GSB# 2002-2103, 2002-2247, 2002-2247, 2002-2538, 2002-2539, 2002-3065, 2002-3071, 2003-0055, 2003-0057, 2003-0127, 2003-0128, 2003-0129, 2003-0130, 2003-0131, 2003-0132, 2003-0133, 2003-0134, 2003-0135, 2003-0136, 2003-0137, 2003-0439, 2003-0441, 2003-0450, 2003-1056, 2003-1057, 2003-1061, 2003-1118, 2003-1124, 2003-1240, 2003-1248, 2003-1362, 2003-1769, 2003-1909, 2003-2109, 2003-2139, 2003-2666, 2003-2670, 2003-2671, 2003-3389, 2004-1707

UNION# 2002-0582-0056, 2002-0582-0061, 2002-0582-0062, 2002-0582-0072, 2002-0582-0071, 2002-0582-0077, 2002-0582-0075, 2003-0582-0008, 2003-0582-0007, 2003-0582-0012, 2003-0582-0013, 2003-0582-0014, 2003-0582-0015, 2003-0582-0016, 2003-0582-0017, 2003-0582-0018, 2003-0582-0019, 2003-0582-0020, 2003-0582-0021, 2003-0582-0022, 2003-0582-0066, 2003-0582-0069, 2003-0582-0070, 2003-0582-0082, 2003-0582-0083, 2003-0582-0087, 2003-0582-0098, 2003-0582-0104, 2003-0582-0110, 2003-0582-0118, 2003-0582-0125, 2003-0582-0150, 2003-0582-0152, 2003-0582-0155, 2003-0582-0162, 2003-0582-0166, 2003-0582-0170, 2003-0582-0171, 2003-0582-0186, 2004-0234-0427

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Megahy et al.)

Union

• and -

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

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Suneel Bahal Counsel Ministry of Government Services

HEARING

March 4 & 15, November 1, 2005; January 5, March. 30, June 9, September 1, November 17, 2006; June 26, July 11, August 16 & 17, 2007.

Decision

The union has referred to arbitration a number of individual grievances, filed by correctional officers at the Toronto East Detention Centre in 2002 and 2003, objecting to the use of police officers to escort inmates when outside the correctional facility. The union alleges the police were used in contravention of a memorandum of settlement (MOS) dated June 13, 2001.

The parties agree the MOS imposed some restriction on the utilization of police to conduct community escorts, but the precise scope of this restriction is disputed. It is agreed the Ministry was obliged not to engage police officers for an escort assignment if it could have been performed by a classified correctional officer who had submitted an overtime availability sheet indicating he or she was willing to work at the relevant time. The parties disagree about whether the Ministry was also obliged, before using police, to offer overtime to classified correctional officers who had not submitted availability sheets. This is sole issue addressed here.

I

The engagement of police as community escorts began in the wake of a decision by the Office of Adjudication, dated August 24, 1998, under the Occupational Health and Safety Act. This decision required the employer to take a number of precautions in relation to escorts conducted by correctional officers. As well as stating a minimum of two officers should be assigned to accompany an inmate, the adjudicator's order specified what training and equipment must be provided to those acting as escorts. Police officers were initially used for escort duty while steps were being taken to implement this order.

In August of 1999, dissatisfied with the progress being made on implementation front, the union launched contempt proceedings against the Minister and a number of Ministry officials. Over the ensuing months, the parties negotiated a number of agreements. The first three are dated August 28, 1999, January 19, 2000 and April 3, 2000 respectively. These agreements had little to say about who should conduct escort assignments. The only mention of this subject was found in paragraph 2(c) of the first agreement: "Correctional officers and not Managers will escort inmates unless there is an emergency situation."

Who should do escorts was addressed in much greater detail in a series of written proposals exchanged in the spring of 2001. Four such documents were entered as exhibits. In chronological order, they are: an undated union proposal; an employer proposal with covering letter dated March 29; an employer proposal with covering email dated May 15; and a union proposal with covering letter dated June 1. Negotiations culminated in a memorandum of settlement on June 13, 2001.

The relevant provisions of the MOS state:

2. The Employer agrees to negotiate the incorporation of the procedures outline below into the local overtime protocol with the local union to address the assignment of community escort duty to begin within 14 days of the date of this settlement and to be completed on or before July 20, 2001:

a. Utilize correctional officers trained in community escort

b. Extend shifts of correctional officers trained in community escort

c. For the Metro West Detention Centre, the Toronto Jail and the Metro East Detention Centre, call in correctional officers trained in community escort who have agreed to be on call in accordance with item 3

d. Utilize ICIT or CET members who have completed community escort training

e. Utilize 3 classified correctional officers ...

f. After exhausting the procedures in 2. a-e above, utilize managers or acting managers who have been trained in community escort in an emergency ....

g. After exhausting the procedures in 2. a-f above, utilize managers or acting managers in an emergency ....

