GSB# 2019-0719; 2019-0720; 2019-0721; 2019-0722
UNION# 2019-0368-0060; 2019-0368-0061; 2019-0368-0062; 2019-0368-0063
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Union)
Union
- and -
The Crown in Right of Ontario (Ministry of the Solicitor General)
Employer
BEFORE
Ken Petryshen
Arbitrator
FOR THE UNION
Mae J. Nam Ryder Wright Holmes Bryden Nam LLP Counsel
FOR THE EMPLOYER
Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel
HEARING
May 20 and November 23; 2021; February 10 and 24, October 31, November 10, 21, and 24, 2022; February 7 and 14, March 7, April 4, May 8, and 30, June 8, September 7 and 8, October 27, 2023
Decision
1I have four Union grievances before me dated March 28, 2019, that were filed by the Local Union representing employees at the Central East Correctional Centre ("CECC"). The events that provide the context for the grievances essentially began in December of 2018 and ended in early April of 2019. These events included negotiations for the renewal of a Compressed Work Week Agreement ("CWWA"), the decision by the Employer to terminate the existing CWWA, the change from 12 to 8-hour shifts that began on March 18, 2019, the specific 8-hour schedules that were implemented by the Employer and what the Union described as anti-union conduct by the Employer while the CECC was on 8-hour schedules until about April 2, 2019, the date when the Ontario Labour Relations Board ("OLRB") released its decision on the Employer's successful unlawful strike application. The four Local Union grievances allege various breaches of the Collective Agreement, including Article 2 - Management Rights, Article 3 - No Discrimination, Article 9 - Health and Safety, Article 44.10 - Medical Certificates, COR5 - Shift Schedules, the Provincial Overtime Protocol ("POP"), as well as section 70 of the Ontario Labour Relations Act which, among other things, precludes employers from interfering with the representation of employees by a trade union.
2The parties made unsuccessful efforts at the outset of this proceeding as well as during the course of the proceeding to resolve the grievances. However, they did succeed in settling many individual grievances that were related to the events giving rise to some of the Union grievances. Many of the individual grievances were discipline grievances. In December of 2021, I entertained an Employer motion claiming that some of the Union's particulars did not make out a prima facie case. I dismissed the Employer's motion in a decision dated February 3, 2022.
3The Union called the following persons as witnesses to support its allegations: Mr. C. Butsch; Mr. R. Gilchrist; Mr. G. Mullen; Mr. N. Boomhower; Ms. J. Demerchant; Mr. S. Dunn; Mr. M. Field; Mr. J. Natalizio; and, Mr. D. Sirrs. Mr. Butsch and Mr. Gilchrist were the Local Union executive board members who played a primary role in the negotiations for the renewal of the CWWA. Mr. Butsch was an experienced Local Union official, holding various Union positions since 2004. He became Local Union President in 2010 and held that position until the end of 2019 when he returned to a Correctional Officer ("CO") position. Mr. Sirrs took over as Local Union President beginning in 2020. Mr. Gilchrist also held a number of Local Union positions since his arrival at the CECC in 2016. He held the position of First Vice-President of the Local Union during 2019 when the relevant events occurred, leaving that role at the end of 2021 and leaving the CECC for another correctional facility in September of 2022. Mr. Gilchrist viewed Mr. Butsch as a mentor. Mr. Natalizio held the position of Co-Chair of the Health and Safety Committee and he acted as worker's health and safety rep.
4The Employer called two witnesses, namely Mr. S. Clancy and Mr. R. Bauman. Mr. Clancy and Mr. Bauman were a part of the management team at the CECC. During his 36 years in Corrections, Mr. Clancy held various managerial roles at various institutions. During 2019, he was Deputy Superintendent ("DS") of Operations at the CECC. He was very much involved in the negotiation of the CWWA and with other matters that were the focus of the Union's allegations. Mr. Clancy retired in 2022. Mr. Bauman was at the CECC in 2019 on a nine month temporary assignment in the position of DS of Administration. The role he played in the relevant events was not as important as the role played by Mr. Clancy. As Union counsel noted in her submissions, two individuals who played a prominent role in the relevant events, namely Mr. K. Jolicoeur and Mr. M. Fraser, were not called to testify. Mr. Jolicoeur started as Superintendent in 2016/17 at the CECC and was in that position for about three years before leaving the CECC. As Superintendent, Mr. Jolicoeur led the CECC management team when the events relevant to this proceeding took place. Mr. Fraser, as the Scheduling Manager, played a role in creating the new schedules when the CECC changed from 12 to 8-hour shifts in March of 2019.
5In determining the facts and in assessing the anti-union allegations made by the Union, I have reviewed the oral and documentary evidence thoroughly and I have considered the submissions of counsel relating thereto. I resolved conflicts in the evidence by determining what was most probable having regard to the evidence as a whole. I considered Union counsel's submissions that an adverse interest on certain matters should be drawn from the Employer's decision not to call Mr. Jolicoeur and Mr. Fraser. Having regard to the circumstances of this case, I have accepted Employer counsel's submissions on this point and determined that drawing such an adverse interest was not warranted. I note that all of the witnesses were testifying about events that had occurred at least three and a half years before they were called to testify. As one might expect, this presented a challenge for witnesses who were trying to recall details of events that were relevant to the issues in dispute.
6Before turning to the breaches of the Collective Agreement alleged by the Union, I will provide a general overview of certain matters that were essentially undisputed. I will start this overview by referring to the CWWA that was in place at the CECC during the early part of 2019.
7The CECC opened in 2003 with an 8-hour work schedule, but from at least 2004, there has been a CWWA in place for COs. I was provided with an unsigned CWWA between the CECC and the Local Union, Local 368 dated January 9, 2017. Although I was not provided with a signed agreement, as Employer counsel noted on a number of occasions, there is no doubt that the parties were bound by the terms of this CWWA. It is through such an agreement that 12-hour shift schedules are approved by the parties and attached to the CWWA. Along with the compressed work week schedules, there are also some 8-hour work schedules. COs who were on an 8-hour schedule worked 40 hours per week, 160 hours per month. The majority of COs was on 12-hour schedules. They would work 160 hours per month as well, but would do so with fewer shifts during the work week. In the absence of the CWWA, the Collective Agreement provided for 8-hour shift schedules.
8The CWWA addressed other matters in addition to establishing compressed work week schedules. One of those matters is the post selection process for COs. At the relevant time, post selections were made every two years and were based on seniority. The CWWA did not have a set expiry date. The relevant parts of article 9 of the CWWA provide as follows:
9.2 The Agreement shall be in effect until either party notifies the other with written notice of 90 days of its desire to renegotiate the Schedule or Appendices of this Agreement.
9.3 Either party may, on written notice of 90 days to the other party, terminate this Agreement.
9On December 5, 2018, Mr. Jolicoeur provided Mr. Butsch with the following written notice:
As you are aware the employer has been attempting to work with Local 368 to reach an agreement with regards to the CECC Correctional Officer schedule and Compressed Work Week Agreement, in accordance with Article 10 of the 2015-2017 OPSEU Collective Agreement. To date, these attempts have been unsuccessful, however, the institution has continued to operate on a compressed work week schedule.
This will serve as 90 days written notice of the Employer's intention to revert back to non-compressed work week schedule, should a successful CWWA fail to be negotiated by March 5th, 2019. The Employer commits to posting the updated schedules, either new CWW or 8-hour schedules, in accordance with Article COR5. The Employer also reserves the right to extend this notice to provide necessary time to finalize negotiations being done in good faith with Local 368.
This was not the first time that Mr. Butsch had received such a written notice from the Employer to revert back to non-compressed work week schedules. He indicated that such notices were often given when a new Superintendent arrived at the CECC. Confronted with such a notice, the local parties would engage in negotiations to come up with terms for a new CWWA. It is fair to say neither the Employer, the Local Union or COs would welcome the prospect of reverting to 8-hour work schedules that would result from the termination of the CWWA.
10The local parties held a number of meetings during the next few months to work out the work schedules and the terms for a new CWWA. The key dispute that developed over this time was the Employer's desire to include an expression of interest ("EOI") process for the staffing of female inmate units. With this proposal, the selection of COs applying to work on female units would not be based on seniority, but would essentially be based on an assessment by the Employer of which COs were suited to work on female units.
