GSB#2009-0167, 2009-0810

UNION#2009-0999-0011, 2009-0999-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

and -

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

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Andrew Lokan Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER

Brian Loewen Ministry of Government Services Labour Practice Group Senior Counsel

HEARING

June 9, October 7 & 27, November 1, December 14, 2010, April 7, June 22 & 23, 2011.

Decision

The Proceedings

1These are two Union grievances regarding the Employer’s decision not to agree with any requests for compensating time off (CTO) in lieu of overtime pay. These identical grievances relate to the Ministry of Community Safety and Correctional Services and the Ministry of Children and Youth Services.

2The Statement of Grievance reads as follows:

The Employer has violated specifically, but not exclusively, Articles 2. 3, 9, COR 8, COR 13 and COR 16 of the Collective Agreement. The Employer has decided to not allow staff the ability to bank compensating time when performing overtime work or to extend the carry forward of all earned credits.

3The Employer initially brought an application to dismiss the grievances without a hearing on the merits. It said that the Board lacked jurisdiction to hear the case. The decision on that issue was released on June 4, 2010 and may be found at Ontario Public Service Employees Union v. Ontario )Community Safety and Correctional Services), 2010 Can Lii 42118 (ON GSB). That application was dismissed.

4The Employer also brought a non-suit application at the close of the Union’s case. It was put to its election to call evidence. It elected to call evidence, then argued the non-suit anyway, taking up a hearing day. The Union chose not to argue a position on the non-suit, given the Employer’s election to call evidence. The case then proceeded to the Employer’s evidence.

The Facts

5The grievances arise as a result of correspondence to the Union dated February 28, 2009. That letter was delivered while the parties were still in the process of negotiating a renewal to the collective agreement. It reads as follows:

February 28, 2009

Warren (Smokey) Thomas 100 Lesmill Road North York, Ontario M3B 3P8

Dear Warren (Smokey) Thomas:

I am writing to advise you that upon the ratification of the Correctional Bargaining Unit collective agreement and until further notice, the Employer will no longer be agreeing to extend the March 31^st date for pay out of any substitute days which were accumulated under Articles COR13.2 and COR13.5 as per Article COR13.7. Further, the Employer will no longer be agreeing to allow employees to receive compensating leave in lieu of pay, in accordance with Article COR8.5 and COR16.4. Compensating leave accumulated in the 2008 calendar year, which has not been used before March 31, 2009, will be paid out as per Article COR8.6 and COR16.5. Any compensating leave accumulated between January 1, 2009 and the date of ratification will be paid out concurrently with the compensating leave accumulated in the 2008 calendar year.

Sincerely,

David Logan Assistant Deputy Minister Employee Relations Division, HROntario Ministry of Government Services

cc. Steve Small, Assistant Deputy Minister, MCSCS Gilbert Tayles, Assistant Deputy Minister, MCYS

6The intent of the letter was communicated to management staff by a memorandum of March 18, 2009. That memorandum reads as follows:

MEMORANDUM

TO: Superintendents Brian O’Rourke, Offender Transportation Operations

FROM: Lori Potter Director Management and Operational Support Branch

DATE: March 18, 2009

SUBJECT: UPDATE: ACCRUAL OF COMPENSATING LEAVE BY EMPLOYEES IN THE CORRECTIONAL BARGAINING UNIT

During the recent OPSEU collective agreement negotiations with the Correctional Bargaining Unit, the employer provided notice that employees will no longer be able to receive compensating leave in lieu of pay for overtime.

As a result, you are now advised that all hours of compensating leave banked by employees in the correctional bargaining unit, during the 2008 calendar year and all compensating leave banked from January 1, 2009 up to March 31, 2009 will be paid out concurrently at the rate it was earned.

Approvals for the use of compensating leave that were given prior to the date of this memo will be honoured as the only exception.

Your assistance in the implementation of this direction is appreciated and should you have any questions about this change, please contact your Human Resources Advisor.

Yours truly,

Lori Potter

7There was a further clarification memorandum dated October 20, 2009 which reads as follows:

MEMORANDUM TO: Donna Keating, Superintendent Vanier Centre for Women Brian O’Rourke, Manager Transportation & Communications Services Jenny Cece, Manager Offender Transfer Operations

FROM: Lori Potter, Director Management and Operational Support Branch

DATE: October 20, 2009

SUBJECT: Overtime Provisions for Employees in Schedule 4

It has come to my attention that there is a need to clarify the overtime provision of the Collective Agreement for those employees in Schedule 4. Specifically, in accordance with OPSEU Collective Agreement Article COR8.4, Provincial Bailiffs and Hairdresser Instructors as Schedule 4 employees are entitled to compensating time off for working overtime.

Article COR8.5 allows the parties to elect overtime pay in lieu of compensating leave. The Employer is in agreement to provide pay in lieu for those employees who so choose.

Please share this information with your affected employees. If you have any questions, please speak to your manager and they can provide you with clarification.

Thank you,

Lori Potter

c.c. S. Small, Assistant Deputy Minister, Adult Institutional Services M. Conry, Regional Director, Central Region AIS M. Welch, Management Co-chair, Ministry Employee Relations Committee E. Almelda, Employee Co-chair, Ministry Employee Relations Committee

8The interim decision dealing with the Board’s jurisdiction, cited above, also dealt with the seemingly inevitable objection that the Union had not sufficiently particularized the alleged breach of the collective agreement. It was the Board’s view that the case had been sufficiently particularized to permit the Employer to prepare its defence.

9Following the close of the Union’s case, and after hearing from three of the Employer’s witnesses the parties agreed that the Employer would present the evidence of its last two witnesses, Barry Thomas and Gary Caverley in the form of will-say statements. The Union would then be free to cross-examine those witnesses.

10Although the Union bears the onus, and proceeded first, Mr. Thomas’s will-say statement succinctly sets out what the Employer did, and why. It reads as follows:

