GSB#2010-2499
UNION#2010-0108-0049
Addition files in attached Appendix “A”
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Pinkney)
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
John Brewin Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
George Parris Treasury Board Secretariat Legal Services Branch Counsel
HEARING
September 8, 2015; March 4, 2016
Decision
1On November 4th, 2013 this Board issued a decision regarding the interpretation of a Memorandum of Agreement regarding the scheduling and the compressed work-week at the Elgin Middlesex Detention Centre. The memorandum, dated January 11, 2010, was set out at paragraph 2 of that decision. It states, in part, 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.
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.
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.
2Various other relevant documents were provided to the Board during the course of that litigation to assist in the interpretation of the dispute.
3As is set out in the November 4, 2013 decision, two questions were posed and answered by this Board. The first was “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?” This question was addressed at paragraphs 32 and 33 which stated:
After 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.
It 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.
4The second question asked of the Board was “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?” The answer to this question began at paragraph 36 and said:
Addressing 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 cannot be relied upon to fetter the Employer’s authority to assign work.
It 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.
Further, 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 her post or the workplace performing CO duties for a matter of minutes or hours.
5The Board remained seized and further days were scheduled to deal with the quantification of the remedy. During the follow up hearing days it became apparent that there continued to be a dispute regarding the extent of the remedy including the matter of when the compensatory remedy is to begin and to whom the remedy is owed.
6Rather than look at each and every day that occurred subsequent to the filing of various grievances the parties agreed to look at some representative period of time for the purposes of quantifying the remedy. There have been ongoing discussions in this regard.
7I will briefly set out an overview of the submissions of the parties that were put forward “in summary fashion.” I will then set out some of the example questions posed.
UNIONS SUBMISSIONS
8At our most recent day of hearing the Union raised other outstanding remedial issues. The Union – as I understand their argument - contended that attention must be paid to actual assignments found on Schedule A (attached to the original Memorandum of Agreement) and/or model duty rosters. There were a number of assignments “below the line” that were never set out in Schedule A – and that was a violation. It was noted that Schedule A specifically identifies the precise shift and location of various assignments. These were developed by the parties to reflect the commitment that is set out in the Memorandum. Violations must be redressed.
9While the Union stated that it has accepted that the Board has found that the Employer is not obliged to backfill in the event that an unforeseen emergency arises, that exception does not extend to a predictable set of duties and therefore the Employer cannot utilize one of the 147 positions to undertake that work. To be clear, the Union is of the view that if work outside the 147 positions is foreseeable the Employer must make every effort to backfill the CO assigned to do that work.
10The Union submitted that the Memorandum of Agreement contemplates “147 positions” and not “147 Correctional Officers”. That distinction means that all positions are those found in the duty rosters. A number of examples were then cited showing that various positions as set out on Schedule A were altered. Accordingly it must be found that the Employer adjusted the duty rosters without agreement of the Union thereby violating the Agreement.
EMPLOYER SUBMISSIONS
11The Employer began by asserting that the Union is attempting to re-litigate this matter under the guise of implementation difficulties. The issues that the Union is now asking the Board to consider are precisely those addressed in the original decision. Indeed, even the arguments put forward by the Union in this hearing are virtually identical to what was submitted prior to the first decision. It was the Union’s position at the first day of hearing that irrespective of whether COs were working inside or outside the building – or if the work to be done was foreseeable or unforeseeable – the Employer had an obligation to make every effort to backfill if there were not 147 positions assigned. The Board has determined that matter already.
12The Employer also asserted that unlike its position at the first day of hearing, the Union now takes issue with what various COs are actually doing within the building. The Union cannot now take a different view and ask for a different result. This request is not remedial in nature and therefore not properly before this Board.
13There were two questions put before this Board on the first day of hearing. Simply put, does the Employer have to backfill if one of the 147 positions is removed due to predictable or non predictable circumstances; and does it matter if one of the 147 positions is assigned work outside of the building such as a medical escort. The Employer contended that I have answered these questions and for that reason am functus officio regarding these two issues.
14Having considered the submissions of the parties I am of the view that the Employer is right that – in large measure - the Union is not merely asking for clarification but a re-consideration and/or an extension of the questions already answered. While – as acknowledged by the Employer – the parties knew that there may be additional issues that need to be determined by this Board, the submissions proffered by the Union on our second day of hearing are, in reality, about the very issues already determined by this Board in the cited paragraphs set out earlier in this decision.
15In Paragraph 33 of the November 4, 2013 decision the Board stated 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.” It is later said that it is not necessary for the Employer to make every effort to backfill all 147 positions inside the building for every minute of every day. It was noted that the agreement was to backfill on a “daily basis, not an hourly basis.”
