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Home My WebLink About2010-2499.Pinkney.16-11-14 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-2499 UNION#2010-0108-0049 Addition files in attached Appendix “A” IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Pinkney) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING September 8, 2015; March 4, 2016 - 2 - Decision [1] On November 4th, 2013 this Board issued a decision regarding the interpretation of a Memorandum of Agreement regarding the scheduling and the compressed work-week at the Elgin Middlesex Detention Centre. The memorandum, dated January 11, 2010, was set out at paragraph 2 of that decision. It states, in part, as follows: This compressed work week agreement is made in accordance with Article 16 (Local and Ministry Negotiations) of the Central Collective Agreement and Article COR2 (Hours of Work), Appendix COR9 (Rollover of Fixed Term Correctional Officers) of the Correctional Bargaining Unit Collective Agreement, between the Ontario Public Service Employees Union and the Crown in Right of Ontario represented by Management Board of Cabinet. Unless otherwise specified in this Agreement, all articles of the Central and Correctional Bargaining Unit Collective Agreements Apply to employees covered by this agreement. 1. All Correctional Officer compressed work week schedules for the institution shall end on February 28, 2010 and new approved schedules shall take effect on March 1, 2010. 2. All approved schedules shall be posted by January 15, 2010. 3. Line selections shall be submitted to the scheduling department and shall be started on January 18, 2010. 4. Line selection shall be done based on seniority (continuous service dates). 5. A scheduling committee member and the Local 108 scheduling officer shall be involved in the line selection process. 6. Notices to staff of line assignments shall be posted no later than February 8, 2010. 7. All correctional officer positions shall be available for line selections. 8. Those failing to make a selection will be assigned to a line and schedule by the Scheduling Manager after three attempts have been made by the scheduling office to contact the employee. 9. A classified (full time equivalent) complement change shall cause a review of the schedules between the two parties to review any changes. 10. When permanent vacancies occur in the compressed work week schedule, they will be posted within 14 days of the - 3 - permanent vacancy and will be filled on a seniority (continuous service date) basis within 30 days of the vacancy. 11. If a permanent line is vacated for the purposes of a temporary assignment/secondment for a period of 366 days, this line will be considered vacant and posted within 14 days of the vacancy and will be filled on a seniority (continuous service date) basis within 30 days. 12. This agreement, and the attached schedules, is based on the following identified correctional officer positions: (a) One hundred and forty seven (147) classified correctional officer positions as identified in the employers staffing model. (b) It is understood by both parties that the MERC agreement of the Resource Position Management (RPM) for Elgin Middlesex Detention Centre consisting of twenty (20) positions have been collapsed into the main schedules and is apart (sic) of the one hundred and forty-seven (147) classified positions, as outlined in the MERC agreement dated 12th of May 2009. Every effort will be made to backfill the 147 lines on a daily basis. (c) The parties’ agreement of an additional fifteen (15) correctional officer positions (located in the Utility Schedule) as per the Memorandum of Agreement dated 12th of May 2009. (d) Due to three vacancies occurring after the 12th of May 2009, the additional 15 positions have been reduced to 12 in accordance with the MERC agreement dated November 27, 2009. This is a total of one hundred and fifty nine (159) positions available for the line selection process. As permanent vacancies continue to occur, lines from the Utility Schedule will continue to be eliminated. 13.This agreement does not prejudice the parties in any way in relation to the total level of Correctional Officers positions at the Elgin Middlesex Detention Centre. 