I retired from the OPS on March 31, 2010 after 38 years of service to the Crown.
Prior to my retirement, I was Labour Management Liaison and had been performing this role since June 1, 2004. In this position, I performed the function of strategic advisor regarding Labour Relations issues to the Deputy Minister's ofﬁce and the ofﬁces of the ADMS. I was actively involved in all Union/Management initiatives, including MERC, arbitration, mediations, grievances and Collective Bargaining. Speciﬁcally I was also the direct contact to the Ministry's senior administration for contract negotiations.
As a result, I am aware of the circumstances arising around the Employer's decisions to no longer agree to allow employees to receive compensating leave in lieu of pay at the overtime rate.
The availability of the option to receive compensating time in lieu of pay at the overtime rate was originally established in the collective agreement at a time when overtime was much less prevalent in the institutions. Fixed term employees ("unclassiﬁed staff') were more likely to be available to replace on straight time the employees who were absent and therefore only limited overtime opportunities arose. As a result, there were more limited opportunities for staff to accumulate CTO. Similarly, when an employee used the accumulated CTO, unclassiﬁed staff were available to replace that employee on straight time.
In recent years, however, the accumulation and use of CTO prior to March 31, 2009 caused signiﬁcant difﬁculties for the operation of the individual institutions. This became an increasing problem as more overtime has become available and as more staff have opted to accumulate and use CTO rather than receive overtime pay.
In 2008 Annual Report of the Ofﬁce of the Auditor General of Ontario, the Auditor General provided the results of an audit of Adult Institution Services (see copy attached of Section 3.02 Adult Institutional Services). The report indicated that AIS had a serious problem with absenteeism of correctional ofﬁcers including the abuse of sick leave and overtime provisions. The audit conﬁrmed that AIS incurs $9 million in additional costs for replacement workers and $11 million in overtime payments.
Part of the Report (pp. 96-99) dealt speciﬁcally with Correctional Ofﬁcer Absenteeism and Overtime Payments. One of the recommendations included in Recommendation 11 was that the Ministry should "investigate the reasons for large overtime payments program-wide and to individual employees and implement corrective measures to reduce overtime costs".
The Ministry undertook to conduct a study of operating costs in correctional institutions and identify cost-saving practices to further reduce costs. One of the areas identiﬁed by the Ministry as resulting in signiﬁcant cost saving was the elimination of CTO.
During the course of various meetings and discussions with senior staff, I recommended the elimination of CTO. During the course of these discussions, it was identiﬁed that the continued accumulation and use of CTO was causing signiﬁcant ﬁnancial costs to the Ministry. The excessive use of the Employer's STSP was making it virtually impossible to replace absent staff on a continuous basis. It was obvious that, unless the current "Sick Plan" was modiﬁed considerably the Ministry could no longer permit accumulating "time off" for working overtime. We simply did not have the resources. On many occasions, I had discussions with the ADM, AIS and the Division's Regional Directors concerning the Ministry's option of withdrawing mutual consent regarding CTO.
One of the signiﬁcant problems arose from the need to replace the staff member who was absent when the CTO was used. Typically, whenever staff are absent from a scheduled shift for any reason, the staff member must be replaced in order to maintain the safe and efﬁcient operation of the institution. As a result, whenever a staff member used CTO to be absent from a scheduled shift it was necessary for the Employer to arrange for alternate staff to replace that staff member, either through the use of unclassiﬁed staff at straight time hours or through the use of overtime by either other regular employees or unclassiﬁed staff. The efforts required to replace absent staff members was substantial and the increased use of CTO by staff put signiﬁcant demands on the time of the schedulers.
Whenever possible, the use of CTO was typically restricted to circumstances where the replacement of the employee on that shift would not directly result in overtime. In other words, if unclassiﬁed staff was not available to replace the employee on that shift at straight time, the request to use the CTO would be denied. An exception may be made if the reason for the request to be absent was sufﬁciently pressing. If an employee on overtime was required to replace the employee absent on CTO, the Overtime Protocol would be relied upon to provide staff coverage.
Most institutions have in place an agreement regarding the limit of vacation requests that would be approved at any given time. In some institutions CTO requests, however, would typically be approved even if the vacation agreement had reached its agreed limit. This could cause additional overtime demands due to the limited availability of additional staff to replace absent employees.
Most institutions heavily utilize their unclassiﬁed staff to backfill regular employees for various leaves such as STSP, vacation, etc. In some institutions unclassified staff work their forty (40) straight-time hours during most work weeks especially during seasonal highs such as the summer and around the holidays. Prior to the restriction of accumulation of CTO, the use of CTO by regular employees put extra pressure on the institution with respect to stafﬁng resulting in the increased use of overtime. In turn once over-time was required the employee working the overtime could bank his/her time as CTO creating another potential back-ﬁll situation. (40)
The institutions have available a limited number of unclassiﬁed employees who would typically be scheduled to replace classiﬁed staff who are absent and/or supplement classiﬁed staff in appropriate circumstances. The operation of the institution generates a signiﬁcant amount of overtime opportunities due to unavoidable circumstances such as unanticipated absences or unanticipated demands of staff including searches or community escorts. It is preferable to be able to use the unclassiﬁed staff on straight time hours in order to address unanticipated absences or unanticipated demands but frequently their available straight time hours are exhausted by other absences.
Prior to March 31, 2009, one of the absences for which unclassiﬁed staff straight time hours would be used would be to cover absences for CTO. By eliminating or reducing CTO use, this allows more straight time hours to be available for both unanticipated absences or unanticipated demands and thereby reduces the operating costs of the institution.
Because of the limited availability of unclassiﬁed staff, even though the particular shift may not require the use of overtime to cover the absence due to CTO, the use of the available straight time hours to cover the absence would mean that subsequent absences for other types of leaves, illness, vacation etc. or additional demands for staff such as community escorts would have to be covered by staff working at overtime rates. Since that overtime could also generate CTO and further overtime, the availability of CTO did signiﬁcantly increase the overtime costs involved in operating the facility.
In addition, the process required to identify replacements for absent staff is a signiﬁcant resource issue for the Employer. By reducing the opportunities for time off, this allows those unclassiﬁed resources to be more readily available for both other unanticipated absences or unanticipated demands or anticipated absences i.e. scheduled vacations.
In many cases Correctional Ofﬁcers would bank their CTO and request to use their time off during peak times in the year such as the summer which put additional staff institutions when backﬁlling those vacancies.
When a Correctional Ofﬁcer worked 12 hours of overtime and they decided to convert that time into CTO they received 18 hours of leave. Therefore relative to the initial overtime, the institution bore 6 additional hours of coverage of backﬁll often at an overtime rate.
Some Correctional Ofﬁcers used CTO in increments of less than four hours to either start their shift late or end their shift early. In doing so the institution would often use unclassiﬁed staff to cover these short term absences. If the absence was less than four hours the institution would still have to pay the unclassiﬁed employee a minimum of four hours as per the CA.
Given these difﬁculties, continued use of CTO was problematic for AIS particularly in light of the extensive use of overtime arising from the serious problem with absenteeism of correctional ofﬁcers.
It was decided that these issues would be addressed as part of the collective bargaining for the renewal of the collective agreement. The intention was to substantially revise the sick leave plan and it was decided that if sufﬁcient changes could be introduced it would not be necessary to remove CTO.
Discussions with the bargaining agent commenced in November 2008. The Employer indicated at the commencement of bargaining that it wanted to make signiﬁcant changes to the sick leave plan in order to reduce overtime opportunities but OPSEU initially indicated that they were not prepared to entertain any discussions regarding changes to the sick leave plan. Eventually the Employer advised OSPEU during the course of bargaining that if signiﬁcant changes could not be agreed to the Employer would have to address other means of reducing overtime opportunities.
The parties did eventually reach agreement regarding an absenteeism target incentives which would provide ﬁnancial payments if the provincial sick time average is achieved. It was decide however that these incentives in themselves were not sufﬁcient to address the overtime issues and therefore it was determined that the Employer would no longer agree to allow employees to receive compensating leave in lieu of pay at the overtime rate. Without mutual agreement otherwise, the collective agreement indicates that employees in positions in Schedules 3.7 and 4.7 receive pay at the overtime rate.
Given that there was an established practice at the institutions regarding the accumulation and use of CTO, it was determined that it was appropriate to give notice to the bargaining agent during the course of collective bargaining in order to allow the Union the opportunity to bargain regarding the issue if it chose to.
The Employer gave the written notice to the Union during bargaining that it would no longer be agreeing to allow employees to receive compensating time off in lieu of pay at the overtime rate [see Tab 3 of Exhibit 1]. No signiﬁcant discussions regarding the issue occurred and no attempt was made to revise the existing collective agreement language.
Information regarding this position was distributed to the individual institutions by Lori Potter, Director of the Management and Operational Support Branch on March 18, 2009 [see Tab 4 of Exhibit 1].
It is my understanding that individual employees at individual institutions previously may have chosen to accumulate CTO in order to later permit themselves additional ﬂexibility in the scheduling of their work hours. In some circumstances, the CTO was used to allow additional time off from work with pay in order to address demands arising in their personal life such as attending family events or medical appointments.
Even without CTO, staff already have a substantial number of days off from work. Most of the employees at the institution have a compressed work week which means that they have approximately 194 regular days off each calendar year. In addition, staff typically will have 20 vacation days and 96 hours of lieu time for statutory holidays. In appropriate circumstances, they also have access under the collective agreement to 3 days of leave with pay for special and compassionate grounds.
In addition, the employee could make arrangements to exchange shifts with another employee or make arrangements to take leave without pay.
Further, the Employer has established policies to deal with the circumstances involving issues related to accommodation of family status [see Exhibit 16]. This policy allows for the workplace accommodation for employees with needs arising from family responsibilities. The guiding principles of the policy conﬁrm that the key to workplace accommodation is recognizing individual circumstances and the workplace parties being ﬂexible.