16Having said that – there were some specific questions that were put forward at the hearing that are of a clarifying nature. For example, the Board was asked if a CO requested a 4 hour vacation period at some point – either the beginning or at the end – of a same day 12 hour shift does the Employer have to make every effort to backfill the four hour period? Similarly, if a CO becomes ill or is injured during the course of their shift does the Employer have to backfill the position? The Union was of the view those absences should be backfilled. The Employer suggested it was not reasonable to do so and that any other finding would be inconsistent with the Board’s earlier decision.
17In this regard, I think reasonableness is the appropriate measure. The difficulty in such a finding is that whether a position needs to be backfilled – in order to be compliant with the Agreement of the parties - will be dependent on the circumstances. For example, if a CO reports at 0800 hours that they are ill and cannot remain at the jail until 2000 hours, that situation will leave the vast majority of a day that is not staffed with 147 COs. In my view it is reasonable that the Employer would make every effort to the remainder of that shift filled by another off-duty CO. However, if the absence or injury occurs at 1530 hours during the same twelve hour shift, replacing a CO for less than four hours is not particularly reasonable. It seems to me that the same would be true for four-hour vacation requests. If the Employer grants such a last minute request at the very commencement of a shift for the final four hours of a twelve hour shift, replacement of those hours would be reasonable. However, if the request is made shortly before the commencement of a shift for the first four hours of the shift, it is not reasonable to expect the Employer to replace the CO who is absent.
18Another example of a clarification issue put forward was regarding COs working at EMDC who were being accommodated. Both sides made summary submissions in this regard. I am of the view that if a CO is working in a CO position, they are part of the 147 positions. However, if a CO is being accommodated in a OAG position or another classification they would not be included. The Union seemed to urge that unless a CO could perform any and all duties of a CO at all times they should not be included. I disagree.
19Other examples were put forward and in the event this decision does not provide sufficient guidance further questions can be asked during our open session at our next day of hearing.
20The Employer asserted that the Union is attempting to have this Board find that EMDC cannot function like every other facility without ballooning its complement of COs on any particular day. I understand that view. However, I am not convinced that is what the Union is seeking. I think the Union is trying to ensure that the Employer lives up to the Memorandum of Agreement it signed which appears to be unique to EMDC.
21It is hoped that at our next day of hearing the parties can, with the assistance of the Board determine the extent of the compensatory remedy that remains owing. I look forward to that exercise so that the many grievors – and the Employer - can see an end to this dispute.
Dated at Toronto, Ontario this 14th day of November 2016.
APPENDIX “A”
GSB#
Grievor
Union File #
2010-2500
Klir, David
2010-0108-0049
2010-2501
Wust, Harry
2010-0108-0050
2010-2502
Fraleigh, Robert
2010-0108-0051
2010-2503
Winegarden, Kenneth
2010-0108-0052
2010-2504
McDonald, Scott
2010-0108-0053
2010-2825
Deyell, Robert
2011-0108-0005
2010-2826
Deyell, Robert
2011-0108-0006
2010-2827
Deyell, Robert
2011-0108-0007
2010-2828
Deyell, Robert
2011-0108-0008
2010-2829
Deyell, Robert
2011-0108-0009
2010-2830
Deyell, Robert
2011-0108-0010
2010-2831
Deyell, Robert
2011-0108-0011
2010-2832
Deyell, Robert
2011-0108-0012
2010-2833
Deyell, Robert
2011-0108-0013
2010-2834
Deyell, Robert
2011-0108-0014
2010-2835
Deyell, Robert
2011-0108-0015
2010-2836
Deyell, Robert
2011-0108-0016
2010-2837