11As the 90 day notice period was coming to an end, the subject of the CWWA and the Employer's proposal for staffing female units were discussed at a Local Union membership meeting, likely held in February or early March of 2019. Mr. Sirrs made a motion at this meeting which directed the Local Union not to agree to any revised CWWA that included an EOI process for the staffing of female units. The motion passed unanimously.
12The CWWA was one of the topics discussed at a local Improving and Maintaining Labour Relations Committee ("IMLRC") meeting held on Friday, March 8, 2019. The management attendees included Mr. Jolicoeur and Mr. Clancy. The Local Union attendees were Mr. Butsch and Mr. Gilchrist. It was agreed that the following reference in the minutes of the meeting accurately reflected what had been discussed during the meeting about the CWWA:
Ctte Members reviewed the proposed agreement. Union asserts that they are not in agreement with the CWW agreement having reference to EOI. They firmly believe that posts should be appointed by seniority only. Supt noted that they had been advised that EOI must be included in the agreement. Supt asked if the Union needed time to present to the members. Union responded that there would be no need, as the members had given the Executive the mandate that if there was an EOI clause in the agreement, they would not accept the CWW Agreement. Union noted that the members understood they would be presented with an 8-hour schedule.
13On March 11, 2019, Mr. Jolicoeur sent Mr. Butsch the following letter:
On December 5, 2018, notice was provided of the employer's intention to revert back to a non-compressed work week schedule should a successful CWWA fail to be negotiated for Correctional Officers at CECC.
To that end, the CECC administration has been working closely with Local 368 in an attempt to finalize an agreement and has allowed the parties to work beyond that date in good faith. On Friday March 8th, you advised that the local would not entertain further discussions. In the meeting you indicated that the reason for not continuing negotiation was primarily due to the Expression of Interest language required by the Employer for staffing female areas of the institution.
As such, this will serve as formal notice that the employer has extended the current CWWA period to March 31, 2019. Updated schedules will be posted in accordance with Article COR5, to be effective April 1, 2019.
In addition, and further to conversations that occurred during the most recent CWWA discussions, I wish to clarify that the practice of combining breaks without advanced approval will cease to be the practice on April 1, 2019 with the implementation of the new schedules.
14Mr. Butsch responded with a letter to Mr. Jolicoeur dated March 12, 2019, in which he took the position that the Employer could not extend the CWWA without the consent of the Union. He also indicated that any change to the existing practice of combining breaks would constitute a violation of COR7 of the Collective Agreement. Mr. Butsch proposed that the parties agree in writing to a 90-day extension of the CWWA so that discussions could continue. The Employer did not respond to this proposal.
15The Employer implemented the 8 hour work schedules to begin on March 18, 2019, eliminating the 12-hour shift schedules. The Employer began calling COs to advise of the change in work schedules. Article COR5 deals with shift schedules and COR5.1 provides as follows:
Shift schedules shall be posted not less than fifteen (15) days in advance and there shall be no change in the schedule after it has been posted unless notice is given to the employee ninety-six (96) hours in advance of the starting time of the shift as originally scheduled. If the employee concerned is not notified ninety-six (96) hours in advance they will be paid time and one-half (1½) for all hours worked on the first changed shift provided that no premium shall be paid where the change in schedule is caused by events beyond the ministries' control.
16As noted previously, the parties, as well as the employees, did not relish the prospect of the CECC operating only with 8-hour work schedules. The relatively sudden change in work schedules created issues for employees who had been used to having their working and personal lives governed by 12-hour shifts. The labour dispute that developed from the failure of the parties to agree to a revised CWWA created a tense work environment and very low morale. A number of the issues covered by the Union grievances dated March 28, 2019, arose during the approximately two weeks when only 8-hour shifts were in place. Some of the conduct by both parties and the COs during this brief period of time was conduct that can typically arise when a correctional institution is involved in a labour dispute. For example, management at the CECC brought in managers from other institutions to maintain a strong supervisory presence in anticipation of a strong reaction from COs and the Local Union to the Employer's decision to terminate the CWWA. The reaction by CO's included more sick calls than usual, a general reluctance to work overtime and a general slowdown in the performance of their duties during the two weeks in question. This situation created difficulties for both management, the Local Union and inmates.
17Not long after the new 8-hour shift schedules were adopted, the Employer required any employee who called in sick to provide a medical certificate. The Employer took this step in response to an increase in sick calls. Article 44.10 of the Collective Agreement provides as follows:
After five (5) days' absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the employee's manager, certifying that the employee is unable to attend to their official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the employee's manager may require an employee to submit a medical certificate for a period of absence of less than five (5) days.
18During the afternoon of March 29, 2019, which was at the end of the second week of the 8-hour work schedules, the Employer made an unlawful strike application under section 100 of the Labour Relations Act that named, among others, Local 368, Mr. Butsch and Mr. Gilchrist as responding parties. The application was heard on April 1, 2019, and the OLRB's decision, which essentially consists of declarations and orders, is dated April 2, 2019. From the directions and orders granted by the OLRB, it is not difficult to conclude that the Employer took the position in its application that COs had engaged in a concerted effort to refuse voluntary overtime and a concerted effort to slow down the movement of inmates scheduled for court appearances. Some of the relevant parts of the decision are set out below:
- Having regard to the submissions of the parties and the agreement of the parties to the process used to adjudicate and dispose of this application, the Board makes the following findings of fact, declarations, and orders:
Orders the Parties to implement the Compressed Work Week Agreement ("CWWA") attached at Appendix 'A' on April 8, 2019, which CWWA shall include provisions regarding expressions of interest with respect to the staffing on female units;
Orders and directs that Central East Correctional Centre ("CECC") employees represented by OPSEU Local 368 cease and desist from encouraging an unlawful strike and/or participating in an unlawful strike;
Orders and directs that the CECC employees represented by OPSEU Local 368 not engage in an unlawful strike;
Declares that a concerted refusal to work voluntary overtime and/or a concerted slow down relating to the movement of inmates within the institution for the purpose of facilitating their court appearance would constitute an unlawful strike;
Orders that the CECC employees represented by Local 368 shall not engage in a concerted refusal to work voluntary overtime;
Orders the CECC employees represented by Local 368 shall not engage in a concerted slow down relating to the movement of inmates within the institution for the purpose of facilitating their court appearance;
That there are no orders and/or declarations and/or findings specifically against Chris Butsch, Ryan Gilchrist ... or any specific individual member of OPSEU Local 368;
It is the position of OPSEU Local 368, Chris Butsch, Ryan Gilchrist, ... that neither the concerted refusal to work overtime, nor any slowdown of movement of inmates within the institution as alleged by the Employer in it Application, occurred for the purpose of delaying or interfering with the court appearances of any and all inmates;
19The OLRB decision had the effect of bringing the labour dispute over the terms of the CWWA to an end. The OLRB's order to implement a CWWA with an EOI process for staffing female units led to the return of work schedules that included 12-hour shifts beginning on April 8, 2019.
20During her final submissions in support of the four Local Union grievances, Union counsel identified the following six matters as constituting violations of the Collective Agreement. The Employer acted in bad faith when negotiating the CWWA as evidenced by the circumstances that led to the termination of the CWWA. The Employer contravened article COR5 when it failed to give 96 hours notice of the change in shift schedules that commenced on March 18, 2019. The Employer failed to update the 8-hour schedules on HPRO leading to breaches of the Provincial Overtime Protocol. The Employer made schedules and exercised its management rights in a manner that led to very dangerous conditions for COs and inmates and created a hostile and toxic work environment. The Employer targeted Mr. Gilchrist and Mr. Natalizio for their union activities and inappropriately surveilled Mr. Gilchrist. And lastly, the Employer adopted a blanket medical certificates policy in an arbitrary manner without considering individual circumstances, contrary to article 44.10 of the Collective Agreement. The general theme throughout the Union's submissions was that the Employer was on a mission to break the Local Union and to undermine certain Local Union officials. In its view, the Employer acted in bad faith and was motivated by anti-union animus when it was negotiating for a revised CWWA, when it terminated the CWWA and implemented the 8-hour work schedules and in its interactions with certain Union officials, namely Mr. Gilchrist and Mr. Natalizio.
