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HomeMy WebLinkAbout1999-1678.Group Grievance.01-08-29 Order ~M~ om~o EA1PLOYES DE LA COURONNE _QJ_L i~~i~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB#1678/99 Umon#00C012 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between. OntarIO PublIc SerVIce Employee Umon (Group GrIevance, Lorenzo et al) Union - and - The Crown In RIght of OntarIO (MInIstry of CorrectIOnal SerVIces) Employer Before. Owen V Gray Vice-Chair For the Grievor- Mary MacKInnon Counsel Bode & MacKInnon BarrIsters & SolICItors For the Employer- Gregg Gledhill Staff RelatIOns Officer MInIstry of the SolICItor General Hearing. August 22,2001 2 ORDER [1] In a gnevance filed November 25, 1999, ten gnevors alleged that The employer has convened artIcles COR 7 1 and COR 12.1 2 of the collectIve agreement as well as Employment Standards but not exclusIVely by not provIdmg for CorrectIOnal (Youth) Officers rest penods and meal breaks The remedy sought IS "Monetary compensatIOn for all past vIOlatIOns" [2] Although they do not both concede the relevance of each and every of them, the partIes agree on the followmg facts 1 ThIs matter mvolves gnevances filed by 10 Young Offender CorrectIOnal Officers employed at the Sault JaIl. The group gnevance IS dated November 25 1999 The group gnevance IS attached to thIs Statement of fact as ExhIbIt A 2. The Young Offender umt has been m place at the Sault Ste Mane JaIl smce 1986 Smce that tIme CorrectIOnal Officers workmg wIth the Young Offenders m that umt have been told to take theIr meals wIth the young Offenders m the small hvmg area Immechately adjacent to the cells The Young Offender umt IS on the ground floor of the JaIl. There are three tables m the hvmg area. '3 The Young Offender Umt houses a maXImum of 8 young offenders There IS also a separate two-cell locked area wIth no hvmg space (area J") whIch IS located upstaIrs from the general populatIOn Young Offender Umt. ThIS area ("J") IS used for secure IsolatIOn. There IS a second separate three-cell locked area wIth no hvmg space (area T') also located upstaIrs ThIS area ('T') IS not normally used as Young Offender area, however It IS used on some occaSIOns for emergency and/or overflow purposes 4. These umts I and J may have mmates m protectIve custody female young offenders or persons on watch. Management states that Area J" IS occupIed approxImately 50% of the tIme The umon estImates It at 80% When It IS occupIed, one CorrectIOnal Officer IS aSSIgned to that area, whIle one or two CorrectIOnal Officers are aSSIgned to the general populatIOn area. SImIlarly when Area T' IS occupIed, one CorrectIOnal Officer IS aSSIgned to Area I. If I and J [are] occupIed at the same tIme then one CorrectIOnal Officer would be aSSIgned to both areas unless there IS a constant watch or a female Young Offender m one of the areas 5 In the adult umts of the Sault JaIl, CorrectIOnal Officers have two one-half hour meal breaks m each 12 hour shIft. They are on property for 12 hours and paId for 12 hours tIme PreVIOusly when adult aSSIgned CorrectIonal Officers have had to work through a meal break, they have claImed and been paId overtIme (at a rate of 1 Y2 tImes normal hourly rate) for theIr mIssed break. 3 6 There are no formal rest penods m the adult umts of the Sault JaIl. 7 There are no formal meal break tImes for the mght shIft of the adult umts of the Sault JaIl. 8 CorrectIonal Officers assIgned to Young Offenders Umts m certam CIrcumstances have covered adult CorrectIOnal Officers posts for them whIle the adult aSSIgned CorrectIOnal Officers take theIr breaks 9 Durmg meal penods Young Offender CorrectIOnal Officers supervIse young offenders answer telephones escort Young Offenders durmg appomtments and perform other work functIOns 10 Young Offenders housed m the Young Offender Umt may attend school durmg the day Young Offenders attend school from the hours of 9'00 a.m. to 11 00 a.m. and 1 '30 p.m. to '3 '30 p.m. durmg ordmary school months The school room IS located