GSB# 2018-3237; 2018-3238; 2019-2597; 2019-2727

UNION# 2018-0252-0024; 2018-0252-0025; 2018-0252-0028; 2017-0252-0017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Clark)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

James Cheng Treasury Board Secretariat Employer Relations Advisor

HEARING

February 11, 2020

Decision

1The Employer and the Union at the Niagara Detention Centre agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement; and it is without prejudice or precedent.

2The grievor David Clark is employed as a Correctional Officer 2 at the Niagara Detention Centre. He has over 35 years of seniority with the Employer.

3The grievances filed by the grievor involve three different matters, which will be dealt with separately.

Grievances 2018-0252-0024, 2018-0252-0025

The Merits of the Grievances

4Grievance 2018-0252-0024 relates to an alleged failure of the Employer to call in the grievor regarding an activation of an Institutional Crisis Intervention Team (ICIT) Deployment on June 13, 2018. As of that date, it is not disputed that the grievor’s certification to perform ICIT duties was not up to date.

5The Union and the grievor agree that given that the grievor’s ICIT certification was not up to date, there was no obligation upon the Employer to consider the grievor for the five member ICIT unit that was deployed. It is asserted, however, that pursuant to the Employer’s Handheld Digital Video Recording – Institutional Crisis Intervention Team Deployment policy that the grievor should have been utilized as the Video Camera Operator regarding this particular ICIT deployment. In particular, the Union relies on the following sections of that Policy:

6.1 Prior to an ICIT Activation and Deployment

6.1.1 In the event of an ICIT deployment, a Video Camera Operator (see 4.6) is assigned to video record the deployment.

6.1.2 The role of Video Camera Operator is to be performed by correctional staff who have received orientation on the use of handheld digital video recording equipment.

6.1.3 The roll should be assigned in the following order, based on availability:

a. a member of ICIT (above the five-member team complement); or

b. a former member of ICIT; or

c. a correctional officer

The Union asserts that undeniably the grievor was a former member of ICIT at the time, so he should have been given the opportunity to perform the work rather than the Employer calling in an ICIT member from the Hamilton Wentworth Detention Centre.

6The primary position of the Employer with respect to the merits of this grievance is that the assignment of personnel to an ICIT deployment is at the discretion of the Employer, and there is no collective agreement language or binding agreed-to protocol which dictates the procedure as to which certified ICIT members are to be utilized with respect to a particular incident. Moreover, it is asserted that there is no obligation upon the Employer to first provide ICIT deployment opportunities to employees at the particular institution where the incident is taking place. Further to this point, it is asserted that it was perfectly appropriate for the Employer to select an active ICIT member to perform the Video Camera Operator duties even if that individual was based out of the Hamilton Wentworth Detention Centre.

7Grievance 2018-0252-0025 relates to the failure to call in the grievor for ICIT deployment on July 8, 2018. (By that date the grievor had updated his ICIT certification). On that date, the grievor was not working. He received a call from Sergeant Oliver Mohan inquiring as to whether he was willing to come in to work for an ICIT deployment that was taking place. The grievor claims he advised Sergeant Mohan that he had company at his house; but that, he would call back in five minutes as he may be able to make arrangements to allow him to come into work. According to the grievor when he called back five minutes later Sergeant Mohan advised that he had filled the ICIT unit for the deployment in question. The grievor asserts that he then advised Sergeant Mohan that if the incident escalated, and there was the need for more ICIT members, to call him as he would make himself available. The Employer did, in fact, later that day, call in additional ICIT members based out of the Hamilton Wentworth Detention Centre to deal with the incident.

8The Union asserts that the Employer was obligated to offer this overtime opportunity to the grievor. In furtherance of this point, the Union relies on Article COR8.2.1 of the collective agreement, which, in the view of the Union, suggests that overtime should be distributed fairly and equitably to employees at the local workplace.

9The position of the Employer with respect to the merits of this grievance is in accord with its position regarding Grievance 2018-0252-0024.

The Timeliness Issue

10The grievances were not filed by the grievor until September 7, 2018. The Employer therefore asserts that the grievances should be dismissed for want of jurisdiction as they were not filed in a timely matter. In particular, both grievances were filed outside the 30-day window for filing grievances set out at Article 22.2 of the collective agreement.

11It is accepted that pursuant to Article 22.14.7 of the collective agreement, I have the discretion to waive the non-compliance with the time limits set out in the grievance procedure pursuant to Section 48(16) of the Ontario Labour Relations Act (OLRA).

