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HomeMy WebLinkAbout1989-1977.Patterson.90-09-19 ONTAR/O EMPL 0 Y[:S DE LA COURONNE '~. ' "' CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE · SETTLEMENT REGLEMENT 'BOARD DES GRIEFS 1,90 DUNDAS STREET WEST, TORONTO. ONTARIO. M5G 1Z8-SUITE2~O0 TELEPHChYE/r~L~P/-fO/V£ 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG lza. BUREAU2100 (416)$98-0688 1977/89 IN THE MATTER OF ANARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Patterson) Grievor - and - The Crown in Right of Ontario (Ministry of correctional services) I Employer - and - W. Kaplan Vice-Chairperson J. Solberg Member D. Clark Member FOR THE K. Whitaker GRIEVOR Counsel .Ryder, Whitaker, Wright & Chapman Barristers & Solicitor~ FOR THE S. McDermott EMPLOYER Counsel Hicks Moriey Hamilton Stewart Storie Barristers & Solicitors HEARINGt June 26, 1990 2 Introduction The grievance in this case alleges that a work assignment in the Sault Ste. Marie Jail constituted a violation of Article 18.1 of the Collective Agreement, and' that the employer was in breach of a Memorandum of Settlement dated January 30-February 1, 1989. A hearing was held in Toronto and the Board was asked only to determine whether· or not that work assignment violated the earlier Memorandum of Settlement agreed to by the parties, or whether that Memorandum of Settlement had been superceded by a second agreement of the parties, and if'so, to what effect. The employer also took the position that because of this superceding settlement the grievance in this case was not arbitrable. Put another way, the employer argued that given the agreement between the parties there was no difference between them that could form the basis of a grievance. It was, in these circumstances, necessary to hear considerable evidence as to the background of the case. The Background to the Case The Sault Ste. Marie Jail is a maximum security institution with a population of 60-70 inmates includin~ men, women and young offenders. In December 1988, approximately 44 grievances were filed·by the union alleging that work assignments and scheduling in the jail breached article 18.1 of the Collective Agreement. The thrust of these grievances was to the effect that the correctional officers in the jail were being required to be 3 responsible for more than one Post. The union wished to secure clearly defined work areas and responsibilities. A 'Post is a location in the jail comprising a cell block or a combination of cell blocks. The union alleged that correctional officers assigned to more than one Post could not adequately discharge their obligation and responsibility, as set out in the Standing Orders, for the care, control 'and custody of inmates subject to their supervision, and that the effect of this was to cause severe strain in the workplace and thereby breach article 18.1. Underlying the union's concern was an awareness that breach of the jail's Standing Orders could constitute cause for discipline, and that such discipline has been upheld by this Board. The 44 grievances were settled by a Memorandum of Settlement dated January 30, 1989-February 1, 1989. The Memorandum provided: Without prejudice or precedent, the parties agree to the following: 1) New staff postings as they relate to "Q" Block and "M", "N", "O", "P" have been implemented, one officer is assigned to "Q" Block and one officer is assigned to "M", "N", "0", "P"~ 2) Any changes in existing posts before being implemented, will first be discussed with the. local representatives of the O.P.S.E.U (Local 608). 3) The grievors and the Ontario Public 'Service Employees Union agree to withdraw all grievances listed 4 on Appendix 1. This is a full and final settlement for these noted grievances. Familiarity with two of the Posts is~essential to understand the grievance in this case. Post 6 is "M", "N", "O", and "P" Blocks, while Post 8 includes "Q" Block. Post 6 is guarded by a fixed officer, that is to say, the Officer in question remains at all times on the Post. Post 8, however, is guarded by what is referred to as a general duty officer. This individual is not only responsible for guarding Post 8, but he or she also circulates throughout the jail, escorting prisoners to meetings with their lawyers, replacing other officers requiring breaks etc. Although Posts 6 and 8 are not immediately adjacent, the officers assigned t° these two Posts have desks side by side in a corridor that separates the two Posts. Post "Q" is a maximum security area housing up to six inmates, while there can be up to 36 inmates in "M", "N", "O" and "P". Every area occupied by .inmates is assigned two' correctional officers, a stationary officer and a general duty officer. As background, it is also important to understand the procedure that takes place at the beginning and end of each shift. The correctional officer coming on duty and~the correctional officer being relieved sign "Shift Change-Over Certificates." These documents certify that the