11In his cross-examination, Mr. Thomas agreed that it had been a considerable time since he had worked in one of the institutions. He also agreed that the Auditor General’s Report, referred to in his will-say, was prepared without the Union’s input. He said that the Employer’s conclusion that there were abuses of overtime did not imply that everyone was abusing overtime. He also agreed that CTO was not mentioned in the report. Mr. Thomas said that the Employer identified changes it sought to achieve in bargaining relating to the short-term sick plan (STSP) in order to reduce its overtime costs. It did not achieve all of the gains it sought because it could not give enough of a trade-off to make those gains. Because the Union resisted further changes to the STSP, the Employer moved to reduce its overtime costs by also curtailing CTO.

12The Union called Shari Archdekin to give evidence. She was the scheduling officer at the Vanier Centre for Women. She said that there was no written, local agreement governing the use of CTO. There was a practice that permitted full-time CO’s to take CTO if there was a fixed-term employee (formerly known as casual employees) available to take the shift at a straight-time rate. Her evidence was that it was prudent to ask for CTO 3-4 weeks in advance. Since the casual employee schedule was posted 15 days before it was effective, if a full-time CO asked for CTO after that, they were unlikely to get it because the casual employees would already be scheduled for their 40 hours.

13Ms. Archdekin used CTO over the years to assist with childcare arrangements. Being on a compressed work week meant she often started work at 7:00 am, the same time as most daycare centres opened. She would also have difficulty picking up her children before the daycare centre closed. When she worked the 8:00 am to 8:00 pm shift, she could drop her children off, but not pick them up. She was able to use CTO to facilitate drop-off and pick-up of her children. She said that the compressed work week meant that in the first week of the cycle an employee would work 24 hours and in the second work 60 hours. The order would flip in the next cycle. Where an employee had custody and access issues they would want the child(ren) on their 24 hour week. Not all employees had a co-operative arrangement with their ex-spouses. In those instances, CTO could be used to reduce the length of the workday, in the 60 hour week, to allow them to meet their parental obligations.

14For Ms. Archdekin, the abolishment of CTO came at a time when her spouse was unable to drive due to a work-place accident. Accordingly, her children have not been able to participate in extra-curricular activities, which she believes hinders their development. In her position as the scheduling officer she sees many employees facing similar struggles. There are a lot more requests for leave without pay and a lot of negotiating over swapping shifts.

15As scheduling officer she now works all of the statutory holidays. As a 16 year employee she is too junior to take vacation in the summer because there are limits on the number of employees that can be off at that time on vacation. When CTO was available she could take a couple of days at a time. She said many employees use their vacation days as they used to use CTO. Accordingly, that usage would eliminate the opportunity for family vacations.

16She said there was a considerable amount of overtime required at Vanier. CO’s sign up for overtime, but not as many do as in the past. When there is no one on the sign-up sheet, she will do an “all-call”, phoning every employee to fill the shift. If there are not enough staff working, the inmates may have to be locked-down for the shift, which further increases the tension and stress in the institution. She said that there is considerable pressure from management, and from co-workers, for people to take overtime shifts to relieve that tension and stress. Accordingly, there is considerable wear and exhaustion without the ability, as in the past, to take CTO.

17In her cross-examination Ms. Archdekin said that she was always asked to what use she intended to put her CTO. She said that the practice at Vanier was that there was no maximum number of hours that could be banked and no blackout periods for the use of CTO. A CTO request was generally always approved if the casual staff had straight-time hours to replace the CO asking for CTO. Her use of CTO was to provide a break to avoid burn-out. She agreed that working overtime was voluntary.

18In her redirect-examination Ms. Archdekin said that generally the unclassified COs had their 40 straight-time hours pre-scheduled. She said that she could generally apply for CTO early enough that the unclassified staff would still have straight time hours available. She would look at the computer schedule, and, provided there were straight-time unclassified COs available, her CTO request would be approved. She knew of no instance of CTO being approved if it was known at the time that the replacement CO would have to be brought in on overtime.

19Shelly Coughlin also testified for the Union. She was a classified CO at the Toronto East Detention Centre. When CTO was available there was no cap on the amount that could be accumulated or used. The only stipulations were that requests to use CTO were to be submitted 30 days in advance and accumulated CTO was to be used or paid out by March 31 of the following year. She used CTO to facilitate the joint custody arrangements involving her daughter. Her child’s father is also a CO at Toronto East. Their child switched back and forth between homes based on the opposition of their shifts. Ms. Coughlin would use CTO to take time off at the beginning and end of her shifts to take her daughter to day-care. She never had problems getting approval of her CTO requests. When CTO was abolished she was told to take leave without pay or use her vacation credits. She said she had to remove her daughter from daycare and her ex-husband’s new spouse began taking care of her. Her daughter saw more of her step-mother than of her. She and her ex-husband moved so their daughter could more easily travel between their homes.

20In April 2010, management gave notice that leave without pay would no longer be approved beyond May 15, 2010. Accordingly, Ms. Coughlin had to make different arrangements, including having her future mother-in-law move in with her. To further complicate the custodial balance, her ex-husband became an acting manager. CTO is still available to management staff. Accordingly, he is able to make himself available for their daughter’s school trips, school meetings, medical appointments etc., while she is not. She was concerned that such imbalance now might influence her daughter’s future choice of a permanent home.

21Ms. Coughlin testified that there is an increasing proportion of CO’s who are women, many of whom are single mothers who have been affected by the abolition of CTO and the limitations on formal accommodation for child-care reasons.

22Ms. Coughlin also testified that CTO had been used by employees to attend medical appointments. The abolition of CTO was said to have added to an already stressful job, which puts employees at higher risk. Many employees had used CTO to “de-stress”. Although, over-time is not compulsory, and not all staff are asked to work it, those doing escort duty usually work past the end of their shift. Also, on occasions when a search of the institution is required most staff stay behind to help, not because they are required to, but to do their job.