21In support of her submissions, Union counsel relied on the following decisions: Re Canada Post Corp. and C.U.P.W. (Seymour), 1992 CanLII 14471 (Shime); Re Dimplex North America Ltd. and United Steelworkers of America, Local 8698 (Hamill), 2006 CanLII 93300 (Brown); AMAPCEO (Bokhari) and Ministry of Economic Development, Employment and Infrastructure, 2015 CanLII 20225 (ON GSB Dissanayake); USWA v. Radio Shack, [1979] OLRB Rep. December 1220; OPSEU (Union) and Ministry of Community Safety and Correctional Services, 2011 CanLII 41857 (ON GSB Briggs); OPSEU (Union) and Ministry of Correctional Services, 2002 CanLII 45771 (ON GSB Abramsky); OPSEU (Hernden/Larkin) and Ministry of Community Safety and Correctional Services, 2014 CanLII 40176 (ON GSB Dissanayake); OPSEU (Union) and Ministry of the Solicitor General, 2021 CanLII 95740 (ON GSB Anderson); OPSEU (Bisaillon) and Ministry of Community Safety and Correctional Services, 2016 CanLII 48167 (ON GSB Herlich); Re Ross (Abbott) Laboratories Ltd. and R.W.D.S.U., Local 440, 1990 CarswellOnt 4161 (Frankel); Re Humber College of Applied Science & Technology and OPSEU (1999), 1999 CanLII 35900 (ON LA), 80 L.A.C. (4th) 108 (Murray); Re Saskatchewan Wheat Pool and T.C.U., Lodge 650 (1991), 1991 CanLII 13479 (ON LA), 22 L.A.C. (4th) 129 (Bryson); Re Toronto (City) and T.C.E.U., Local 416 (2000), 2000 CanLII 27177 (ON LA), 93 L.A.C. (4th) 372 (Surdykowski); and, OPSEU (Union) and Ministry of the Solicitor General, 2022 CanLII 31342 (ON GSB Petryshen).
22The Employer's position on the issues raised by the Union was simply that there was no evidence called in this case to support the Union's allegations. Employer counsel submitted that the Employer did not act in bad faith when the parties were negotiating for a revised CWWA. Counsel also maintained that the Employer did not contravene article COR5 when it notified COs of a change in shift schedules, the Provincial Overtime Protocol when it switched to 8-hour shift schedules and article 44.10 when it requested medical certificates from COs since it suspected an abuse of sick leave. Counsel also submitted the 8-hour work schedules were created having regard only to the operational needs of the CECC and the Union called no credible evidence to suggest otherwise. Employer counsel emphasized that there was no evidence to support the Union's claim that the Employer was motivated by anti-union animus with respect to any of the matters raised by the Union, including how it dealt with the Local Union and its officials. Counsel also took the position that I did not have the jurisdiction to address some of the issues raised by the Union, such as the termination of the CWWA and the way COs were scheduled for the two weeks starting on March 18, 2019, because of the determinations made by the OLRB in its decision dated April 2, 2019.
23In addition to OPSEU (Union) and Ministry of the Solicitor General, (Anderson), supra, Employer counsel referred me to the following decisions: Ministry of Community Safety and Correctional Services and OPSEU, Local 368, 2019 CanLII 29721 (ON LRB); OPSEU (Martin) and Ministry of Transportation, 2023 CanLII 28226 (ON GSB McKendy); AMAPCEO (Grievor) and Ministry of the Attorney General, 2021 CanLII 58440 (ON GSB McLean); Jacobs Catalytic Ltd. and LIUNA, Local 1089 (Filipe), 2006 CarswellOnt 10993 (Albertyn); OPSEU (Robbins) and LCBO, 2020 CanLII 45597 (ON GSB Lynk); OPSEU (Pilger et al.) and Ministry of Community Safety and Correctional Services, 2011 CanLII 67953 (ON GSB Abramsky); La Rocca Creative Cakes and UFCW Canada Local 175 (Subramanian), 2019; OPSEU (Grifferty) and Ministry of Government Services, 2012 CanLII 67527 (ON GSB Devins); OPSEU (Grievor) and The Crown in Right of Ontario (2015), GSB No. 2010-2489 (Briggs); OPSEU (Dobroff et al.) and Ministry of the Environment, 2008 CanLII 19779 (ON GSB Dissanayake); OPSEU, Local 234, Decision No. OHS 94-21 (Robert Blair); and, OPSEU (Union) and Ministry of the Solicitor General (2001), GSB No. 2019-2154 (Anderson).
24I will now turn to address as concisely as possible each of the matters identified by the Union as constituting conduct on the part of the Employer that contravened the Collective Agreement or relevant statutes, starting with its contention that the Employer acted in bad faith during the negotiations to revise the CWWA. For most of the issues that it raised, the onus was on the Union to prove its allegations on the balance of probabilities.
25Relying on the testimony of Mr. Butsch and Mr. Gilchrist, the Union claimed that the following features of their evidence supported its position that the Employer acted in bad faith while the parties were negotiating for a revised CWWA. The Employer did not have a formal position on what it wanted from December 2018 to March 2019, it did not provide any criteria for the EOI process and the Union believed that it was negotiating with someone who was not at the table. The Employer made unreasonable demands on March 11, 2019, when it extended the CWWA for 20 days and advised that there would be a change in practice with respect to the combining of breaks. Superintendent Jolicoeur indicated that the rationale for the EOI process was required under the Jahn decision when no such specific requirement is set out in that decision. On March 29, 2019, the parties reached an agreement on the CWWA, but the Employer reneged on the agreement later on that day. The Union submitted that these circumstances demonstrated that the Employer engaged in surface bargaining with no intention of reaching an agreement. It also submitted that the Employer's rigid stance on an issue that it knew the Union could not accept ended up pushing the Union into a dangerous and untenable situation.
26As Employer counsel noted, this is not a situation where bad faith is alleged in the context the renewal of a collective agreement. In this instance, the local parties were engaged in efforts to renew a CWWA, an exercise that was not a new one for them. In exercising it management rights during these negotiations, the local management had an obligation to act in good faith. In its submissions, the Employer simply stated, without much elaboration, that the OLRB's decision precluded me from reviewing the circumstances that led to the cancellation of the CWWA, as well as some of the other issues raised by the Union. There is no indication in the OLRB's decision that it addressed the facts relating to the cancellation of the CWWA. While the OLRB's decision provides a relevant context for considering the matters raised by the Union, I am satisfied that res judicata or issue estoppel do not apply to most if not all of matters the Union raised, including whether the Employer acted on bad faith or with an anti-union animus with respect its conduct in the negotiations to revise the CWWA and its decision to cancel the CWWA.
27After considering all of the relevant evidence relating to what occurred during the negotiations for a revised CWWA in 2019, I am satisfied that the Union has failed to establish that the Employer was acting in bad faith.
28There is nothing in the evidence to suggest that these local negotiations were conducted with the kind of formality one would expect to occur when parties renew a Collective Agreement. And it is not surprising that the local negotiations to revise the CWWA were conducted very informally. Neither side entered any written proposals into evidence that were exchanged between them. There is no indication that the Local Union asked the Employer for a formal position on an issue or that it requested that the Employer provide it with the EOI process criteria it intended to use. In any event, there was no doubt about the positions each side took on the only significant issue in dispute, namely the EOI issue. It also seems to me that it is difficult for the Union to complain about not being provided with the criteria for the EOI process when the Local Union was completely opposed to the EOI process whatever criteria the Employer intended to adopt.
29Mr. Butsch and Mr. Gilchrist indicated that they felt that they were negotiating with someone who was not at the bargaining table. There is no evidence to suggest that the senior management team at the CECC was not in charge of the CWWA negotiations. However, it would not constitute bad faith bargaining for the local management team to receive some direction or advice from Ministry officials during the negotiations. Mr. Clancy described the type of consultations the local management team at the CECC had with individuals in the Deputy Minister's office, the Regional office and Human Resources during conference calls that likely occurred during the week of March 11, 2019. It should not have been a surprise to Mr. Butsch that Mr. Jolicoeur and his senior managers would have been consulting with Ministry officials during the negotiating process. I note at this point as well that Mr. Jolicoeur was not alone in representing the local management in these negotiations. Senior managers were also involved, including Mr. Clancy. Since Mr. Clancy had been involved in the negotiations and could speak to various matters about them, I concluded that the fact the Employer did not call Mr. Jolicoeur or Mr. Fraser to testify did not warrant any adverse inferences being drawn against the Employer.