officer coming on duty has taken charge of the Post. They also indicate that an inmate count was taken, that security equipment inspected and its status noted, 5 and that keys and handcuffs were handed over. Both officers, the one being relieved and the one coming on duty, sign the certificates. Prior to the instant grievance the officer coming on duty at Post 6 Would sign the certificate for Post 6 'only. Similarly the 6fficer~coming on duty on Post .8 would sign the certificate for Post 8 only. Accordingly, the officer only had formal responsibility for the Post indicated on the certificate. However, in practice, the officer responsible may have had informal responsibility for the other Post, in that when the officer assigned to Post 8, the general duty officer, was off escorting a prisoner to a meeting, the Post 6 officer would be responsible for Cell Block "Q". We did not hear any detailed evidence about this, but it was clear that this was the situation for some time before the grievance was filed and that it was the practice~right after the Memorandum of Settlement was signed. What brought the matter to a head was a change in the certificate-signing procedure to the effect that officers were now required to sign Shift Change-Over Certificates for both Posts 6 and 8, and in that way they assumed formal responsibility for both Posts. On February 5, 1990 the grievor, Juli L. Patterson, a correctional officer first hired in July 1982, was assigned to Post 6. She began work at 7:00 p.m. and was scheduled to work 6 until 7:00 a.m. the following morning. As customary, .she signed the shift change-over certificate for Post 6. She was not, however, asked to co-sign any other shift change-over certificate. Sometime after midnight on February 6th, Officer Patterson was approached by OM15, Mr. Mark Mei. He asked her why she had not done any rounds in "Q" Block since the corre'ctional officer assigned to that Post had gone. Ms. Patterson testified that she told Officer Mei that this was not her responsibility according to the Standing Orders, and that according to those Orders she had specific responsibilities which did not include Cell Block "Q". Officer Mei ordered Ms. Patterson to do the rounds in "Q" Block, which she then did. The grievor was aware of the January 30-February 1, 1989 Memorandum of Settlement, and this agreement formed the basis for her not performing the rounds in "Q" Block until instructed to do so. No discipline was imposed as a result of these events. The grievor made her dissatisfaction with this situation known, and sometime on February 6th, Mr. Mei reported on these events to the Superintendent of the Jail, Mr. Jude Lake. By a memorandum dated February 6, 1990, Mr. Lake wrote: To eliminate the above noted confusion and to hopefully dispel staff concerns, the following will be effective · immediately: 7 Post 8 and Post 6 will co-sign the shift change-over certificate for the entire area.· M, N, O, P, and Q blocks. As a result, one of two officers assigned to those · areas will, as in the ·past, be required to make a minimum of 20 minute rounds of their assigned areas. This further means that Post 5 Post 6 will be required to make rounds in I & J and Q Blocks respectively, in the absence of Post 7 and 8, and as well will be required to patrol E, F, G, H and M, N, O, P Blocks respectively. The standing orders will be viewed in the near future to reflect this amendmentl A grievance was filed that evening and it is this grievance that was brought before the Board. Mr. Lake gave evidence on behalf of the employer. 'He testified that this new procedure, outlined in the Memorandum of February 6, 1990, was put into place pursuant to an agreement reached with the union on November 14, 1989, hereinafter referred to as the Minutes of the E.R.C. Meeting of November 14, 1989. ("E.R,C." stands for Employees Relations Committee.) According to Mr.' Lake, he was asked by the local union representatives to modify the shift change-over certificate procedure so as to require co- signing for two Posts, i.e., 6 and 8.' The reason for this request was to facilitate the provision of relief during a shift and to eliminate the need for prior authorization from a superior officer. As a result of this 8 change, both officers assigned to an inmate occupied area would assume responsibility for both Posts ahd if one wished to go away the other would maintain that responsibility. (There is also provision for the informal exchange of Posts during the 12-hour shifts so as to provide some variety to the stationary officer, but this aspect of the work assignments is not directly relevant to the background to this case.) According to Mr. Lake, co-signing worked to everyone's advantage in that under the old system, when an officer required a replacement, keys would have to be exchanged and inmates would have to be counted. Under the new System this would not be necessary. Efficiency aside, Mr. Lake testified that the new system was in fact agreed upon