GSB#2010-2499
UNION#2010-0108-0049
Additional files are attached in Appendix “A”
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Pinkney et al)
Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General)
Employer
BEFORE
Ken Petryshen
Arbitrator
FOR THE UNION
John Brewin
Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
George Parris
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING
November 1, 2018 and April 18, 2019
Decision
1This is a third decision on grievances relating to a compressed work week agreement (“the Agreement) for the Elgin Middlesex Detention Centre (“EMDC”) executed by the parties on January 11, 2010. In addition to a Union grievance, there are over 100 individual grievances that were filed by Correctional Officers (“COs”) in 2010 and 2011.
2These grievances were initially before Arbitrator F. Briggs and she authored the previous two decisions. Following a hearing on July 17, 2013, the first decision was issued on November 4, 2013 (“Decision #1”). The final paragraph of Decision #1 noted that further hearing dates were scheduled. Two hearing days were held on September 8, 2015 and March 4, 2016. Following these hearing dates, the second decision was issued on November 14, 2016 (“Decision #2”). In the last paragraph of Decision #2, Arbitrator Briggs expressed the hope that the parties would be in a position to determine the extent of the compensatory remedy at the next day of hearing. That next day of hearing took place on June 12, 2017. Counsel provided Arbitrator Briggs with a written summary of their submissions prior to June 12, 2017, and completed oral submissions at the hearing. Some additional material was provided subsequent to the hearing at the request of the Arbitrator. Unfortunately, Arbitrator Briggs became ill and passed away before she could issue a decision following the hearing on June 12, 2017.
3In October 2018, the parties requested that I take over this matter and counsel agreed to a process for the continuation of this case. At my first hearing I advised the parties of the contents of the GSB’s file. The file was by then complete since the GSB was able to retrieve all of the material that had been in the possession of Arbitrator Briggs. In addition to the previous two decisions, the file included all of the exhibits, the written submissions of counsel that were filed prior to the June 12, 2017 hearing and Arbitrator Briggs’ typed notes of the submissions that counsel made at the hearing on June 12, 2017. The file also included a partial draft of a decision that Arbitrator Briggs was working on. The partial draft, however, did not include any indication of how she intended to decide any of the issues before her. On a subsequent hearing date, counsel re-argued the issues that were before Arbitrator Briggs on June 12, 2017.
4What is evident from the submissions is that each party continued to have a different interpretation of the Employer’s obligations under the Agreement. In addition, each party had a different view about what had been decided in Decisions #1 and #2. In order to appreciate the interpretations of the Agreement held by the parties, it is necessary to briefly review the factual context that gave rise to the grievances. The relevant facts can essentially be found in Decision #1, starting with the Agreement itself.
5The relevant portions of the Agreement are 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,
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:
(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.
6Paragraph 12 of the Agreement refers to “attached schedules”, one of them being Schedule A. Schedule A was filed with the Board, along with certain duty rosters. Schedule A sets out the days each CO is to work during a week and contains 159 positions covering all units within EMDC that are broken down into 19 Platoons. The first 17 Platoons contain 147 positions. The 18th and 19th Platoons are titled Attrition and the 12 positions therein are referred to in the Agreement as the “Utility Schedule”. The 12 positions in the Utility Schedule are not particularly relevant for our purposes.
7Each Platoon from 1 to 13 contains different Units with Unit assignments noted. Platoons 14 through 17 are expressly titled as follows: 14 - Front Door; 15 - Male Admitting & Discharge; 16 - Female Seg & Admitting and Discharge; and, 17 - Female Unit.
8The Agreement provided that the new approved schedules shall take effect on March 1, 2010. The duty rosters prepared after that date represented the operationalization of the work identified in Schedule A. A duty roster is in effect an assignment sheet for each day broken down into Units with lines for the names of COs working various shifts. The duty rosters may contain assignments that are not referenced on Schedule A, such as escort duty and training. The parties have referred to these assignments as below the line CO positions.
9At the first hearing on July 17, 2013, the Union took the position that as of
November of 2010 the Employer began scheduling COs in a way that was contrary to the Agreement. It claimed that the Agreement required the Employer at a minimum to schedule 147 classified CO positions each day and further that each of the 147 lines or CO positions that referenced CO work locations on Schedule A were to be assigned to an individual CO. The Union argued that the Employer was also obliged to make every effort to backfill these specific 147 lines or CO positions on a daily basis. It claimed that this obligation required the Employer to replace any one of the 147 COs who had been assigned duties not contemplated by the 147 lines on Schedule A. The Union maintained that instead of complying with this scheduling process after November of 2010, the Employer redacted some of the lines and CO positions from subsequent roster sheets and it failed to backfill CO positions. It was on this basis that the Union took the position that the Employer breached the Agreement by failing to schedule the hours for classified COs contemplated by Schedule A, thereby entitling COs to compensation.
