GSB# 1999-1782, 2000-0465, 2001-0019, 2001-1775, 2001-1776, 2001-1622, 2001-1623

UNION# 1999-0618-0001, 00E298, 2001-0618-0009, 2002-0618-0002, 2002-0618-0010, 2002-0618-0015, 2002-0618-0004, 2002-0618-0001, 2002-0618-0003, 2002-0618-0011, 2002-0618-0014, 2001-0618-0030, 2001-0618-0008, 2001-0618-0003, 2001-0618-0026, 2001-0618-0022, 2001-0618-0005, 2001-0618-0012, 2001-0618-0014, 2001-0618-0029, 2001-0618-0025, 2001-0618-0023, 2001-0618-0032

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Belanger et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Daniel A. Harris

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Paul Meier Counsel Ministry of Government Services

HEARING

August 25, 2006.

Decision

In these matters the union grieves that it is a violation of the collective agreement to deny correctional officers at Cecil Facer Youth Centre (hereafter Cecil Facer) paid rest and meal breaks whereby they are able to remove themselves from their direct duties, except in emergency situations.

This is a preliminary application brought by the employer to dismiss the grievances without a hearing on the merits.

The Submissions of the Parties

The employer submitted that the grievances fall into three groupings. The first series are individual grievances from 2001 that allege breaches of articles COR 7.1 and COR 12.1.2. The union position is that those articles require formal, paid breaks. The second set of grievances are policy grievances that allege arbitrary, discriminatory, bad faith or unreasonable application of the employer’s general policy as it relates to the provision of formal, paid, meal breaks. The union cites as an example the difference in practice between the Bluewater Youth Centre and Cecil Facer. The third series of grievances are from 2004 and allege that management’s exercise of its right to manage the workplace has had an adverse impact on article 9, the responsibility to provide a safe and healthy work environment. That is, the failure to provide formal, paid breaks is unsafe and/or unhealthy and thereby a breach of article 9.

Cecil Facer is a secure detention youth centre which consists of five cottages, which each house twelve to sixteen residents. There are also common facilities including a dining hall, gym and secondary school facilities. The staff works a compressed work week with twelve-hour shifts. During the day shift (7:00 am to 7:00 pm) there are three staff assigned to each cottage and five staff assigned to the central control unit. There are also two other shifts. On the afternoon shift (3:00 pm to 11:00 pm) there are three staff per cottage and five in the control unit. On the night shift (11:00pm to 7:00am) there are two staff per cottage and three in the central control unit. There is a quiet hour enforced form 6:00pm to 7:00 pm, and the residents are in bed by 9:30pm; the doors are locked at 10:30pm.

As to the first group of grievances, the employer says that neither of articles COR 7.1 nor COR 12.1.2 is relevant to the union’s claim for formal, paid rest periods and meal breaks. Those provisions are as follows:

COR 7.1 The present practice for rest periods in each shift shall be maintained.

COR 12.1.2 A reasonable time with pay shall be allowed the employee for the meal break either at or adjacent to his or her workplace.

The employer says that the grievances are a complaint against the current practice of not providing formal, paid breaks and meal periods away from the residents. It relied on the GSB’s decision in Lorenzo et al, 1999-1678 (Gray) and Tangie et al, 876/84 (Knopf).

The second set of grievances allege an arbitrary, discriminatory, bad faith or unreasonable application of the employer’s general policy as it relates to the provision of formal, paid rest periods and meal breaks. That is, there are differences in the application of the policy amongst the various youth centres. The employer relied on GSB decisions Belanger et al, #1999, 1782 and Lessier et al, 2002-1756 for the proposition that a complaint against management action must be grounded in a distinct provision of the collective agreement and these complaints are not.

The third group of grievances allege that the failure to provide paid, formal rest breaks and meal breaks away from the residents has an adverse impact on article 9.1, the health and safety provision. It reads as follows:

9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

The employer submitted that “it is incumbent upon the union to initially establish a risk to the safety and health of the affected employees sufficient to call into question whether the employer is making reasonable provisions to address or avoid that risk”. (Andrews et al, 1815/89 (Goldenberg) at page 15). It said further that there are no particulars alleged that could establish any risk to the safety or health of any employees.

The union submitted that management is arbitrarily and discriminatorily denying the employees at Cecil Facer rest and meal periods away from the residents and to do so is not to take reasonable precautions to protect their health and safety. The union pointed to various policy and other documents that it said supported its view that breaks and meals were to be taken separate from the residents. It also referred to its particulars, which set out the different standards at various institutions, not limited to youth centres. It would be arbitrary and discriminatory not to enforce a common standard.

