GSB#2002-1354

UNION#2002-0517-0001

Additional Files listed in Appendix “A”

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Charles et al)

Union

• and -

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

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Suneel Bahal Ministry of Government Services Labour Practice Group Counsel

HEARING

October 22, December 15, 2008, April 16 & 17, May 5 & May 22, August 18, October 27, November 12, 2009, May 14, June 15 & 16, 2010, January 25 & January 26, 2011.

Decision

1The parties endured a grinding and protracted period of litigation in these matters. There is apparently much at stake.

2There has and continues to be a dispute between the parties relating to the manner in which community escorts are to be assigned, in particular after all correctional officers (“CO”s) within the institution who have previously indicated their availability have been canvassed. The dispute dates back (in this case – later in others) to at least 2004, involves all correctional facilities and potentially all correctional officers across the province and continues to the present day.

Background

3From 2001 to the present there has been a variety of negotiated agreements dealing with issues related to community escort, overtime more generally and sometimes both. Some of these were negotiated at a provincial (that is to say at a Ministry-wide) level, others were negotiated locally at specific institutions with limited application to those institutions. In certain cases one may have to discern the precise nature of the interaction between provincial and local agreements to determine the operative “rules” at any given moment in time. And while developments on the provincial level are uniform (at least in their timing, though not necessarily in their impact), the timing and substance of local agreements are, of course, subject to wide variation.

4During the instant proceedings some seven different provincial agreements (the earliest from June 2001; the most recent dated October 2009) were filed as exhibits. Assuming individual local agreements can vary in timing, duration, number and content, there is no doubt an impressive number of permutations and combinations of the specific provincial and local provisions in place at any given moment at any given institution.

5The parties are seeking clarification as to their legal positions with respect to the assignment of escort duties. They seek this clarification, as it may apply, over a period that may span 2001 to the present. The parties’ respective rights and obligations were not necessarily constant during this period, which bridges numerous collective agreements, provincial memoranda and local protocols. But while the answer may therefore vary, the question is essentially the same. Where the employer requires COs to perform community escort and where in that quest, it has exhausted all COs who have indicated their availability to work overtime, is it obligated to then canvas (potentially all) other COs within the institution before looking to other means to satisfy its operational needs.

6To oversimplify, the union says the answer to the question is always “yes"; the employer asserts that it has a discretion to canvass COs who have not indicated their availability but no obligation to do so (and certainly no obligation to canvass all such COs) before considering other options.

7Injecting a measure of dispassionate rationality to the proceedings, counsel succeeded in agreeing to proceed on an institution by institution basis and that we commence with a single institution and allow the parties to consider their positions in light of the resulting determination.

8The parties selected Vanier Centre for Women (“VCFW”) as the institution to be the initial subject of these proceedings. This choice was made, no doubt, because the local overtime protocol included a so-called “all-call” provision. The protocol was in place from in or about March 2004 until it was extinguished by virtue of the implementation of the Provincial Overtime Protocol (“POP”). The (first) POP is dated July 2006. However, while there is no dispute that implementation of the POP extinguished the operation of the local protocol, the parties were unable to agree on the date of that implementation. And while I will return to this issue, it appears that the parties were, generally speaking, more concerned with constructing a catalogue of the parameters of rules applying to the assignment of community escort duties during the various periods when differing configurations of local and central provisions were in place.

9The earliest of the many grievances before me from VCFW is dated September 16, 2004. Thus, at the time of the filing of the (earliest) grievance before me, the local overtime protocol had been in place for some six months.

10I will shortly review some of the salient provisions of the relevant respective provincial and local agreements in place at various times from June 2001 up to at least the implementation of the first POP.

11It will come as no surprise that the determination of the issue before me will involve the consideration and application of the provisions of these various documents. The parties, at least in their initial positions, sounded a common note – they were both of the view that the relevant language is clear and unambiguous, necessitating no recourse to extrinsic evidence for its interpretation. Unfortunately, while the parties spoke with one voice as to the clarity of the language, they did not share a view as to the meaning of that clear language. And, in a manner not unfamiliar to seasoned practitioners, the parties each effectively took the position that the language was clear, so long as and only so long as their respective interpretations were accepted. Before accepting the position of the other party the Board should consider the extrinsic evidence which each party asserted would support its interpretive position.

12In that context, neither party raised any objection to the introduction of evidence of negotiating history, in respect of both the central and the local provisions.

13The evidentiary onslaught that followed was prodigious and unceasing. We heard from 13 witnesses. Cumulatively, they represent some three and one half centuries of union or management (sometimes both) experience in this Ministry.

14A review of that evidence has provided me with a unique vantage point in relation to the history of the treatment of the scheduling of community escort assignments. It has afforded an understanding of the issues and the priorities of the parties in relation to them and, to some extent, in relation to the conduct of negotiations around the issue.

15Unfortunately, while this evidence was instructive and certainly provided a rich context, it was ultimately of little interpretive assistance. First, I am satisfied that the parties’ initial positions were correct: the contractual language which needs to be interpreted displays no signs of patent ambiguity. Second, even if it did, the evidence tendered to clarify that ambiguity (or to establish and clarify a latent ambiguity) did little to effect that objective. (Neither party raised any issue of estoppel.) I come to that conclusion because, as a general matter, the evidence focussed primarily on discussions regarding what the witnesses (who, admittedly, had participated in the relevant set(s) of negotiations) believed the resulting language meant or what their objective(s) may have been in the negotiations. This evidence, while interesting, provided me with little assistance in my determination. Exchanges between counsel and a witness which focussed on the meaning and interpretation of contract language (and there were many such exchanges on both sides, in chief and in cross-examination) are of little moment to my determination. Similarly, evidence (which was plentiful) about the negotiating intentions or objectives of one or other of the parties is equally unhelpful. Neither of these types of evidence display any shared mutual intention of the parties – clear evidence of which might be useful in resolving an interpretive ambiguity.

