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Home My WebLink About2020-1866.Union.24-06-18 Decision Crown 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# 2020-1866; 2020-1867; 2021-2578; 2021-2579; 2021-2922; 2021-292 UNION# 2020-0616-0006; 2020-0616-0017; 2021-0616-0030; 2021-0616-0032; 2021-0616-0031; 2021-0616-0033 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 Deborah J.D. Leighton Arbitrator FOR THE UNION Richard Dionne Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Justin O’Gorman, Team Lead David Marincola, Employer Relations Advisor Treasury Board Secretariat Employee Relations & Negotiations HEARING September 28 and December 13, 2023 -2 - DECISION [1] The parties referred six grievances to mediation/arbitration in accordance with Article 22.16 of the collective agreement. At the outset of the hearing, the parties agreed that I had the jurisdiction to deal with these matters. They asked that I issue a decision without precedential value, and without written reasons. I heard evidence and submissions on September 28 and December 13, 2023. [2] In summary, the union urged me to grant all the grievances, make declarations of the violations and award damages to Local 0616 where appropriate. The ministry urged me to dismiss all the grievances for the reasons argued for each grievance as found below. Grievance 2020-0616-0006 [3] The union grievance filed March 10, 2020 alleges that a sergeant was called into the institution to fill a bargaining unit position, contrary to the collective agreement, when there was at least one correctional officer who could have filled the position. The ministry acknowledges that a sergeant was called in to work the floater position but argues that the employer exhausted the overtime protocol and the sergeant called in to the institution did not perform bargaining unit work in the end, though his name was on the daily roster. [4] Having carefully considered the submissions of the parties, as well as the jurisprudence of the Board, I have decided to grant this grievance. I hereby declare that the ministry breached the collective agreement, when it called in a sergeant to do bargaining unit work. Given he did not actually do bargaining work, no further remedy is warranted. Grievance 2020-0616-0017 [5] The union grievance filed on June 9, 2020 alleges that the ministry breached the collective agreement by sending two sergeants to do an escort to Monteith. The union submits that there was no urgency for the transfer and management -3 - should not have done bargaining unit work. The ministry states that the sergeants were sent on this escort, but only after calls were made, as required by the escort protocol, and no bargaining unit employees were available for the work. Moreover, management have the right to determine when an escort is scheduled. [6] Having carefully considered the submissions of the parties, as well as the jurisprudence of the Board, I have decided to deny this grievance. Grievances 2021-0616-0033 and 0032 [7] The union grievance filed on December 20, 2021 is a duplicate of grievance 2021-0616-0032. The union alleges that the ministry breached the escort policy by sending correctional officers whose escort training expired. Correctional officers were also sent on escorts without vests that were their own. Further in one case the ministry sent two male correctional officers to escort a female inmate to hospital, and in another case they sent a sergeant with a correctional officer. The ministry denies breaching the escort protocol, except in one instance: it concedes that a female officer should have been sent on the escort of the female inmate. However, the ministry also emphasizes that sending two males on this escort is not an example of management doing bargaining unit work. The ministry also notes that the pandemic delayed updating refresher escort training and institutions were given permission to operate with staff that had not had their regular refresher training. [8] Having carefully considered the submissions of the parties, as well as the jurisprudence of the Board, I have decided to deny this grievance. Grievances 2021-0616-0030 and 0031 [9] The union grievance filed on December 20, 2021 is a duplicate of grievance 2021-0616-0031 and alleges that the superintendent and deputy superintendent performed bargaining unit work on October 1, 2021 when they distributed -4 - methadone to inmates, and when the deputy superintendent also conducted audio court in the institution, contrary to the collective agreement. The ministry emphasized that the institution was in full lockdown and the overtime protocol had been fully exhausted. Essentially management had no choice but to do the work because in the first case the inmates requiring methadone for addiction could not wait. And in the second case the courts likewise could not wait. So, in the ministry’s submission, management “pitched in.” The ministry also noted that the work done was minimal. [10] Having carefully considered the submissions of the parties, as well as the jurisprudence of the Board, I have decided to grant this grievance. Using very senior management to do this bargaining unit work was a breach of the collective agreement. However, given the lock down and extreme circumstances, I am not prepared to order a further remedy. Dated at Toronto, Ontario this 18th day of June 2024. “Deborah J.D. Leighton” Deborah J.D. Leighton, Arbitrator