30By Friday, March 8, 2019, as reflected in the minutes of the IMLRC meeting, it was clear that the negotiations to revise the CWWA had reached an impasse. At this stage, the Employer continued to insist that an EOI process must be included in the agreement and the Local Union Executive and the members of the Local Union were equally insistent that they would not accept a CWWA that included an EOI process. With this impasse, the Employer initiated the change to 8-hour work schedules. On March 11, 2019, Mr. Jolicoeur unilaterally extended the CWWA, advised the Local Union that updated work schedules would soon be posted in accordance with article COR5 and advised that the practice of combining breaks would cease with the implementation of the new schedules. The Employer did not take up Mr. Butsch's proposal that the parties agree to a 90-day written extension so that the negotiations could continue. Contrary to the Union's submissions, the Employer was not acting in bad faith or unreasonably when it took these steps on its way to implementing 8-hour work schedules. The Employer was not demanding anything of the Local Union when Mr. Jolicoeur sent Mr. Butsch the letter dated March 11, 2019. The Employer was simply taking the steps that it believed were necessary in order to terminate the CWWA and to implement 8-hour work schedules. The Employer's position on breaks was not a bargaining demand but simply a notice that the practice of combining breaks with 12- hour work schedules would cease when the 8-hour work schedules were implemented. In the circumstances and given the nature of the impasse, it is not particularly surprising that the Employer would reasonably conclude that a 90-day extension of the CWWA would not likely result in either side changing its view on the EOI issue.
31The fact that the Employer did not accept the offer of a 90-day extension did not mean that the Employer was not open to further discussions with the Local Union. Mr. Clancy was confident that there were further discussions with Mr. Butsch and Mr. Gilchrist subsequent to the March 12, 2019 letter from Mr. Butsch. Mr. Gilchrist described an incident that he initially thought occurred on March 12, but later stated it occurred about mid-afternoon on Friday, March 15, 2019. At the time, Mr. Gilchrist was filling in for Mr. Butsch in his absence from the institution. Mr. Gilchrist indicated that he was paged to attend the Superintendent's office and when he got there he was met by Mr. Jolicoeur and Mr. Clancy. He stated that a CWWA was put on a table in front of him that contained the EOI process and he was asked to sign it or they would be moving to 8- hour schedules on Monday. Mr. Gilchrist indicated that he sat down, put his feet on the table and told them that he would not sign. He took a break from this meeting and called Mr. Butsch to tell him of this development. Mr. Butsch confirmed that the Union would not sign and would not continue discussions in the absence of a written agreement to extend the CWWA. Mr. Gilchrist indicated that he returned to the Superintendent's office and told them that the Local Union would not sign and he left the office. Mr. Gilchrist testified that he felt that they were trying to bully him into signing the CWWA in Mr. Butsch's absence. While I can understand why Mr. Gilchrist might feel that the Employer was trying to pressure him to sign, it is not realistic to suggest that the Employer would think that it could bully him to do anything in the absence of Mr. Butsch, let alone bully him into signing a CWWA. Rather, I see this as a last ditch effort by the Employer to get the Union's agreement on the EOI issue before the imminent move to 8-hour work schedules at a time when it just so happened that Mr. Gilchrist was filling in for Mr. Butsch. The Employer's last minute effort here to get a resolution of the dispute does not demonstrate that it was acting in bad faith.
32In my view, the Local Union was well aware of the Employer's rationale for proposing the EOI process for staffing female units. Simply put, the Employer wanted a process that would help to ensure that the staff selected to work on female units had an understanding of the needs of female inmates. In support of its position on the EOI issue, the Employer did reference the Jahn decision, a 2016 decision of the Human Rights Tribunal. Ms. Jahn was a former female inmate with mental health challenges. The decision deals with remedies relating to the housing and treatment of inmates with mental health issues in provincial correctional institutions, particularly female inmates. The decision does not reference the specific EOI process that the Employer wished to include in the CWWA. In an email dated March 19, 2019. Mr. Butsch essentially asked Mr. Jolicoeur to explain how the Jahn decision related to the Employer's EOI proposal. I note that this query came after the impasse had been reached and after the CECC had moved from 12 to 8-hour shifts. Mr. Jolicoeur responded by email dated March 21, 2019, in which he highlighted that the EOI commitment had been made by the Ministry under Public Interest Remedy One arising from the Jahn decision following upon the recommendation from a mental health professional that essentially indicated that staff on female units should be screened to ensure a proper fit. The Employer certainly believed that the Jahn decision provided some justification for its EOI position. If it was wrong in this belief, I fail to see how this could amount to bad faith. In any event, a connection can be drawn from the remedies provided in that decision to support the basis for the Employer's EOI position. In my view, therefore, the Employer's reliance on the Jahn decision to support its EOI position does not amount to bad faith on its part.
33The Union's last submission on the bad faith issue is that the parties had reached an agreement on the EOI issue on March 29, 2019, but that the Employer changed its mind later on the same day. Two points are worth noting about this submission. The first is that the thrust of the Union's bad faith allegations focused on the conduct of the Employer during the negotiations that resulted in the cancellation of the CWWA and that this last submission is based on facts that occurred well after the CWWA had been terminated. It is obvious that whatever happened on March 29, 2019, was not improper Employer conduct that contributed to the termination of the CWWA. I note as well that March 29, 2019, was the day that the Employer filed its unlawful strike application.
34It is a fair point that reneging on an agreement could constitute bad faith or unreasonable conduct. The difficulty for the Union with this submission is that its evidence falls short of demonstrating that the parties had agreed that the EOI process would be based on seniority during discussions on March 29, 2019. The Union relied on the testimony of Mr. Gilchrist to establish the factual basis for this submission. Mr. Gilchrist was quite brief in describing what had occurred on March 29, 2019. He indicated simply that he and Mr. Butsch met in the morning with Mr. Jolicoeur and Mr. Bauman and that they agreed that the EOI would be based on seniority. He indicated that they showed up at about 5:30 p.m. with the Local Union ready to sign, but with the Employer side saying that they were not signing. During his testimony, Mr. Butsch indicated that he and Mr. Gilchrist and Mr. Jolicoeur had agreed to the CWWA in an MOS. He did not state when this occurred. He indicated that no written agreement was entered into because the Employer side came back later and stated that that was not what they meant. What I take from the Union's evidence is that Mr. Butsch and Mr. Gilchrist believed that there was a tentative agreement for resolving the CWWA dispute, but that Mr. Butsch and Mr. Gilchrist recognized that an agreement would not be achieved until it was executed by the parties in a written document. Whether there was a misunderstanding about what had been discussed or for some other reason, the Employer side was not prepared to finalize an agreement on March 29, 2019. In my view, its decision in these circumstances to maintain its position on the EOI issue does not amount to reneging on an agreement and does not constitute bad faith. I find it interesting that there is no indication that the Local Union took the position at the OLRB hearing on April 1, 2019, that the parties had reached an agreement to resolve the CWWA dispute on March 29, 2019.
35In summary, I am satisfied that evidence did not establish that the Employer engaged in surface bargaining with no intention of revising the CWWA or that it was motivated by anti-union animus during the negotiation process. The Employer certainly took a hard bargaining position on the issue of an EOI process for the staffing of female inmate units. At the same time, the Local Union also took a hard position on this issue. Mr. Butsch and Mr. Gilchrist were left with no room to compromise once they were directed by their members not to agree to a CWWA that included an EOI process. I have no doubt that the Employer would have known that it was very unlikely that the Local Union would easily agree to compromise on the principle of seniority for post picks. However, a party's insistence on maintaining its position when the other side is not likely to agree does not constitute bad faith or unreasonable conduct. Whether the Employer's stance in this instance was the wisest course to take in the circumstances is not a matter I need comment on. As noted previously, and for the above reasons, the Union has not met its onus to establish that the Employer acted in bad faith, or unreasonably for that matter, during the negotiating process leading to the termination of the CWWA and subsequently on March 29, 2019, when it elected not to alter its EOI stance. I am also satisfied that the evidence on this issue does not come anywhere near to establishing that the Employer was motivated by anti-union animus when it was negotiating for a revised CWWA and when it elected to terminate the CWWA.