16On the contrary and as I will set out in slightly further detail shortly, to the extent the negotiating history evidence (both local and central) can even be said to approach the territory of disclosing shared mutual intent, it tends, at least with respect to the central questions in the instant case, to negate the existence of any such shared intent.

Context – The Nature of the Parties’ Concerns

17The evidence before me allows for the fashioning of a sketch of the concerns and issues as the parties saw them in negotiations and the more general context in which these arose. The concerns are neither complex nor surprising.

18The present case pertains to the assignment of community escort duties, an issue which has, in one fashion or another, been a source of friction between the parties for a period well in excess of a decade. Community escort refers, as the term suggests, to the escort of inmates to and from appointments (such as medical ones) in the community. Unless such assignments can be planned well in advance (and perhaps even if they could), these assignments present scheduling challenges and will frequently result in overtime assignments (whether directly or as a result of the backfilling that may be required when an on-duty CO leaves his/her institutional post to perform community escort duties).

19The parties’ collective bargaining dealings, as evidenced by the various agreements tendered as exhibits, highlight certain historical developments. As the parties and this Board are well aware, matters pertaining to distribution of overtime have long been fertile ground for litigation in this Ministry. The specific collective agreement provisions regarding overtime assignments have never been a model of specificity. And historically, the parties have dealt with this issue “on the ground”, as it were, negotiating (or not) a series of local overtime protocols applicable in the relevant individual correctional facilities. The development and implementation of a provincial overtime protocol with uniform application to all institutions is only a relatively recent development. And it has been largely, and not surprisingly, the use and integration of sophisticated custom computer programming which has facilitated the development of a protocol which moves the parties firmly in the directions of certainty, fairness, equity and transparency in the manner in which overtime opportunities are distributed. These developments are a testament to the parties’ best collective bargaining capabilities.

20The community escort issues clearly overlap, to some extent, with issues of overtime writ large, in particular since a community escort assignment invariably means (whether directly or indirectly) an overtime assignment. But obviously there are and have been concerns unique to community escort. Community escorts require two COs with specific community escort training. If both COs do not have that training, three COs must be assigned to perform the escort. Thus, at least from the employer’s perspective, having an adequate pool of trained COs for community escort is not merely intuitively attractive, it provides efficiencies. The employer, at least in the early years of our narrative, encountered difficulties in securing the requisite number of required COs in a timely fashion.

21And in another turn unique to community escort, the employer has apparently opted, in some instances, to secure the services of local police to provide community escort. In the overtime context more generally, police officers cannot be used to cover CO assignments within the institution. They are capable, however, of performing community escort duties outside the institution. From the union’s perspective, the use of police officers to provide community escort has delivered the perhaps most reviled instances of bargaining unit work being performed by non-bargaining unit personnel, perhaps more so because it was done in a fashion which would not, could not occur within institutions. And, of course, from the employer’s perspective, while the perceived ease and certainty associated with securing police escort services may have been attractive, there is little doubt that there is an otherwise unnecessary cost attached to such use.

22The employer’s primary concern is meeting its operational needs in as efficient a manner as possible. For many years, community escort training was not a requirement of COs. And in any event, whether the particular occasion called for two or three COs, the employer may have encountered (at least logistical) difficulties in securing the requisite staffing from the ranks of COs. Thus, it may not have been unusual for the employer to turn to local police to provide community escorts for inmates.

23The union views community escort assignments as bargaining unit work. It did not and does not wish to see these assignments performed routinely, or at all, by police officers or other persons outside of the bargaining unit.

24As we traverse the various agreements negotiated by the parties, we shall see that they had some success in addressing and, at least partially, resolving a number of these concerns.

25Nonetheless, an issue continues to divide them. In particular, the parties have asked this Board to determine whether the employer, under the terms of the various agreements that may have been in place at different times, is obligated to canvass all COs in the institution before proceeding to employ “other resources” to provide community escort.

26The fact that this remains an issue between the parties is something of an enigma. Unlike in many other collective bargaining contexts, it would appear that here the parties’ interests converge far more than they diverge. There was little dispute that the use of “other resources”, particularly where that has included police, is costly as compared to the use of bargaining unit employees. Thus, all other things being equal, the employer would be expected to prefer to assign the work to COs, a preference which, of course, is entirely congruent with the union’s desire to see the work performed by its members. Thus, it would appear that the parties share a common cause. Despite that, the parties have, for some reason, been unable to secure a sensible resolution of issues of common concern. Perhaps oversimplifying their positions, the union says the employer must canvass all COs; for its part the employer asserts that it may do so but is under no such obligation.

27The employer’s opposition to routinely canvassing all COs appears to be rooted in its belief that such a process would be onerous, unwieldy and time-consuming. In the various overtime protocols the parties have negotiated, one sees minimum waiting periods between telephone calls to canvass employees for overtime work (presumably to permit employees to respond before the opportunity is offered to another). These time limits apply to calls made to COs who have indicated their availability. Any process which includes canvassing COs who have not indicated availability is of a different order. Indeed, (and assuming there is any obligation to make such calls) the union conceded that with respect to calls made (after employees who have signed up for overtime have been canvassed) to employees who have not signed up for overtime, there is (again unlike calls to employees on the list) no particular order in which such calls are to be made. If there is no prescribed order for such calls, it might be difficult to infer any need to apply any “waiting periods” to such calls.