14. In accordance with the Memorandum of Agreement dated 12th of May 2009, the following process will be used to reassign officers in the utility schedule to the Budget Allocation Model/BAM (main) schedule that: (a) Correctional Officers assigned to the Utility Schedule shall be reassigned first to fill permanent and temporary vacancies created in the BAM schedules. It is the understanding of both parties that vacancies in the Utility - 4 - Schedule shall not necessarily create additional posts requiring backfill. [2] Various other relevant documents were provided to the Board during the course of that litigation to assist in the interpretation of the dispute. [3] As is set out in the November 4, 2013 decision, two questions were posed and answered by this Board. The first was “Does the Compressed Work Week Agreement require that there are 147 Correctional Officer positions which translates into a specific number of Correctional Officers at the jail per day?” This question was addressed at paragraphs 32 and 33 which stated: After consideration, I am of the view that the answer to this question is yes. The Memorandum of Agreement makes clear that there will be a schedule based on 147 classified CO positions “as identified in the employers staffing model”. The parties went on to explain what that number included (twenty CO positions which “had been collapsed into the main schedule”) and what the number did not include (an additional 12 CO positions “located in the Utility Schedule”). Further it was agreed that as permanent vacancies “continue to occur, lines from the Utility Schedule will continue to be eliminated”. These are the positions that the parties refer to as “Attrition” on Schedule A. It seems apparent that the parties agreed to develop a schedule with 147 lines that would be filled by 147 classified COs and that “every effort will be made to backfill the 147 lines on a daily basis.” In my view, this means that if any of the 147 COs scheduled to work on any particular day are absent from the work and otherwise unavailable to work, the Employer shall make every effort to replace them. For the purposes of this decision, absences would include (but not necessarily be limited to) situations such as sick leave, vacation and leaves of absence. [4] The second question asked of the Board was “Does the Compressed Work Week Agreement require that all 147 Correctional Officer positions be within the building for all of the assigned shifts – that is to say – not on an outside of the building assignment?” The answer to this question began at paragraph 36 and said: Addressing the second question, I am of the view that the Employer’s submissions must prevail. While I accept that the Vision Statement sets out tasks usually undertaken by COs, there is nothing that would lead me to find that this document overrides the - 5 - Employer’s inherent right to manage the workforce. Indeed, the preamble of the Memorandum of Agreement states that unless otherwise stated in the Agreement, the Collective Agreement applies. There is nothing in the Memorandum that restricts the Employer’s ability to assign work. Although I understand the Union’s assertion that the Vision Statement is a comprehensive and determinative document, I must disagree. Indeed, it does not form part of the Memorandum and therefore cannot be relied upon to fetter the Employer’s authority to assign work. It was suggested by the Union that the Memorandum obliges the Employer to make every effort to backfill 147 lines on a daily basis and that includes ensuring all of the scheduled COs must be working inside the four walls of the institution for every moment of their scheduled working hours. I think not. In my view, if the parties intended such a particular result, they would have said so and they did not. Indeed, the parties referred to effort being made to backfill occurring on “a daily basis”, not an hourly basis. Further, backfilling is a phrase often used by these parties. I have seen nothing in any of the exhibits or Collective Agreement that would lead me to find that the Employer is obliged to provide an additional – otherwise unscheduled - employee to replace one of the 147 scheduled COs who is going to be away from her post or the workplace performing CO duties for a matter of minutes or hours. [5] The Board remained seized and further days were scheduled to deal with the quantification of the remedy. During the follow up hearing days it became apparent that there continued to be a dispute