36As noted previously, once the work schedules were changed as of March 18, 2019, the Employer was obliged by article COR5 to give 96 hours notice in advance of the changed work schedule. An employee who did not receive the 96 hours notice would be entitled to be paid time and one-half for all hours worked on the first changed shift. As Employer counsel noted, a failure in this instance to give the 96 hours notice to COs would have resulted in considerable overtime costs for the Employer.
37The Union took the position that there was a complete failure by the Employer to give the 96 hours notice since it only began making calls to COs on March 15, 2019. The Employer took the position that it made every effort to give the 96 hours notice to every CO who experienced a change in his or her work schedule and that managers began calling COs as early as March 13, 2019, for the shift changes that were to begin on March 18, 2019. Given the timing of events, the Employer conceded at the hearing that it may have missed giving timely notice to some COs and indicated to the Union that it would be prepared to resolve those cases if the Union could substantiate any individual claim. I understand that some individual claims were resolved during the course of this proceeding.
38Mr. Clancy testified about events that took place during the week of March 11, 2019, that were relevant to the 96 hours notice issue. He was not in a position to be precise about the timing of some of the events. He indicated that with receipt of the letter from Mr. Butsch dated March 12, 2019, the Employer took steps to implement the 8-hour work schedules. He described a meeting of the senior management team and conference calls taking place that included Ministry officials. He testified that Mr. Jolicoeur instructed Mr. Fraser to develop the 8-hour schedules. Mr. Clancy was involved in vetting the schedules developed by Mr. Fraser. He indicated that further vetting of the work schedules was done by Mr. Jolicoeur and someone in the Regional Office. As noted previously, Mr. Clancy also believed that there were further efforts to resolve the CWWA dispute that week, but they were not successful since the parties could not come to an agreement on the EOI issue. Most importantly, Mr. Clancy described the role he and other managers played in calling COs to notify them of the change in their work schedule. He indicated that they were well aware of the 96 hour notice requirement and took the necessary steps to meet this obligation in order to avoid overtime costs. He stated that the managers operated in two person teams and made calls to COs from different management offices. He indicated that a CO was advised either directly or by a message to report for a specific 8-hour shift on a specific day. Mr. Clancy testified with certainty that he and other managers began making these calls on March 13, 2019. The Employer introduced a call-out chart that had been prepared by the Employer and identified by Mr. Clancy. The chart set out which CO was called, by which manager, the time contacted and whether the employee was spoken to or a message left regarding what shift the employee was advised to report to work for. Mr. Clancy testified that the call- out chart was correct. The chart indicates that the vast majority of the calls made to COs were made on March 13, 2019, with some being made on March 14, 2019. Mr. Clancy also referred to the Call Records by Device ("Call Records") document introduced by the Employer. This document identified calls made on specific days, starting on March 13, 2019, on Employer devices to employee phone numbers. It also set out the time of each call and the location of the number called. For the most part, the information on the call- out chart lined up with information on the Call Records document. In a Memo to CECC managers about the CWWA negotiations dated March 14, 2019, Mr. Jolicoeur, among other matters, advised the managers that there was a breakdown in the CWWA negotiations and COs began to be informed of their shift changes on March 13, 2019.
39Mr. Butsch and Mr. Gilchrist testified that some employees began calling them on Friday, March 15, 2019, to advise that they had just been notified of a shift change and asked what was going on. It was on the basis of a few calls like this that they concluded that the Employer began notifying COs of a work schedule change only on March 15, 2019. Apart from three examples, Mr. Butsch indicated in cross-examination that he did not know if COs were getting calls on March 13, 2019, and that he had no evidence to indicate that the call-out chart was inaccurate.
40Some of the COs called by the Union testified about when they received a phone call or message from the Employer notifying them about a work schedule change. Mr. Mullen was out of country on a golfing vacation from March 13 to March 20, 2019. He testified that he picked up a message on his cell phone on March 15, 2019, from DS Bauman advising that his shift schedule had changed. It was not clear whether Mr. Mullen knew when the call had been made. The call-out chart indicates that the Employer left a message for Mr. Mullen on March 13, 2019, at 7:26 p.m., regarding a schedule change. The Call Records document records a call of 30 seconds was made to Mr. Mullen's cell phone number on March 13, 2019, at 7:25 p.m. Mr. Mullen filed a grievance dated March 26, 2019, that covered a number of issues, including the allegation that he did not receive the 96 hour notice.
41Mr. Dunn is a senior CO who has been at the CECC since it opened in 2003. He had held Union positions in the past. He testified that he believed that he received a call from DS Bauman on March 15, 2019, at about 4:30 p.m., regarding a shift schedule change. He noted that this was not a schedule change for him since he was already scheduled to work the E8 shift. The call-out chart indicates that a call was made to Mr. Dunn on March 13, 2019, at 4:37 p.m., advising him to report for the E8 shift. The Call Records document indicates that a call was made to Mr. Dunn's number on March 13, 2019, from a DS's device at 4:36 p.m. Mr. Dunn initially speculated that this call may have been for overtime, but in cross-examination he indicated that he had never received a call for overtime from a DS and that he could not dispute that the call was about a work scheduling notification.
42Mr. Field indicated that he believed that he was called about a schedule change by Mr. Bauman on Friday, March 15, 2019. The call-out chart indicates that a message was left for Mr. Field on March 13, 2019, at 6:25 p.m. Mr. Natalizio testified that he believed that Mr. M. Campbell called him about a schedule change on Sunday, March 17, 2019. The call-out chart indicates that Mr. Natalizio was called on Thursday, March 14, 2019, at 5 p.m. Mr. Natalizio indicated that he did believe that the call-out chart was correct, but at the same time he indicated that these events were a while ago. Mr. Gilchrist testified that he was called about a schedule change on March 15, 2019. He was on a book off for the Union and was not scheduled to work. The call-out chart indicates that Mr. Gilchrist had been left a message on March 13, 2019, at 4:57 p.m. The Call Records document records that a message lasting 30 seconds was left for Mr. Gilchrist on March 13, 2019, at 5:00 p.m. Mr. Gilchrist maintained that he did not get a message about a change in his work schedule on March 13, 2019.
43The Union submitted that the call-out chart and the Call Records document should not be admitted into evidence. Counsel argued that the Union witnesses who testified on this issue were credible while the Employer's witnesses were not credible and unhelpful. Counsel reviewed the events that would have had to take place during the week of March 11, 2019, particularly the development of the 8-hours schedules by Mr. Fraser, and submitted that the Employer would not have been in a position to start giving the 96 hours notice before Friday, March 15, 2019. It was based on these considerations that the Union argued that the Employer did not provide the COs with notice of a change in work schedules as provided for in COR5.
44The call-out chart and the Call Records document were identified by Mr. Clancy sufficiently as to make them admissible. The submission that the 96 hours notice calls could not have been made before March 15, 2019, was based largely on Mr. Clancy's very imprecise and poor recollection of when many of the relevant events occurred during the week of March 11, 2019. In the absence better detailed evidence, the Union did not establish that the Employer could not have made the shift change calls to COs prior to March 15, 2019. I had no difficulty in concluding that the Union witnesses who testified on this issue were credible. The question is whether the evidence they gave was reliable. For the most part, given the passage of time, I had difficulty in finding their testimony on this issue to be sufficiently reliable. For example, Mr. Mullen picked up a message on March 15, 2019, but it was unclear as to when the message was left. Although it is unclear to me why Mr. Mullen was entitled to a remedy relating to the notice issue, I note that his grievance dated March 26, 2019, was settled by the parties during the course of this proceeding. I note as well that it was not necessary for the Employer to give notice of a shift change to Mr. Dunn since his shift had not changed and to Mr. Gilchrist because he was not working on a shift at the time. Many of the other witnesses indicated simply that they "believed" they had received the Employer's call about a shift change on March 15, 2019, or later. In the face of the Call Records document provided by the Employer, the Union did not provide any of the phone records of its witnesses to contradict the information on the Call Records document or to support their evidence about when they had received the phone call from the Employer about the shift change.