23In her cross-examination Ms. Coughlin agreed that Toronto East is under-staffed, so anyone taking CTO would have to be replaced. She said that most of the unclassified staff are pre-scheduled for 30 hours per week and pick up an additional 8 hours. She agreed that any hours greater than 40 per week worked by unclassified staff would be paid as overtime hours. She said that the number of unscheduled absences was not as great as prior to the implementation of the absenteeism policy. For the most part, working overtime is voluntary. On rare occasions one might be required to stay. Ms. Coughlin generally used two CTO days in her biweekly rotation. If she was working from 9 to 9 she would take off from 5 to 9 at the end of her shift. When scheduled on the 7 to 7 shift she would take two hours off at the beginning and end of her shifts. Generally the two hour slots would be covered by other employees extending their shifts. Her CTO requests were seldom denied because she asked for them more than 30 days in advance. She said that CTO often increased overtime costs because the complement at the institution was too small. That is, the schedule did not reflect the number of staff required to run the institution.

24Ms. Coughlin said that after CTO was withdrawn she was able to use any lieu time accumulated from working a statutory holiday, take a leave without pay or use vacation credits. Once all such credits were used, the Employer would consider temporary accommodation under the Family Responsibilities Policy. The latter would require an 8 hour shift. Such positions are rare. She was also of the view that to ask for accommodation would have a negative impact on her career. The attractiveness of CTO was that she was able to fashion her own family arrangements without involving the Employer.

25In her re-direct examination Ms. Coughlin said that the institution was systemically understaffed as a result of an earlier change to the staffing model that greatly reduced the number of staff required. That model was unsuccessful, and the institution reverted to the previous arrangement without re-adjusting the complement. She elaborated that accommodation under the Policy is for a maximum of three months. Only one or two individuals have been successful in being accommodated for longer. Such accommodation results in 8 hour shifts, and a limited number of posts are scheduled for 8 hour shifts. To take such a position limits a CO’s experience, which limits career advancement.

26Dan Marshall also testified for the Union. He had been with the Ministry for 22 years at various institutions and held various Union positions. At the time he testified he was at the Toronto West Detention Centre and was the 1^st Vice-President of the Local Union. Mr. Marshall testified as to grievances filed and understandings reached regarding CTO at Toronto West. One of the grievances he identified was that of Monte Vieselmeyer. Apparently, he had been denied the accumulation of CTO in spite of the fact that there was a written agreement in place that permitted such accumulation. That grievance resulted in a written agreement dated March 13, 2006 covering the accumulation of CTO. That agreement was subsequently modified on April 25, 2008. That document was drafted by the Superintendent, Paul Greer. Mr. Marshall said that the March 13, 2006 document had not been honoured. From April 2008 to March 2009 when CTO was discontinued, approval of CTO was given if it was requested more than 30 days prior and did not fall within a blackout period. He said that he had used CTO at various times. He used it to take College courses, to be trained to help his hearing impaired son, to attend doctors’ appointments etc. He said that he was aware that many female CO’s used it to facilitate daycare arrangements or to attend special events involving their children. He said that the loss of CTO has added stress to an already stressful job. He also testified that “a lot” of employees no longer work overtime because they cannot get CTO.

27Mr. Marshall had no knowledge of the extent to which unclassified COs might be on overtime while backfilling for CTO. He also said in his cross-examination that he had recently made a verbal request for family status accommodation by way of adjusting his schedule. He was told that if he needed shifts moved, the Employer could accommodate him. However, he was able to do so by using lieu time and vacation credits. In his re-direct examination he said he used those credits because those were the only credits he had and in 22 years he had never asked for an accommodation.

28Laura Josephson also testified for the Union. She was employed at Maplehurst as a CO2. She was also the President of Local 234 at the time of the hearing and previously held other positions with the Union. In October 2009 she completed a survey of OPSEU representatives from the various correctional institutions across the province. She produced a table of the results indicating whether each institution had an agreement or a practice governing CTO, as well as the details of the agreement or practice. For example, at Maplehurst, there was a practice to permit CTO. There was no cap on the hours that could be accumulated. If the CTO was approved and booked prior to March 31^st, the time could be taken after March 31 rather than being paid out. CTO had to be booked at least 30 days in advance and was not restricted by any blackout period or by whether the replacement CO would be backfilling the shift on overtime. That practice had changed from when she first started at Maplehurst, when overtime could not be incurred and there were black-out periods. She also received copies of some written agreements from some of the institutions, the details of which she reviewed in her evidence.

29Ms. Josephson said that CTO was used at Maplehurst for a variety of purposes including child custody arrangements, medical appointments, group family activities, extra-curricular sports and volunteer activities. CTO was also used by junior employees to get a few days off in peak vacation periods. She said the loss of CTO has negatively affected the employees’ ability to manage the stress of their jobs.

30Under cross-examination Ms. Josephson detailed that her survey results were based on the documents she was sent and the conversations she had. She accepted what she was told as true. She agreed that there were no restrictions regarding the purposes CTO was put to and could include hunting or shopping. She also said that the limit on the number of people that could be of on vacation in peak periods did not apply to CTO usage. That is, if the vacation cap had been reached, CTO would still be approved if it was applied for with 30 days or more notice.

31Randy Denis testified for the Employer. He was the Superintendent at the Toronto East Detention Centre. He confirmed Ms. Coughlin’s evidence that the institution was being run on a staffing formula that was related to a previous organizational model. Accordingly, approximately 8 staff per day are on overtime. Generally, when CTO was approved 30 days prior to its scheduled use, the forecast would be that it could be backfilled with straight-time hours. However, by the time the scheduled CTO use was reached, it would likely be back-filled by overtime hours as other pressures overtook the schedule. The first source for backfilling CTO was the regular part-time COs. However, their numbers were said to be reduced due to a number of factors including being rolled-over to full-time positions, attrition as they seek out other law enforcement opportunities and reduced flow-through from the training College due to higher standards being imposed on recruits.

32Mr. Denis understood that CTO was being used for a number of purposes, including daycare and medical appointments. When he learned that CTO was being discontinued he received approval to honour any existing requests. However, no more approvals would be given. He said that other avenues were open to employees to modify their shifts, including swapping shifts with others, lieu time and accommodation by the Employer where there is a short-term, pressing family need. Initially there was an increase in leave without pay requests. As the institution moved into the peak summer vacation period it was costing additional overtime to approve such requests, so they were curtailed. He said that the Employer preferred to deal with family status accommodation formally rather than guessing what CTO time was being used for. This would permit consideration on a case by case basis. Once the summer vacation period passed, requests for leave without pay were again considered within a framework set out below.

33In his evidence Mr. Denis reviewed the Ministry’s Family Responsibility Policy. He said an employee could identify to management a problem with their schedule. The Staff Services Manager would meet with the employee to review their circumstances, including any steps the employee had taken. Accommodation arrangements under the policy are intended to be temporary. Mr. Denis also briefly reviewed Ms. Coughlin’s request for accommodation. He confirmed that she did not go forward with the request.

34Under cross-examination Mr. Denis said that the institution was 8 to 10 COs short of its requirement, and had been for as long as possibly 7 years. However, there were some days when they would not be short of employees. He agreed that some employees, including managers and schedule 4 employees, have access to CTO. He could not speak to what use they might make of it but agreed that working in a correctional institution had its stresses.