The union also submitted that the public policy rationales behind the Employment Standards Act are relevant considerations even though the ESA does not apply to the Crown. The union also said that COR 12.1.2 is a stand-alone provision which is not dependent upon 12.1.1. COR 12.1.1 reads as follows:

COR12.1.1 An employee who continues to work more than two (2) hours of overtime immediately following his or her scheduled hours of work without notification of the requirement to work such overtime prior to the end of his or her previously scheduled shift, shall be reimbursed for the cost of one (1) meal to six dollars ($6.00) except where free meals are provided or where the employee is being compensated for meals on some other basis

The union said that it was not taking the position that the exercise of management’s rights could be grieved without reference to a breach of a separate article. Its position was that the allegation of arbitrary and discriminatory exercise of management’s rights was to be seen in the context of the breaches of articles COR 7 and 12 and Article 9 relating to Health and Safety.

As to the employer’s third objection, that Article 9 was not engaged by the grievances, the union said that it had sufficiently particularized that aspect of its grievances. As set out in its statement of particulars, it will call an expert to testify and it will provide a report from that expert. The union said that its claims were broad and based in public policy, so no individual effects need to be pleaded or proven. It said that its particulars met the standard of having sufficiently alleged a health and safety risk that if proven would call for the employer’s response that it had taken reasonable precautions. Its allegations are not so weak that at this juncture they should be dismissed.

Reasons for Decision

I turn first to a consideration of the Lorenzo decision. That decision considered COR 7.1 and COR 12.1.2 and Article 9.1 in the context of a claim that the employer had contravened those articles and the Employment Standards Act “by not providing Correctional (Youth) Officers rest periods and meal breaks.” That decision is on all fours with the circumstances before me. Vice-Chair Gray summarized the Board’s jurisprudence as follows:

In his opening, the employer’s representative provided copies of the GSB’S decisions in Union Grievance, 724/83 (Samuels), Sheppard, 510/82 (Roberts) and Tangie et al., 876/84 (Knopf). The Union Grievance, Sheppard and Tangie decisions all held that the ‘rest periods’ referred to in what is now COR 7.1 do not include meal periods or meal breaks. Tangie also held that what is now COR 12.1.2 applies only to the employee described in what is now COR 12.1.1., namely, “an employee who continues to work more that two (2) hours of overtime immediately following his or her scheduled hours of work without notification of the requirement to work such overtime.” The employer took the position that on the Board’s jurisprudence it was not obliged to provide a meal ‘break’ free of active responsibility. It also took the position that the union’s complaint that meal arrangements were in breach of Article 9.1 was outside the scope of the grievance before me.

On reviewing with the grievors the GSB decisions tendered by the employer’s representative, union counsel advised that the union would not pursue the claim that the meal arrangements complained of in this grievance were in breach of COR 7.1 or COR 12.1.2. She said the grievance would be pursued however, on the basis that those arrangements reflected an arbitrary, discriminatory or bad faith exercise of management rights and, further, that they were in breach of Article 9.1.

Vice-Chair Gray went on to dismiss the grievance in so far as it alleged a breach of the Employment Standards Act and COR 7.1 and COR 12.1.2. On the strength of that decision, I hereby dismiss the grievances before me.

I turn now to the alleged breaches of Article 9 which claim it is unhealthy and unsafe to deny the grievors formal, paid breaks and meal periods away from the residents.

These matters have been ongoing for a lengthy period of time. The Union has delivered three sets of particulars. The extent to which they deal with Article 9.1 is as follows.

Particulars of December 8, 2003

Meal/Rest Periods

The Union’s position is that the denial of meal/rest periods is,

1. An arbitrary, discriminatory, bad faith and unreasonable exercise of the management rights clause;

2. An arbitrary, discriminatory, bad faith and unreasonable application of general policy as it relates to the exercise of management rights due to the different practices in Bluewater and Cecil Facer, and

3. A violation of Article 9, The Health and Safety Provisions

I understand that Bluewater and Cecil Facer are very similar institutions. These facilities are not engineered/structured in such a fashion that YO’s can be “locked down” or isolated from officers for the duration of any meal or rest period. Notwithstanding this, Bluewater staff are provided with relief rest periods separate and apart from YO contact. This allows for some down time during the officer’s shift.

At Cecil Facer staff are not provided with such down time. Staff are required to intermingle with YO’s for their entire shift duration.

Moreover, staff are not allowed to eat food brought from home in the presence of YO’s. They must eat the institutional food. Since they do not have down time away from the YO’s they can not find alternative time periods to consume food brought from outside the institution. Although the kitchen will accommodate some meal requests for staff, such accommodation is limited.