45Mr. Clancy was very clear about the fact that he and other managers began to make the calls to COs starting on March 13, 2019. The documentation provided by the Employer serves to confirm his testimony on the notice issue. In light of all of the evidence on this issue, I find that the Union has not established that there was a complete failure by the Employer to give COs the 96 hours notice of a change in work schedules.
46I turn now to the Union's claim that the Employer breached the POP. The POP provides for a local overtime system that is intended to distribute overtime fairly and equitably. Essentially, overtime is distributed based on an employee's seniority and overtime hours accumulated. Utilizing the intranet system and during an active period of three days, a CO can sign up for overtime on HPRO for specified shifts. An overtime list would be generated and, if overtime work was available on a specific shift, a CO would be called to work overtime based on the relevant considerations. The Union claims that for a period of time, the 8-hour work schedules that started on March 18, 2019, were not updated on HPRO with the result that COs had no opportunity to sign up for overtime.
47Some of the Union's witnesses gave some evidence on the POP issue. Mr. Dunn did a nice job of explaining how the overtime distribution system worked at the CECC. He indicated however that he did not know if HPRO had been updated when the Employer changed to the 8-hour shifts because he was not signing up for overtime at that time. He noted that generally 50 COs were working overtime on any given day. Mr. Field also indicated that he did not sign up for overtime during the relevant period. He therefore could not say whether or when HPRO had been updated. It was unclear from Mr. Sirrs's testimony as to whether he noticed what was on HPRO when the CECC moved to the 8-hour shifts. Mr. Gilchrist testified that when the Employer moved to the 8-hour shifts, the shift schedules were removed from the server and no CO could put in for overtime on HPRO. He also indicated that when COs could sign up for overtime, they did not want to. Mr. Gilchrist did not indicate a time frame for when the 8-hour shift schedules were absent from HPRO, but it is fair to conclude from the evidence that their absence was a matter of a few days, at most. He indicated that the overtime list was generally exhausted on a daily basis. He also indicated that because no one wanted to work overtime, the Employer was forcing COs to stay at work unless a CO provided a good excuse. There was no evidence from any CO that he or she wanted to sign up for overtime during the relevant two-week period and could not do so because the 8-hour shifts were not on HPRO.
48The Employer did not call any evidence to contradict Mr. Gilchrist's evidence about the initial failure to post the new 8-hour shift schedules on HPRO. I therefore accept Mr. Gilchrist's evidence on this point. A central feature of the POP is to provide for the fair distribution of overtime to ensure that COs can sign up for shifts that are set out on HPRO. The Employer's apparently brief failure to post the 8-hour schedules on HPRO amounts to a breach of the POP, and I so declare. In my view, a declaration is the only appropriate remedy in the circumstances. One of the ways the COs reacted to the move to the 8-hour shift schedules was to refuse to volunteer for overtime. This was confirmed by the testimony of a number of witnesses and the OLRB decision. Indeed, it appears that the Employer had to resort to requesting some COs to remain at work after their shift in order to maintain adequate staffing levels. Although a contravention of the POP, the Employer's failure to initially post the 8-hour shifts on HPRO had little if any impact on depriving COs of the opportunity to work overtime. For this reason, a remedy beyond a declaration is not warranted.
49In support of its contention that the Employer exercised its management rights in a way that led to dangerous working conditions for COs and inmates that resulted in a toxic work environment during the two weeks starting March 18, 2019, the Union relied on the following circumstances. With the cancellation of the CWWA, previous post picks were no longer in play with the result that some COs were scheduled to work on units that they had never or rarely worked on. Some COs were initially scheduled to work 9 to 10 days in a row. The Employer brought in many managers from other correctional institutions to micromanage staff which created a tense, hostile and toxic environment. The conditions made it impossible for staff to volunteer for overtime. The Employer manufactured dangerous situations through poor scheduling. For example, management held COs back when their shift ended and pressured staff to stay beyond their shift to ensure an adequate staffing level. Units were not staffed adequately to provide a safe environment for COs and inmates. In his role as a worker's health and safety rep, Mr. Natalizio described how unusually busy he was in attending units during the two weeks starting March 18, 2019, in order to address health and safety concerns. The concerns were often about whether inmates should be unlocked from their cell to enter the day room. The Union also attempted to demonstrate that insufficient staff was scheduled to work in the Admitting and Discharge ("A&D") area and not enough General Duty Officers ("GDOs") were scheduled on the night shift thereby, making it impossible to get inmates to Court in a timely manner. Mr. Gilchrist made reference to the considerable number of COs who were off work due to stress.
50An incident the Union found particularly troubling was when Mr. Clancy directed the COs in Pod 3 to unlock inmates when the COs indicated that it would be unsafe to do so. Mr. Gilchrist and Mr. Natalizio were present at Pod 3 for some time during the course of the incident. Once some the inmates in Pod 3 were unlocked and in the day room, an inmate on inmate assault occurred and inmates refused to return to their cells. A code blue was called and an ICET activation was required to deal with the situation. Mr. Gilchrist expressed the view that Mr. Clancy was at least negligent when he ordered the unlocking of Pod 3 and that Mr. Clancy did not care if anyone got hurt. During cross-examination, Mr. Gilchrist stated that Mr. Clancy likely directed the unlocking in Pod 3 because he was trying to cause issues with the staff and the inmates.
51Mr. Clancy addressed the issues raised by the Union during his testimony. Given his role in vetting the schedules and his familiarity with them, he maintained that the 8-hour work schedules and staffing levels were developed based upon meeting the operational needs of the CECC. He indicated that an effort was made to place COs on the units they were familiar with when possible. He also indicated that a serious effort was made to ensure that COs had their necessary days off. He denied the suggestion of Union counsel during cross-examination that the staffing level of night GDO's and the COs assigned to A&D were not adequate and was in part responsible for the delays in getting inmates to Court. He stated if there a shortage of staff in an area, staff could be moved from other areas to assist. Mr. Clancy indicated that the problem with getting inmates to Court had more to do with the COs slowing down the process. Mr. Clancy indicated that there was considerable difficulty in manning the institution during the relevant two weeks because of the increased rate of sick calls, the general refusal of COs to work overtime and the slowing down of work that increased during the second week. He did not deny that the Employer was compelled to ask COs to remain at work at the end of their shift to maintain an adequate staffing level given the staff shortage. Mr. Clancy explained that it was necessary to bring in managers from other institutions to supervise staff during the two weeks of labour disruption. In his view, the Employer did the best that it could in the circumstances to manage the CECC in difficult circumstances.
52Mr. Clancy testified at some length about his decision to direct the COs in Pod 3 to unlock the inmates on March 26, 2019. He stated that there was a decision made at the morning manager's meeting to address the issue in Pod 3. The inmates in that unit had been locked in their cells for some time and the Employer recognized that security risks increased if the usual practices of treating inmates are not maintained. Mr. Clancy attended at Pod 3 in the morning to assist the manager of that unit. He indicated that there was some concern from the COs about unlocking the inmates because the inmates were agitated due to being confined to their cells for so long. Mr. Clancy heard the concerns of the COs and suggested that they do a gradual unlocking such that all inmates would not be let out into the day room at the same time. Mr. Clancy indicated that the staff agreed with this approach and there were no concerns when he left Pod 3. There was no indication Pod 3 was not adequately staffed at the time.
53Union counsel reviewed these circumstances and submitted that the Employer acted in an arbitrary manner without regard for heath and safety and proper staffing. Counsel referred again to the failure to call Mr. Jolicoeur and Mr. Fraser to explain the scheduling decisions that were made. The Union appeared to be of the view that the Employer deliberately created the toxic and unsafe environment described above because it blamed the Local Union and its members for failing to agree to a revised CWWA. Counsel submitted that Mr. Clancy's decision to unlock the inmates on Pod 3 was unreasonable and made in bad faith having regard to the agitated state of the inmates at the time. She argued that the result of his decision to unlock created a dangerous situation at Pod 3 that was foreseeable. Counsel noted that it was possible that Mr. Clancy had simply made an honest mistake, but that it was more likely that Mr. Gilchrist's assessment of the decision to unlock the inmates is the correct one in that it was a decision that did not make any sense and led to a stressful and dangerous situation for staff and the inmates.