approxImately 15 paces down the hall from the general populatIOn area. Young Offender CorrectIOnal Officers patrol the hallway outSIde the school room when Young Offenders are attendmg school, escort the young persons and mtervene m SItuatIons that anse 11 Only on rare occaSIOns have all Young Offenders been eIther m the school area or remamed m the general area of the Young Offender Umt. 12. The shIft schedules for CorrectIOnal Officers are as follows m the Young Offenders U mt a. Monday to Fnday 7'00 a.m. to 7 00 p.m. two correctIOnal officers b Mondays Saturday Sunday 11 00 a.m. to 11 00 p.m. one correctIonal officer c Monday through Sunday 7 00 p.m. to 7 00 a.m. one correctIOnal officers [SIC] d. Tuesday through Fnday '3"00 to 11'00 p m. one correctIonal officer 1'3 When the young offenders are m the hvmg area, (ie outSIde theIr cells) two CorrectIOnal Officers are usually present The gnll door IS left open and the CorrectIOnal Officers are m the hvmg area. When only one CorrectIOnal Officer IS aVaIlable (eg. mght shIft after 11 00 pm. or when the other CorrectIonal Officer IS on escort) the gnll door IS locked and the CorrectIonal Officer IS outSIde the locked hvmg area. 14. The BrockvIlle JaIl has adult and youth umts m the same facIhty At the BrockvIlle JaIl, young offenders are gIVen theIr noon meal at 11 '30 to noon. They are then locked m the day area for one hour to allow the two correctIOnal officers aSSIgned to theIr Umt to each take a /2 hour break whIle the other remams outSIde the hvmg area to supervIse the young offenders SImIlarly the young persons are prOVIded WIth theIr evenmg meal at 4 '30 p m. and then are locked m the day area from 5 00 to 6 00 p.m. m order to allow staff to take a meal break. On the mghtshIft another CorrectIOnal Officer reheves the CorrectIOnal Officers to take theIr meal breaks 15 The Wmdsor JaIl SImIlarly has adult and youth facIhtIes m the same bUIldmg. The Young Offenders are gIVen theIr noon hour meal at 11 '30 and locked down from 12'00 to 1 00 to allow for staff breaks They are gIVen theIr evenmg meal at 4. '30 and locked down from 5 00 to 6 00 to allow for staff breaks The CorrectIOnal Officers on mght shIfts are reheved for meal breaks by other CorrectIOnal Officers 4 16 Subsequent to a mechatIOn meetmg held on June 6 2001 CorrectIonal Officers assIgned to the day shIft have been provIded wIth meal breaks between 12 00 and 1 00 p m. and between 5 00 and 6 00 p m. by Employer ThIs has been accomphshed by provIdmg the noon hour meal to the young offenders at 11 '30 a.m. and lockmg then down mto theIr cells between 12'00 and 1'00 p m. Each Young Offender CorrectIOnal Officer m turn then has a 20 '30 mmute meal break. Between 12'00 and 100 p.m. two Young Offenders are taken to the recreatIOn area and the rest remam m theIr cells domg homework. wrItmg letters or watchmg programmmg on the VCR/TV The Young Offenders are gIVen theIr evenmg meal at 4 '30 p.m. They are then locked down from 5'00 to 5 '30 p.m Two CorrectIOnal Officers have a meal break and one remams on the umt. From 5 '30 to 6 00 p.m. one CorrectIOnal Officer accompames the Young Offenders to the yard, one remams a [SIC] the umt and the thIrd takes hIs/her meal break. 17 These arrangements descrIbed m #14 began Tuesday July '3 2001 No evemng meal break IS provIded, and there has not been a meal break provIded to CorrectIOnal Officers workmg the mght shIft nor on I & J Umts 18 In the office of the Young Offender Umt there IS a frIdge mIcrowave coffee machme and, washroom. There IS also a large glass wmdow between the office and the hvmg area. 19 A grIevance have been filed by a member prIor to November 25 1999 on thIS Issue attached as ExhIbIt 'B" IS a grIevance filed m October 1998 by Stephen Sarlo ThIS grIevance was not filed for arbItratIOn and IS thus not before thIS Board. [3] Although the partIes agree that CorrectIOnal Officers m the adult umts who have "worked through" a "meal break" have claImed and been paId compensatIOn for at overtIme rates, management