28More significantly, however, though not necessarily from the perspective of assessing the parties’ existing legal obligations, one might have thought that, just as the parties have used automation and custom software to aid in structuring the distribution of overtime assignments, technology would offer a simple, efficient and cost-effective manner of providing the employer the advantage of quickly canvassing all employees, thereby minimizing the need to engage “other resources” and maximizing the likelihood of the work being performed by bargaining unit employees. One might have thought that technology, whether by e-mail, text messaging, voice mail broadcasting or other means would offer an easy method of simultaneous contact with all COs at any given institution.

The Agreements

29Unfortunately, the parties have opted, rather than pursuing the solutions which might easily provide the objectives both seek, to engage in a protracted, institution by institution, time period by time period checkerboard process of litigation. I turn therefore to a determination of the parties’ rights and obligations at VCFW over the relevant periods of time. I will proceed chronologically to consider the relevant agreements (all one series of which were Ministry-wide agreements) and the manner in which community escort assignments are to operate under each. The documents are as follows (with the exception of #3 all were negotiated at the Ministry-wide level):

1. Memorandum of Settlement dated June 13, 2001

2. Memorandum of Settlement dated September 19, 2003

3. VCFW Local Overtime Protocol dated March 9, 2004 (amended several times up to and including March 4, 2005)

4. Memorandum of Settlement dated July 14, 2004 (revised March 22, 2005

5. Provincial Overtime Protocol dated July 27, 2006 (revised and/or updated May 1, 2008 and October 29, 2009)

30For reasons which I will now outline, I have concluded that, as a practical matter, there are, at VCFW, three relevant periods. They can be simply described as follows: the period prior to the operation of the local overtime protocol; the period during which the local overtime protocol was in place and the period which commenced once the local overtime protocol ceased to operate.

31I will now chronologically review the various documents in order to explain the conclusions to which I have been drawn.

The 2001 MOS

32The first potentially relevant agreement dates back to June 13, 2001 (the “2001 MOS”). It has already been the subject of litigation in a decision of this Board dated September 12, 2007 (OPSEU (Megahy) and Ministry of Community Safety and Correctional Services (2007), GSB No. 2002-2103 et al (Brown)). That case considered a variant on the question before me – did the employer, at the Toronto East Detention Centre, have an obligation to canvass COs, including those who had not indicated their availability to work, prior to using police as escorts. The only specific agreement in place between the parties was the 2001 MOS. (There had been a prior local agreement in place. However, the union had exercised its right to terminate that agreement and the grievances dealt with the parties’ rights and obligations subsequent to the termination, i.e. in the absence of any local agreement.)

The material portion of the 2001 MOS included the following:

2. The Employer agrees to negotiate the incorporation of procedures outlined 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 30, 2001:

a) Utilize correctional officers trained in community escort.

b) Extend shifts of correctional officers trained in community escorts.

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 …

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

e) Utilize 3 correctional officers as per decision 98-05A article 1h.

f) After exhausting the procedure is in 2. a-e above, utilize managers or acting managers who are trained in community escort in an emergency in accordance with decision 98–05A, article 2c;

g) After exhausting the procedure is into a–f above, utilize managers or acting managers in an emergency in accordance with decision 98 05A, article 2c;

33The decision reviews some of the history of the matter (e.g. that it dates back to a 1998 decision – the one just referred to in the cited portions of the 2001 MOS – of the Office of Adjudication under the Occupational Health and Safety Act).

34The Board noted that the MOS made no distinction between COs who had and had not previously indicated their availability and ultimately concluded that (in the absence of any local overtime protocol) the 2001 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 the regularly scheduled hours.”

35I have said that the 2001 MOS is potentially relevant to our case. In particular, it is difficult to see how the parties’ rights and obligations at VCFW for the purposes of the instant case could ever be determined by reference (as in the Megahy case) to the 2001 MOS alone. While, as we shall see, the VFCW local overtime protocol did not come into effect until March 2004, one must also recall that the earliest of the grievances before me was not filed until September 2004. Thus, to engage any period of time where no local overtime protocol was in place, the September 2004 grievance would need to reach back, in one fashion or another, to a period greater than six months prior to the date it was filed. While the union did not relinquish that possibility, it appears to me to be a less than likely one. The parties did not specifically or extensively address this point and I say no more about it – we shall return to it if and when it is necessary to do so.

36But while the parties did not extensively address how the VCFW claims might extend to a period governed only by the 2001 MOS, they did address, somewhat more fully, the treatment which ought to be accorded to the Megahy decision. Given the somewhat hypothetical context in which this concern currently arises coupled, however, with the recognition that the question might actually arise more directly at a different institution, I limit my remarks to the following. I was not persuaded that the decision in Megahy is either wrong or ought not, for whatever reason, to be followed. However, the parties, or at least the union, described the Megahy decision as supporting the proposition that where the only governing provisions are those of the 2001 MOS, the employer is obligated to canvass COs who have not indicated their availability. While there may be some (at least presumptive) force to the assertion, I am not necessarily persuaded of its universal applicability, given, in particular, the wording of the final sentence (cited above) of the award. It may well be that the application of the decision will vary by institution, depending on the context in which it is said to apply.

The 2003 MOS

37The next document the parties filed is a Ministry wide Memorandum of Settlement dated September 19, 2003 (the “2003 MOS”). This was a relatively broad-ranging agreement. However, with respect to issues of assignment of COs to community escort, it is largely prospective (calling for the development and implementation of a new provincial protocol for community escort assignment). While not asserting that the agreement had any practical immediate application in that regard, the employer highlighted paragraph 7:

A new protocol for the assignment of correctional officers to the escort of inmates committed to their institution in the community will be developed and implemented. The new protocol will be computerized, will integrate the assignment of regular shifts, overtime duties and unclassified hours, and will provide for the assignment of escort duties and overtime to those correctional officers that indicate their availability for such assignments and commit to undertaking assignments when offered.