10Prior to the final day of hearing before Arbitrator Briggs, the parties agreed that the period for assessing any compensation would be from January 10, 2011, to January 4, 2014, a week short of three years. They also agreed to simplify the exercise by agreeing to representative time periods, namely the weeks of November 1 to 7, 2011, and April 1 to 7, 2013. This avoided the necessity of analyzing every week for which compensation might be owed. It was agreed that the final hearing day would give each party the opportunity to make submissions on all outstanding issues, including on the question of compensation, if any, owing to employees arising from the Employer’s alleged failure to comply with its scheduling obligations under the Agreement.
11I find it unnecessary to review the submissions of counsel in detail. As noted previously, the positions that each party took were based on different interpretations of the Agreement and on different views of what had been decided by Decisions #1 and #2. The Union continued to take the position that the Agreement required the Employer to do more than simply schedule at least 147 classified COs every day. It argued that the Agreement required that 147 classified COs be assigned to the 147 specific lines or CO positions set out in Schedule A to perform the CO duties normally performed by COs working in those positions. The Union also argued that the Employer was required to take reasonable steps to backfill the specific 147 classified CO positions on a daily basis. The Union argued that this core staffing feature of the Agreement was intended to ensure a level of assignments to an agreed set of duties that impacted such matters as safety and quality of work. Utilizing its interpretation of the Agreement and the extensive data provided for the two representative weeks, the Union claimed that the average daily shortfall from the total number of hours that should have been scheduled was 43 hours. In other words, it claimed that the Employer breached the Agreement when it failed to pay classified COs during the relevant period an average of 43 hours overtime in total each day. Taking into account the data on overtime availability and the applicable hourly overtime rate, the Union determined that the compensation owing to classified COs for the compensation period amounted to $2,180,017.00. The Union requested that interest be paid on this amount.
12The Employer took the position that the Agreement does not oblige it to fill the 147 lines or specific posts as identified on Schedule A on a daily basis. It disagreed that it was required to maintain staffing levels that are tied to a set of CO duties. The Employer did not dispute that the duty rosters after November 2010 were not identical to those that were first used. However, the Employer maintained that it complied with its obligations under the Agreement as long as it scheduled 147 classified COs daily, even if they were assigned to CO positions below the line. It also maintained its obligation “to backfill the 147 lines” only arises when any of the 147 COs are absent from work. Employer counsel argued that the Employer’s interpretation of the Agreement in effect was accepted by the GSB in Decisions #1 and #2. After analyzing the data, the Employer concluded that only two hours was owed for the week of November 1 to 7, 2011, and that no hours were owed for the other representative week. Based on its interpretation of the Agreement and the previous decisions, the Employer took the position that any compensation owed to COs is very much less than the amount claimed by the Union.
13The central issue before me then is whether the Agreement compels the Employer to do more than simply schedule 147 classified COs on a daily basis. Does the Agreement also require the Employer to schedule 147 classified COs and have them perform the duties of the 147 positions identified on Schedule A and make every effort to backfill these specific positions on a daily basis? My focus in this decision will be only on deciding this question since it is the significant issue that has prevented the parties from achieving a resolution of the grievances. A final determination of this issue will hopefully lead the parties to resolve the remaining issues in dispute. Given the dispute over what had been decided in the previous decisions, I will review Decisions #1 and #2 in some detail and address this matter first.
14In the first decision issued on July 17, 2013, Arbitrator Briggs set out the facts and noted that the parties had agreed that the Board decide two questions. The first question 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?” The second question 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?” After entertaining submissions from counsel, Arbitrator Briggs answered the first question as follows:
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 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.
Though 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.
I 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.
15During her submissions on the second question, Union counsel argued that there was nothing in the Agreement that would permit the Employer to remove a CO from his or her assigned post and have the CO work outside of the building. Noting that all of the assignments set out on Schedule A are within EMDC buildings, Union counsel submitted that the Employer cannot re-assign one of the 147 COs to do work not contemplated by Schedule A, such as outside escort duty. Union counsel also submitted that if one of the 147 COs is out of the building on an escort, the vacant position must be filled by another CO. Arbitrator Briggs answered the second question as follows:
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 can not 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.
16Further hearing dates were scheduled to deal with the quantification of the remedy. At a subsequent hearing, the parties made submissions in a “summary fashion”. In decision #2, Arbitrator Briggs set out the submissions of counsel as follows:
UNION 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 this 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 was 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 use 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 and 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 the 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.
17Arbitrator Briggs responded to the Employer’s position that the Union was attempting to re-litigate issues that had been previously decided as follows:
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 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.”
18Arbitrator Briggs then noted that there were some questions asked at the hearing that were intended to seek clarification with regard to remedy. Her comments relating to these questions are as follows:
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.
19After carefully reviewing Decisions #1 and #2, I am satisfied that the Employer’s position on what had been decided by Arbitrator Briggs is correct. To determine what was decided in the decisions it is necessary to review the submissions that were made at each hearing and to review the determinations made by Arbitrator Briggs as a whole.