54Employer counsel argued that the evidence does not support the Union's contention that the Employer made schedules and exercised its management rights in a way that led to dangerous working conditions. He submitted that I should accept Mr. Clancy's testimony and conclude that the Employer made reasonable efforts to schedule staff and maintain staffing levels appropriate to meet the operational requirements of the CECC. He submitted that the suggestion that it was the way the Employer staffed the night shift with GDOs and COs in A&D that contributed to the difficulties in getting inmates to Court on time is completely inconsistent with the findings in the OLRB's decision. In counsel's submission, the Employer exercised its management rights in a reasonable manner in the circumstances where the rate of sick calls increased and COs generally refused to volunteer for overtime. Counsel argued that there was no basis for concluding that the Employer created a toxic and unsafe work environment in order to punish the Local Union and the COs because they did not agree to the Employer's terms for a revised CWWA. On Mr. Clancy's decision to unlock the inmates in Pod 3, counsel suggested that this is not the type of management decision the Board should review. In any event, counsel asked me to accept Mr. Clancy's version of the incident and find that his decision to gradually unlock the inmates was made in good faith and was a reasonable one in the circumstances from a health and safety perspective.
55In my view, the position the Employer has taken on this issue is consistent with the evidence as a whole. I am satisfied that the Employer did make schedules and exercised its management rights to staff the CECC during the two weeks in question based only on the need to satisfy the operational requirements of the CECC. Consistent with the OLRB's decision, I am satisfied that any delays in getting inmates to Court had little to do with the staffing level of A&D and the GDOs on nights. There is simply no basis for concluding that the Employer scheduled COs and exercised its rights for the purpose of creating dangerous working conditions and a toxic work environment. In my view, there is no credible basis for concluding that the Employer created these circumstances because the COs and the Local Union did not agree to the Employer's position for revising the CWWA. I appreciate that bringing in managers from other institutions might cause stress for COs, but the Employer's decision to take this step during a labour dispute was not unreasonable in the circumstances. It is fair to conclude from the evidence that many of the concerns raised by the Union were related to the concerted effort by COs not to volunteer for overtime. For example, the COs did not appreciate the Employer's efforts to get COs to continue working beyond the completion of their shift, but it is difficult to argue these efforts were unreasonable when they were made to properly staff the facility.
56I also find that Mr. Clancy's decision to unlock inmates in Pod 3 during the morning of March 26, 2019, did not contravene his obligation as a manager to take every reasonable precaution for the protection of COs. He considered a number of relevant factors in balancing the interests of the inmates with the health and safety concerns of the COs. I accept his evidence that the COs in the unit agreed to do a gradual unlock. I note as well that the duties of COs include dealing with inmates who are upset and uncooperative. I am satisfied that Mr. Clancy's decision to unlock the inmates on this occasion was made in good faith and was a reasonable exercise of his discretion in the circumstances. I was somewhat surprised that Mr. Gilchrist made the serious claim that Mr. Clancy did not care if anyone got hurt. In any event, Mr. Gilchrist's opinion that Mr. Clancy was at least negligent, did not care if anyone got hurt and was trying to cause issues with the staff and the inmates was not supported by any evidence.
57The next issues for consideration are the Union's claims that the Employer targeted Mr. Gilchrist and Mr. Natalizio because of their union activities and that the Employer engaged in the inappropriate surveillance of Mr. Gilchrist. The Union alleges that Mr. Clancy was surveilling Mr. Gilchrist to find a mistake that would justify disciplining him. As noted previously, Mr. Gilchrist was the Local Union First Vice-President and Mr. Natalizio was a worker's health and safety rep. The Union relied on a few incidents to establish its allegations, most of them occurring during the second week of the 8-hour work schedules. In each incident, it was Mr. Clancy who interacted with Mr. Gilchrist or with Mr. Natalizio.
58In assessing these Union's allegations of Employer misconduct, it is important to keep in mind what was occurring in the workplace during the two weeks in question, some of which I noted previously. Not surprisingly, the Employer and the Union blamed each other for the termination of the CWWA and the events that occurred in the two weeks starting March 18, 2019, that created difficulties for the Employer and the Union as the tensions in the workplace increased. The Employer was confronted with managing the facility with more sick calls than usual, the refusal of COs to volunteer for overtime and a general slowdown by COs in performing their duties. During the second week, the Employer began to collect evidence to support its unlawful strike application. Mr. Clancy came to conclude, as reflected in his Occurrence Report ("OR") to the Superintendent dated March 28, 2019, that slower work processes appeared to occur in areas when Mr. Gilchrist was present. Mr. Gilchrist testified that he was receiving considerable pressure from COs to resolve the difficulties they were experiencing. In the environment of this labour dispute, each side was quick to interpret the actions of someone on the other side as problematic.
59The onus is upon the Union to establish that the conduct of the Employer was tainted by anti-union animus. To meet its onus, it would be sufficient if the evidence was to prove on a balance of probabilities that the Employer conduct was at least in part motivated by anti-union animus. As the decisions on this issue indicate, it is not necessary for the Union to call direct evidence of anti-union animus since such evidence is rarely available. In most instances, the Union must rely on circumstantial evidence. In this case, the Union is required to demonstrate that the circumstances as a whole reasonably gives rise to an inference that the Employer conduct at issue was at least partially motivated by anti-union animus.
60The circumstances the Union relied on to support its anti-union animus allegations can be described as follows. On March 27, 2019, Mr. Natalizio was at Pod 5 to attend to a health and safety issue. He was assigned to work at Pod 3. Mr. Clancy later asked him what he was doing at Pod 5 and asked him to write an OR. When Mr. Clancy and Mr. Natalizio were discussing this issue near central control, Mr. Natalizio motioned for Mr. Gilchrist to come over and explained that he was being asked to write an OR to give the reason for his attendance at Pod 5. There was other COs in the area of central control. Mr. Clancy turned to Mr. Gilchrist and told him that this was your fault for not wanting to negotiate with us. Mr. Gilchrist responded that the Employer had many opportunities to sign an extension, but chose not to do so. Mr. Clancy kept pointing his finger at Mr. Gilchrist and saying it was his fault. Mr. Gilchrist told Mr. Clancy that this was not the time or the place for this discussion and he started to walk away. As he was walking away, Mr. Clancy said, "That's right, walk away like you always do." Since Mr. Clancy had little recollection of the details of this discussion, I have accepted Mr. Gilchrist's version of this incident. Mr. Gilchrist believed that it was unprofessional of Mr. Clancy to say what he said to him out in the open with other COs present.
61The circumstances the Union relied on to support its claim that the Employer engaged in inappropriate surveillance of Mr. Gilchrist are as follows. On or about March 21, 2019, Mr. Clancy went to central control when Mr. Gilchrist was present and accused the staff of slowing down operations by delaying the opening and closing of doors. Mr. Gilchrist denied this was the case and told Mr. Clancy that the staff was working according to Policy with safety considerations in mind. When asked why he was in central control, Mr. Gilchrist told Mr. Clancy that he was there talking to staff. There was no indication that Mr. Gilchrist was in central control performing duties as a Union official. Mr. Gilchrist indicated that Mr. Clancy's movement that day was delayed by the closing of corridors due to an ICET activation. Mr. Clancy believed that the significant delays in the operation of the facility were increasing due to Mr. Gilchrist's presence in the areas affected. He brought this to the attention of the Superintendent who then told Mr. Clancy to give clear directions to Mr. Gilchrist. Later that day, in the presence of Mr. Bauman, Mr. Clancy directed Mr. Gilchrist not to interfere with the operation of the facility and not to attend at central control for that purpose. Mr. Gilchrist told Mr. Clancy that he had not been giving the central control staff directions and again indicated that he was simply in there talking to the employees.
62The Employer had pulled video of Mr. Gilchrist while he was in central control on March 21, 2019, and Mr. Bauman asked the Security Manager in an email dated March 28, 2019, to look for video of Mr. Gilchrist going around from unit to unit to substantiate that he was instructing staff to work to "post orders". In his email, Mr. Bauman noted that ORs were coming, but that "legal will need video".