38The employer asserts that from the moment this paragraph was endorsed by the parties there could be no further available routes to any conclusion that the employer could possibly have envisioned any obligatory all-call step – on the contrary, the terms of the paragraph suggest that only COs who have previously indicated their availability for such assignments need be offered them.

39Of course, for our purposes, this executory portion of the agreement is little more than a signpost along a lengthy route. Whether the parties, or at least the employer, may have envisioned establishing a system for community escort assignment to COs “on the list”, that vision might or might not be reflected in any ultimate agreement. And, in any event, there is no prohibition (provincially or locally) which emerges from this language to prevent the employer from tapping further local CO resources (whether as a matter of discretion or local agreement).

40The MOS also included, among other things, provisions to facilitate the development of the new protocol, including the striking of a sub-committee of the Provincial Joint Occupational Health and Safety Committee to oversee its development and setting a timetable for same.

41And, indeed, on July 4, 2004 the parties (again at the Ministry level) executed a further Memorandum of Settlement (the “2004 MOS”) which addressed matters related to the assignment of community escort duties. However, we will briefly defer our consideration of that agreement since, before it was executed, the local parties at VCFW concluded a document styled as a Hiring Protocol and Overtime Distribution Agreement ( the “local protocol”), dated March 9, 2004.

The Local Protocol

42While the local protocol was amended somewhat in April 2004 (and later), the parties did not point to any changes that were of any significance for our current purposes. The local protocol is quite elaborate and includes a seven step overtime hiring sequence. The first step contemplates offering available shifts to unclassified staff who have not yet been offered the opportunity to work 40 hours; Step 2 contemplates offering assignments on an overtime basis, first to classified COs and then to unclassified COs who have previously indicated their availability for the shift in question and Step 3 contemplates the same in respect of COs who have indicated their availability on a “late entry” basis, i.e. after 8 a.m. 2 days prior to the needed shift. Step 4 addresses the creation of part shifts (although its reference to repeating steps 1 through 5 within step 4 is somewhat elusive – neither party attached any significance to this). For our purposes the significant step in the protocol is the 5th. Steps 5, 6 and 7 provide as follows:

Step-5. All Call – Internal

(A general solicitation of all other VCFW officers who are not registered in the computer for overtime on this occasion, save and except those who have expressed in writing their desire not to be called for this purpose.).

[emphasis in original]

Step-6. All Call – External:

A general solicitation to current COs from other institutions for a specific incident shall be contingent upon mutual agreement of the following.

a) The Ministry

b) The Superintendent of the participating institutions

c) The Corresponding OPSEU locals and Health and Safety committees.

d) The COs being asked to voluntarily work the overtime shift(s) in question.

e) The Correctional Officers offered this opportunity shall have been previously trained in the appropriate areas of the Institution.

Step-7. Emergency Hire Protocol:

In the event of an Institutional emergency the Employer will make reasonable attempts to follow the protocol to address the immediate needs of the Institution. However, is recognized that considering the urgency and severity of the crisis the protocol may not be followed. In this event the parties understand it is likely that all Correctional Officers will be activated to address the situation.

[The protocol then continues as follows:]

The parties agree that the necessity to utilize Steps 6 & 7 should only be as a result of rare unplanned or unusual staffing emergencies. This Local agrees that Steps 6 & 7 are reasonable next steps should such extreme emergencies exist, however including these steps in this protocol is not meant to suggest that the Union agrees that it is acceptable to use these steps as a result of a failure on the part of the employer to hire, train or assign a proper regular complement of officers to this institution.

Overtime and the Hiring for Community Escorts

With regards to the hiring opportunities for Escort duties and in keeping with the Ministry Directive ( ref no. 08/01: “Assignment of Community Escort Duties–Adult Offenders", June 18, 2001), the following procedure shall apply. Further the application of this protocol shall also be in accordance with the current Community Escort Agreement (MERC Agreement). If there is a conflict between this protocol and a Community Escort Agreement (MERC Agreement) then the Community Escort Agreement shall take precedence.

1. Utilize “escort-trained officers" (excluding ICIT and if CET members) on regular scheduled duty. Replace these officers by hiring unclassified officers with less than 40-hours as per Step-1 above. Failing unclassified availability, hire overtime to replace “escort-trained officers" on duty.

2. If no “escort-trained officers" are on duty, hire “escort-trained" from the overtime lists.

3. If there is still a need, utilise ICIT or CET members on regular scheduled duty and replace them with staff in accordance with the Hiring Sequence as above.

4. If no escort-trained officers are available, nor ICIT or CET members are available, then utilize any three classified officers for the escort obtained by following this protocol.

5. Failing all of the above see the Ministry Directive 08/01 regarding the use of managers and other resources.

43Taken on its own terms, there can be little doubt that the local protocol contemplates and requires that once COs who have indicated their availability have been canvassed, the employer is to perform an “all-call internal” i.e. a general solicitation of all other COs who are not registered in the computer for overtime on the particular occasion in question, save and except those who have expressed in writing their desire not to be called for this purpose. This is clearly a mandatory step (unlike Step 6 which requires specific agreement in each individual case) and is part of the hiring sequence applicable generally to overtime assignments.

44Assignment of community escort work is a distinct matter which may or may not directly result in the need for any overtime assignment. If the employer can make the necessary assignment to COs who are already on duty for the period in question, no direct overtime costs will result. If off-duty COs need to be enlisted that will likely not be the case. However, even where the community escort may be performed by on-duty staff, there will, in all likelihood, be a need to backfill the institutional posts vacated by those performing the community escort. Those backfill assignments would, in all likelihood, need to be performed by staff whose engagement would generate overtime entitlement. And so, even in a case where the community escort assignment itself does not directly necessitate overtime work, the necessary resulting backfill needs would likely do so. Thus, it would appear that, in the typical community escort case, the hiring sequence of the local protocol, including, if required, the all-call internal, would be engaged.

