GSB#2010-2499
UNION#2010-0108-0048
(additional file numbers listed
in Appendix A attached)
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Pinkney et al.)
Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Felicity D. Briggs
Vice-Chair
FOR THE UNION
Jane Letton
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER
George Parris
Ministry of Government Services
Legal Services Branch
Counsel
HEARING
July 17, 2013
Decision
1On January 11, 2010, the parties at Elgin Middlesex Detention Centre (“EMDC”) signed a Memorandum of Agreement regarding the Compressed Work Week.
2The relevant provisions of that agreement read as follows:
This compressed work week agreement is made in accordance with Article 16 (Local and Ministry Negotiations) of the Central Collective Agreement and Article COR2 (Hours of Work), Appendix COR9 (Rollover of Fixed Term Correctional Officers) of the Correctional Bargaining Unit Collective Agreement, between the Ontario Public Service Employees Union and the Crown in Right of Ontario represented by Management Board of Cabinet.
Unless otherwise specified in this Agreement, all articles of the Central and Correctional Bargaining Unit Collective Agreements Apply to employees covered by this agreement.
All Correctional Officer compressed work week schedules for the institution shall end on February 28, 2010 and new approved schedules shall take effect on March 1, 2010.
All approved schedules shall be posted by January 15, 2010.
Line selections shall be submitted to the scheduling department and shall be started on January 18, 2010.
Line selection shall be done based on seniority (continuous service dates).
A scheduling committee member and the Local 108 scheduling officer shall be involved in the line selection process.
Notices to staff of line assignments shall be posted no later than February 8, 2010.
All Correctional Officer positions shall be available for line selections.
Those failing to make a selection will be assigned to a line and schedule by the Scheduling Manager after three attempts have been made by the scheduling office to contact the employee.
A classified (full time equivalent) complement change shall cause a review of the schedules between the two parties to review any changes.
When permanent vacancies occur in the compressed work week schedule, they will be posted within 14 days of the permanent vacancy and will be filled on a seniority (continuous service date) basis within 30 days of the vacancy.
If a permanent line is vacated for the purposes of a temporary assignment/secondment for a period of 366 days, this line will be considered vacant and posted within 14 days of the vacancy and will be filled on a seniority (continuous service date) basis within 30 days.
This agreement, and the attached schedules, is based on the following identified correctional officer positions:
(a) One hundred and forty seven (147) classified correctional officer positions as identified in the employers staffing model.
(b) It is understood by both parties that the MERC agreement of the Resource Position Management (RPM) for Elgin Middlesex Detention Centre consisting of twenty (20) positions have been collapsed into the main schedules and is apart (sic) of the one hundred and forty-seven (147) classified positions, as outlined in the MERC agreement dated 12th of May 2009. Every effort will be made to backfill the 147 lines on a daily basis.
(c) The parties’ agreement of an additional fifteen (15) correctional officer positions (located in the Utility Schedule) as per the Memorandum of Agreement dated 12th of May 2009.
(d) Due to three vacancies occurring after the 12th of May 2009, the additional 15 positions have been reduced to 12 in accordance with the MERC agreement dated November 27, 2009. This is a total of one hundred and fifty nine (159) positions available for the line selection process. As permanent vacancies continue to occur, lines from the Utility Schedule will continue to be eliminated.
13.This agreement does not prejudice the parties in any way in relation to the total level of Correctional Officers positions at the Elgin Middlesex Detention Centre.
14.In accordance with the Memorandum of Agreement dated 12th of May 2009, the following process will be used to reassign officers in the utility schedule to the Budget Allocation Model/BAM (main) schedule that:
(a) Correctional Officers assigned to the Utility Schedule shall be reassigned first to fill permanent and temporary vacancies created in the BAM schedules. It is the understanding of both parties that vacancies in the Utility Schedule shall not necessarily create additional posts requiring backfill.
3The parties provided a schedule (Schedule A) that was referred to in the Memorandum of Agreement. Schedule A has one hundred and fifty nine (159) one-week schedules. These are broken down into 19 Platoons and appear to cover all units within EMDC. There are 149 positions in the first 17 Platoons. The 18th and 19th Platoons are titled “Attrition” and have twelve positions in total. These last two Platoons are referred to in the Memorandum of Agreement as the “Utility Schedule”.
