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Home My WebLink About2010-2499.Pinkney et al.2021-06-09 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 Additional files are attached in 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 et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING DATES March 11, 2020 and February 22, 2021 - 2 - Decision [1] I have before me a Union grievance dated November 16, 2011, and over 100 individual grievances filed by Correctional Officers (“COs”) employed at the Elgin Middlesex Detention Centre (“EMDC”) which allege that the Employer contravened a Compressed Work Week Agreement (“CWWA”) dated January 11, 2010. These grievances were initially before Arbitrator F. Briggs. She issued two decisions, one dated November 4, 2013 and the other dated November 14, 2016, and was preparing to issue a third decision, but unfortunately passed away subsequent to hearing further submissions at a hearing on June 12, 2017. The parties requested that I take jurisdiction over the grievances and eventually counsel re-argued the issues that were before Arbitrator Briggs on June 12, 2017. The decision I issued with respect to these grievances is dated September 12, 2019. The three decisions addressed a dispute over the interpretation of certain terms of the CWWA. Disagreement over a number of remedial issues necessitated another hearing. This decision addresses the outstanding remedial issues. [2] The CWWA had some unique features. The parties agreed in paragraph 12 that the CWWA was based on 147 classified CO positions and that “every effort will be made to backfill the 147 lines on a daily basis.” A Schedule A is a part of the CWWA and it references the required 147 positions by setting out the days each CO is to work during the week. In the decision dated September 12, 2019, I concluded that the CWWA required the Employer to schedule 147 classified COs on a daily basis and that the Employer was obliged to make reasonable efforts to replace an absent CO in order to maintain a minimum staffing level of 147 classified COs at the EMDC. I also determined that the CWWA did not restrict the Employer’s right to assign work to the 147 classified COs. The Employer could be in breach of the CWWA if the daily hours for classified COs in each week fell below the minimum required staffing level of 147 COs. I use the words “could be in breach of the CWWA” because of the possibility that the daily minimum staffing level was not attained through no fault of the Employer. [3] While this matter was before Arbitrator Briggs, the parties agreed that the - 3 - period for assessing any compensation owing would be from January 10, 2011 to January 4, 2014, a week short of three years. They also agreed that each party would choose a week during the relevant period which would serve to be representative of the entire 155 weeks for which compensation might be owed. This avoided the necessity of analyzing each day of every week for the entire period. The Employer selected the week of April 1 to 7, 2013, and the Union selected the week of November 1 to 7, 2011. [4] The parties agree that there was no shortfall in hours during the week of April 1 to 7, 2013. During the week of November 1 to 7, 2011, there was a shortfall in hours on one day only, namely November 5, 2011. The parties focused on that one day for the purpose of extrapolating the compensation owing for the entire 155 week period. At the hearing, counsel made submissions with respect to the extent of the shortfall and other matters which affect the determination of the compensation owing for a breach of the CWWA. I have carefully considered these submissions. I will concisely address each of the issues in dispute. [5] The Employer claims that the shortfall on November 5, 2011 is 4 hours. It reaches this number by starting its analysis on the basis of the 760 agreed to hours as provided for in Schedule A. The Union’s position is that there was a shortfall of 32 hours. It relies on the model duty roster to support its position that the required hours for that day totaled 790 hours. I agree with the Employer that there are no justifiable grounds for determining the required hours on November 5, 2011, on the basis of the model duty roster. Since it forms part of the CWWA, the required hours should be determined by Schedule A. The shortfall in hours based on 147 CO positions on November 5, 2011 is therefore 4 hours. [6] The Union argued that the week chosen by the Employer should not be used because it was not a typical work week and therefore is not representative for purposes of determining an appropriate remedy. I disagree. The fact that a statutory holiday occurred in that week and that construction was taking place in the foyer does not support the conclusion that April 1-7, 2013, cannot be used as a representative week. I am satisfied that it is appropriate to use both representative weeks for determining the - 4 - shortfall that is to be extrapolated for the entire remedial period. When this approach is adopted, the shortfall in hours amounts to 2 hours for each of the 155 weeks. [7] The remaining issues were the CO hourly rate that should be applied, whether the hours should be paid at the overtime rate and what percentage of exhausts should be applied for each year to reduce the amount owing. Exhausts refers to occasions when the Employer had exhausted the overtime list on a daily basis and was therefore unable to address any shortfall in hours through no fault on its part. The Union submitted that the calculation of compensation owing should be based on the highest CO hourly rate of pay in each year and on the overtime rate of pay. It also submitted that the percentage of exhausts should be no more that 5% of the total amount of compensation owing. The Employer argued that the appropriate way to calculate the compensation owing for the 155 weeks is to use the average CO hourly rate for each year and the regular CO hourly rate, not the overtime rate. The Employer also argued that the percentage of exhausts should be 25%. It maintained that it regularly exhausts during June, July and August of each year and during March break and the weeks in which the end of year holidays occur. [8] Having regard to the submissions and the information before me relevant to these issues, I find it appropriate in the circumstances to resolve these issues as follows. The necessary calculations should be based on the average CO hourly rate of pay in each year. Since some of the hours of the shortfall would likely have been at the overtime rate of pay, one-half of the shortfall in hours shall be calculated at the overtime rate. I agree with the Employer that the Union’s position on the percentage that should be used for exhausts is not realistic. In my view, the appropriate percentage to use for the exhaust discount is 15%. Therefore, using the second year of the CWWA as an example, the 2 hour shortage for each of the 52 weeks results in a total hourly shortfall of 104 hours. The monetary loss based on these hours shall be calculated using the average CO hourly rate during the second year of the CWWA, with 52 of those hours based on the overtime rate of pay. The amount of compensation owing in that second year shall be reduced by 15% on account of the exhaust discount. The same calculation method shall be used for the other two years of the CWWA, the only - 5 - difference being that one of those years consists of 51 weeks with a total hourly shortfall of 102 hours. [9] Having regard to the considerations outlined above, I have determined that the total amount of compensation owing for the 155 weeks is $9,552.22 ($11,237.91 less the 15% ($1,685.69) for the exhaust discount). Further to the request from counsel, I remit this decision to the parties to finalize the payment details. The Board will remain seized of the grievances. Dated at Toronto, Ontario this 9th day of June, 2021. “Ken Petryshen” Ken Petryshen, Arbitrator - 6 - 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 - 7 - 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 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 - 8 - 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 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