35Mr. Denis also agreed that when employees use lieu time, or those eligible for CTO take it, similar pressures exist to back-fill with overtime hours as existed when CTO was generally available. He also agreed that the modification in September 2010 be the more restrictive approach to granting leaves without pay came about after discussions with the Union. The framework for approval is set out in his memorandum to staff dated September 10, 2010, which reads as follows:

With the prime time now behind us I have again now reviewed our position with respect to addressing leave requests. And, while we still remain challenged with available resources, I am prepared to move toward addressing staff requests within the following parameters.

Staff wishing to utilize Leave without Pay (LWOP) is to submit these requests with 30 days notice to the scheduling manager. Any dates being requested must not be beyond 60 days of the date of request. The scheduling manager will attempt to address these requests by scheduling of available Fixed Term hours.
Requests for LWOP for part shifts i.e. the front or back end of a shift that staff is already working will be determined by the Shift I/C based on available resources. If these part shifts are known in advance then parameter #1 applies.
Requests for leave presented under Article 24 will continue to be addressed as per the collective agreement.

It should further be noted that the hiring of overtime will not be utilized to backfill any requests for LWOP.

36Mr. Denis agreed that the consideration of whether overtime was required to back-fill the leave was considered when the approval was given, not on the day itself, even though it was likely to be filled with an employee on overtime as was the case with CTO. He agreed that arrangements such as this are best made at the institutional level as each institution best knows its requirements for its day to day operations. He agreed that the leave approval process had the same kind of impacts as the previous approach to CTO. Finally, he was asked about the temporary nature of accommodations under the Family Responsibility Policy. He was very clear that where accommodation requests are concerned one cannot generalize about the length of time it may be in effect. He said it could be for 8 days or for 6 months. His key concern in applying the policy was to have an exit strategy.

37In his redirect examination Mr. Denis said that every day required some degree of overtime as was the case when CTO was available, although the volume of CTO requests had been challenging for the scheduling manager. As to his leave of absence without pay protocol, he said he did not think it would be different if CTO was still permitted. As to the temporary nature of accommodation plans, he said that if an extension beyond three months was justified by new information, then an extension would be given. However, a review of the steps taken by the employee would be required.

38Tony Valaitis also testified for the Employer. He was the Superintendent at the Toronto West Detention Centre. He was previously the Superintendent at the Central North Detention Centre at the time when CTO was suspended. In his experience with CTO, overtime multiplies as CTO is used because it is not always backfilled with straight-time hours. He said if there was a compelling reason for taking CTO it would have been approved even if it was known that overtime would be needed for the backfill. Mr. Valaitis reviewed the written agreement regarding CTO in place at the time at Central North.

39Mr. Valaitis learned of the CTO decision from the March 18, 2009 memo reproduced above. He met with the Union to advise them of this corporate directive, which he was obliged to follow. On March 25, 2009 he sent a memorandum to his staff confirming that CTO would no longer be offered. He said that the Union reacted by giving notice to withdraw from the compressed work week and restricting overtime. Both of those initiatives were short-lived.

40Mr. Valaitis also testified that employees used CTO for childcare, appointments, emergencies, to keep their sick day counts low and for topping-up sick pay from its 75% to 100% of a regular day’s pay. He said that vacation credits and lieu time may also be used for those purposes. Unpaid leaves and shift swaps with other employees could be used to similar effect. Where formal accommodation is required, the Family Responsibility Policy was also available. In his view that policy was used to about the same extent before and after the CTO decision.

41Under cross-examination Mr. Valaitis reviewed the provisions of the Central North CTO agreement. He agreed that each institution had its own needs, which were reflected in the CTO arrangements put in place. He thought that the CTO agreement at Central North had worked well. They were predominantly able to backfill CTO with unclassified staff. He believed CTO had been around since the early to mid 1980’s. The requests for CTO were always made at the local level and the CTO agreements were generally local agreements.

42Mr. Valaitis did not receive any prior notice of the CTO decision, nor was his opinion sought. He said that the regional level was aware that the Central North agreement had a 90-day notice requirement for termination. He did not know if that had been communicated to the corporate level. When he learned of the CTO decision it crossed his mind that the lack of notice might be a problem, and he communicated to his regional superiors that he believed that there were a number of agreements at various institutions which included a notice of termination clause.

43Mr. Valaitis also signed the CTO agreement at Toronto West. He agreed that the CTO arrangement was workable and met the needs of management and the Union.

44Gary Caverley also testified for the Employer by way of a written will say statement. His evidence focused on his experience as the Deputy Superintendent at the Vanier Centre for Women prior to the CTO decision. He was aware that many COs used CTO for the purposed testified to by others. His evidence-in-chief and his evidence under cross-examination are not so remarkably exceptional as to require further elucidation.

The Submissions of the Parties

45The grievance was filed on behalf of full-time and regular part-time correctional officers. The applicable overtime provisions are articles COR8 and COR16 of the collective agreement. The provisions are similarly drafted. For ease of discussion, COR8 will be referred to. The relevant provision is as follows:

COR8.3.1 Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven and one-quarter (7 ¼) hours or eight (8) hours as applicable, shall be paid at the overtime rate.

COR8.3.2 Overtime shall be paid within two (2) months of the pay period within which the overtime was actually worked.

COR8.4 Employees in Schedules 3 and 4 who perform authorized work in excess of seven and one-quarter (7 1/4) hours or eight (8) hours as applicable, shall receive compensating leave of one and one-half (1 1/2) hours for each hour of overtime worked, at a time mutually agreed upon. Failing agreement, the ministry shall reasonably determine the time of the compensating leave.

COR8.5 Where there is mutual agreement, employees may receive compensating leave in lieu of pay at the overtime rate or may receive pay at the overtime rate in lieu of compensating leave.

COR8.6 Compensating leave accumulated in a calendar year which is not used before March 31 of the following year, shall be paid at the rate it was earned. The March 31 date may be extended by agreement at the local or ministry level.

COR8.7.1 Employees who are in classifications assigned to Schedule 6 and who are required to work on a day off, shall receive equivalent time off.

46The Union submitted that the Employer’s goal at negotiations was to obtain changes to the STSP through negotiated trade-offs. The purported abuse of STSP leading to extra overtime was at the hands of individuals; it was not a systemic problem. The Employer was unprepared to negotiate a solution. Rather, it suspended all CTO, taking away a valuable option that non-abusers had been using. The Union submitted that the Employer’s actions were stunningly irrational. The Union said that there was no evidence of the calculated savings and it was the Employer’s onus to establish that their rule was a bona fide occupational requirement with a legitimate business purpose.

47The Union submitted that CTO was never the problem. There is no evidence of the factors the Employer took into account other than the undisclosed cost savings. Accordingly, the Board cannot conclude that the decision to abolish CTO was a legitimate exercise of management rights. The Union made four arguments. First, the Employer’s decision reads articles 8.5 and 16.4 out of the collective agreement. The Union said that the articles contemplate that a request for CTO be made and considered at the local level. The request may be refused or reasonable rules adopted, but there cannot be a blanket refusal. The request must at least be considered. The Employer need not act reasonably or even give reasons, but an employee must be able to ask for CTO.