45The local protocol does recognize and include some provisions unique to community escort assignments. These reflect the particular needs attending community escort, in particular the need for two COs, both of whom have specific community escort training, otherwise the assignment will require three COs. However, even the provisions dealing specifically with community escort, while they do not explicitly refer to all-call, do return the process to the protocol sequence (i.e. including, if necessary, the all-call), at least where the employer is unable to locate two escort-trained COs for the assignment. Thus, it would appear that all roads potentially lead to an all-call (with the exception of rare unplanned or unusual staffing emergencies).

46I pause very briefly to indicate why, even if there were some ambiguity in this language, the extrinsic evidence tendered is of little assistance. With respect to the local protocol, we heard from a number of witnesses on both sides. They all described a similar process – the union prepared the document (it was modelled on an existing protocol from another institution) and presented it to the employer for its agreement – some refinements were effected, but the evidence was uniform on the point – there was no explicit discussion between the parties (neither during the negotiation of the local protocol nor the subsequent amendments to it) regarding the employer’s obligation to, when necessary, effect an all-call. What either of the parties may have hoped or believed they had agreed to is of no moment. Unless extrinsic evidence tendered in this context establishes shared mutual intent of the parties, it is of little value. There is simply nothing in the evidence to undermine the clarity of the language. It simply means what it says. Under its terms, the employer agreed to effect an internal all-call when it was unable to secure either unclassified COs who had not yet worked 40 hours in the current week or any other COs who had indicated their availability for the shift in question.

47The terms of the local protocol have never operated in isolation. They have always interacted with the terms of provincial agreements. We will shortly be examining the terms of the 2004 MOS. However, before that MOS came into effect, the local protocol would (roughly from its inception in March 2004 until the 2004 MOS came into effect, on or after July 2004) have existed alongside the 2001 MOS. Thus, I need to examine, with the brevity required, the consequences of the interaction between the 2001 MOS and the local protocol.

48It will be recalled that the 2001 MOS included the following preamble to a list of enumerated procedures:

The Employer agrees to negotiate the incorporation of procedures outlined below into the local overtime protocol with the local union to address the assignment of community escort duty.

49On its face, the MOS does not purport to displace the terms of any existing local overtime protocol. The MOS, of course, is dominated by considerations relating to the general theme of community escorts. The local protocol, on the other hand, is designed primarily to address the manner in which overtime assignments are offered. Indeed, even the limited portion of the local protocol with application to community escort is headed “Overtime and the Hiring for Community Escorts”. Before enumerating its version, under that heading, of the procedure to be followed with regard to hiring opportunities for escort duties, the local protocol includes the following:

…If there is a conflict between this protocol and a Community Escort Agreement (MERC Agreement) then the Community Escort Agreement shall take precedence.

50Thus, the MOS contemplates and does not interfere with the continuing existence of local overtime protocols, while the latter stipulates that any conflict (regarding overtime and the hiring for community escorts) between the local protocol and the MOS is to be resolved in favour of the latter. One might be forgiven conjuring up the image of the snake eating its own tail or some other variation of a continuous loop in any effort to resolve the interaction of the two documents or, in particular, any question of the primacy of one over the other in relation to any specific matters. (This image, as we shall see, is perhaps even more striking when one considers the interaction between the local protocol and the 2004 MOS, to be considered shortly).

51However, questions of paramountcy, primacy or other resolution of conflict between these two documents need not be addressed. I see no specific conflict between the two documents and neither is any relevant operational incompatibility apparent to me. The documents both contemplate processes for the assignment of community escort work. While the MOS contemplates the incorporation of its enumerated process into local overtime protocols, the process itself does not explicitly address the assignment of overtime. Rather, it focuses on the priority of assigning 2 trained COs before having to assign 3 untrained COs. The local protocol is primarily an overtime protocol. Its terms neither conflict with nor undermine the principal focus of the MOS process.

52Thus, I am satisfied that so long as the 2001 MOS and the local protocol operate concurrently, the all-call internal step of the local protocol remains operative.

The 2004 MOS

53The 2004 MOS was executed on July 11, 2004. Appendix A to the MOS was revised in March 2005. However, the basic parameters of the procedures for assigning community escort duties were not significantly altered in any fashion material to our purposes. Neither of the parties pointed to any of those changes as being in any way determinative for the present inquiry. Before outlining the procedure, it is important to note another achievement of this MOS. It set in place a process which would result in a significant increase in the number of COs (classified and unclassified) who would be trained for escort duty. Indeed, on a go-forward basis such training would become universal, subject only to the right of existing classified COs to decline it. And further, once any CO successfully completed the training, they would be unable to opt out of the performance of community escort duties.

54The significance of this portion of the parties agreement is profound. If part of the employer’s difficulty in assigning community escort duties to COs had been related to a lack of training, this innovation would go some distance to removing that obstacle. And, of course, to the extent that the assignment of non-bargaining unit personnel to perform community escort duties had been the result of a lack of trained bargaining unit personnel, this innovation would also serve to minimize the necessity for the type of assignments that irked the union and carried extra costs for the employer. The parties demonstrated their abilities, in this context, to negotiate matters which served their shared objectives.

55The assignment procedures of this MOS were set out in Appendix A to the MOS as follows:

PROCEDURES

When assigning community escort duties, the operational manager or staff person assigned to scheduling must be cognizant of the principles of public safety, public accountability, and cost effectiveness as well as ensuring the institution’s operational requirements are met.

To ensure a consistent and fair method in the assignment of community escort, institutions must utilise the following sequence:

• Utilize on duty correctional officers trained in community escort subject to local operational needs (e.g., specialised post requirements)

• ->classified

• ->unclassified if insufficient classified available.