4Duty rosters developed after the Memorandum of Agreement was signed were also provided. It was agreed that these Duty Rosters were the operationalization of the work. The final exhibit was a fifteen page document entitled “Vision Statement for New Schedule Routines” which was developed by the Employer with input from two senior staff members of the bargaining unit and ultimately signed by both the Superintendent of EMDC and the President of the Local.
5The first thirteen platoons on Schedule A have Unit assignments noted. There are no such assignments provided for Platoons 14 through 19. However, the Platoons 12 through 19 are expressly titled. For example, Platoon 14 is Front Door and Platoon 16 is Female Segregation & Admitting and Discharge.
6According to the Union, the Employer staffed the institution in compliance with the Memorandum of Agreement until approximately November of 2010. The Union alleged that in November of 2010 the Employer began scheduling in a manner that was inconsistent with the Memorandum of Agreement. It became apparent that there was a fundamental dispute regarding the meaning of the Memorandum with respect to the necessary minimum level of staffing of Correctional Officers (“COs”). Grievances were filed (attached Appendix A) alleging a breach of this Agreement and as a result, this Board met with the parties in an effort to mediate a resolution. There were issues that arose during mediation regarding particulars and disclosure to enable the parties to understand the scope of the disagreement. It eventually became evident that litigation of the matter would be required and the parties next addressed a process to efficiently arbitrate this dispute.
7It was agreed by the parties that two questions should be posed to this Board. The first question is “Does the Compressed Work Week Agreement require that there are 147 Correctional Officer positions which translates into a specific number of Correctional officers at the jail per day? The second question is “Does the Compressed Work Week Agreement require that all 147 Correctional Officer positions be within the building for all of the assigned shifts – that is to say – not on an outside of the building assignment?”
UNION SUBMISSIONS
8The Union argued that the matter is fairly straightforward. The Memorandum of Agreement clears states at paragraph 12 that there shall be at least one hundred and forty seven classified Correctional Officer positions in the Employer’s staffing model each day at EMDC.
9Ms. Letton, for the Union, noted that according to Schedule A, which is attached and therefore forms part of the Memorandum of Agreement, these 147 CO positions are scheduled into seventeen different platoons covering all inmate unit areas of EMDC. Both the Memorandum and Schedule A provide that there are twelve additional CO positions. Schedule A provides that these additional 12 positions are set out as an 18th and 19th Platoon and are entitled “Attrition”. Therefore, it is apparent that the parties recognized and agreed that there would be a minimum number of 147 COs scheduled each day. It was understood that the additional 12 CO positions found in Platoons 18 and 19 might be eliminated over time but at no time would the total number of CO positions within EMDC be lower than 147.
10The Union reviewed Schedule A noting that it sets out the location and position for each CO position. For Platoons 1 through 13 there are a number of units or areas set out. This means that the CO working in one of those Platoons might be assigned to any of the areas set out in that particular section. COs assigned scheduled in Platoons 14 through 17 have a more limited area of assignment because they are the specialized units. For example, a CO working in Platoon 14 will only be assigned to work at the Front Door while a CO scheduled in Platoon 16 will be assigned to work in only in either Female Segregation or Female Admitting and Discharge. Platoons 18 and 19 have no work assignment noted. This fact underscore the parties’ agreement that 147 COs would be scheduled each day and there would be a second category of CO positions which would be eliminated over time.
11The Union reviewed the process set out in paragraphs one through eleven of the Memorandum for COs to select their choice of line assignment. It is apparent that when the Agreement is considered as a whole, it contemplates a minimum of 147 CO positions to be filled. Each of the 147 lines on Schedule A is to be assigned to an individual CO. The 147 positions plus the twelve additional “attrition” positions make up Schedule A.
12The Union submitted that this Board must give the language of the Memorandum its plain and ordinary meaning. It is clearly stated that Schedule A is attached and that means that it forms part of the parties’ agreement. Schedule A is not a collateral document and it reveals that only positions in excess of 147 can be eliminated and not scheduled each day.
13Regarding the second question, it was the Union’s view that there is nothing in the Memorandum that would allow the Employer to remove the CO from their assigned post and have them work outside of the building. To be clear, it is not the Union’s position that the Employer cannot assign COs to perform escort duties. However, it is the Employer’s obligation to assign a CO who is not one of the 147 COs assigned to work as set out in Schedule A.