48Second, it is contrary to the commitment to local bargaining, set out in article 16, to remove CTO from local control. The Union submitted that the purpose clause of the collective agreement, to promote “prompt and equitable handling of grievances and disputes” is best implemented when things such as CTO are handled locally. Article 16.1 specifically permits matters such as CTO to be the subject of local agreements, as were entered into at various institutions. The whole structure of Local Employee Relations Committees was said to be undermined by the Employer purporting to abolish CTO contractually. Further, CTO is a concern not unlike compressed work weeks which specifically may be entered into at a local level.

49Third, the abrupt abolition of CTO violated specific local agreements. The Union submitted that specific local agreements were breached by this central Employer decision. Many of the local agreements had notice of discontinuation provisions that were not honoured. In particular, the Toronto West Detention Centre agreement continued as a result of the settlement of a grievance. Such agreements cannot simply be ignored. If the Employer wanted changes to CTO it ought to have negotiated them at the bargaining table.

50Fourth, the abolition of CTO is not a reasonable rule within the management rights clause. Differently put, it is an unreasonable exercise of management rights in that it adversely affects local bargaining, health and safety and the right to be free from discrimination on the basis of family status. On the latter point, if family status is adversely affected, the Employer must show a legitimate business purpose to its decision. The Union submitted the Employer’s rule that there shall be no CTO approvals was so overbroad that it cannot be justified on any standard. The Employer abolished a local system that worked well in order to save money. However, there is no evidence of the amount of money saved and no evidence that there are any savings when unclassified staff have straight time hours available. There is abundant evidence that the rule imposes personal costs and hardship on employees. It was said to be an irrational rule in that it appears to be a response to individual abuse of sick leave and overtime by disrupting the ordinary lives of ordinary employees. It was also said to be under inclusive in that it does not apply to management staff. Rules must be reasonable and management rights must be reasonably exercised. The rule must have a legitimate purpose and not undermine other collective agreement rights. This rule does not comply with these requirements.

51The Union sought a declaration of the breach and a forty hour payment to each affected employee.

52The Employer submitted that the starting point for the analysis is that COR 8.3.1 requires that employees in schedule 3.7 and 4.7 who work overtime, as defined, are paid the overtime rate. Employees in schedules 3 and 4 receive CTO. By virtue of article 8.5, where there is mutual agreement, the group that receives pay may instead get CTO, and the group that receives CTO may instead get paid the overtime rate.

53The Employer says that the distinction between the two groups is drawn on the basis that employees in the first group must be replaced if they receive CTO, while the latter group need not necessarily be replaced. The first group includes correctional officers, whose posts must be filled. The latter group includes bailiffs and hairdressers and was the subject of the clarifying memo dated October 20, 2009, set out above. The Employer emphasized that CTO required “mutual agreement”. That language may be contrasted with other situations, such as leave requests, which specifically require the Employer to give due consideration to an employee request.

54The Employer submitted that the local CTO agreements relied upon by the Union generally distinguish between the accumulation of CTO and the use of CTO. The accumulation of CTO was not initially extensive. It was only with the burgeoning need for overtime to cover sick time that CTO contributed to a cycle of growing overtime as the time taken as CTO was in turn covered by further overtime. The Employer said that it properly turned its mind to breaking that cycle. In negotiations it first addressed its concerns about abuse of short-term sick leave. When it was not successful in achieving all of its goals it properly gave notice to the Union at negotiations that it would be relying on the strict wording of the CTO provisions, which required its agreement to convert overtime pay to CTO. The Union knew what the Employer’s intentions were, had an opportunity to negotiate to enhance employees’ rights to earn CTO, but it chose not to address the matter. The Employer said that the Union had to have known the effect of its decision, and its decision not to bargain changes to the CTO provisions amounts to an estoppal.

55As to the four branches of the Union’s argument, the Employer first submitted that there is no evidence that it in fact fettered its discretion to refuse to agree to CTO or read the articles out of the collective agreement. To the contrary, there is evidence it was prepared to look at individual circumstances to work around the unavailability of CTO. In any event, it said it was better to let the employees know there would be no CTO rather than have them rely on false hopes. It relied on OPSEU (Heike Goedhuis) and Ontario (Ministry of Correctional Services) GSB 482/8 (Kruger) at page 9, which reads as follows:

Even if we were to accept the Union’s position that both parties must act reasonably, we would deny the grievance. When management at Millbrook must resort to overtime on a daily basis it is unreasonable to expect many exceptions to the inevitable policy of refusing requests for time off in lieu of cash for overtime. The employees are all aware of the general policy. It is preferable that they know how unlikely it is that exceptions will be made then that their expectations be falsely raised by a pro forma procedure for requests that are certain to be refused for good reason.

56With respect to the impact on local bargaining, and existing local agreements, the Employer submitted that it was open to it to give notice at the corporate level that the local agreements, where they existed, were coming to an end. The Employer’s corporate decision on CTO did not bring a halt to all local negotiations on all topics. Indeed there were local discussions on CTO after the corporate decision. However, the central, corporate decision was adhered to. The Employer submitted that the one exception was the agreement at the Central North Correctional Centre, which had a 90-day notice requirement. However, it was said that the agreement there focused primarily on using CTO rather than accumulating it. The Employer said that it paid out what was owing in compliance with the collective agreement. Accordingly, the employees have not lost anything.

57The Employer said that the Union’s submissions that the removal of CTO was a human rights violation was a red herring. It submitted that it was not the removal of CTO that caused individual scheduling problems but the existence of the compressed work week. Any steps necessary to address individual issues need to be considered on a case by case basis. It said there were a panoply of options to address such concerns. Employees could take individual action such as requesting rescheduling to an eight hour schedule, or take overtime pay and then take leaves without pay. The Employer submitted that there were legitimate business purposes in its decision, including cost savings and alleviating the type of scheduling complexities testified to by Ms, Archdekin. If there were an adverse human rights impact on an individual employee, the parties would be required to address that and consider CTO in appropriate circumstances. Such human rights concerns are individual issues, not the subject of a Union policy grievance.

58On the Toronto West Detention Centre (Vieselmeyer) case, the Employer said that it was the result of a mediation-arbitration and was specifically without precedent or prejudice. Accordingly it has nothing to contribute to this discussion.

59The Employer adopted the submissions it made on the non-suit motion. It said there was no evidence before me related to the Ministry of Youth Services grievance. It also submitted that the Union’s inclusion of 40 hours of compensating time to each Corrections Officer, by way of relief, would amount to a double payment, since they have already been compensated for any over-time they have worked.

60In reply, the Union submitted that some paragraphs in the written will-say statements contradicted other viva voce testimony. For example, the Union said I should prefer the evidence that the shortage of unclassified staff was the result of a bottle-neck at the College. The Union submitted that there was insufficient evidence to found an estoppel. This matter is one of contract interpretation.

61As to the Employer’s response to the Union’s Human Rights concerns, the Union said that it had led evidence of the actual uses CTO had been put to, while the Employer’s submissions were speculative. The Union said that it was an enormous concession for the Employer to submit that CTO could be used for accommodation. The rule abolishing CTO has had an enormous discriminatory effect on some employees. It is for the employer to establish it was a bona fide occupational requirement that CTO be abolished. That is, why is an across the board rule necessary?