Staff require periods away from the YO’s to de-stress or at a minimum to relax (down-time) for their personal health and safety. Staff cannot remain absolutely alert for their entire shift.

Particulars of December 16, 2004:

15. Regarding the meal/rest period grievance, as your client knows, the Union has subsequently filed an additional grievance claiming a breach of Article 9. This second grievance was filed without prejudice to the Union’s position that the original grievance(s) incorporated an Article 9 breach. Accordingly, we will seek the Employer’s agreement to consolidate the grievances, failing which we will seek the Board’s leave to consolidate.

16. The grievances claim a violation of Cor. 7 and Cor 12.1.2 and Human Resources guide (HRG 04 01 12) and other articles including Management Rights and Art 9.

17. Part VII of the ESA provides for hours of work and eating periods. Although Part III s. 3(4) exempts the crown from Part VII the eating period sections were enacted on the Basis of sound public policy considerations. The public policy considerations underlying the enactment of the rest period provisions are equally applicable to the operation of a youth center.

18. In our submission, rest periods away from the offenders is extremely important in the facility due to the nature of the business and the heightened sense of alert at which officers are required to operate throughout their shift.

19. The public policy considerations behind the enactment of the rest period provision are within the public domain and are equally accessible to the Union and the Employer

20. At Cecil Facer Staff are not provided with time separate and apart from the offenders. Staff are required to intermingle with offenders for the entire duration of their shift.

21. Bluewater staff are provided with relief rest periods separate and apart from YO contact.

22. Other facilities wherein Young Offenders are housed are also provided rest periods including Sprucedale, HWDC, OCDC, Vanier etc.

23. Cecil Facer Staff are singled out for different treatment. This is an arbitrary discriminatory and unreasonable exercise of Management’s rights

24. Staff are prohibited from preparing and bringing their own food from home to be eaten in the presence of YO’s. They must eat institutional food in front of YO’s. This is an arbitrary discriminatory and unreasonable exercise of Management’s rights.

25. Staff are required to remain at a heightened state of alert throughout their entire shift. They cannot separate themselves from the YO’s to de-stress or relax for personal health and safety purposes. This is a breach of Art 9 and the Management rights provision. We rely upon the Public Policy consideration.

26. You have sought particulars of each individual act. Since this policy/rule has been in place for sometime and is uniformly imposed, the individual days/occurrences are irrelevant.

27. Should the Union intend to call an expert witness in this matter their report and the expert’s name will be released in advance of the hearing to allow ample time for the Employer to prepare.

28. Moreover, medical evidence will be provided pursuant to the Evidence Act, not later than 10 days prior to the hearing commencement should the Grievor’s intend to reply upon such

Particulars of February 20, 2006

1. I enclose a copy of the grievance identifying a claim that the health and safety provisions have been breached

2. A copy of the MOU agreeing to consolidate the grievance with those already before the GSB.

3. We also enclose a copy of the Minutes of Settlement executed by the Parties on July 11, 2004 which provides, in part, that when CO’s assigned to hospital duty do not receive a meal break they will receive one hour compensating leave for the shift. This document applies to all facilities including Cecil Facer. Daryl Pitfield was a signatory and will provide evidence regarding its applicability, the circumstances giving rise to the MAU and clearly the Parties (OPSEU and the Crown) understanding and intention to provide meal breaks.

4. I also enclose a number of documents from Bluewater Youth Centre. Mr. Jack Hopkins will provide evidence on these documents. The first five pages are examples of schedules used at Bluewater under the CWWA. Pages 6-13 show an outline of the duties of the DGO. Part of their duties is to relieve for paid breaks. This practice has been ongoing for at least 16 years. In addition, the documents identifying a night relief CO whose duties are to relieve night staff during the 2300-0200 shift. This post is long-standing.

5. We enclose an Article written by Philip Tucker. We intended to have Dr. Wayne Lewchuck speak to the Article in his evidence relating to Correctional Officers/Young Offender Officers.

6. In addition to the above, we anticipate Mr. Lewchuck will speak to the following topics:

a. Nature of CO duties,

b. High Levels/numbers of inmates;

c. Heightened level of acuity/attention at which these people must operate,

d. Long shifts at high levels of attention;

e. Need to be engaged in a number of “incidents” per day including escorts/transfers/meal servicing/misconducts/counseling etc. and the impact on one level of acuity and impact of no “down time” on the performance of those duties;

f. The public policy associated with break/rest periods;

g. The general environment and whether that in itself affects the health and safety of employees when no rest periods are provided.

h. We draw your attention to the Don Jail study enclosed – we will have Mr. Lewchuck speak to it as it relates to the denial of rest periods and impact on the health and safety

7. We do not anticipate having Mr. Lewchuck prepare a written report for his evidence. Rather he will give viva voce evidence based on his expertise.