regarding the extent of the remedy including the matter of when the compensatory remedy is to begin and to whom the remedy is owed. [6] Rather than look at each and every day that occurred subsequent to the filing of various grievances the parties agreed to look at some representative period of time for the purposes of quantifying the remedy. There have been ongoing discussions in this regard. [7] I will briefly set out an overview of the submissions of the parties that were put forward “in summary fashion.” I will then set out some of the example questions posed. - 6 - UNIONS SUBMISSIONS [8] At our most recent day of hearing the Union raised other outstanding remedial issues. The Union – as I understand their argument - contended that attention must be paid to actual assignments found on Schedule A (attached to the original Memorandum of Agreement) and/or model duty rosters. There were a number of assignments “below the line” that were never set out in Schedule A – and that was a violation. It was noted that Schedule A specifically identifies the precise shift and location of various assignments. These were developed by the parties to reflect the commitment that is set out in the Memorandum. Violations must be redressed. [9] While the Union stated that it has accepted that the Board has found that the Employer is not obliged to backfill in the event that an unforeseen emergency arises, that exception does not extend to a predictable set of duties and therefore the Employer cannot utilize one of the 147 positions to undertake that work. To be clear, the Union is of the view that if work outside the 147 positions is foreseeable the Employer must make every effort to backfill the CO assigned to do that work. [10] The Union submitted that the Memorandum of Agreement contemplates “147 positions” and not “147 Correctional Officers”. That distinction means that all positions are those found in the duty rosters. A number of examples were then cited showing that various positions as set out on Schedule A were altered. Accordingly it must be found that the Employer adjusted the duty rosters without agreement of the Union thereby violating the Agreement. EMPLOYER SUBMISSIONS [11] The Employer began by asserting that the Union is attempting to re-litigate this matter under the guise of implementation difficulties. The issues that the Union is now asking the Board to consider are precisely those addressed in the original decision. Indeed, even the arguments put forward by the Union in this hearing are virtually identical to what was submitted prior to the first decision. It was the Union’s position at the first day of hearing that irrespective of whether COs were working inside or outside the building – or if the work to be done was foreseeable or unforeseeable – the Employer had an obligation to make every effort to backfill if there were not 147 positions assigned. The Board has determined that matter already. - 7 - [12] The Employer also asserted that unlike its position at the first day of hearing, the Union now takes issue with what various COs are actually doing within the building. The Union cannot now take a different view and ask for a different result. This request is not remedial in nature and therefore not properly before this Board. [13] There were two questions put before this Board on the first day of hearing. Simply put, does the Employer have to backfill if one of the 147 positions is removed due to predictable or non predictable circumstances; and does it matter if one of the 147 positions is assigned work outside of the building such as a medical escort. The Employer contended that I have answered these questions and for that reason am functus officio regarding these two issues. [14] Having considered the submissions of the parties I am of the view that the Employer is right that – in large measure - the Union is not merely asking for clarification but a re-consideration and/or an extension of the questions already answered. While – as acknowledged by the Employer – the parties knew that there may be additional issues that need to be determined by this Board, the submissions proffered by the Union on our second day of hearing are, in reality, about the very issues already determined by this Board in the cited paragraphs set out earlier in this decision. [15] In Paragraph 33 of the November 4, 2013 decision the Board stated