• Call in off duty unclassified correctional officers trained in community escort (non-overtime).

• Follow local overtime protocol to hire classified correctional officers trained in community escort.

• Offer overtime to unclassified correctional officers trained in community escorts.

• Offer the assignment to three correctional officers (classified or unclassified or any combination thereof).

• Once the correctional officer resources exhausted by following the above steps, management reserves the right to utilise other resources to ensure the Escort is completed.

56The subsequently revised Appendix A was built upon the exact same procedures as those just set out. However, the details of each of the preserved enumerated steps were described in greater detail. As already indicated, there was nothing pointed to in these more elaborate details that is of any relevance to our current inquiry and it is therefore unnecessary for me to set them out or consider them in detail.

57We must also consider the terms of paragraph 3 of this MOS:

3. a) The parties agree to the attached Agreement (appendix A) that will take effect once unclassified correctional officer training begins…

b) Appendix A will be computerized, will integrate the assignment of regular shifts, overtime duties and unclassified hours, and will provide for the assignment of escort duties and overtime to those correctional officers that indicate their availability for such assignments and commit to undertaking assignments when offered.

58Once again, the question before me relates to the interaction between the terms of the MOS and the local protocol and, specifically, whether the latter’s all-call internal requirement survives the terms of the MOS.

59The employer points to the words of paragraph 3b) as establishing what it sometimes referred to as a “hands up” system i.e. one which is to “provide for the assignment of escort duties and overtime to those correctional officers that indicate their availability for such assignments and commit to undertaking assignments when offered”. This, of course, is the same language found earlier in the largely prospective 2003 MOS, language now being operationalized in the 2004 MOS.

60It is true that nothing in this MOS explicitly contemplates or requires an all-call once COs who have signed up in advance for overtime have been canvassed. And if the MOS were the only applicable document, the employer’s ultimate position would be far more persuasive. We are dealing, however, with the interaction between this MOS and the local protocol.

61In my view, the reconciliation of these two documents on the instant point of concern is a simple matter.

62Appendix A explicitly requires that local overtime protocols be followed. Whether or not the MOS requires an “all-call”, the local protocol does. The local protocol, however, (as we have already seen) cannot conflict with a (Ministry wide) community escort agreement. But the MOS requires that local overtime protocols be followed. The result here is another infinite loop, the snake and tail reappear.

63The conclusion at which I must arrive might be more elusive if there were a conflict between the two documents. But even accepting that the MOS contemplates a “hands-up” system while the local protocol requires an all-call, I still see no apparent conflict between the two, no operational incompatibility. The MOS contemplates a “hands-up” system. The local protocol delivers that, insuring that employees who have indicated their availability are canvassed. It is only after that is achieved that, if need be, any “all-call” obligation is triggered. In other words, the local protocol delivers precisely the type of procedures contemplated by the MOS and, in addition, provides the all-call as a further means of securing bargaining unit personnel who may be willing to assist the employer in meeting its staffing needs. There is no prohibition in the MOS on this type of locally bargained addition.

64I will refer, once again quite briefly, to the evidence of negotiating history in relation to this MOS. Again, I do not find that evidence to be of any great utility in either establishing or clarifying any ambiguity. What it fails to establish is nonetheless instructive and entirely consistent with my interpretive conclusion.

65Parties can be coy and strategic in the manner in which they conduct their negotiations. And, in the interests of achieving settlements, frequently what is not said or included in any final document may be simple and even inadvertent omission, but may also be a product of such deliberate posturing. Silence at the bargaining table (and in resulting agreements) will from time to time permit parties to “keep their powder dry”, that is to each cleave to competing beliefs about or interpretations of the implications of their agreement.

66Two such examples were evident in the provincial negotiations which led to the 2004 MOS.

67I have already indicated that it is the use of non-bargaining unit personnel to perform community escort duties which the union has traditionally viewed as a problem. Among the resources tapped by the employer has been local police. The use of police has been a matter of some contention between the parties for some time and was the subject of some discussions during the negotiations. Initially, the employer wished the agreement to specifically contemplate the use of police as an option available to it in certain circumstances. The union successfully resisted any such explicit inclusion in the agreement. Having heard a significant volume of evidence from a large number of the participants in these negotiations (evidence which reflected discussions held many years prior to the testimony being proffered, evidence which was unsupported by any documentary record and which, not surprisingly, generally lacked detailed precision), the only conclusion I might draw with any real confidence is that the employer never explicitly agreed, in the bargaining discussions, that it would never use police and the union never explicitly agreed that the employer could ever do so.

68Similar conclusions obtain with respect to any discussions about all-call obligations (and this was clearly a subject canvassed with far less frequency than the use of police) – the employer never agreed that it was required to engage in an all-call before engaging non-bargaining unit personnel to perform community escort duties; the union never agreed that the employer was not obligated to do so.

69That evidence, even if it were required or permitted to establish or clarify an ambiguity simply adds little or nothing to the interpretive project. The parties may well have had differing and even contradictory views about what they believed they were agreeing to, but the evidence about what they said to each other in bargaining simply does not exhibit the kind of shared mutual intent that forms the basis of probative extrinsic evidence.

70I am satisfied that, so long as assignment of community escort is governed by the combined operation of the 2004 MOS (including the 2005 amendment thereto) and the local protocol, the employer at VCFW was obligated to engage in all-calls as required under the local protocol.

The Provincial Overtime Protocol (“POP”)

71This brings me, finally, to the most recent set of provincial agreements. On July 27, 2006, the parties executed a landmark Provincial Overtime Protocol (sometimes referred to by the parties as the “POP”). The POP has been revised and/or updated at least twice (May 2008 and October 2009). However, as with the earlier MOS, none of these changes was identified as significant for the instant purposes and I will confine my consideration to the initial POP.