20In response to the first question put to her in Decision #1, Arbitrator Briggs concluded at paragraph 32 that the Agreement required that there be a schedule based on 147 classified CO positions. In other words, the Employer was obliged to schedule at least 147 classified COs at EMDC per day. Even though it had been argued that the Employer was obliged to schedule the 147 COs at the locations set out on Schedule A, Arbitrator Briggs did not specifically find that the Employer was so obliged when answering the first question. In paragraph 33, she indicated that the backfill language covers situations when any of the 147 COs scheduled to work are absent from work or otherwise unavailable for work for reasons such as sickness, vacation and leaves of absence. Interpreting the backfill language in this way amounts to an implicit rejection of the Union’s position that the Employer is obliged to backfill an absence created by the assignment of one of the 147 COs to perform duties that are outside of the work locations set out on Schedule A. The second question was whether the Agreement permitted the Employer to assign one of the 147 classified COs to escort duty out of the building. In my view, the way Arbitrator Briggs answered the second question confirms my assessment of what she had decided in answering the first question. In accepting the Employer’s submissions, Arbitrator Briggs rejected the Union’s contention that the Employer could not assign one of the 147 classified COs to perform duties outside of the specific locations set out in Schedule A. She found that there was nothing in the Agreement that restricted the Employer’s inherent right to manage the workforce and to assign work. In commenting on the escort situation, Arbitrator Briggs in effect did not suggest that the absence of one of the 147 classified COs created by the assignment of a CO to escort duties outside of the building was the kind of absence that required the
Employer to backfill the vacated CO position.
21In Decision #2, the Union continued to argue that the Agreement placed a
restriction on the Employer’s ability to assign work to the 147 classified COs and that any vacancy in any of the 147 classified positions required the Employer to backfill the position. Arbitrator Briggs agreed with the Employer’s contention that the Union was taking positions with respect to matters that had been answered in Decision #1. I take her comment in this regard to mean that the answers she gave in Decision #1 were not favourable to the positions advanced by the Union at the hearing that led to Decision #2. In responding to specific questions about backfilling, Arbitrator Briggs made some comments about absences due to vacation and illness in paragraph 17 which are consistent with her conclusions in Decision #1 about the types of absences that would trigger the obligation to backfill. Her comments about accommodation are also instructive. The Union had argued that a CO should not be included as part of the 147 classified COs if the CO could not perform all of the duties associated with the 147 classified positions identified on Schedule A. Consistent with her view that the Agreement did not restrict the Employer’s right to assign work, Arbitrator Briggs found that a CO working as a CO on accommodated duties is a part of the 147 classified positions. I take it that this applies to a CO on accommodation who is not in a position identified on Schedule A, but who is performing CO duties in a CO position below the line.
22It is therefore my view that the central issue in dispute at the hearing before me had been decided by Arbitrator Briggs. In summary, she determined that the Agreement required the Employer to schedule 147 classified COs on a daily basis, but that the Agreement did not restrict the Employer’s right to assign work to the group of 147 classified COs. In other words, COs performing CO duties in positions below the line, whether those were escort, training or accommodated duties, are to be included in the group of 147 classified COs. She also determined that the Employer had an obligation to reasonably backfill the 147 classified CO positions in circumstances where a classified CO that was a part of the group of 147 was absent from work for reasons such as illness, vacation or a leave of absence.
23My own view of the language of the Agreement is consistent with the determinations made by Arbitrator Briggs. The fact that the Agreement obliged the Employer to schedule at least 147 classified COs on a daily basis is by itself a unique feature of a compressed work arrangement. A provision in such an agreement which would restrict the Employer’s ability to assign work to COs on a daily basis given the particular needs of an institution would be extremely unusual. I appreciate that Schedule A is attached to the Agreement, that section 12 (a) of the Agreement refers to 147 classified CO positions “as identified in the employers staffing model”, that the new work week schedules were approved and that the initial duty rosters based on Schedule A were accepted by the Union. However, I do not see these features or any other aspects of the Agreement as placing a restriction on management’s right to assign work to the 147 classified COs. If these parties had intended to restrict such a significant management right, I would have expected to see clear and specific language in the Agreement to achieve such a result. In my view, such language does not exist in the Agreement. I can appreciate why the Union might want an agreement from the Employer to staff specific posts with a minimum number of COs on a daily basis for safety and other reasons in addition to maintaining a minimum overall staffing level for the EMDC. However, there is no basis for concluding that the Employer made such a commitment in this instance given the terms of the Agreement.
24I also agree that the obligation to backfill in the Agreement arises only when one of the 147 classified COs is absent from work. The Employer is required to make reasonable efforts in the circumstances to replace an absent CO in order to maintain a minimum daily staffing level of 147 classified COs at EMDC.
25I will remain seized of the grievances. I am hopeful that the parties can now move forward to address any outstanding issues, with the assistance of the Board if necessary.
Dated at Toronto, Ontario this 12th day of September, 2019.
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