with the union at a meeting of the E.R.C. held on November 14, 1989. The Minutes of.the E.R.C. meeting were introduced into evidence. These minutes were signed by both the employer and by a representative of the union, Mr. Ole Thomsen, who gave evidence at the hearing on behalf of the grievor. The relevant portion of these Minutes reads as follows: The major item discussed at this' meeting was issues involving the compressed work schedule agreement for the adult correctional officers. It was mutually agreed that when the existing schedule is altered, the following items will be incorporated and 'an implementation date of December 4, 1989 was mutually agreed to. 2) Shift change-over certificates'at the beginning of the shifts will be signed by both officers, assigned as follows: posts 5/7, 4/10, 6/8. This will 'facilitate one of the officers being on the post at all times. Mr. Lake testified that this issue had been raised by. the union at previous E.R.C. meetings. He also testified that the system of co-signing was put, informally, into effect around the first of the year. In his evidence, Mr. Lake did not recall whether or not, at the E.R~C. meeting on November 14, 1989 he discussed with the union the responsibility that correctional officers would assume when they co-signed. He pointed out, however, that correctional officers would, of necessity, be aware of the significance of the shift change-over certificate. Mr. Lake also noted that even before the procedure was changed the officers assigned to Posts 6 and 8 would be required, from time to time, to assume responsibility for the other Post, or otherwise the inmates could not move in the institution. This was not disputed by the union. According to Mr. Lake, and counsel for the employer, the new arrangement, outlined in the Memorandum of February 6, 1990, represented a change from that agreed tO in the Memorandum of Settlement dated January 30-February 1, 1989. After that Memorandum of Settlement was signed, when the officer stationed 10 at Post 8 moved prisoners, the officer at Post 6 would assume responsibility for "Q" Block, but that officer was not formally accountable.. Mr. Lake testified that while he did not recall whether the responsibilities of the Post 6 officer for "Q" Block were discussed prior to reaching the January 30-February 1 Memorandum of Settlement, he never agreed prior to signing that Memorandum of Settlement that the officer at Post 6 would not have to assume responsibilities in "Q" Block because to have done so would have been to leave inmates in "Q" Block unsupervised and unattended while the Post 8 officer was otherwise engaged. in brief, the only change that has taken place by the Minutes of the E.R.c. Meeting and the Memorandum of February 6, 1990 is the formal assumption by the Post 6 officer for Post 8, "Q" Block and of the Post 8 officer for Post 6. It should be pointed' out, until the Memorandum of February 6, 1990 was issued requiring the co-signing of the certificates, no grievances relating to this matter were filed. In cross-examination, counsel for the union questioned Mr'. Lake about a number of matters. Mr. Lake agreed that the Memorandum of Settlement reflected the union's concern that there be clearly delineated responsibilities for the officers assigned to Posts 6 and 8. Mr. Lake did not, ~owever, recall any discussion, at that time, with the union relating to the co-signing of Shift change- over certificates. Moreover, Mr. Lake testified that the 11 assumption of responsibility by the officer in Post 6 for "Q,' Block while the officer assigned to Post 8 was unavailable was 'not inconsistent with the Memorandum of Settlement. There was, however, an inconsistency between the Standing Orders issued by the institution in November 1989 and the description they contained of the responsibilities of the officers assigned to Posts 6 and 8, and ~he Minutes of the E.R.C. Meeting of November 14, 1989, as well as with Mr. Lake's Memorandum of February 6, 1990 req~iring co-signing. These Standing Orders do not require co-signing of the shift change-over certificates, and they do not make mention of 'the officer in Post 6 having any responsibility for Post 8, although the officer in Post 8 does have limited responsibility for Post 6, namely the supervision of exercise period for the "M", "N", "O", and "P" Blocks. When Mr. Lake was questioned about'this he agreed that the Standing Orders reflected the January 30-February 1, 1989 Memorandum of Settlement, but did not reflect the Minutes of the E.R.C. Meeting of November 14, 1989, because the Standing Orders were issued prior to that meeting. Given the fact that following the Memorandum of Settlement the officer assigned to Post 6 would be required, from time to time, to asSume responsibilities for Post 8, it is not necessary for us to inquire in detail as to what the parties believed paragraph 1 12 of that Memorandum of Settlement actually entailed. In reaching this conclusion we note that Mr. Thomsen