63On March 29, 2019, Mr. Clancy came to the Union office and asked Mr. Gilchrist to write an OR about his leaving the A&D gate open on March 21, 2019. Mr. Clancy told him that the Employer as relying on COR 10 video evidence and that the video was found when the Employer was looking at video of an unrelated matter. Mr. Gilchrist provided the OR as requested. He noted in his OR that he did not recall leaving through A&D at that time or leaving the gate open. Mr. Clancy testified that when the Security Manager was looking at video for another matter, he noticed that the A&D gate had been left open and determined that Mr. Gilchrist was responsible for this security breach. After reviewing the video, Mr. Clancy then asked Mr. Gilchrist to provide an OR on the incident. During his testimony, Mr. Gilchrist noted that there was a 50 inch TV screen that shows pictures from different cameras in the DS Office that would permit a DS to observe employees as they move around in the facility. When asked during his examination-in-chief whether he used electronic monitoring/ surveillance equipment as a means of supervising or managing staff, Mr. Clancy replied, "Absolutely not."
64After considering all of the relevant evidence, I am not persuaded that the Employer conduct identified by the Union was motivated in part by anti-union animus. With respect to Mr. Natalizio, Mr. Clancy simply asked him why he had been at Pod 5 and not at his usual work location and he asked him to confirm his response with an OR. Mr. Clancy's actions here were motivated only by a desire to ensure that Union officials were not contributing to the slowdowns that were taking place at the time. Mr. Clancy's requests did not interfere with Mr. Natalizio's health and safety activities, nor was it intended to do so. The relatively brief exchange between Mr. Clancy and Mr. Gilchrist was nothing more than Mr. Clancy venting his frustrations at a time when tensions were high and managers were facing considerable challenges in managing employees. Mr. Clancy told Mr. Gilchrist that the situation was the Union's fault and Mr. Gilchrist indicated, in effect, that it was the Employer's fault by not agreeing to a written extension of the CWWA. Any one observing the exchange would not be surprised that each side believed the other side was responsible for the unfortunate situation that resulted from the cancellation of the CWWA. I agree with Mr. Gilchrist that Mr. Clancy should not have initiated the exchange in front of COs and that such exchanges between the Employer and Union should take place in private. However, I am not satisfied that Mr. Clancy's comments were intended to or had the effect of undermining the Union or had a chilling affect on union activities, as suggested by Union counsel.
65I am also satisfied that the Union has not established that the Employer engaged in inappropriate surveillance of Mr. Gilchrist. Mr. Clancy's observations about the slowing down of normal processes by COs on March 21, 2019, and his discovery of Mr. Gilchrist in central control, came about as he was attempting to manage the staff in difficult circumstances. Any observations he made of Mr. Gilchrist were undertaken as part of his regular duties and were therefore not inappropriate. He directed Mr. Gilchrist not to interfere with the operation of the facility. He did not interfere with the Mr. Gilchrist's union activities, nor did he intend to do so. Even if he was wrong about Mr. Gilchrist's conduct, there is no basis to conclude that Mr. Clancy was improperly surveilling Mr. Gilchrist on March 21, 2019. Mr. Bauman's request to the Security Manager to collect video of Mr. Gilchrist's activities was clearly an effort to find evidence to support the Employer's application at the OLRB. This does not constitute inappropriate surveillance of Mr. Gilchrist, but an attempt get evidence to the Employer's lawyer in the OLRB proceeding. I also do not see anything problematic with the circumstances that led to Mr. Clancy to ask Mr. Gilchrist to write an OR for leaving the A&D gate open on March 21, 2019. I accept Mr. Clancy's account of what occurred here, namely that the Employer discovered that Mr. Gilchrist left the A&D gate open when it was reviewing video for an unrelated matter. There was no contravention of COR 10 and there was no improper Employer surveillance of Mr. Gilchrist in this incident. Ultimately, the Employer elected not to pursue this matter and Mr. Gilchrist was not disciplined for leaving the A&D gate open or for any other matters during the relevant two weeks of the labour dispute. Mr. Gilchrist's implicit suggestion that management was keeping track of him through electronic monitoring was pure speculation. I accept Mr. Clancy's evidence that he did not use electric monitoring/ surveillance equipment to monitor staff, including Mr. Gilchrist. There was also no evidence to support the Union's claim that Mr. Clancy was observing Mr. Gilchrist in order to find a mistake so that he could discipline him.
66The final matter to address is the Union's claim that the Employer contravened article 44:10 of the Collective Agreement when it asked COs to provide a medical certificate for absences due to sickness for less than five days without considering individual circumstances. I note that there is a comparable provision to article 44:10 in article 31A that applies to Fixed-Term employees. CO's Boomhower and Demerchant testified about calling in and advising the Employer that they would be absent due to sickness for a day or two, and being asked to provide a medical note and being told that the failure to provide a medical note would result in no payment for the absence. Mr. Sirrs testified that he was not paid for a day of absence because he had not provided a medical note.
67Mr. Clancy testified that sick calls were unusually high when the CECC operated only with 8-hour shifts and did not appear justified. Suspecting that sick leave was being abused during the labour disruption, management determined that anyone calling in sick would be asked to provide a medical note. Mr. Clancy testified that the Superintendent directed General Duty Managers to read from a script when a CO called in sick. This script had been prepared years earlier when there had been a mass sick call- in by staff during a labour dispute. In essence, following the script resulted in a request to a CO calling in sick to provide a medical note because the Employer suspected an abuse of the sick leave provisions due to concerted employee activity. The Employer argued that the request for a medical note for absences of less than five days due to sickness was warranted in the circumstances since there was a valid suspicion that sick leave was being abused during a labour dispute.
68This is not the first time the GSB has been asked to interpret article 44:10 in similar circumstances. In OPSEU (Union) and Ministry of Correctional Services, 2002 CanLII 45771, the Superintendent at the Toronto Jail in 2001 required all employees to provide a medical certificate for every sick leave absence because of a suspicion that there was a concerted effort to abuse sick leave. The issue for Arbitrator Abramsky was whether articles 44:10 and 31.8 can be applied "...on a collective, rather than individual basis - based on suspected group abuse of sick leave, rather than an individual suspicion of abuse." At the hearing, the Employer counsel conceded that applying the two articles on a group rather than an individual basis was an interpretation the Collective Agreement could not reasonably bear and advised that employees who lost pay would be reimbursed. The Employer then took the position that the matter was now moot and that the grievance should be dismissed. Arbitrator Abramsky determined that the matter was not moot. She concluded that the terms of article 44:10 require that an individual determination must be made by the Employer as to whether there may be an abuse of sick leave. She further provided as follows:
Abuse of sick leave is a serious matter. When large numbers of employees call in sick at the same time, it can create significant operational difficulties, and lead, as it did in this case, to a suspicion of abuse. But article 44:10 cannot be used to address that problem on a collective or group basis, as occurred at the Toronto Jail. By its terms, there must be individual suspicion of abuse of sick leave before a medical certificate, for an absence of less than five days, may be required.
69In the matter before me, the Employer did not suggest that the above interpretation of article 44:10 was incorrect. Although I can appreciate the Employer's difficulty in properly staffing the CECC during the period of time it was on 8-hour shifts and its concern about the unusual high number of sick calls, the Employer's policy of requiring medical certificates on a group basis from COs calling in sick for from one to four days, rather than taking into account individual circumstances, contravened the Collective Agreement.
70In summary, and for the above reasons, the Union grievances in File No. 2019-0719 and in File No. 2019-0722 are hereby dismissed. The Union grievance in File No. 2019-0721 is allowed, given my finding that the Employer contravened the POP by not updating the 8-hour work schedules in HPRO for a period of time. As I set out previously, the appropriate remedy for this contravention is declaratory relief only. The Union grievance in File No. 2019-0720 dealing with the blanket request for medical certificates is allowed. The Employer is directed to compensate any CO who was deprived of pay or a benefit for failing to provide a medical certificate for an absence of less than five days. I will remain seized of this grievance to deal with any implementation issues that might arise.
Dated at Toronto, Ontario this 23rd day of February 2026.