual Bargaining Unit employees who will provide those services in accordance with the procedures outlined in the Collective Agreement.”
Paragraph 11 of the Corrections ESA reads: “Employees are only deemed to be essential for the day/rotational period during which they are required to perform essential work; at all other times they are on the Emergency Services Eligibility List. Employees will rotate through the Emergency Eligibility List except those scheduled as essential that day/rotational period.”
Paragraph 4 of the Corrections ESA reads: “The parties agree that in the event of implementation of the essential services agreements normal shift schedules will cease. Management will implement schedules that provide essential services coverage as determined by the site specific essential services agreement. Articles COR 3.1, 5.1, and 5.5 of the Collective Agreement are waived as per Section C: General Administration of Essential and Emergency Services subsection C3(b) of the Central Agreement. The parties recognize that in construction of a schedule, the number of staff appearing in the shift schedule will represent a rounding up of the agreed upon full time equivalent level as specified in the individual site agreement. However, the total number of hours will not exceed the agreed upon hours for each workplace.”
Paragraph 14 of the Corrections ESA provides that normal shift schedules will cease upon the implementation of essential service agreements and that the total number of hours will not exceed the agreed upon hours for each workplace.
Paragraph 16 of the Corrections ESA reads: “All provisions of the Collective Agreement shall apply to bargaining unit employees designated to provide essential services under this agreement, unless specifically altered by this agreement or as signed to by the parties at the central table”.
Paragraph 18 of the Corrections ESA reads: “Where a post is identified as essential and hours of required coverage are stated, the staffing for that post shall be as stated in the site agreement (e.g. if the “x” is shown as 2 x 24 x 7, then post “x” will be staffed by two persons for 4 hours a day, 7 days a week. If post “x” is shown as total hours only, the staffing for that post is to be scheduled by the employer. The parties acknowledge that to cover all posts, it may be necessary to schedule shifts as low as two (2) hours per day. Where the post is shown as A.M. and P.M. in a site agreement, management shall endeavour to schedule two different people to work the two separate shifts. However, if there is only one person available to work the two separate shifts then Article COR5.4 shall not apply and management may schedule that person to work a split shift”.
Paragraph 19(b) Rotation of the Corrections ESA reads: “Other than for Probation & Parole, where the number of qualified employees exceeds the designated essential services positions employees will be rotated on a two-week cycle. Employees whose names appear at the top of the list will be assigned to the essential work until all essential service posts have been filled for a two week period. At the end of the two week period, the names of those who have worked will be placed at the bottom of the list in the same order in which they were originally drawn. The group for the next rotations will be taken, in order, from the list beginning where the last draw stopped, to fill the essential posts for the next two week period. This process will be repeated throughout the period of the strike or lockout”.
Article OR2 (Hours of Work) of the OPS collective agreement for Schedule 4 and 4.7 “The normal hours of work for employees on these schedules shall be forty (40) hours per week and eight hours per day.”
The classification of Correctional Officer is designated as schedule 4.7 for the purposes of hours of work.
Article UN2 (Hours of Work) of the OPS collective agreement also sets out normal hours of work for employees on various schedules, including Schedule 4 and 4.7: “The normal hours of work for employees on these schedules shall be forty (40) hours per week and eight (8) hours per day.”
The scheduling of the employees work days, times and number of shifts worked in the week was the responsibility of the employer.
The employer has scheduled within the FTE (full time equivalents) negotiated under the ESA.
Article COR2 applied only to classified staff.
Not all Correctional Officers were scheduled for 40 hours of work per week during their essential rotation.
UNION SUBMISSIONS
Mr. Giles, for the Union, stated that in order for the Employer to be correct in this matter there would have had to be an explicit waiver of Article COR2 and no such waiver existed. Moreover, it was asserted that, in circumstances such as these, such a waiver would have to be explicit, it cannot be implied. The Union noted that it was agreed in various documents that the Employer could not schedule more than a specific number of full time equivalents. This ensured that the Employer could not curtail the Union’s right to run a meaningful strike. However, whether through manipulation or inadvertence, the Employer did not schedule Correctional Officers to work forty hours per week as they were entitled in accordance with Article COR2 of the collective agreement. Its failure to do so did not disentitle the grievors to forty hours of work and/or compensation.