and Ms. Patterson acknowledged that such sharing of responsibility took place after the Memorandum of Settlement was signed. And Mr. Lake testified that this sharing of responsibility had taken place since 1986 when this part of the jail was built. We also note that Mr. Thomsen testified that the issue of Post 6 officers filling, in at Post 8 was discussed as being a problem prior to signing the Memorandum of Settlement, and that the union thought that the Memorandum would provide it with an opportunity to see how often this filling-in would have to take place. In Mr. Thomsen's words, it would allow the union to monitor "the amount of time that the officer could not be in an area that he was responsible for." We do not give any weight to the fact that the Standing Orders fell somewhat behind institutional practices. What is important is to turn our attention to the Minutes of the E.R.C. Meeting of November 14, 1989, quoted above. In cross- examination Mr. Lake agreed that he .may have initiated the discussions that led to the E.R.C. Meeting of November 14, 1989. Mr. Lake also agreed with union counsel that in his discussions with the union leading to the signing of the Minutes of the E.R.C. Meeting there was no discussion as to whether or not those Minutes modified in any way the January 30, 1989-February 1, 1989 Memorandum of Settlement. That is to say, the issue that had 13 initially led to 44 grievances bein~ filed, that of delineated responsibility, was not explicitly discussed, although the issue of co-signing certificates was obviously discussed. Mr. Thomsen testified that the issue of the responsibility for rounds in "Q" Block was discussed on a number of other occasions prior to the E.R.C. meeting, suggesting that the union continued to be well aware of this Particular issue. Mr. Thomsen also said that the employer agreed to resolve the union's concerns in the new set of Standing Orders, but as we already noted, they were issued prior to the E.R.C. meeting. Moreover, in his evidence, Mr. Thomsen, who signed both the Memorandum of Settlement as well as the Minutes of the E.R.C. Meeting, testified that in. agreeing to paragraph 2 of the Minutes of the E.R.C. Meeting the union was only agreeing to a proposed procedural change to respond to the efficiency concern raised by Mr. Lake, namely the time being lost as a result of having to sign mid-shift change-over certificates. In Mr. Thomsen's view, the Minutes of the E.R.C. did' not change in any way the earlier Memorandum of Settlement. Rather, he was of the opinion that the new requirement for co-signing two shift change-over certificates was limited to improving efficiency and providing for the continuity of keys. For his part, Mr. Lake testified that at no time did anyone suggest that an officer who 14 co-signed a shift change-over certificate would not be fully responsible for the Post indicated on that certificate. 'With regard to the sentence in the Minutes' of the E.R.C. reading: "This will facilitate one of the officers being on the post at all times", Mr. Thomsen testified that this sentence was limited in its application to Posts. 4/10 where the shift arrangements were different 'than elsewhere in the institution. Mr. ~Thomsen did, however, confirm that at the E.R.C. Meeting and later on when he signed the Minutes of that meeting on behalf of the union, that he was agreeing to co-signing of the shift change- over certificates. Argument As Mr. Whitaker pointed out in his final argument, the issue before the Board is to determine whether or not there has been an ~greement between the parties, whether or not that agreement has been modified by some subsequent agreement, and if so to what effect, union counsel asked us to find that the Memorandum of Settlement remained in effect, and to order the employer to comply with that Memorandum. In support of his argument, Mr. Whitaker pointed out the inconsistency between employer practices and the Standing Orders which make no reference to co-signing and only limited mention of formal responsibility for more than one Post. 15 .Mr. Whitaker also drew our attention to paragraph 2 of the Memorandum of Settlement and he argued that this requirement, to discuss any changes to existing posts with representatives of the union, had not. been complied with. In. support of this argument he pointed out that the evidence of both the employer and union witnesses was to the effect that the agreement reflected in the Minutes of the E.R.C. was.reached without any discussion of how those minutes might affect the Memorandum of Settlement. He argued that the change was employer-driven, and it was directed at improving efficiency. Moreover, Mr. Whitaker urged us to find that the language in the Minutes of the E.R.C. was ambiguous, in counsel's view, the union, which had earlier filed more than forty grievances relating to the delineation of Post responsibilities, only agreed to the change to a limited extent, as indicated by Mr. Thomsen in his