14The Union asserted that all of the assignments set out in Schedule A are within the actual EMDC buildings. Accordingly, the Employer cannot re-assign one of the 147 to do work not contemplated on the schedule, such as outside escort duty. It can be seen in the Vision Statement for New Schedule Routines that the parties put their minds to clarifying the duties of the positions set out in Schedule A and all of those duties are performed within the four walls of EMDC. This document buttresses the Union’s contention that there are to be 147 positions inside EMDC each day and if one of those officers is sent outside because of operational necessity – then the Employer must make every effort to backfill that position. It was urged that “every effort” is a significant obligation. It is not sufficient for the Employer to make some vague attempt to find a replacement. “Every effort” mandates that the Employer will turn its mind and resources to ensuring that each of the 147 positions within EMDC are backfilled on a daily basis. If an officer is out of the building due to escort duties, sick leave or vacation, that vacant position must be filled by another CO.
15The obligation to backfill the 147 CO positions is ongoing and does not diminish by virtue of unforeseen circumstance, according to the Union. Whether an absence is planned there is still an ongoing obligation to backfill 147 CO positions each day.
16In closing the Union noted that the Vision Statement for New Schedule Routines states clearly in its preamble that that the “paramount consideration in how we conduct our affairs is the safety and security of individual officers and managers.” That safety is ensured when the agreed upon staffing level is maintained.
EMPLOYER SUBMISSIONS
17The Employer submitted that the Schedule A before this Board is “not carved in stone”. Further, there is nothing in the Memorandum or the Schedule or the Duty Rosters that prohibits or restricts the Employer’s ability to assign tasks to the COs that need to be performed. Paragraph 12 does not contain language providing that COs can only perform the duties related to their own post.
18The Memorandum of Agreement is an agreement between the parties regarding the working of a Compressed Work Week. According to the Employer, it is not an agreement about what work the COs will perform. The Memorandum should not be interpreted in a fashion that is inconsistent with its underlying purpose. It is noteworthy that paragraph 9 of the Memorandum provides for a mandatory review of the Schedule in the event that there is a classified (full-time equivalent) complement change.
19Mr. Parris, for the Employer, noted that the Schedule for COs did not change after the Duty Rosters were developed.
20The Employer asserted that because there is no definition of the word “backfill” in paragraph 12, it is necessary for this Board to provide direction in this regard. However, it was urged that “backfill” as set out in paragraph 12 does not mean that the Employer has to replace a CO who is absent from her post for a limited period of time or when the CO is away from their post but otherwise performing CO work. The term “backfill” should be interpreted in paragraph 12 as it is meant in paragraph 14 – that is to say - in those instances when COs are absent from work.
21The Employer submitted that the Union’s position regarding the need to backfill for those on Escort Duty makes little sense. Escort Duty is, by all accounts, the work of COs. There is no need to backfill a CO who is working. Backfilling is bringing in additional staff to do the work of some one who is not at work as scheduled.
22Mr. Parris suggested that the paragraphs in the Memorandum that provide numbers of staff are there to assist the parties in the structuring of the schedules and that every effort will be made to backfill them when they are not at work. Backfilling a position is not synonymous with providing relief. It is difficult to understand how the Union can ask this Board to decide that if a CO is absent from the workplace for an hour on a Hospital (or any other) Escort, the Employer must replace them with another CO that had not been scheduled to work that shift. Such an interpretation is unreasonable and unworkable. It is certainly an interpretation that makes little sense in the context of how an institution works.
23The Employer said that in considering the phrase “every effort” this Board should take into account business efficacy and efficiency. It would make no sense for the Employer to be obligated to replace a CO who is absent from the workplace performing outside Escort duties at the end of their shift. It would be administratively ridiculous for the Employer to be forced to ask a fixed term CO to work an amount of time that theoretically might be less than an hour.
UNION REPLY SUBMISSIONS
24Regarding the matter of institutional or internal escorts, Ms. Letton submitted that according to the duties set out in the Vision Statement, each unit has a General Duty Officer who is assigned such duties. Accordingly, if all 147 positions are filled then those internal escorts are clearly covered and not at issue.
25The issue of the need to relieve for the last thirty minutes of a shift is a matter that goes to remedy and not to the merits of this dispute, the Union urged.
DECISION
26There was an issue between the parties as to whether the Provincial Escort Duty Policy would assist in the interpretation of this matter. A process was determined at the hearing to allow for written submission regarding this matter but it was ultimately determined that the Escort Policy document would be of no assistance.
27Further, there was an issue between the parties as to what, if anything, should be made of the fact that a few of the 147 lines have no work scheduled within the seven day period. This Board told the parties that if evidence was needed regarding this issue for the purposes of this decision, it would be requested. It is not.