that “if any of the 147 COs scheduled to work on any particular day are absent from the work and otherwise unavailable to work, the Employer shall make every effort to replace them. For the purposes of this decision, absences would include (but not necessarily be limited to) situations such as sick leave, vacation and leaves of absence.” It is later said that it is not necessary for the Employer to make every effort to backfill all 147 positions inside the building for every minute of every day. It was noted that the agreement was to backfill on a “daily basis, not an hourly basis.” [16] Having said that – there were some specific questions that were put forward at the hearing that are of a clarifying nature. For example, the Board was asked if a CO requested a 4 hour vacation period at some point – either the beginning or at the end – of a same day 12 hour shift does the Employer have to make every effort to backfill the four hour period? Similarly, if a CO becomes ill or is injured during the course of their shift does the Employer have to backfill the position? The Union was of the view those absences should be backfilled. The Employer suggested it was not reasonable to do so and that any other finding would be inconsistent with the Board’s earlier decision. - 8 - [17] In this regard, I think reasonableness is the appropriate measure. The difficulty in such a finding is that whether a position needs to be backfilled – in order to be compliant with the Agreement of the parties - will be dependent on the circumstances. For example, if a CO reports at 0800 hours that they are ill and cannot remain at the jail until 2000 hours, that situation will leave the vast majority of a day that is not staffed with 147 COs. In my view it is reasonable that the Employer would make every effort to the remainder of that shift filled by another off-duty CO. However, if the absence or injury occurs at 1530 hours during the same twelve hour shift, replacing a CO for less than four hours is not particularly reasonable. It seems to me that the same would be true for four-hour vacation requests. If the Employer grants such a last minute request at the very commencement of a shift for the final four hours of a twelve hour shift, replacement of those hours would be reasonable. However, if the request is made shortly before the commencement of a shift for the first four hours of the shift, it is not reasonable to expect the Employer to replace the CO who is absent. [18] Another example of a clarification issue put forward was regarding COs working at EMDC who were being accommodated. Both sides made summary submissions in this regard. I am of the view that if a CO is working in a CO position, they are part of the 147 positions. However, if a CO is being accommodated in a OAG position or another classification they would not be included. The Union seemed to urge that unless a CO could perform any and all duties of a CO at all times they should not be included. I disagree. [19] Other examples were put forward and in the event this decision does not provide sufficient guidance further questions can be asked during our open session at our next day of hearing. [20] The Employer asserted that the Union is attempting to have this Board find that EMDC cannot function like every other facility without ballooning its complement of COs on any particular day. I understand that view. However, I am not convinced that is what the Union is seeking. I think the Union is trying to ensure that the Employer lives up to the Memorandum of Agreement it signed which appears to be unique to EMDC. - 9 - [21] It is hoped that at our next day of hearing the parties can, with the assistance of the Board determine the extent of the compensatory remedy that remains owing. I look forward to that exercise so that the many grievors – and the Employer - can see an end to this dispute. Dated at Toronto, Ontario this 14th day of November 2016. Felicity D. Briggs, Vice Chair - 10 - APPENDIX “A” GSB# Grievor Union File # 2010-2500 Klir, David 2010-0108-0049 2010-2501 Wust, Harry 2010-0108-0050 2010-2502 Fraleigh, Robert 2010-0108-0051 2010-2503 Winegarden, Kenneth 2010-0108-0052 2010-2504 McDonald, Scott 2010-0108-0053 2010-2825 Deyell, Robert 2011-0108-0005 2010-2826 Deyell, Robert 2011-0108-0006 2010-2827 Deyell, Robert 2011-0108-0007 2010-2828 Deyell, Robert 2011-0108-0008 2010-2829 