alleges that thIS was not "condoned" by man agement SImIlarly, whIle they agree that "m certam CIrcumstances" members of management have from tIme to tIme ordered a CorrectIOnal Officer m the Young Offender umt to relIeve a CorrectIOnal Officer m the adult umts durmg the lat ter's meal break, the partIes cannot agree on the "certam CIrcumstances" m whIch thIS has been done and, m any event, management alleges that the mak mg of such assIgnments not "condoned" by management. The umon says that these assIgnments emphasIzed for CorrectIOnal Officers m the Young Offender umt that they were bemg treated dIfferently from CorrectIOnal Officers m the adult umt as regards meal arrangements, that It "rubbed theIr noses" m the dIf ference It IS not entIrely clear whether the umon alleges that management m tended the assIgnments to have thIS nose-rubbmg effect, or that It made the as sIgnments m order to have that effect 5 [4] COR7 1 provIdes that COR? 1 The present practIce for rest perIods m each shIft shall be mamtamed. COR12 12 provIdes that COR12 12 A reasonable tIme wIth pay shall be allowed the employee for the meal break eIther at or ac~acent to hIs or her work place [5] In her openmg, umon counsel acknowledged that the Employment Standards Act does not assIst the gnevors She saId the umon claImed that COR 12 1 2 re- qUIres the employer to provIde meal breaks wIth pay, and that a meal perIOd IS not a "meal break" If at any tIme durmg that perIOd the employee has to super VIse resIdents or otherwIse perform actIve dutIes She saId the umon further claImed that COR7 1 oblIged the employer to provIde meal breaks at the Sault JaIl m the same manner as It dId m the Wmdsor and BrockvIlle JaIls [6] Umon counsel also stated that the umon would be clalmmg that the meal ar rangements complamed of were m breach of the reqUIrement m ArtIcle 9 1 of the collectIve agreement that "the Employer shall contmue to make reasonable pro- VISIOns for the safety and health of ItS employees durmg the hours of theIr em ployment" The basIs of thIS latter claIm was that employees are less safe when they are less rested and that the meal arrangements complamed of are less rest ful for the gnevors that those wIth whIch the umon contends they ought to have been provIded [7] In hIS openmg, the employer's representatIve provIded copIes of the GSB's decIsIOns m Unwn Gnevance, 724/83 (Samuels), Sheppard, 510/82 (Roberts) and Tangw et al, 876/84 (Knopf) The Unwn Gnevance, Sheppard and Tangw decI SIOns all held that the "rest perIOds" referred to m what IS now COR7 1 do not mclude meal perIOds or meal breaks Tangw also held that what IS now COR 12 12 applIes only to the employee described m what IS now COR12 11, namely, "an employee who contmues to work more that two (2) hours of overtIme Imme- dIately followmg hIS or her scheduled hours of work wIthout notIficatIOn of the reqUIrement to work such overtIme" The employer took the posItIOn that on the 6 Board's Junsprudence It was not oblIged to provIde a meal "break" free of actIve responsIbIlIty It also took the posItIOn that the umon's complamt that meal ar rangements were m breach of ArtIcle 9 1 was outsIde the scope of the gnevance before me [8] On revlewmg wIth the gnevors the GSB decIsIOns tendered by the employer's representatIve, umon counsel advIsed that the umon would not pursue the claIm that the meal arrangements complamed of m thIS gnevance were m breach of COR 7 1 or COR 12 1 2 She saId the gnevance would be pursued, however, on the basIs that those arrangements reflected an arbItrary, dlscnmmatory or bad faIth exerCIse of management nghts and, further, that they were m breach of Ar tIcle 9 1 [9] It IS common ground that the employer was not mformed of the umon's mten tIon to rmse thIS safety Issue untIl June 2001, long after the gnevance had been referred to the board for arbItratIOn. In Houghton, 0771/88 (Knopf), where the umon had sought to present a health and safety complamt at the hearmg of a gnevance about work assIgnments, the Board made these