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HomeMy WebLinkAbout2019-0719.Union.22-02-03 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2019-0719; 2019-0720; 2019-0721; 2019-0722 UNION# 2019-0368-0060; 2019-0368-0061; 2019-0368-0062; 2019-0368-0063 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) 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 Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel HEARING December 3 and 20, 2021 -2- DECISION [1] I have four Union grievances before me dated March 26, 2019. This decision only addresses an Employer motion which claims that some of the Union’s particulars do not make out a prima facie case. [2] As the particulars illustrate, the four grievances were filed in relation to events which occurred when management at the Central East Correctional Centre (“CECC”) and the Union were engaged in the process of negotiating a new Compressed Work Week Agreement (“CWWA”). The process of negotiating a new CWWA took some time and was quite contentious. It appears that the primary issue in dispute was the Employer’s requirement that the new CWWA include a provision for Expressions of Interest (“EOIs”) to staff the female unit. In the absence of agreement, the Employer advised Correctional Officers (“COs”) that they would commence working an eight hour shift schedule commencing April 1, 2019. Based on its view that COs were engaging in actions that constituted an unlawful strike, the Employer filed an unlawful strike application with the Ontario Labour Relations Board (“OLRB”) on March 29, 2019. The application was heard on April 1, 2019. In its decision dated April 2, 2019, the OLRB, among other things, ordered the parties to implement on April 9, 2019 the CWWA that was attached to the decision. This new CWWA included a provision for EOIs to staff female units. [3] The Union’s particulars cover a period of time starting in early December 2018, and ending on March 29, 2019. The particulars which are the subject of the Employer’s motion are those which detail certain events on March 27 and 29, 2019. The particulars filed by the Union are as follows: 1. On December 5, 2018 the Employer notified the Union that the CWWA would be cancelled in ninety (90) days unless a new CWWA was negotiated for Correctional Officers at CECC that included a provision for EOIs (Expression of Interest) to staff the female unit. 2. The expiration date would be March 5, 2019 3. On December 18, 2018; January 24, 2019; Feb 1,6,15, and 19, 2019, the CWWA was discussed at the Improving and Maintaining Local Employee Relations (“IMLER”) meetings were held between members of the Senior Management Team at CECC and Local 368 Executive members. -3- 4. Mr. Butsch advised that if the Employer wanted to continue discussions they should provide a local written extension to continue discussions. The local was willing to agree to 90 day extensions to continue negotiations. 5. March 5, 2019 passed and the Employer unilaterally continued the CWWA schedule contrary to the language of the CA and the CWWA. No written notification to extend negotiations was provided 6. At the March 8, 2019 IMLER meeting the Union advised that the membership had given the Local a mandate not to agree to a CWWA with an EOI clause and that members understood an 8 hour schedule would be forthcoming. IMLRC March 8, 2019 7. On March 11, 2019 Mr. Butsch was provided with a letter from Mr. Jolicoeur advising that the Employer was extending the current CWWA agreement until March 31, 2019 and then a new schedule would be posted in accordance with COR 5, effective April 1, 2019. For clarity COR 5.1 requires shift schedules to be posted 15 days in advance and any changes in the schedule require 96 hours notice. Less than 96 hours notice attracts a premium payment of 1½ time for all hours worked on the first changed shift. 8. The letter also advised that the practice of combining breaks without advanced approval would cease effective April 1, 2019. March 11, 2019 letter Cor 5 9. On March 12, 2019 Mr. Butsch responded to Mr. Jolicoeur in writing that that Union’s position was that the CWWA could not be unilaterally extended and that the Union was not agreeing to any extension of the CWWA. 10. Mr. Butsch further advised that the current practice for rest periods has been in place since CECC opened in 2003 and could not be unilaterally changed as this would be a violation of COR 7. 11. Finally, Mr. Butsch advised that the Union was open to continue discussions and requested that the Employer provide a 90 day written extension of the current CWWA. March 12, 2019 letter Cor 7 -4- 12. On March 14, 2019, Mr. Jolicoeur met with Mr. Butsch and Mr. Gilchrist to explain why the changes were made to the shift schedules under Article COR 5.1 of the Collective Agreement. He informed them both that the new schedules were to commence on April 1, 2019 would be posted by March 15, 2019. 