2.2 The employer agrees to follow the Collective Agreement and any local agreements in existence to backfill for staff utilized for community escort duty.

13. The union agrees to withdraw all outstanding overtime and policy grievances directly related to use of police when conducting community escorts. ...

14 In consideration of the foregoing, the employer agrees to pay the union $162,500 within ten days of the date of settlement.

Appended to the MOS is the following letter of understanding:

Further to our Memorandum of Understanding dated June 13, 2001, we wish to confirm that in the event the union seeks a determination of the appropriate actions to be taken by the parties as a result of the employer conducting community escorts using paid duty police officers, after having exhausted all of the available resources set out in Article 2(a) – (g) of the Memorandum of Settlement, the Union agrees that any such matter will be referred to Arbitrator Mr. G. Lee pursuant to paragraph 16 of the Memorandum of Settlement.

The terms of the MOS differed from those found in earlier bargaining proposals in at least three respects. The employer's proposal of March 29 listed "police" as the last category to be considered for escort duty. In its proposal of May 5, the employer dropped any explicit reference to police and substituted "other available resources", intending this phrase to mean the same thing. Neither of these formulations appears in the main body of the MOS because the union rejected them.

The parties agree article 2 of the MOS implicitly restricts the use of police as escorts but does not prohibit it entirely. The employer concedes police officers may not be utilized unless the procedures contained in article 2(a) to (g) have been exhausted. The union concedes police may be engaged in some circumstances. Barry Scanlon was union co-chair of the Ministry Employee Relations Committee and part of the team representing the union when the MOS was negotiated. Mike Simpson, a regional director with the Ministry, was on the management team. According to Mr. Scanlon, while the union objected to the MOS saying police could do escorts, he told Mr. Simpson the union recognized police might be used in the event of a catastrophe.

The second difference between the MOS and the bargaining proposals relates to the subject of "back fill". All of the proposals mentioned above addressed the situation where a correctional officer already at work was sent out of the institution on escort duty and someone else was called in to replace that person. Dealing with this back fill scenario, all proposals mentioned three categories of employees as possible sources for a replacement: (1) unclassified officers; (2) classified officers on the overtime list; and (3) classified officers not on the overtime list. Each proposal ranked these categories in the order that the employer was required to consider them, although the ranking was not the same in all proposals. The MOS contains much less detail about backfill, leaving it to be governed by the collective agreement and any local agreements.

The bargaining proposals made no mention of local overtime protocols, whereas article 2 of the MOS states "the employer agrees to negotiate the procedures outlined below into the local overtime protocol." Witnesses called by both sides testified this reference to the local protocol was added when they realized some escort assignments would be performed as overtime. The addition was made to ensure overtime escort duty was assigned in a manner consistent with the terms of the local protocol governing the assignment of overtime to members of the bargaining unit.

A new overtime protocol was negotiated at the Toronto East Detention Centre on July 31, 2001. It stated in part:

Classified Correctional Officers will submit overtime availability sheets....

Officers who have not submitted availability sheets should not be hired for overtime unless there is an extreme emergency. ...

This agreement indicated it could be terminated by either party with thirty days notice. It was signed by Gary Peck, president of local 582, and Doug Thomson, then superintendent at Toronto East.

On July 23, 2004, Mr. Peck notified the new superintendent, Rob Hamblin, of the union's intention to "revoke" the overtime protocol. After the union withdrew from the local protocol, the employer continued to assign overtime in accordance with its terms.

Mr. Peck testified he told Mr. Hamblin, before the grievances were filed, that the employer had an obligation to contact all correctional officers with escort training, regardless of whether they were on the overtime list, before resorting to the police. In his testimony, Mr. Hamblin denied being told this was the union's position.

The grievances relate exclusively to escort duty performed after the union had terminated the local agreement. During the period covered by the grievances, police officers were routinely used to guard inmates who had been admitted to a hospital. They did not escort inmates from the correctional facility to a hospital or any other destination. That work was performed by correctional officers.

II

The union contends the MOS "contemplated" escort duty would be assigned to correctional officers already on duty in the institution. If meant to suggest escorts must be done as part of an employee's regular shift, this contention is not supported by the wording of the MOS. The assignment of escort duty is governed by article 2 and the reference in that article to local overtime protocols clearly indicates the parties expected some escort assignments would be performed as overtime. Mr. Scanlon acknowledged as much in his testimony. In short, the MOS did not require the employer to assign escort duty to officers working their normal shift.