The Union relied upon Re: The Crown in Right of Ontario (Management Board of Cabinet) and OPSEU [1995] OLRB Rep. June 735. In that decision Chair McCormack was asked to consider the Essential and Emergency Services Agreement and in doing so she stated, at paragraph 35:
In general then, given the primarily full-time composition of the work force, the collective agreement provisions reflecting the present structure of work, the intent of the Legislature as expressed in the freeze provisions and the limited facts before us in the form of the local agreements, we are of the view that the parties should be endeavouring to arrange essential or emergency work in such a manner as to allow it to be performed by employees working the hours in the collective agreement and we so direct. The limited information we have before us suggests that there is a reasonable possibility that this will resolve most of the parties’ problems. If there are some instances in which such an arrangement is not possible, we anticipate some flexibility on the part of the union, keeping in mind that the freezes imposed by sections 40 (4) and 41(3) are not likely to be absolute. (emphasis added)
The Union contended that, if scheduled properly, that is, forty hours per week, the grievors would have worked the full weekly hours and therefore they should be so compensated. While it was acknowledged that there was a possibility of a “gap” in the coverage for various reasons including the obligation to utilize the normal classified to unclassified ratio, it was suggested that other unclassified could have been scheduled.
It was explained by the Union that unclassified Correctional Officers did not have the same entitlement to forty hours during the strike because of the individual arrangements each holds with the Employer. While the full time classified Correctional Officers are entitled to forty hours per week in accordance with Article COR 2 of the collective agreement, the unclassified Correctional Officers have contracts of employment that provide them with “up to” forty hours of work. Therefore, failure to schedule the unclassified Correctional Officers for forty hours would not have been a violation.
In the alternative, Mr. Giles asserted that the Employer had an obligation to ensure a fair distribution of the available hours to classified Correctional Officers. The Union reviewed various schedules and it was suggested they made apparent that there was little or no logic to how many of the COs were scheduled. There should have been, at the very least, equitable scheduling.
EMPLOYER SUBMISSIONS
Mr. Kearney, for the Employer, asserted that the Union cannot prevail in this matter for four reasons. The first is because the claim, in and of itself is non-sensical. The grievors are asking, in this instance, the Board to rule that even if they only worked sixteen hours in a week, the Employer should be obliged to pay them for forty. In any circumstances it would be odd to order an Employer to pay employees for hours not worked. This is particularly ironic and non sensical if the Employer were compelled to pay striking employees for non scheduled hours spent away from the workplace during the course of a legal job action.
The second reason is because there was clear language that governs or that was negotiated between these parties as to how essential services were to be provided and the language favours the Employer’s view, it was suggested. Section 30 of the Crown Employees Collective Bargaining Act, establishes that the level of service during a strike or lock out means the minimal level of service necessary to prevent danger to amongst other things life, health, safety and the environment. It is counterintuitive that employees are entitled to provide a reduced level of service and yet the Employer would be forced to continue to pay employees for full time hours. Further, various Memoranda of Agreement between the Union and individual Ministries, including Correctional Services, set out that the parties were not contemplating a “business as usual” scenario. It was understood that there would not be a “normal situation with a fully operating service”. As well, the Corrections Essential Services agreement stated, at paragraph 14 that normal shift schedules would cease at the commencement of the job action. Indeed, no doubt that agreement flows from the Conditions for Essential Services wherein it was stated that “their objective [was] to establish the minimum required number of bargaining unit positions performing essential services and emergency services necessary to meet the requirements of CECBA”. It is also to be recalled that in Paragraph 18 of the Corrections Essential Service Agreement the parties specifically acknowledged that in an effort to cover all posts, “it may be necessary to schedule shifts as low as two (2) hours per day”. All of these documents underscore that in the event of a strike there are different rules regarding hours of work and there is nothing in any of those agreements to suggest that employees would be paid if they do not work.