13. However, later that same date Mr. Jolicoeur informed the managers via memo, with directions that it not be shared with union members or communicated openly, that the CWWA negotiations had reached an impasse and correctional officers’ shifts would be changed to 8-hours effective Monday, March 18, 2019. Memorandum to all CECC Managers from Mr. Jolicoeur dated March 14, 2019. 14. On March 15, 2019, Mr. – was leaving the union office and he was paged to call Mr. Jolicoeur, and Mr. J said come to my office we need to meet. Mr. Gilchrist attended the office and Jolicouer and Clancy were in the office and he flops the CWWA paperwork on the desk and says “sign or we’re going on 8s on Monday”. Gilchrist, said no and why don’t we sign an extension, and he said no. Then Mr. Gilchrist called Mr. Butsch who advised that if it was not an extension then they were not signing it. Gilchrist asked again to sign an extension, J said no, sign it or were going on 8s on Monday. Gilchrist said no I’m not signing that. Mr. Jolicouer said is that it? And Gilchrist said I guess and walked out. 15. On this date, the Deputy Superintendents at CECC called all Correctional Officers that had been scheduled to work on April 1, 2019 to inform them that they would be on an 8-hour schedule as of that date. 16. The Union asserts that members were not advised 96 hours in advance of their shift change. 17. Finally, on March 21, 2019, Mr. Butsch emailed Mr. Jolicoeur, to once again discuss the Employer’s requirement that Female Units of the facility be staffed based on EOIs. In response, Mr. Jolicoeur explained that the change was necessary in order for the Ministry to meet its obligations under the Jahn Decision. The Union was unable to negotiate properly as the Employer did not clearly articulate what the specific composition of the female unit staffing would be. Emails re CWWA dated on March 21, 2019 18. On March 27, 2019, A/Deputy Clancy was speaking with CO2 Joe Natalizio in or around the central control area. Mr. Natalizio signalled to Ryan Gilchrist 2nd VP of the local to come over to join the conversation. A/Deputy Clancy was asking J. Natalizio to write a report for his Union H&S activities on 5 pod on Monday March 25, 2019. -5- 19. In front of CO2s Natalizio, Mitch Obress, and Mark Field A/Deputy Clancy said to 2nd VP Ryan Gilchrist This whole thing is your fault, not wanting to talk to us”. 2nd VP Gilchrist responded “you were given opportunities to extend it and negotiate but chose not to”. A/Deputy Clancy, pointing his finger at 2nd VP Gilchrist said “this is you guys”. 2nd VP Gilchrist put his hand up and said to him “I am not talking to you about this now” and started to walk away. A/Deputy Clancy said “That’s right, walk away like you always do”. 20. The Union’s position is this was anti-union animus as a member of management was publicly dressing down a member of the local executive about a union matter in a public area of the institution. 21. On March 27, 2019, A/Deputy Clancy ordered that 3 pod be unlocked at 1020 hours, which is 40 minutes prior to lunch lock up. 3 pod inmates were told they could stay unlocked until the carts arrived, violating the standing orders for lock up time. No other units received the same notification and staff would have started their breaks and left the institution. The inmates became unruly and assaulted other offenders in the unit and a code blue was called. 22. ICIT was activated, a rapid response team took out offenders who were injured, health care assessed and inmate was sent to hospital to tend to his injuries. ICIT teams from CNCC were activated as well. At 1830 Units A,B,D complied and locked up, the other munitions were deployed to achieve compliance and lockup. Inmate Oakrum from 3B was removed via ICIT to body scanner as he flashed what appeared to be a weapon to negotiators. Inmate was then housed 8 segregation. None of this would have occurred if the standing order was not violated. 