72There is no doubt that the implementation of the POP heralds a new era in the administration and distribution of overtime (including community escort) assignments. For the first time, the parties have negotiated an elaborate and sophisticated model to be uniformly applied throughout the Ministry. One of the significant aspects of the POP, quite apart from the obvious certainty associated with a single protocol to be applied Ministry-wide, is the replacement (at least in the case of VCFW and other local institutions which may have had their own local overtime protocols) of provincial agreements dealing with community escort assignments and local protocols dealing with overtime by a single unified protocol addressing both. (This objective was outlined in both the 2003 and 2004 MOS and achieved with the implementation of the POP.)

73It was common ground that with the implementation of the POP the local protocol became an historical artifact. However, notwithstanding this significant achievement in labour relations harmony, the parties have clearly not lost their zeal for combat. While there was no dispute regarding the impact of the POP on the local protocol, the parties were unable to agree on the precise date of that implementation at VCFW. I will return to this issue.

The material portions of the POP for our current purposes include the following:

INTRODUCTION

At the present time, there are a variety of practices amongst institutions with respect to the distribution of overtime. In order to streamline the assortment of existing practices, the ministry and the union have developed this set of principles, which must be applied in the development of the local overtime distribution system.

74The POP, in a section headed “Overtime Protocol” outlines, in 17 paragraphs, the procedures to be followed in assigning overtime. It is not necessary for me to set these out. It is sufficient for our purposes to note that these procedures clearly contemplate and are applicable exclusively to COs who have previously indicated their availability to work the shift in question. The overtime protocol (unlike the local protocol it replaces) includes no minimum time between calls to permit a CO who has been offered an overtime opportunity (e.g. by voice mail) to respond before the employer calls the next CO on the overtime list. Indeed, the POP explicitly precludes the allotment of any “call-back” time – the shift is assigned to the employee who first affirmatively responds to the offer.

75Community escort assignments may be subject to some slight variation from the procedures otherwise applicable. In a section addressing community escort the POP provides:

In order to meet the community escort criteria, the employer may have to deviate from the overtime roster rotation. Should the employer be required to skip over an employee(s) in order to activate a community escort, the natural rotation will resume.

For example, community escort is required and employee A is not community escort trained. The employer must skip to the first available community escort trained officer. If employee B is the first available trained officer, he/she will be offered the opportunity.

The next available overtime opportunity (not community escort) shall then be offered to employee A.

Under the heading “Exhaustion of Overtime Protocol" the POP provides the following:

Once all of the employees who indicated availability for a given shift have been called, the employer may offer the overtime to any employee in order to meet the operational requirements of the institution. The overtime protocol would then resume with the next available shift.

Finally for our purposes, the POP, under the heading “Term of Protocol", includes the following:

Implementation of the Provincial Overtime Protocol and the computerised process will begin in October 2006 on an institution-by institution basis. Individual institutions will continue using existing overtime protocols pending implementation.

76The main question before me is whether the all-call requirement of the local protocol survives or whether such an all-call is otherwise required by the terms of the POP. It turns on the interpretation of the section headed “Exhaustion of Overtime Protocol” and, in particular, that portion of it which provides that “the employer may offer the overtime to any employee” once all of the employees who had indicated their availability have been called. The employer asserts, not surprisingly, that this provision confers upon it the discretion to offer overtime opportunities to employees who have not signed up on the list. It does not, however, require the employer to do so or to canvass all such employees. For its part, the union acknowledges the existence of a discretion but asserts that it is limited to whether or not to extend further work opportunity offers once the list is exhausted. If the employer determines, in its discretion, to do so, however, it must offer the opportunity to other bargaining unit employees and, by inference, cannot make offers to non-bargaining unit personnel until bargaining unit employees have all been canvassed.

77Once again, I find the language the parties have fashioned to be clear. Unlike in the local protocol, there is no explicit requirement for an all-call in the POP and neither am I prepared to infer such an obligation, as the union, effectively, asks me to do.

78It is also useful to return to the start of this controversy as manifest in the Megahy award, cited earlier, to see just how matters have advanced and changed. The Megahy award dealt with an MOS which it found made no distinction between employees who were and were not on the overtime list. The POP does make such a distinction, clearly restricting its elaborate 17 paragraph Overtime Protocol to those employees who have indicated their availability and referring, only ever so briefly, to other employees in another section of the POP. Further, the MOS considered in the Megahy case was one of restricted application to community escort. The parties have now, very sensibly in my view, recognized that assignment of community escort duties cannot be divorced from the assignment of overtime more generally. Subject only to the need to employ community escort trained COs – which the POP explicitly addresses – there is no longer any meaningful distinction between the manner in which all overtime opportunities (including community escort) are assigned. And finally, even in the Megahy award, the Board indicated that the employer’s obligation to (again, in a context where the MOS did not distinguish between COs who had and had not indicated their availability) canvass all COs for possible escort duty would have been fulfilled by establishing “a system allowing employees to indicate their availability for escort duty outside of their regularly scheduled hours” . The POP (which integrates and does not meaningfully distinguish between escort duties and overtime more generally) does precisely that.

79Having regard to the foregoing, I am satisfied that, under the POP, the employer is not obligated to engage in and complete an all-call before considering other options in relation to the assignment of community escort.