8. Regarding the different treatment position of the Union internally to Cecil Facer we note that certain staff are provided with rest/meal periods including, Control Module Staff; Dan McLean, Claude Cartere, Ken Carmichael, Rob Rasso, Maurice Renard, Carol Caevlier, Adam Vendette, Lincoln Susterse, Kevin McDougal, Rob Crawford; Medical Wing Staff; Staff supervising the Medical Wing Staff; Kitchen Staff; Stoves Staff; Nurses; Social Workers; Psychologists; and Manager;

9. Regarding the different treatment position of the Union relating to all other institutions Mr. Hopkins will testify to the Bluewater practice and Mr. Dave Graves will testify to the correctional facilities general as will Daryl Pitfield.

10. I also enclose Directive # 10/00 which provides that control and BMU (Behaviour Modification Unit now call “SIU” Secure Isolation Unit) officers are to be relieved for meals;

11. During the night shift 2 officers work in each “cottage”. The standing orders require 2 officers to be in direct sight of one another for security and safety. When one officer needs to use the restroom the other officer is placed in jeopardy of harm and in fact, places the offers in breach of the S.O.’s.

12. I note that we intend to call the following witnesses: Blair Pitfield, Daryl Pitfield, Wayne Lewchuck, Jack Hopkins and Potentially Marc Belanger and Dave Graves. On the first day of hearing we will call Blair and Daryl Pitfield.

The accepted approach to the litigation of breaches of article 9 is set out in Watts/King, 1367/90 (Kaplan) at page 27:

In our view, it is not unreasonable in a case where the union has demonstrated some degree of risk to the safety and health of employees to require the employer to explain, if not justify, the necessity and reasonableness of the employer-imposed risk.

Accordingly, the first step is for the union “to demonstrate some degree of risk.” At this stage of the proceedings, it must be taken that the union will be able to prove what it asserts and on that basis consider whether the union can meet its onus “to demonstrate some risk.”

In this regard, it is important to analyze the “particulars” provided with a view to differentiating amongst assertions that are allegations of fact, evidence and argument. The only portions of the union’s documents that are to be taken as true are the allegations of fact. Evidence and argument are not “particulars” of the union’s case.

What then are the facts alleged that might relate to the allegation of a breach of article 9 at Cecil Facer? Turning first to the December 8, 2003 document, certain facts are alleged, and indeed are undisputed. It is common ground that the facility cannot be locked down, that staff must intermingle with the residents for the entire shift or that staff may not bring their own food from home. However, those facts would not establish that staff require periods away from the residents for their personal health and safety.

Turning next to the December 16, 2004 document, paragraphs 15, 16, 26, 27 and 28 are not particulars. Continuing on through the document, it is a novel approach for the union to rely not upon the Employment Standards Act itself but rather the public policy considerations said to underlie its provisions. However, the legislature has declared that the applicable public policy is to exempt the Crown from the meal and break periods set out therein (paragraphs 17, 18, 19, 25). The fact that other institutions are provided with breaks away from the residents does not elevate the failure to do so at Cecil Facer into a breach of the collective agreement. These are not facts that map into article 9 (paragraphs 20, 21, 22). Exercises of management’s rights that are not tied into some other provision of the collective agreement are not grievable (paragraphs 23 and 24).

Finally, I turn to the February 20, 2006 document. Paragraphs 1, 2, 5, 7 are not particulars. Giving breaks to other employees, either at Cecil Facer or externally, does not support the claimed breach of article 9 (paragraphs 3, 4, 8, 9, 10, 12). It may appear, or be, unfair that some receive a better benefit than the collective agreement requires, but that does not illuminate the claimed breach of article 9. Paragraph 6 is not a statement of particulars; it is a statement of evidence. That paragraph does not set out facts (the who, what, where, when) that ground the claimed breach of article 9.

With respect to paragraph 11, the issue seems to be the number of officers on duty. Even accepting, for the sake of the argument, that those facts disclose a breach of the collective agreement, it is not the breach complained of here.

Having considered the submissions of the parties, the jurisprudence and the particulars provided by the Union, the Employer’s preliminary application is allowed; these grievances are dismissed.

Dated this 27th day of December, 2006 at Toronto