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

Jane Letton

Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

George Parris

Treasury Board Secretariat

Legal Services Branch

Counsel

HEARING DATES

March 11, 2020 and February 22, 2021

Decision

1I have before me a Union grievance dated November 16, 2011, and over 100 individual grievances filed by Correctional Officers (“COs”) employed at the Elgin Middlesex Detention Centre (“EMDC”) which allege that the Employer contravened a Compressed Work Week Agreement (“CWWA”) dated January 11, 2010. These grievances were initially before Arbitrator F. Briggs. She issued two decisions, one dated November 4, 2013 and the other dated November 14, 2016, and was preparing to issue a third decision, but unfortunately passed away subsequent to hearing further submissions at a hearing on June 12, 2017. The parties requested that I take jurisdiction over the grievances and eventually counsel re-argued the issues that were before Arbitrator Briggs on June 12, 2017. The decision I issued with respect to these grievances is dated September 12, 2019. The three decisions addressed a dispute over the interpretation of certain terms of the CWWA. Disagreement over a number of remedial issues necessitated another hearing. This decision addresses the outstanding remedial issues.

2The CWWA had some unique features. The parties agreed in paragraph 12 that the CWWA was based on 147 classified CO positions and that “every effort will be made to backfill the 147 lines on a daily basis.” A Schedule A is a part of the CWWA and it references the required 147 positions by setting out the days each CO is to work during the week. In the decision dated September 12, 2019, I concluded that the CWWA required the Employer to schedule 147 classified COs on a daily basis and that the Employer was obliged to make reasonable efforts to replace an absent CO in order to maintain a minimum staffing level of 147 classified COs at the EMDC. I also determined that the CWWA did not restrict the Employer’s right to assign work to the 147 classified COs. The Employer could be in breach of the CWWA if the daily hours for classified COs in each week fell below the minimum required staffing level of 147 COs. I use the words “could be in breach of the CWWA” because of the possibility that the daily minimum staffing level was not attained through no fault of the Employer.

3While this matter was before Arbitrator Briggs, the parties agreed that the

period for assessing any compensation owing would be from January 10, 2011 to January 4, 2014, a week short of three years. They also agreed that each party would choose a week during the relevant period which would serve to be representative of the entire 155 weeks for which compensation might be owed. This avoided the necessity of analyzing each day of every week for the entire period. The Employer selected the week of April 1 to 7, 2013, and the Union selected the week of November 1 to 7, 2011.

4The parties agree that there was no shortfall in hours during the week of April 1 to 7, 2013. During the week of November 1 to 7, 2011, there was a shortfall in hours on one day only, namely November 5, 2011. The parties focused on that one day for the purpose of extrapolating the compensation owing for the entire 155 week period. At the hearing, counsel made submissions with respect to the extent of the shortfall and other matters which affect the determination of the compensation owing for a breach of the CWWA. I have carefully considered these submissions. I will concisely address each of the issues in dispute.

5The Employer claims that the shortfall on November 5, 2011 is 4 hours. It reaches this number by starting its analysis on the basis of the 760 agreed to hours as provided for in Schedule A. The Union’s position is that there was a shortfall of 32 hours. It relies on the model duty roster to support its position that the required hours for that day totaled 790 hours. I agree with the Employer that there are no justifiable grounds for determining the required hours on November 5, 2011, on the basis of the model duty roster. Since it forms part of the CWWA, the required hours should be determined by Schedule A. The shortfall in hours based on 147 CO positions on November 5, 2011 is therefore 4 hours.

6The Union argued that the week chosen by the Employer should not be used because it was not a typical work week and therefore is not representative for purposes of determining an appropriate remedy. I disagree. The fact that a statutory holiday occurred in that week and that construction was taking place in the foyer does not support the conclusion that April 1-7, 2013, cannot be used as a representative week. I am satisfied that it is appropriate to use both representative weeks for determining the shortfall that is to be extrapolated for the entire remedial period. When this approach is adopted, the shortfall in hours amounts to 2 hours for each of the 155 weeks.

7The remaining issues were the CO hourly rate that should be applied, whether the hours should be paid at the overtime rate and what percentage of exhausts should be applied for each year to reduce the amount owing. Exhausts refers to occasions when the Employer had exhausted the overtime list on a daily basis and was therefore unable to address any shortfall in hours through no fault on its part. The Union submitted that the calculation of compensation owing should be based on the highest CO hourly rate of pay in each year and on the overtime rate of pay. It also submitted that the percentage of exhausts should be no more that 5% of the total amount of compensation owing. The Employer argued that the appropriate way to calculate the compensation owing for the 155 weeks is to use the average CO hourly rate for each year and the regular CO hourly rate, not the overtime rate. The Employer also argued that the percentage of exhausts should be 25%. It maintained that it regularly exhausts during June, July and August of each year and during March break and the weeks in which the end of year holidays occur.

8Having regard to the submissions and the information before me relevant to these issues, I find it appropriate in the circumstances to resolve these issues as follows. The necessary calculations should be based on the average CO hourly rate of pay in each year. Since some of the hours of the shortfall would likely have been at the overtime rate of pay, one-half of the shortfall in hours shall be calculated at the overtime rate. I agree with the Employer that the Union’s position on the percentage that should be used for exhausts is not realistic. In my view, the appropriate percentage to use for the exhaust discount is 15%. Therefore, using the second year of the CWWA as an example, the 2 hour shortage for each of the