23. The Union’s position is that this was a reprisal for the Union’s refusal to enter into a CWWA. 24. On March 29, 2019, an ICIT activation shut down the central corridor and A/Deputy Clancy had to wait at Sally Port to enter the central corridor. Mr. Gilchrist was stuck in central corridor so he went into central control. Mr. Gilchrist watched ICIT go passed and then RG opened up central corridor. Movement started again, and A/Deputy Clancy came into central control and said he wanted reports as to why he had to wait at the door. Mr. Gilchrist said there was an ICIT activation so I can’t open central doors while an ICIT activation is going on. A/Deputy said to Mr. Gilchrist meet me in the duty office and bring a union rep. 25. Subsequently he approached Mr. Gilchrist in the central corridor and accused him of telling officers not to let him in the corridor and continued “We are going to talk today, get a rep and meet me in the duty office”. When Mr. Gilchrist said “Chris comes in shortly, I’ll get him” A/Deputy Clancy said “No, now”. Mr. -6- Gilchrist responded “I’ll wait for Chris” and Clancy left and went to Duty offices and then Mr. Gilchrist left central to go up to union office and then Clancy stopped RG in central corridor and said I’m ordering you not to attend the back of the institution 26. A/Deputy Clancy then ordered Mr. Gilchrist not to attend the back of the institution Mr. Gilchrist responded that he would if had to represent members and walked away. A/Deputy Clancy said, ok you’re not to attend central control and Mr. Gilchrist said I will if I need to. Mr. Gilchrist walked away and A/Deputy Clancy kept talking. People all around, including Robert Kerr and there were 2 other officers 27. Shortly thereafter A/Deputy Clancy stopped at the Union office about 1010 hours and told Mr. Gilchrist to write a report about leaving the A&D gate open for an extended period of time on March 25th. A/Deputy Clancy then stated he would be utilizing COR 10 (video). Mr. Butsch asked what the purpose for viewing the video and the response was “an unrelated matter.” 28. The Union asserts that A/Deputy Clancy was monitoring Mr. Gilchrist on video, in violation of COR 10. [4] The Employer’s no prima facie case motion essentially focuses on the particulars set out in paragraphs 19, 21 and 27. As detailed in these paragraphs, and as elaborated upon by Union counsel during her submissions, the Union asserts that Mr. Clancy’s interaction with Mr. Gilchrist on March 27, 2019 (paragraph 19), the unlocking of pod 3 (paragraph 21) and the Employer’s use of COR 10 video (paragraph 27) amount to contraventions of article 3.2 of the Collective Agreement, the anti-union animus provision. The Union also asserts that the unlocking of pod 3 in the circumstances is a violation of article 9 of the Collective Agreement, the health and safety provision, and also constitutes a reprisal for the Union’s refusal to enter into a new CWWA. Finally, the Union also asserts that the use of COR 10 video violates the COR 10 Appendix. [5] Counsel made relatively concise submissions on the matters that were a part of the Employer’s motion. Having regard to my view of the motion, I find it unnecessary to detail their submissions. In support of their submissions, counsel referred me to the following authorities. In addition to references to the Ministry of Correctional Services Act, Employer counsel referred me to the following decisions: Ministry of Community Safety and Correctional Services v. OPSEU, OLRB Case No. 3951-18-U dated April 2, 2019; OPSEU (Grievor) and The Crown in Right of Ontario (2015), GSB No. 2010-2489 (Briggs); OPSEU (Brydges et al.) and Ministry of Transportation 2014 CanLII 74778 (ON GSB) (Dissanayake); Re Ronkai and Ontario (Ministry of Community Safety and Correctional Services -7- (2017), 283 L.A.C. (4th) 69 (O’Neil); OPSEU (Union) and Ministry of the Solicitor General (2021), GSB No. 2019-2154 (Anderson); Re OPSEU, Local 234, [1994] O.O.H.S.A.D. No. 21 (Blair); and, OPSEU (Aiken et al.) and Ministry of Community Safety and Correctional Services (2017), GSB No. 2012-2612 (Petryshen). Union counsel relied on Teamsters Union Local 1000 and Pop Shoppe (Toronto) Limited, [1976] O.L.R.B. Rep 299. [6] With motions of the type made by the Employer, the facts set out in the particulars are assumed to be true and the essential question is whether the facts are sufficient to substantiate the violations alleged. Employer counsel took the approach of examining the paragraphs in the particulars referred to earlier to argue in each instance that a prima facie case had not been made out. Union counsel submitted that it was necessary to consider the particulars in their entirety, particularly in this situation when the Union is alleging that management’s conduct is motivated by anti-union animus. [7] Having reviewed the particulars in their entirety and having considered the submissions, I have concluded that the Union’s particulars set out facts, which if true, could be sufficient to substantiate the allegations alleged. Accordingly, the Employer’s non-suit motion is dismissed. In accordance with the Board’s practice, I will not be providing reasons for this determination. Dated at Toronto, Ontario this 3rd day of February 2022. “Ken Petryshen” ____________________ Ken Petryshen, Arbitrator