12Applying the relevant criteria set out in Section 48(16) of the OLRA, it is my determination that this is not an appropriate case to waive the failure of the grievor to file the grievances in a timely manner. One relevant consideration pertaining to the exercise of the discretion under Section 48(16) is whether there is a reasonable explanation for the delay. On this point, the grievor suggests the delay relates to the fact he endeavoured to address the manner informally rather than escalate the dispute by filing grievances. The grievor, however, did not provide any documentary proof, such as emails, to support his claim that prior to filing the grievances, he was addressing the issues in dispute with the appropriate members of management. More importantly, no explanation was provided as to why the grievor did not file a grievance in a timely manner when those efforts to deal with the matter informally proved unsuccessful. Another factor to be considered in assessing the appropriateness of exercising the statutory discretion under Section 48(16) is whether the Employer would be substantially prejudiced as a result of the delay. In this case, the events associated with the July 8, 2018 incident to a significant degree relate to the phone conversations between the grievor and Sergeant Mohan on that day. The ability of Sergeant Mohan to recall the specific details of those conversations may have been adversely affected by the delay associated with the filing of the grievance. Finally, a further consideration in weighing whether it is appropriate to waive the failure to comply with the time limits is the relative significance of the grievance. On this point, while it is appreciated that the grievor may have potentially lost certain overtime opportunities; on a relative basis, that interest falls at the lower end of employee interests under the collective agreement.

13Accordingly, Grievances 2018-0252-0024 and 2018-0252-0025 are, hereby, dismissed on account of being untimely.

Grievance 2017-0252-0017

14This grievance relates to a claim that the Employer violated Appendix COR33 – Administrative Compensating Leave provision of the Collective Agreement. That provision provides that full-time bargaining unit employees would be granted 36 hours of compensating leave effective January 1, 2016 and on January 1, 2017. The grievor received his ACL credits for 2016.

15During the course of 2016, the grievor entered into a Temporary Assignment Agreement involving a temporary assignment to a Senior Staff Development Officer with the Ontario Correctional Services College (OCSC). That position is in the OPSEU unified bargaining unit.

16The Eligibility Criteria for the ACL Credits set out the general rule that on the relevant January 1, 2016 and January 1, 2017 entitlement dates, the employee had to be assigned to a Corrections bargaining unit position. Since as of January 1, 2017, the grievor was a Senior Staff Development Officer at the OCSC, a position outside the bargaining unit, he did not satisfy the general rule for entitlement. There was, however, the following exception to that rule that potentially could apply to the scenario of an employee being temporarily assigned to a position in another bargaining unit as of January 1, 2017:

COR bargaining unit employees temporarily assigned to a position in another bargaining unit are only eligible to receive ACL credits if they were paying dues to OPSEU’s COR bargaining unit on January 1, 2016 or January 1, 2017 (i.e., during the first 30 days of the temporary assignment.

The grievor, however, as of January 1, 2017 was not within the first 30 days of his temporary assignment to a Senior Staff Development Officer position; accordingly, the grievor did not fit within the scope of the above exception.

17The grievor, therefore, did not satisfy the eligibility requirements to receive ACL credits effective January 1, 2017; as such, the grievance is, hereby, dismissed.

Grievance 2018-0252-0028

18As outlined in the discussion pertaining to grievance 2017-0252-0017, the grievor had received a temporary assignment to a Senior Staff Development Officer position at the OCSC.

19In June 2017, the grievor entered into a Temporary Assignment Agreement extending his assignment in the Senior Staff Development Officer position from June 27, 2017 until December 31, 2017. That written agreement provided that the assignment could be terminated early by the Niagara Detention Centre. In October 2017, Kent Milligan, Superintendent for the Niagara Detention Centre, citing operational needs, terminated the grievor’s temporary assignment to the OCSC.

20The grievor challenges the Employer’s claim that there was an operational need requiring him to return to his Correctional Officer position. In this regard, the grievor asserts that during the first month of his return, aside from performing training functions on four days, he did little in terms of active correctional duties.

21The Employer notes that at the time the grievor was called back to the Niagara Detention Centre, the staff was overtaxed due to a number of lockdown scenarios and, at a minimum, the grievor was needed in a relief capacity. Additionally, it was noted that another employee who was in a temporary assignment in a Bailiff position was also required to return to a Correctional Officer position.

22It is my determination, upon reviewing the relevant facts, that there is no basis to suggest that there was a violation of the collective agreement associated with the Employer putting an early end to his temporary assignment at the OCSC. In this regard, there is no collective agreement language expressly regulating the Employer’s decision-making with respect to employees being temporarily assigned to positions outside the bargaining unit. Moreover, even if it could be asserted that a reasonableness standard should apply to the Employer’s decision-making, it would have met that test with respect to this particular decision; as there is a sufficient factual basis to suggest that there were legitimate operational reasons for the grievor to be recalled.

23It is appreciated from the grievor’s perspective that the Employer’s decision had a considerable negative impact on his development prospects, and in particular, his ability to get a full-time permanent position with the OCSC. That point noted, for the reasons outlined, there is no basis to suggest that the decision of the Employer to terminate his temporary assignment in the Senior Staff Development Officer position violated the collective agreement. Accordingly, grievance 2018-0252-0028 is, hereby, dismissed.