observatIOns It IS the opmIOn of thIs panel that steps 1 and 2 of the gnevance process are extremelv rmportant for the proper resolutIOn of complamts ThIS gnevance as processed, could not gIVe effect to that mechamsm of dIspute resolutIOn because the substance of the complamt was not revealed to the emplover at the crucIal earlv stages Had It been, we could have been prepared to accept JunschctIOn on the health and safetv aspect of the gnevance and process the case as such. But because It was not rmsedImtIallv and because we have no JunschctIOn to amend or alter the gnevance we must deal wIth the gnevance as It was framed. In my VIew, those observatIOns apply equally to the safety Issue raIsed here Re- framed as a safety concern, the complamt about meal arrangements IS a sub- stantIally dIfferent complamt from the one framed m the gnevance document Smce thIS safety complamt was not raIsed wIth the employer at the "crucIal early stages" referred to m Houghton, I am lIkewIse not prepared to entertam It m thIS proceedmg I make no comment on whether and to what extent a fresh gnevance on thIS ground would now be tImely 7 [10] The umon's counsel mdlcated that It mIght file a separate gnevance alleg mg that meal arrangements were m breach of artIcle 9 lIf It was not permItted to pursue that claIm m thIS gnevance In VIew of the umon conceSSIOns noted m paragraph [7] above, I was mltIally mclmed to dIsmIss thIS gnevance m ItS en tIrety wIthout preJudIce to the umon's nght to make the claIm that meal ar rangements were made m an arbItrary, dlscnmmatory and bad faIth manner m such fresh gnevance as It mIght, after further thought, chose to file wIth respect to ItS safety claIm. It seemed to me to be m the best mterest of labour relatIOns m thIS mstItutIOn that the gnevors and the umon have a further opportumty to re- flect on whether to pursue eIther or both of those claIms before gomg on and, fur ther, that the partIes have an opportumty to address any such claIms m the gnevance procedure before dealmg wIth them at arbItratIOn. [11] On reflectIOn, dlsmlssmg thIS gnevance m ItS entIrety on those terms mIght suggest that I had concluded that, lIke the safety claIm, the claIm that meal arrangements were made m an arbItrary, dlscnmmatory and bad faIth manner was not wlthm the scope of thIS gnevance In fact, that argument had not been made (mdeed, It mIght be saId that there had not yet been an opportu mty to raIse It) when the formal hearmg adJourned, and I made no such deter mmatIOn. I wIll dIsmISS thIS gnevance m so far as It alleges breach of the Em ployment Standards Act and COR 7 1 and COR12 12 of the collectIve agree- ment It stIll seems to me that the umon should reflect on whether accusatIOns of bad faIth are properly part of thIS or any gnevance about the meal arrangements In Issue [12] The partIes have agreed that If the umon files a gnevance allegmg that the aforesaId meal arrangements were m vIOlatIOn of ArtIcle 9 and that gnev ance IS not resolved m the gnevance procedure, then after It IS referred to arbI tratIon the gnevance should be scheduled for medIatIOn arbItratIOn before me 8 [13] Accordmgly, I order and dIrect that a) Insofar as thIS gnevance alleges breach of the Employment Standards Act and COR 7 1 and COR12 12 of the collectIve agreement, It IS hereby dIsmIssed, b) In the event the umon chooses to pursue thIS gnevance on some other basIs that It claIms IS wIthm the scope of the ongmal gnevance as elaborated durmg the gnevance procedure, It may be relIsted for me- dIatIOn arbItratIOn before me m one of the followmg two CIrcum stances 1. when a fresh gnevance of the sort referred to m paragraphs [9] through [12] has been properly filed wIth the Board and lIsted for medIatIOn arbItratIOn before me, m whIch event both matters should be scheduled for medIatIOn arbItratIOn at the same tIme, or ll. when the umon has advIsed the employer and the RegIstrar that It WIll not be filmg any such fresh gnevance Dated at Toronto, thIS 29th day of August, 2001 ~V Owen V Gray, Vice-Chmr