The Employer’s third reason to deny this grievance is because the agreements relied upon by the Union in this matter must be looked at in context of the rest of the OPS because all employees were to be treated equally. No other bargaining unit members are asserting that they ought to be paid for time not worked.
Finally, for the Union to be right clear and unequivocal language would be needed given the substantive compensation benefit at issue the Employer contended. It is trite law that when a party is seeking a wealthy benefit they must negotiate the provision in clear and unambiguous language. In the total absence of such unequivocal language the Union’s view cannot prevail.
The Employer reviewed and relied upon a number of previous decisions including Re: The Crown in Right of Ontario (Management Board Secretariat) and OPSEU (Union), (December 4, 2002, March 8, 2004, and June 10, 2004) GSB #2002-1510 (Brown); Re: The Crown in Right of Ontario (Management Board Secretariat) and OPSEU (Union), (January 26, 2004) GSB#2002-2427; Re: Canada Post Corp. and Canadian Union of Postal Workers (Schlosser) (1993), 1993 CanLII 16663 (CA LA), 39 L.A.C. (4th) 6 (Bird); and Re: Cardinal Transportation B.C. Inc. and CUPE Local 561 (1997), 1997 CanLII 25143 (BC LA), 62 L.A.C. (4th) 230 (Devine).
DECISION
During the course of the submissions I asked Mr. Giles if the Union was suggesting that a Correctional Officer, who had been scheduled to work the minimum two hour shift would be entitled to be paid for forty hours in that week irrespective of whether they worked further. It was the Union’s assertion that the agreement to allow the scheduling of two hour shifts was restricted to the unclassified staff that would have worked as emergency workers and therefore would not be entitled to forty hours pay. The Employer disputed this view. Mr. Kearney pointed out that Vice Chair Brown determined that “an employee who was designated to perform essential services, and who did so, was covered by the collective agreement for the entire duration of the strike”. Therefore, all employees who were designated to be essential at any point and who worked in any given week would be entitled to forty hours pay for that week if the Union succeeded in this matter. I agree with the Employer’s view of this question. Of course it could be said that this question is the extreme result of the Union’s position. Be that as it may, it would have been a possible outcome. For that reason, I believe this question and answer illustrated well why the Union’s view of this matter cannot prevail.
After consideration, I must agree with most of the Employer’s submissions in this matter. First, I concur that it would not be a logical or reasonable result to find that the Employer is obliged to pay striking workers for work not scheduled and not performed during the course of a legal strike. Simply put, the concept of the Employer scheduling or paying the workers the full time hours set out in the collective agreement is counterintuitive and contrary to any normal labour relations practice.
Second, I find that the vast majority of the documents the parties entered into, in anticipation of a legal strike, do not substantiate the Union’s claim in this regard. When read it totality and in context, the documents support the Employer’s view. The parties agreed that the strike was not “business as usual”. Further, the Conditions document clearly stated that “normal shift schedules” would cease and that new schedules would be bargaining at the various sites by local parties. These agreements do not support the Union’s view that the parties intended classified Correctional Officers to be schedule for and be paid for forty hours per week.
Third, and more importantly in this matter, if such a benefit were intended, clear and unambiguous language would be required. This is particularly the case when the benefit being sought by the Union is not only unusual and substantial but one that is, as mentioned above, counterintuitive in the labour relations context.
The Union relied heavily upon a general statement in the Terms and Conditions for Essential and Emergency Workers that failed to clearly state that the hours of work provision in the collective agreement did not apply during the legal strike. Given the specificity of various provisions found in the governing documents and agreements in place during this time, I am not persuaded that the grievance should be upheld for this reason.
The Employer raised an argument with respect to past practice and estoppel. The Union took issue with that submission. Given my result in this matter, it is not necessary for me to comment in that regard.
For those reasons, the grievance is denied.
Dated in Toronto this 12th day of December, 2005.