Deyell, Robert
2011-0108-0017
2010-2880
MacLean, Graeme
2011-0108-0018
2010-2881
MacLean, Graeme
2011-0108-0019
2010-2882
Prentice, Andrew
2011-0108-0020
2010-2883
Prentice, Andrew
2011-0108-0021
2010-2884
Prentice, Andrew
2011-0108-0022
2010-2885
Prentice, Andrew
2011-0108-0023
2010-2886
Prentice, Andrew
2011-0108-0024
2010-2887
Townsend, Rebecca
2011-0108-0025
2010-2888
Townsend, Rebecca
2011-0108-0026
2010-2889
Townsend, Rebecca
2011-0108-0027
2010-2890
Townsend, Rebecca
2011-0108-0028
2010-2891
Cecchin, Jim
2011-0108-0029
2010-2892
Cecchin, Jim
2011-0108-0030
2010-2893
Cecchin, Jim
2011-0108-0031
2010-2894
Cecchin, Jim
2011-0108-0032
2010-2923
MacLean, Graeme
2011-0108-0034
2011-0251
Deyell, Robert
2011-0108-0037
2011-0252
Deyell, Robert
2011-0108-0038
2011-0253
Deyell, Robert
2011-0108-0039
2011-0254
Deyell, Robert
2011-0108-0040
2011-0255
Deyell, Robert
2011-0108-0041
2011-0256
Deyell, Robert
2011-0108-0042
2011-0257
Deyell, Robert
2011-0108-0043
2011-0258
Deyell, Robert
2011-0108-0044
2011-0259
Deyell, Robert
2011-0108-0045
2011-0260
Deyell, Robert
2011-0108-0046
2011-0261
Deyell, Robert
2011-0108-0047
2011-0262
Deyell, Robert
2011-0108-0048
2011-0263
Deyell, Robert
2011-0108-0049
2011-0264
Deyell, Robert
2011-0108-0050
2011-0265
Fraleigh, Robert
2011-0108-0051
2011-0266
Fraleigh, Robert
2011-0108-0052
2011-0267
Fraleigh, Robert
2011-0108-0053
2011-0268
Fraleigh, Robert
2011-0108-0054
2011-0269
Fraleigh, Robert
2011-0108-0055
2011-0270
Fraleigh, Robert
2011-0108-0057
2011-0271
Fraleigh, Robert
2011-0108-0058
2011-0272
Fraleigh, Robert
2011-0108-0059
2011-0273
Fraleigh, Robert
2011-0108-0060
2011-0274
Fraleigh, Robert
2011-0108-0061
2011-0275
Fraleigh, Robert
2011-0108-0062
2011-0562
Baker, Joshua
2011-0108-0067
2011-0563
Baker, Joshua
2011-0108-0068
2011-0564
Baker, Joshua
2011-0108-0069
2011-0565
Baker, Joshua
2011-0108-0070
2011-0566
Baker, Joshua
2011-0108-0071
2011-0567
Baker, Joshua
2011-0108-0072
2011-0582
Baker, Joshua
2011-0108-0073
2011-0598
Fraleigh, Robert
2011-0108-0056
2011-0615
Baker, Joshua
2011-0108-0076
2011-0636
Fraleigh, Robert
2011-0108-0077
2011-0637
Fraleigh, Robert
2011-0108-0078
2011-0638
Farlow, Deborah
2011-0108-0079
2011-0660
Fraleigh, Robert
2011-0108-0080
2011-0661
Fraleigh, Robert
2011-0108-0081
2011-0662
Fraleigh, Robert
2011-0108-0082
2011-0663
Fraleigh, Robert
2011-0108-0083
2011-0664
Fraleigh, Robert
2011-0108-0084
2011-0665
Deyell, Robert
2011-0108-0085
2011-0666
Deyell, Robert
2011-0108-0086
2011-0667
Deyell, Robert
2011-0108-0087
2011-0668
Deyell, Robert
2011-0108-0088
2011-0669
Deyell, Robert
2011-0108-0089
2011-0670
Deyell, Robert
2011-0108-0090
2011-0671
Deyell, Robert
2011-0108-0091
2011-0672
Deyell, Robert
2011-0108-0092
2011-0673
Deyell, Robert
2011-0108-0093
2011-0752
Baker, Joshua
2011-0108-0094
2011-0753
Baker, Joshua
2011-0108-0095
2011-0754
Baker, Joshua
2011-0108-0096
2011-0755
Baker, Joshua
2011-0108-0098
2011-1039
MacLean, Graeme
2011-0108-0101
2011-1040
Deyell, Robert
2011-0108-0102
2011-1041
Deyell, Robert
2011-0108-0103
2011-1043
Deyell, Robert
2011-0108-0105
2011-1044
Deyell, Robert
2011-0108-0106
2011-1045
Deyell, Robert
2011-0108-0107
2011-1046
Deyell, Robert
2011-0108-0108
2011-1047
Deyell, Robert
2011-0108-0109
2011-1048
Deyell, Robert
2011-0108-0110
2011-1062
Baker, Joshua
2011-0108-0097
2011-2068
Kennett, Rick
2011-0108-0112
2011-2071
Deyell, Robert
2011-0108-0115
2011-2072
Deyell, Robert
2011-0108-0116
2011-2073
Deyell, Robert
2011-0108-0117
2011-2074
Deyell, Robert
2011-0108-0118
2011-2075
Deyell, Robert
2011-0108-0119
2011-2076
Deyell, Robert
2011-0108-0120
2011-2077
Deyell, Robert
2011-0108-0121
2011-2078
Deyell, Robert
2011-0108-0122
2011-2079
Deyell, Robert
2011-0108-0123
2011-2080
Deyell, Robert
2011-0108-0124
2011-2081
Deyell, Robert
2011-0108-0125
2011-2082
Deyell, Robert
2011-0108-0126
2011-2083
Deyell, Robert
2011-0108-0127
2011-2084
Deyell, Robert
2011-0108-0128
2011-2085
Deyell, Robert
2011-0108-0129
2011-2134
MacLean, Graeme
2011-0108-0131
2011-2666
Coull, James et al
2011-0108-0135
2011-2846
Union
2011-0108-0134