28As noted above, Schedule A is a schedule that sets out the days each CO is to work. It is broken down into nineteen (19) platoons with the final two being assigned – as agreed by the parties – as Attrition. It is to be recalled that these two final Platoons are referred to in the Memorandum of Agreement as the Utility Schedule.
29Schedule A is a document that sets out the day and time that the 147 classified COs will attend at work. It identifies the areas that members of each platoon will be assigned throughout their schedule.
30The Duty Rosters appear to be the work assignment sheets. There is one for each day of the week which is broken down into the various units with lines for the names of COs working various shifts.
31The first question posed to this Board is “Does the Compressed Work Week Agreement require that there are 147 Correctional Officer positions which translates into a specific number of Correctional Officers at the jail per day?
32After consideration, I am of the view that the answer to this question is yes. The Memorandum of Agreement makes clear that there will be a schedule based on 147 classified CO positions “as identified in the employers staffing model”. The parties went on to explain what that number included (twenty CO positions which “had been collapsed into the main schedule”) and what the number did not include (an additional 12 CO positions “located in the Utility Schedule”). Further it was agreed that as permanent vacancies “continue to occur, lines from the Utility Schedule will continue to be eliminated”. These are the positions that the parties refer to as “Attrition” on Schedule A.
33It seems apparent that the parties agreed to develop a schedule with 147 lines that would be filled by 147 classified COs and that “every effort will be made to backfill the 147 lines on a daily basis.” In my view, this means that if any of the 147 COs scheduled to work on any particular day are absent from the work and otherwise unavailable to work, the Employer shall make every effort to replace them. For the purposes of this decision, absences would include (but not necessarily be limited to) situations such as sick leave, vacation and leaves of absence.
34Though not specifically asked, it is useful to note that the obligation to attempt to backfill an absent CO is not insignificant. The phrase “every effort” is used and should be given its plain meaning. It is difficult in the abstract to define such a phrase. No doubt a consideration of whether every effort was made would be undertaken against a specific factual context. However, there seems little doubt that a genuine effort should be made that goes far beyond a perfunctory attempt.
35I am further convinced of the Union’s position by reviewing paragraph 14(a) of the Memorandum. In that provision the parties agree that vacancies in the Utility Schedule (that being the section of Schedule A referred to as “Attrition”) “shall not necessarily create additional posts requiring backfill.” It would appear that the parties wanted to make a distinction between the 147 classified COs whose absence should be backfilled and those COs on the Utility Schedule whose absence need not necessitate backfilling. In my view, this paragraph underscores the fact that there is an obligation to backfill the 147 classified CO positions.
36Addressing the second question, I am of the view that the Employer’s submissions must prevail. While I accept that the Vision Statement sets out tasks usually undertaken by COs, there is nothing that would lead me to find that this document overrides the Employer’s inherent right to manage the workforce. Indeed, the preamble of the Memorandum of Agreement states that unless otherwise stated in the Agreement, the Collective Agreement applies. There is nothing in the Memorandum that restricts the Employer’s ability to assign work. Although I understand the Union’s assertion that the Vision Statement is a comprehensive and determinative document, I must disagree. Indeed, it does not form part of the Memorandum and therefore can not be relied upon to fetter the Employer’s authority to assign work.
37It was suggested by the Union that the Memorandum obliges the Employer to make every effort to backfill 147 lines on a daily basis and that includes ensuring all of the scheduled COs must be working inside the four walls of the institution for every moment of their scheduled working hours. I think not. In my view, if the parties intended such a particular result, they would have said so and they did not. Indeed, the parties referred to effort being made to backfill occurring on “a daily basis”, not an hourly basis.
38Further, backfilling is a phrase often used by these parties. I have seen nothing in any of the exhibits or Collective Agreement that would lead me to find that the Employer is obliged to provide an additional – otherwise unscheduled - employee to replace one of the 147 scheduled COs who is going to be away from his/her post or the workplace performing CO duties for a matter of minutes or hours.
39Further days of hearing are scheduled. I remain seized.
Dated at Toronto, Ontario this 4th day of November 2013.