Deyell, Robert 2011-0108-0009 2010-2830 Deyell, Robert 2011-0108-0010 2010-2831 Deyell, Robert 2011-0108-0011 2010-2832 Deyell, Robert 2011-0108-0012 2010-2833 Deyell, Robert 2011-0108-0013 2010-2834 Deyell, Robert 2011-0108-0014 2010-2835 Deyell, Robert 2011-0108-0015 2010-2836 Deyell, Robert 2011-0108-0016 2010-2837 Deyell, Robert 2011-0108-0017 2010-2880 MacLean, Graeme 2011-0108-0018 2010-2881 MacLean, Graeme 2011-0108-0019 2010-2882 Prentice, Andrew 2011-0108-0020 2010-2883 Prentice, Andrew 2011-0108-0021 2010-2884 Prentice, Andrew 2011-0108-0022 2010-2885 Prentice, Andrew 2011-0108-0023 2010-2886 Prentice, Andrew 2011-0108-0024 2010-2887 Townsend, Rebecca 2011-0108-0025 2010-2888 Townsend, Rebecca 2011-0108-0026 2010-2889 Townsend, Rebecca 2011-0108-0027 2010-2890 Townsend, Rebecca 2011-0108-0028 2010-2891 Cecchin, Jim 2011-0108-0029 2010-2892 Cecchin, Jim 2011-0108-0030 2010-2893 Cecchin, Jim 2011-0108-0031 2010-2894 Cecchin, Jim 2011-0108-0032 2010-2923 MacLean, Graeme 2011-0108-0034 2011-0251 Deyell, Robert 2011-0108-0037 2011-0252 Deyell, Robert 2011-0108-0038 2011-0253 Deyell, Robert 2011-0108-0039 2011-0254 Deyell, Robert 2011-0108-0040 2011-0255 Deyell, Robert 2011-0108-0041 2011-0256 Deyell, Robert 2011-0108-0042 2011-0257 Deyell, Robert 2011-0108-0043 2011-0258 Deyell, Robert 2011-0108-0044 - 11 - 2011-0259 Deyell, Robert 2011-0108-0045 2011-0260 Deyell, Robert 2011-0108-0046 2011-0261 Deyell, Robert 2011-0108-0047 2011-0262 Deyell, Robert 2011-0108-0048 2011-0263 Deyell, Robert 2011-0108-0049 2011-0264 Deyell, Robert 2011-0108-0050 2011-0265 Fraleigh, Robert 2011-0108-0051 2011-0266 Fraleigh, Robert 2011-0108-0052 2011-0267 Fraleigh, Robert 2011-0108-0053 2011-0268 Fraleigh, Robert 2011-0108-0054 2011-0269 Fraleigh, Robert 2011-0108-0055 2011-0270 Fraleigh, Robert 2011-0108-0057 2011-0271 Fraleigh, Robert 2011-0108-0058 2011-0272 Fraleigh, Robert 2011-0108-0059 2011-0273 Fraleigh, Robert 2011-0108-0060 2011-0274 Fraleigh, Robert 2011-0108-0061 2011-0275 Fraleigh, Robert 2011-0108-0062 2011-0562 Baker, Joshua 2011-0108-0067 2011-0563 Baker, Joshua 2011-0108-0068 2011-0564 Baker, Joshua 2011-0108-0069 2011-0565 Baker, Joshua 2011-0108-0070 2011-0566 Baker, Joshua 2011-0108-0071 2011-0567 Baker, Joshua 2011-0108-0072 2011-0582 Baker, Joshua 2011-0108-0073 2011-0598 Fraleigh, Robert 2011-0108-0056 2011-0615 Baker, Joshua 2011-0108-0076 2011-0636 Fraleigh, Robert 2011-0108-0077 2011-0637 Fraleigh, Robert 2011-0108-0078 2011-0638 Farlow, Deborah 2011-0108-0079 2011-0660 Fraleigh, Robert 2011-0108-0080 2011-0661 Fraleigh, Robert 2011-0108-0081 2011-0662 Fraleigh, Robert 2011-0108-0082 2011-0663 Fraleigh, Robert 2011-0108-0083 2011-0664 Fraleigh, Robert 2011-0108-0084 2011-0665 Deyell, Robert 2011-0108-0085 2011-0666 Deyell, Robert 2011-0108-0086 2011-0667 Deyell, Robert 2011-0108-0087 2011-0668 Deyell, Robert 2011-0108-0088 2011-0669 Deyell, Robert 2011-0108-0089 2011-0670 Deyell, Robert 2011-0108-0090 2011-0671 Deyell, Robert 2011-0108-0091 2011-0672 Deyell, Robert 2011-0108-0092 2011-0673 Deyell, Robert 2011-0108-0093 2011-0752 Baker, Joshua 2011-0108-0094 2011-0753 Baker, Joshua 2011-0108-0095 2011-0754 Baker, Joshua 2011-0108-0096 - 12 - 2011-0755 Baker, Joshua 2011-0108-0098 2011-1039 MacLean, Graeme 2011-0108-0101 2011-1040 Deyell, Robert 2011-0108-0102 2011-1041 Deyell, Robert 2011-0108-0103 2011-1043 Deyell, Robert 2011-0108-0105 2011-1044 Deyell, Robert 2011-0108-0106 2011-1045 Deyell, Robert 2011-0108-0107 2011-1046 Deyell, Robert 2011-0108-0108 2011-1047 Deyell, Robert 2011-0108-0109 2011-1048 Deyell, Robert 2011-0108-0110 2011-1062 Baker, Joshua 2011-0108-0097 2011-2068 Kennett, Rick 2011-0108-0112 2011-2071 Deyell, Robert 2011-0108-0115 2011-2072 Deyell, Robert 2011-0108-0116 2011-2073 Deyell, Robert 2011-0108-0117 2011-2074 Deyell, Robert 2011-0108-0118 2011-2075 Deyell, Robert 2011-0108-0119 2011-2076 Deyell, Robert 2011-0108-0120 2011-2077 Deyell, Robert 2011-0108-0121 2011-2078 Deyell, Robert 2011-0108-0122 2011-2079 Deyell, Robert 2011-0108-0123 2011-2080 Deyell, Robert 2011-0108-0124 2011-2081 Deyell, Robert 2011-0108-0125 2011-2082 Deyell, Robert 2011-0108-0126 2011-2083 Deyell, Robert 2011-0108-0127 2011-2084 Deyell, Robert 2011-0108-0128 2011-2085 Deyell, Robert 2011-0108-0129 2011-2134 MacLean, Graeme 2011-0108-0131 2011-2666 Coull, James et al 2011-0108-0135 2011-2846 Union 2011-0108-0134