62The Union also submitted that the Employer failed to acknowledge that CTO was a “relief valve” for the stresses of being a corrections officer.

63The Union said that the Employer’s concern about the difficulties CTO adds to scheduling was, on the evidence, a trivial problem compared to the benefits of CTO, including stress reduction, self-accommodation and the promotion of a humane work place.

64The Union also submitted that the local CTO agreements dealt with both the accumulation and use of CTO. It reiterated that the Employer’s actions have read articles 8.5 and 16.4 out of the collective agreement. It disagreed with the Employer’s submission that it would have to agree to CTO if the Union’s arguments prevail. Rather, all that would be required is that the Employer consider the request.

65The Union also submitted that to have called repetitive evidence relating to the Ministry of Youth Services was not necessary. There was sufficient evidence let to cover both Ministries.

66With respect to the Vieselmeyer case, the Union said that the grievance must have been allowed because there was a breach of the collective agreement, and its award of 40 hours of compensating time is a useful standard. It submitted that the question may be left to the parties if its submissions are accepted.

67Finally the Union noted that the Family Responsibility Policy limits accommodation to a period of three months.

Reasons for Decision

68This matter raises issues that are of significant importance to the COs at the correctional institutions across the province. For many years they have been able to trade overtime hours for compensating time-off. They have structured their lives around that ability. Their local unions have entered into agreements at their institutions to regulate the basis upon which those arrangements rest. The Union says that those arrangements have reached a status that prevents the Employer, being the Government of Ontario, from unilaterally withdrawing from them. The Union says that the maturation of those arrangements mean that, in essence, they are local agreements that may only be dealt with at local negotiations. It has advanced four different branches to this submission. They are dealt with below.

69The Employer, on the other hand, relies on the bare words of the collective agreement. It says that mutual consent of the parties is required to permit compensating time to be taken in lieu of simple over-time pay. It has considered the matter and decided that it will no longer agree. It says that its central consideration and decision is determinative; it has decided not to consent. In all of the circumstances, I agree. What is required to dispose of the issue is a simple reading of the collective agreement provisions. For ease of exposition, the salient text is reproduced as follows:

COR8.5 Where there is mutual agreement, employees may receive compensating leave in lieu of pay at the overtime rate or may receive pay at the overtime rate in lieu of compensating leave.

70The issue squarely before the Board is what is meant by “mutual agreement”. In my view, it is agreement between the parties to the collective agreement. It is certainly open to the corporate parties to delegate the issue of consent. However, nothing prevents agreement from being exercised as a central decision.

71The most salient case on this point previously decided by the Board is OPSEU (Heike Goedhuis) and Ministry of Correctional Services GSB 482/82. I recognize that this is a case of considerable vintage, having been decided in 1983. However, it lays out an analysis that still has resonance. The positions of the parties in Goedhuis are summarized at pages 6 and 7 as follows:

The Union’s position before this Board is that Article 13.5 requires the Employer to consider requests for the time off carefully and to act in good faith in making its decision on this matter. It is the Union’s position that in this case the Employer failed to do so. Mr. Elli did not take Mr. Goedhuis’ request to anyone who was in a position to grant it. The request was not even considered and had been dismissed out of hand. The Union argues that while mutual agreement is required under Article 13.5, it does not permit either party automatically to say no to a request to compensate overtime with time off. The Union asked the Board to make a declaration to this effect.

It is the Employer’s position that Article 13.5 does not require anything more than mutual agreement. The Employer contends that either party, for whatever reason or without any reason, is entitled to withhold his consent to time off. Had the parties intended otherwise, then they would have used wording similar to Article 13.4 for correctional officers. These employees are not covered by that clause. Article 13.5 which does cover them is very different from Article 13.4.

Furthermore, the Employer argued that even if the Board should read into Article 13.5 a requirement that the parties are to consider requests carefully and act reasonable, the Employer has in fact acted in this manner. Mr. Preston’s uncontroverted evidence shows that except in unusual circumstances the Employer at Millbrook cannot comply with requests for time off in lieu of pay without creating serious staffing problems and without incurring undue cost. Mr. Goedhuis could not show any special circumstances related to his request and in the opinion of the Employer, it was reasonable to refuse him.

72The Board’s decision in Goedhuis is succinctly put as follows:

The Board has carefully considered the evidence and argument presented to us. We are dealing with an individual grievance of Mr. Goedhuis and not with a policy grievance. We find that in the circumstances of the matter before us, the Employer did not violate the collective agreement in denying Mr. Goedhuis’ request out of hand. Nothing in Article 13.5 requires either party to give any reasons for a refusal to deviate from the normal practice under Article 13.1 in handling overtime compensation. Had the Employer asked Mr. Goedhuis to accept time off in lieu of cash he would have had every right to refuse without any requirement that he consider the matter or justify his refusal.

This is different from Re UAW and OPEIU (Shime) where the matter involved mutual agreement on the timing of an employee’s vacation. There the parties were expected to bargain in good faith over the issue. In the matter before this Board, the parties in Article 13.1 have agreed on the normal way to handle the matter. Article 13.5 permits them to make exceptions by mutual agreement and nothing more than that can be read into this Article.

73It should be noted that the language under consideration in Goedhuis is essentially indistinguishable from that at issue here. Article 13.1 there required pay for overtime at a rate of 1 ½ times the basic hourly rate. Article 13.5 permitted compensating leave in lieu of pay “where there is mutual agreement”.

74The case before me is very much like Goedhuis, only writ large; it is not an individual grievance, rather it is a policy grievance. It covers not just one grievor, but two Ministries.

75Like the Board in Goedhuis, I conclude that reasons for declining consent are not required. If they are required, the evidence is sufficient to establish that CTO does increase the likelihood of increased overtime expense. That likelihood is as a result of the inability of the Ministry to cover the time with straight-time hours due to the lack of depth in the unclassified workforce. It is, of course, breathtaking that almost thirty years after Goedhuis, the same criticism stands. I can do no better than reiterate the Board’s comments from Goedhuis at pages 9 -10:

We cannot conclude this Award without commenting further on a matter that concerns this Board. It is obvious that resort to overtime on a frequent basis is in no one’s interest. The employees are asked to work sixteen hour shifts under very trying circumstances. The Employer pays premium rates and gets less than adequate returns for this money. Where a given employee works overtime frequently, there are risks to the safety of inmates, staff and public. This Board cannot understand why, under the conditions described to us, the Ministry does not assign to Millbrook either more regular or more casual staff. We have no power to make any orders related to this. Nor would we normally comment on such matters. However, in this case we are of the view that we should share with those in authority our findings on an important matter.

76If the Ministry were to hire sufficient regular part-time staff, it could provide the coverage necessary to allow its full-time employees to order their lives more comfortable. However, in my view it still cannot be made to do so.

77The Union’s arguments here rested, in essence, on an evolution of our understanding and the fundamental importance of individual human rights. It cast its case on the practice of individuals having “self-accommodated” their family responsibility rights. It said that the Employer’s unilateral rule had systemic effects that abrogated the family responsibility rights of its employees. These are significant submissions that require careful consideration, since Goedhuis, given when it was decided, had little cognizance of such matters. For clarity of exposition, I take the Union’s arguments in turn, as follows.