80(Having come to that conclusion, I feel compelled to repeat my bewilderment at why the parties would not agree to instituting a procedure that would permit the employer to fully canvass all COs before even having to consider options such as the use of local police. One would have thought that, in the current technological climate, it would be possible for the employer to effect such a canvassing virtually instantaneously (e.g. by email or text message or telephone broadcast voice mail or by any other number of possible means). The parties have entrenched a first responder approach to overtime offers to employees on the list. No doubt a similar such approach could apply to the secondary canvass and the employer would know in a matter of minutes whether any COs were willing to accept the tendered work offer. This would obviously permit the parties to continue to meet their joint or at least overlapping objectives: securing trained personnel in a timely fashion, maximizing the work performed by bargaining unit employees and minimizing the need to assign the work to non-bargaining unit personnel, with the associated costs).

81The parties configured and identified a number of different possible time periods, based on which central and local documents were in place. In view of my conclusions, there are (at VCFW) really only two significant time periods. I have not dealt in detail with the time period prior to the local protocol (i.e. prior to March 2004, some six months before the filing of the earliest grievance) – I have directed some comments relevant to this period (and the application of the Megahy award to it) earlier in this decision. Unless and until the parties establish that it is necessary to do so, I say nothing more about it.

Termination of the Operation of the Local Protocol

82As there are really only two remaining relevant periods – during and after the local protocol, I do need to address, briefly, the question of the transition between them.

83The parties agreed that it is the implementation of the POP dated July 2006 which extinguishes the terms of the local protocol. They do not agree, however, on when that implementation took place. It will be recalled that the POP began by acknowledging the “variety of practices amongst institutions with respect to the distribution of overtime” and later provided the following with respect to its implementation:

Implementation of the Provincial Overtime Protocol and the computerised process will begin in October 2006 on an institution-by institution basis. Individual institutions will continue using existing overtime protocols pending implementation.

84It was common ground that implementation of the “computerised process” did not commence at VCFW until August of 2008 and was not fully completed until January 2010. The employer, however, asserts that “full completion” may have merely been a matter of a few “bells and whistles”. But in any event, the employer asserts that the implementation contemplated by the POP and the resulting extinguishment of the local protocol occurred even before August 2008, although it did not specify a particular date.

85The employer’s position rests, to a large extent on a disjunctive reading of the words “Implementation of the POP and the computerised process”. They need not, in other words, commence simultaneously. On this reading, implementation of the POP is all that is required to extinguish the local protocol and implementation of the POP may be entirely unrelated to the implementation of the computerised process.

86I am unable to accept this submission. The core of the POP is based on what it refers to as the “computerized overtime tracking system”. I do not see how the POP could possibly be viewed as having been (or even begun to be) implemented without the (at a minimum, initial) implementation of the computerised process. That did not happen prior to August 2008. Having regard to the submissions of the parties, it is not necessary for me, at least not at this stage, to determine the precise implementation date, beyond indicating, as I have, that it was not earlier than August 2008.

Conclusion

87Having regard to all of the foregoing, I have determined that, so long as the local protocol was in place, the employer at VCFW was obligated to engage in an all-call before considering the assignment of escort duties to personnel other than bargaining unit COs. However, once the terms of the POP were implemented (which did not occur before August 2008), that obligation ceased.

88Before closing, it is important to note what is not being decided in this award. The dispute between the parties involves (at least potentially) every correctional facility across the province. I have focussed initially, as the parties have asked me to, on VCFW. I have addressed issues relating only to the system in place at that institution over a period of time. I have not examined any particular or specific incidents of impugned community escort assignments (or the specific circumstances and operational imperatives which may or may not have justified the manner in which any particular assignment was made). If the parties are unable, with the guidance this award may provide, to resolve individual cases, I remain seized of those grievances, as I do with all of the other grievances involving different correctional facilities. I will also remain seized of the question, should the parties be unable to agree, of when precisely the terms of the local overtime protocol ceased to operate.

89Having regard to the foregoing, I hereby remit these matters to the parties. Should further hearing dates be required, the parties may be in touch with the Registrar.

Dated at Toronto this 29th day of August 2011.

Appendix “A”

GSB Number

Grievor Name

OPSEU #

Old OPSEU #

2002-1534

Charles, Scean

2002-0517-0001

02D276

2002-2476

Lauria, Vincent

2002-0517-0073

2002-2889

Almeida, Edward

2002-0248-0083

2003-2599

Macdonald, Leigh-Ann

2002-0234-0486

2003-2829

MacDonald, Leigh-Ann

2002-0234-0516

2003-3553

Pilon, Ronnie

2003-0411-0059

2003-4063

Gallagher, Terry

2003-0368-0034

2004-1650

Dales, Jim

2004-0234-0404

2004-2064

Pierre, Ron

2004-0411-0118

2004-2125

Union

2004-0234-0380

2004-2428

Dugas, Marc

2004-0234-0576

2004-2429

Maxwell, Kerry

2004-0234-0577

2004-2430

Maxwell, Kerry

2004-0234-0578

2004-2431

Maxwell, Kerry

2004-0234-0579

2004-2442

Dugas, Marc

2004-0234-0590

2004-2499

Union

2004-0234-0486

2004-2822

Dugas, Marc

2004-0234-0635

2004-3077

Beaudoin, Greg

2004-0234-0653

2004-3640

Gallagher, Terry

2005-0368-0008

2005-2425

Mills, Doug

2005-0234-0275

2006-0144

Union

2006-0999-0003

2006-0191

Allin, Robert

2006-0368-0022

2006-0246

Casullo, Emidio

2006-0234-0108

2006-0580

Allin, Robert

2006-0368-0050

2006-0956

Allin, Robert

2006-0368-0058

2006-1070

Quade, Norman

2006-0368-0062

2006-1236

Union

2006-0234-0197

2006-1396

Stanley, Frank

2006-0247-0012

2006-2356

Wells, Jonathan

2006-0368-0200

2007-0697

Sousa, Carol

2006-0252-0094

2007-0698

Sousa, Carol

2006-0252-0095

2007-1639

Winkworth, Erica

2007-0234-0268