The union also submits the employer's interpretation of the MOS creates an anomaly that could not have intended by the parties when they agreed to restrict the use of police as escorts. If a manager assigned escort duty to a correctional officer already on shift, decided to call someone in as a replacement, and then exhausted both the list of unclassified officers and the overtime list of classified employees as potential replacements, the manager's only option was to canvass classified employees not on the overtime list. Using police as backfill was not possible because they are not allowed to work in the institution. On other hand, according to the employer's interpretation, if a manager went straight to the overtime list looking for an escort and found no one available, classified employees not on the list could be ignored and the escort assignment could be given to the police. The alleged anomaly is that whether the police were used, before contacting employees not on the overtime list, was determined by which method a manager used to find an escort. According to this line of argument, the anomaly should be avoided by reading the MOS as requiring the employer to consider employees not on the overtime list in all cases, even when an escort is not performed by somebody already on duty.

I am not persuaded by this argument because it rests on the tacit assumption that who should do escorts on overtime is determined exclusively by the implicit restriction on the use of police underlying the MOS, regardless of what a local overtime agreement says. In my view, this assumption is false. The MOS was negotiated on the premise that overtime escort assignments would be governed by any local agreement dealing with overtime. If the events giving rise to the grievances had occurred when the Toronto East overtime protocol was still in force as a local agreement, I would have had to consider the terms of that agreement, along with the MOS, in order to decide whether police could be utilized as escorts in lieu of employees who had not submitted overtime availability sheets.

So long as the local agreement remained in force at Toronto East, it required officers interested in extra work to submit sheets indicating when they would be available. There was nothing in the agreement to suggest they were allowed to restrict their availability to a particular type of work, such as escort duty. The agreement also contained the following qualified prohibition: "Officers who have not submitted availability sheets should not be hired for overtime unless there is an extreme emergency." If the grievances had been filed while the local agreement still applied, I would have had to consider these provisions, along with the implicit restriction on the use of police underlying the MOS, to determine whether police officers could be assigned to escort duty without canvassing employees not on the overtime list.

As the grievances arose after the overtime agreement had been terminated, I need not decide what impact it had on the employer's obligations under the MOS. When the parties signed the MOS, they agreed overtime escort assignments would be made in accordance with local agreements. They did not agree such assignments would be governed by a local overtime protocol to which the union was not a party. For this reason, the employer's unilateral decision to continue applying the same terms previously found in the local agreement has no bearing on the disposition of these grievances.

Once the local agreement had been terminated by the union, there was no longer any contractual requirement for employees to submit sheets indicating availability for overtime work if they wanted it. Nor was there a qualified prohibition against assigning overtime to officers who had not submitted availability sheets. The only legally binding provisions about who would perform escort duty were found in the MOS. In particular, the employer remained under an obligation to exhaust the procedures contained in article 2 before using police as escorts. These procedures required the employer to utilize correctional officers, either as part of their regular shift or on overtime, before resorting to the police. In regard to overtime escort assignments, the MOS itself draws no distinction between employees who were on the overtime list and those who were not.

Contending there was no obligation to offer extra work to employees not on the overtime list, the employer relies on a difference between the MOS and the bargaining proposals. The proposals mention such employees as a source for backfilling but the final agreement does not. I was urged to conclude this omission indicated employees not on the list need not be considered for overtime escort work. I not persuaded by this argument for two reasons. First, the proposals dealt with employees not on the overtime list doing backfill assignments, not with them doing escort duty. In addition, the MOS did not say such employees need not be considered for backfill. Instead, the MOS left this matter to be governed by local agreements. As already noted, when the grievances were filed, there was no local agreement in effect.

The employer also claims it would have been impractical to offer overtime escort duty to employees who had not indicated they were available to work outside their scheduled hours. After the union withdrew from the local agreement, the employer carried on as before, applying the terms of the protocol for the purpose of assigning overtime. In particular, management still required employees who wanted to work overtime to submit availability sheets. I was urged to conclude that the manager responsible for finding an escort typically did not have time to call all of the employees who had not submitted availability sheets. The employer also suggested making such calls would have been a waste of time because the failure of such employees to provide availability sheets indicated they did not want extra work.

Responding to this argument about practicality, the union contends some employees would have been willing to act as escorts on overtime even though unwilling to work overtime in the detention centre, because they preferred escort assignments over their normal duties in a correctional facility. This contention is fully supported by the uncontradicted testimony of several union witnesses who now work as correctional officers or have done so in the past. With this preference for escort assignments in mind, the union argues there would have been nothing impractical about establishing a system that allowed correctional officers to inform the employer in advance about their availability specifically for escort assignments, and nothing impractical about offering such assignments to those who already had indicated they would be available. I agree.

The foregoing analysis leads me to conclude, after the local overtime agreement ceased to operate, the MOS obligated the employer to refrain from using police as escorts without first making a reasonable effort to determine whether classified correctional officers were available to do this work, including those officers who had not submitted a sheet indicating a willingness to perform all types of work on overtime. One way for the employer to have fulfilled this obligation would have been to establish a system allowing employees to indicate their availability for escort duty outside of their regularly scheduled hours.

Dated at Toronto this 12^th day of September 2007