78First, the Union said that the Employer’s decision read the relevant provision out of the collective agreement. That submission rests on an analysis that the Employer has fettered its discretion in how it will deal with CTO requests. However, the article does not express the mutual agreement of either party being based upon an exercise of discretion or not unreasonably denying a request, or any other such requirement that calls for a balancing of possible outcomes. Rather, it is merely a choice left to either party. Certainly improper considerations could taint the decision. However, here we have a situation where the Employer considered the cost of agreement and rejected it for cost associated reasons. It is not for the Board to second guess the sufficiency of the Employer’s reasons. I agree with the comments of Vice-Chair Brown in OPSEU (Boulet et al) and Ministry of Community and Social Services (GSB 1189/991) at page 12 as follows:

How does the ruling in Bosquet apply to the facts at hand? As noted by counsel for the union, if the employer has violated the collective agreement by failing to post jobs, the grievors’ rights under article 6 are affected in the sense that they would not have lost their employment if such jobs had been posted and awarded to them. Using the language of Bousquet, I conclude management’s determination of ODSP workloads would be open to challenge if it was not “genuine” in the sense that it was not “related to the management of the undertaking”. The standard to be applied is not whether the decision was “correct”, but rather whether it was made on grounds “relevant to legitimate government purposes”. In other words, what matters is the nature of the reasons underlying the decision and not whether those reasons are of sufficient weight to make the decision appear sound in the eyes of an adjudicator. The sufficiency of the reasons is for the employer to determine.

79Rather than reading out or ignoring the article, the Employer made a choice open to it under the article, and it made it for business related reasons. This case is also unlike Simcoe County District School Board and OPSEU (Griffith) (2002), 2002 CanLII 79036 (ON LA), 103 L.A.C. (4^th) 309 (Davie), which reserved a specific right to the union member to make a request of their supervisor for leave. That case confirmed that the supervisor was not held to a reasonable standard in denying leave but was required to consider the request. However, here, there is no requirement that an individual request be entertained. I find that it was open to the Employer to decide, for the time being, not to consent to CTO.

80Second, the Union said that the Employer’s decision undermined local bargaining. However, the language under consideration does not exclusively assign these considerations to the local level. Certainly over the years various institutions crafted local agreements to suit local conditions. Indeed, the evidence supports the fact that in many instances shift by shift decisions were made by the Operational Managers on site. When CTO was an accepted option, it was the Employer’s right to delegate down the day-to-day implementation of its terms. However, that cannot be taken as an abrogation of the Corporate party’s right ultimately to decide. Like the compressed work week, mutual agreement is required and mutual agreement may be withdrawn. There is some evidence that the Union unilaterally withdrew its agreement to the Compressed Work Week in reaction to the CTO decision of the Employer. That was its right. Local agreements continued on other issues and the Local Employment Relations Committees were not discontinued. Rather, one issue was removed from local purview. I was not directed to any provision of the collective agreement that specifically prevented such a move.

81Third, the Union argued that local agreements relating to CTO were breeched by the Employer’s central decision. It pointed to the Vieselmeyer decision as providing a remedy for such a breach. Having considered that decision, it is my view that it is not of much assistance. It was a mediation-arbitration decision, made without precedent or prejudice. There are scant facts upon which one might extrapolate, and the without precedent or prejudice status of the decision militates against any such exercise. Nonetheless, there is evidence to support a finding that some notice of termination provisions of some of the agreements may have been breached. It was not open to the Employer to centrally wipe out those agreements contrary to their terms. The Employer gave notice on February 20, 2009 that its agreement was at an end. If that notice fell short of that required by any local agreement, the Union is entitled to a remedy for the breach. I leave it to the parties to make efforts to come to an agreement on the remedy and remain seised in the event that they fail to reach agreement.

82Fourth, the Union said that the decision not to agree to CTO was an unreasonable exercise of management rights. The Union characterized the decision as a “rule” which has such a broad, unsupported scope as to render it unreasonable. The authority of management to make reasonable rules and regulations is found in article 2.1. In my view this decision is not a rule. Rather, it is an exercise of management’s rights specifically provided for in the collective agreement.

83The jurisprudence relied upon by the Employer supports the principle that management rights are exercised unreasonably if the exercise is unrelated to the business or singles out “employees for special treatment which cannot be justified in terms of real benefit to the employer”. (see United Parcel Service and Teamsters Union (1981 1981 CanLII 4389 (ON LA), 29 L.A.C. (2s) 202 (Burkett). The Union also relied on OPSEU (Group) and Ministry of Health & Long-Term Care (Johnston), supra. That was a motion to dismiss the grievance without a hearing on the merits. As was the case here, Vice-Chair Johnston ruled she did have jurisdiction to hear the case and determine the issues. Central to the analysis is that there be a business reason for the decision. I have found that in the circumstances before me there is sufficient evidence to establish the business rationale on the basis of the low threshold of such an arbitral review.

84The Union said that the exercise of Management rights is unreasonable if it adversely impacts another right in the collective agreement. Although that assertion requires some scrutiny, it should be noted that the mutuality of agreement needed for CTO was agreed to by the Union. To require the Employer to go beyond the threshold for business legitimacy laid down by the jurisprudence would read into the articles at issue words that are not there.

85The Union said that there are three areas of the collective agreement impacted by the CTO decision. Local bargaining has been deal with above. This leaves health and safety and accommodation of family status still to address.

86The impact on health and safety was said to be that the removal of CTO made an already stressful job more stressful without the employer really achieving anything. CTO was said to be necessary to help the employees “de-stress”. On the evidence, CTO was only available if employees worked over-time. Over-time is voluntary. On a compressed work week employees have large stretches of free time available to them. If working over-time causes conditions that increase stress, it is open to the employees not to work over-time.

87A significant aspect of the Union’s case is that the decision to discontinue CTO was contrary to the Ontario Human Rights Code’s provisions related to the prohibition of discrimination on the basis of family status. The Union submitted that this might amount to an independent breach. It said that the Employer’s failure adequately to justify the decision was sufficient. However, I have found, on the low threshold required, that there was a sufficient business rationale to justify the decision.

88The cases relied upon by the Union to support its assertion that the CTO decision had a discriminatory effect were individual claims that employees had been discriminated against and that their employer had failed to accommodate them. This is not the evidence before me. The evidence does establish that the CTO decision created difficulties for some employees. However, the evidence also establishes that the employees from whom the Board heard were able to rearrange their affairs. I recognize the difficulty suffered. The responsibilities of child rearing are significant. However, if an employee does not ask for an accommodation, the Employer’s obligations to accommodate to the point of undue hardship are not engaged. Accommodation is a tri-partite process involving the employee, the Union and the Employer. Here the evidence is that the employees were able, with some effort, to adjust to the CTO decision, did not request accommodation and were offered the opportunity to enter into the accommodation process, which was not exercised. In the circumstances, there was no prima facie discrimination on the basis of family status established by the Union.

The Decision

89On the basis of the forgoing, the grievances are allowed to the extent that any breaches of the notice provisions of any local agreement may require a remedy. That issue is remitted to the parties. I remain seized if they are unable to come to an agreement. All other aspects of the grievances are dismissed.

Dated at Toronto this 13^th day of April 2012.

Ontario Public Service Employees Union v. The Crown in Right of Ontario, 2012 CanLII 29894

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Union