APPENDIX A
GSB File Number
Union File Number
2010-2499
2010-0108-0048
2010-2500
2010-0108-0049
2010-2501
2010-0108-0050
2010-2502
2010-0108-0051
2010-2503
2010-0108-0052
2010-2504
2010-0108-0053
2010-2825
2011-0108-0005
2010-2826
2011-0108-0006
2010-2827
2011-0108-0007
2010-2828
2011-0108-0008
2010-2829
2011-0108-0009
2010-2830
2011-0108-0010
2010-2831
2011-0108-0011
2010-2832
2011-0108-0012
2010-2833
2011-0108-0013
2010-2834
2011-0108-0014
2010-2835
2011-0108-0015
2010-2836
2011-0108-0016
2010-2837
2011-0108-0017
2010-2880
2011-0108-0018
2010-2881
2011-0108-0019
2010-2882
2011-0108-0020
2010-2883
2011-0108-0021
2010-2884
2011-0108-0022
2010-2885
2011-0108-0023
2010-2886
2011-0108-0024
2010-2887
2011-0108-0025
2010-2888
2011-0108-0026
2010-2889
2011-0108-0027
2010-2890
2011-0108-0028
2010-2891
2011-0108-0029
2010-2892
2011-0108-0030
2010-2893
2011-0108-0031
2010-2894
2011-0108-0032
2010-2923
2011-0108-0034
2011-0251
2011-0108-0037
2011-0252
2011-0108-0038
2011-0253
2011-0108-0039
2011-0254
2011-0108-0040
2011-0255
2011-0108-0041
2011-0256
2011-0108-0042
2011-0257
2011-0108-0043
2011-0258
2011-0108-0044
2011-0259
2011-0108-0045
2011-0260
2011-0108-0046
2011-0261
2011-0108-0047
2011-0262
2011-0108-0048
APPENDIX A
GSB File Number
Union File Number
2011-0263
2011-0108-0049
2011-0264
2011-0108-0050
2011-0265
2011-0108-0051
2011-0266
2011-0108-0052
2011-0267
2011-0108-0053
2011-0268
2011-0108-0054
2011-0269
2011-0108-0055
2011-0270
2011-0108-0057
2011-0271
2011-0108-0058
2011-0272
2011-0108-0059
2011-0273
2011-0108-0060
2011-0274
2011-0108-0061
2011-0275
2011-0108-0062
2011-0562
2011-0108-0067
2011-0563
2011-0108-0068
2011-0564
2011-0108-0069
2011-0565
2011-0108-0070
2011-0566
2011-0108-0071
2011-0567
2011-0108-0072
2011-0582
2011-0108-0073
2011-0598
2011-0108-0056
2011-0615
2011-0108-0076
2011-0636
2011-0108-0077
2011-0637
2011-0108-0078
2011-0638
2011-0108-0079
2011-0660
2011-0108-0080
2011-0661
2011-0108-0081
2011-0662
2011-0108-0082
2011-0663
2011-0108-0083
2011-0664
2011-0108-0084
2011-0665
2011-0108-0085
2011-0666
2011-0108-0086
2011-0667
2011-0108-0087
2011-0668
2011-0108-0088
2011-0669
2011-0108-0089
2011-0670
2011-0108-0090
2011-0671
2011-0108-0091
2011-0672
2011-0108-0092
2011-0673
2011-0108-0093
2011-0752
2011-0108-0094
2011-0753
2011-0108-0095
2011-0754
2011-0108-0096
2011-0755
2011-0108-0098
2011-1039
2011-0108-0101
2011-1040
2011-0108-0102
2011-1041
2011-0108-0103
2011-1043
2011-0108-0105
2011-1044
2011-0108-0106
APPENDIX A
GSB File Number
Union File Number
2011-1045
2011-0108-0107
2011-1046
2011-0108-0108
2011-1047
2011-0108-0109
2011-1048
2011-0108-0110
2011-1062
2011-0108-0097
2011-2068
2011-0108-0112
2011-2071
2011-0108-0115
2011-2072
2011-0108-0116
2011-2073
2011-0108-0117
2011-2074
2011-0108-0118
2011-2075
2011-0108-0119
2011-2076
2011-0108-0120
2011-2077
2011-0108-0121
2011-2078
2011-0108-0122
2011-2079
2011-0108-0123
2011-2080
2011-0108-0124
2011-2081
2011-0108-0125
2011-2082
2011-0108-0126
2011-2083
2011-0108-0127
2011-2084
2011-0108-0128
2011-2085
2011-0108-0129
2011-2134
2011-0108-0131
2011-2666
2011-0108-0135
2011-2846
2011-0108-0134