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HomeMy WebLinkAbout2017-3866.Stickle et al.20-03-16 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# 2017-3866; 2016-1980 UNION# 2018-0229-0005; 2016-0369-0046 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Stickle et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Bram Herlich Arbitrator FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING March 6, 2020 - 2 - Decision [1] These grievances relate to the assignment of escort duty. [2] The parties have agreed to proceed via Article 22.16 of the collective agreement. This process, in the interests of expedition, sacrifices, or at least economizes on, some of the aspects of a full formal hearing in favour of a speedy disposition. Awards under this process are therefore typically economical and do not feature full or elaborate reasoning. And while such awards will resolve the issue decided therein, they have no precedential value in other or subsequent cases. [3] The parties went “one better” in their drive for expedition – rather than putting the facts of either of the grievances before me, they opted to ask me to provide the answer to a specific question, expressing the view that this answer would assist them in arriving at a final resolution of these grievances (and perhaps others). [4] The question put to me is as follows: Once an inmate is admitted to hospital, is the employer required to assign the escort function to [Correctional Officers (“COs”) from] the [correctional] institution within which the inmate is housed (or “on the count”) OR does the employer have a management right to assign the escort function to COs from any institution? [5] The parties called no viva voce evidence and asked me to decide the question on the basis of the factual assertions made in the context of their submissions. For the most part those factual assertions generated no controversy. [6] Perhaps, the only notable exception was the different understandings the parties appeared to have as to the precise meaning of the “count”, a term they both employed as describing the number of inmates attached to a particular institution at given points in time. They disagreed, it seems, on whether inmates who are physically out of the institution in which they have otherwise been detained and - 3 - who are under the supervision of COs performing escort duty are always included in the count. I have not found it necessary to resolve this gap between the parties – I suspect further evidence and/or distinctions would be required to do so. However, I am satisfied, as will be seen, that the resolution of this particular disparity is not a pre-condition to my providing the parties with an answer to the question they have posed. [7] The question posed by the parties is patently comprehensible to them. In the interests of clarity, however, it may be useful to contextualize it. Although no specific facts, certainly no specific assignments of escort duty, were put before me, a theoretical set of facts was the subject of some discussion. These particular facts were not only not put before me in evidence, they are perhaps also unlikely to materialize. However, for illustrative purposes, they assist in highlighting both the context in which the issue may arise and the practical imperatives at play. The “theoretical” facts are as follows: An inmate is detained at a jail (jail #1) at one end of the province. Medical exigencies require that he be attended to at a hospital at the other end of the province. COs from jail #1 are assigned and perform the necessary escort duty to transport the inmate from jail #1 to the hospital at the other end of the province. (The parties agree that it is COs from the staff of Jail #1 who would and should be assigned this escort duty.) At the hospital, medical personnel determine that the inmate is to be admitted and will require a stay of multiple days. There is another jail, also located at the other end of the province, which is a very brief drive away from the hospital. It is here that the views of the parties diverge with respect to the further assignment of escort duty to monitor the inmate (both parties referred to this as “sitting on the inmate”). The union asserts that, so long as the inmate is the responsibility of jail #1, any required escort duty opportunities are to be offered to COs from that institution. The employer asserts that the assignment of escort duty is simply an exercise of its management rights and that (perhaps subject to acting in good faith and not arbitrarily) it is free to assign escort duty to COs of any jail. [8] One of the assertions advanced by the union was that many, though not all, escort duty assignments involve overtime hours. This was not disputed by the employer. Indeed, this is not the first time that matters pertaining to escort duty - 4 - have been the subject of litigation between the parties. This arbitrator and the counsel who appeared before him in this matter have all been involved in a lengthy process of litigation which commenced in 2008 and appears to now be largely concluded as a result of an award that issued in 2011. That award pertained to but a single institution; the dispute was in respect of all institutions. And given the variations in local protocols over time, the award could not apply mechanically to each institution. The parties have been largely successful in examining and resolving the matters in individual institutions in light of the award and the local circumstances. But this process is not yet entirely complete and from time to time the parties return to litigate certain outstanding matters. I refer to this only because those proceedings are consistent with the union’s view that the assignment of escort duty largely involves, even if not exclusively, the assignment of overtime work and must therefore be in compliance with the terms of a local overtime protocol. [9] Turning to the employer’s practical concern. At first blush, the employer approach to the assignment of escort duty in the theoretical case described is sensible and rational. It makes little sense to assign COs (from jail #1) to travel across the province, perhaps on a daily basis, to “sit on the inmate” in hospital when COs (from jail #2) can perform the same function and only have to travel a few kilometres per day. [10] And the union did not seriously dispute or dismiss the rationality and economy of the employer’s approach. That, however, is not a license to ignore the requirements of the collective agreement. Furthermore, asserted the union, the employer has the means at its disposal to effect precisely the result it seeks without the need of ignoring the provisions of the collective agreement. All the employer needs do is reassign the inmate from the care, custody and control of jail #1 to that of jail #2 for the duration of any period that it wishes to assign COs from jail #2 to perform escort duty. - 5 - [11] The employer did not dispute that option was available to it and provided no explanation as to why such an option was not viable or desirable. Rather, it simply insisted that it was merely exercising a management right available to it by assigning COs from jail #2 to do the escort duty in question. [12] The union asserted that the assignment of escort duty is a matter to be effected by individual institutions and such assignments are to be offered to the staff working out of the individual institutions. The employer cannot upset the clear scheme of local overtime distribution no matter how rational or economical its approach may be in an individual case. [13] The employer points to its undisputed authority to detain an inmate in the correctional institution of its choice. It also asserts that nothing in the collective agreement provisions explicitly requires that escort duty must always be assigned to COs working out of the institution which has the care, custody and control of the inmate. These points are not disputed by the union. But the first point underlies the employer’s ability to effect the desired result without offending the collective agreement. And while the union concedes the lack of specific and explicit collective agreement language necessitating the result it advocates, it submits, all the same, that the employer’s approach is inconsistent with the scheme of the collective agreement. I agree. [14] The distribution of overtime (which can include escort duty assignments) is indisputably a matter of local administration. And the overtime work to be distributed is work that pertains to the care, custody and control of the inmates of the local institution. And while the parties argued about whether or not inmates being escorted to and monitored at other locations remained “on the count”, there was no dispute that such inmates remained under the care, custody and control of the local institution housing them. Indeed, it was also not disputed that the place where one would find the bureaucratic trace of that inmate’s presence would be in the “master escort logbook” – a record kept locally for each institution. In my view, to directly assign work that pertains to the care, custody - 6 - and control of inmates of a particular institution to COs of a different institution is (barring possible exceptional circumstances not here evident) entirely inconsistent with the scheme of the collective agreement and local overtime protocols. [15] Having regard to the foregoing, I have determined that once an inmate is admitted to hospital, the employer is required to assign the escort function to COs from the correctional institution within which the inmate is housed (i.e. the institution responsible for the care, custody and control of the inmate). [16] I will remain seized with respect to any outstanding issues or in the event the parties are unable to fully resolve these matters in light of my response to their question. Dated at Toronto, Ontario this 16th day of March, 2020. “Bram Herlich” ________________________ Bram Herlich, Arbitrator