evidence. Finally, Mr. Whitaker argued that even if the Board found that Minutes of the E.R.C. Meeting were not ambiguous, that those Minutes should be construed as 'a trojan horse; one based on bad faith collective bargaining in that the employer, in attempting to change the terms of the Memorandum of Settlement, was not forthright in bringing that objective directly to the attention of the union, but instead made that change through seeking agreement to what the union thought was only a procedural modification to improve efficiency, and perhaps economy. For her part, Ms. McDermott argued that management acted in accordance with the agreement it had reached with the union and that the issue placed before the BOard was not, therefore, arbitrable. Employer counsel emphasized the evidence.of Mr. Lake that neither the Memorandum of Settlement 'nor the Minutes of the E.R.C. affected management's right to assign correctional officers additional responsibilities. In Ms. McDermott's view, the delineation of responsibilities in the Memorandum of Settlement did not introduce a "freeze", and 'changes could be made following discussions with the union. This obligation, Ms. McDermott argued, was met by the employer in the meeting of the E.R.C. Ms. McDermott pointed out the conflict in the evidence as to who exactly'initiated the changes ultimately reflected in the Minutes of the E.R.C. In our view, however, who was first to raise the subject in discussion is not material. Ms. McDermott further argued that just because the employer did not directly place into issue the fact that the co-signing of Posts would affect the earlier Memorandum of Settlement did not suggest any hidden purpose of management. In her words, it reflected the reality that there is no need to state the obvious. The union was familiar with the system, and with the .wording on the shift change-over certificates. If the union turned.a blind eye to the obvious that is not, counsel argued, the fault 'of management. 17 Decision In our view this grievance must be denied. We find that the Minutes of the E.R.C. superceded the earlier Memorandum of Agreement. While' bringing that change more directly to the attention of the union might have made a positive contribution to the discussion, we are persuaded that the change reflected in the Minutes of the E.R.C. is' so clear to have been obvious to the union. Moreover, we do not find that the provision in question is at all ambiguous. It clearly requires co-signing for Posts 6 and 8, and correctional officers could not but be .aware of the implications of co-signing shift change-over certificates. We find that the employer acted pursuant to its agreement with the union, namely the Minutes of the E.R.C. Even if this were not the case, by the very terms of the Memorandum of Settlement, the employer is only required to discuss Post changes with the union before implementing them, and we find that such a discussion, as reflected in the .Minutes of the E.R.C., did in fact take place. The grievance is, accordingly, dismissed. We would, however, like to make the following observations. The union expressed some concern as to responsibility that may accrue as a result of co-signing these shift change-over certificates and the assumption of responsibility for two Posts, given the fact that a correctional officer cannot be in two places at one time. It is easy to understand why the union would have such a concern. No one can be in two places at the same time, yet correctional officers may be responsible for two or more places at the same time. In the instant case, the officer assigned to Post 6 is in exactly that situation; he or she is responsible for four different Cell Blocks, and may also be responsible for Cell Block "Q", which is separated from Cell Blocks "M", "N", "O", and "P" by a corridor. However, we point out that Mr. Lake testified that if a correctional officer was off doing another assignment he could not hold that officer responsible .for something that took place at his or her Post. For example, if the officer assigned to Post 8 is escorting a prisoner somewhere in th~ institution, he or she could hardly be held responsible for something which took place in "Q" or "M", "N", "O", or "P",. absent some act of negligence, of course. As Mr. Lake said, "I could not hold them responsible, and no one has been held responsible for that since I took over." Similarly, the Post 6 officer will, as a result of co-signing, be responsible for Cell Block "Q", but the extent of that responsibility will depend .on the particular circumstances of each case. This evidence is worth keeping in mind. 19 Dated at Ottawa this 19. th day of September 1990. Willi%m Kaplan Vice-Chair ~I dissent~ Dissent attached. J. Solberg Member D. Clar~ Member U~o~ Nom~e~ Eeference OP$£U (Pattermon) and #1972/89 The dec£aiOn of She Board accurately ou~lLnee ~h4 UnL~n'e In mY view, ~ m&kea ~he un/on'e ~am~ ~learly. and decisively. On ,~ha~ baela, Z would have allowed ~e grievance. /