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HomeMy WebLinkAbout2002-1354.Charles et al.14-07-21 DecisionCrown 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#2002-1354, 2002-2476, 2002-2889, 2003-2829, 2003-4063, 2004-2499, 2004-3640, 2006-0144, 2006-0191, 2006-0580, 2006-0956, 2006-1070, 2006-1236, 2006-2356, 2007-0697, 2007-0698, 2007-1639, 2007-2322, 2007-2615 UNION#2002-0517-0001, 2002-0517-0073, 2002-0248-0083, 2003-0234-0516, 2003-0368-0034, 2004-0234-0486, 2005-0368-0008, 2006-0999-0003, 2006-0368-0022, 2006-0368-0050, 2006-0368-0058, 2006-0368-0062, 2006-0234-0197, 2006-0368-0200, 2006-0252-0094, 2006-0252-0095, 2007-0234-0268, 2007-0369-0083, 2007-0369-0112 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Charles et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Bram Herlich Vice-Chair FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Suneel Bahal Ministry of Government Services Legal Services Branch Counsel HEARING July 3, 2014 - 2 - Decision [1] Much of the background to this dispute has already been set out in my award dated August 29, 2011 in this matter. I will not repeat all of it here. That award dealt with the Vanier Centre for Women (“Vanier” or “VCFW”). The grievances in these matters pertain to many different correctional institutions. Although the issues at individual institutions are similar, the results may vary depending on the particular matrix of provincial and local agreements in force at various times. The instant decision relates to the Hamilton Wentworth Detention Centre (“HWDC”). I have not yet heard all of the relevant evidence as it relates to HWDC. There is, however, no dispute as to the relevant provincial agreements that were in force at various times. But there are certainly disputes as to the application of those agreements and, additionally, regarding the temporal boundaries defining the actual periods during which they were in force. [2] However, in an effort to expedite matters and to perhaps facilitate the resolution of outstanding grievances pertaining to HWDC and other institutions, the parties have asked that I answer certain questions and that I provide these answers without any consideration of any local agreements or other relevant local factors which may have been operative during the relevant period(s). (The parties have reserved their rights to rely upon and address the impact, if any, of local conditions at some future point in the litigation, should that be required.) [3] As in all of the many grievances filed the question is the same, but the periods and regulatory framework may differ. The question is whether the employer was obliged to canvass all classified COs, i.e. including classified COs who had not signed up for overtime, for available escort duty shifts. The question at HWDC is put in respect of two time periods. There is some dispute between the parties as to when these two periods began and ended, particularly in relation to the transition from one to the next. Having regard to that dispute, it is perhaps best to describe the periods in the fashion that follows. [4] The parties appear to agree (and, again, the focus is on Ministry-wide conditions without any consideration of any relevant local conditions) that the implementation of the system which has ultimately come to be known as the Provincial Overtime Protocol (“POP”) - 3 - firmly cemented a collective agreement practice whereby employees are required to indicate their availability for overtime assignments (including escort duties) and the employer’s obligation to offer such work is restricted to those who have so indicated. This is what the parties have referred to as a “hands-up” system. Thus, once this system is in place, the employer is no longer obligated to call and offer overtime opportunities to employees who have not previously “raised their hands”. [5] A hands-up system was indisputably in place following the execution and subsequent implementation of the July 2006 POP. But the employer asserts that the hands-up system was in place much earlier than that. Specifically, it submits that the start of the hands- up system dates to the execution of the MOS dated July 11, 2004. The union agrees that MOS is part of the journey which culminated in the entrenchment of the hands-up system, but argues that that MOS was prospective in nature and the system was not in place until after the computerized system it envisions was fully rolled out, up and running. The parties have filed a spreadsheet recording the “installed date” and the “go-live date” for the Provincial HPRO system (which resulted from the POP). The dates vary by institution. At HWDC they were in November 2006 and January 2007 respectively. [6] The employer also argues that even before the implementation of the hands-up system, there was no obligation to solicit classified COs who had not indicated their availability, for escort duty. [7] Thus, there are two questions before me. Did the hands-up system commence as of the date of the July 2004 MOS? And, second, prior to the effective date of the hands-up system, was there an obligation to canvass classified COs for escort duty, even where such COs had not indicated their availability to accept such assignments. [8] I turn, first, to the period prior to the implementation of the hands-up system. [9] The union submits that the question of the employer’s obligation in this period to canvass classified COs who had not signed up has, in the absence of any local protocol (and, indeed, I would add, given the factual context put to me, even in the absence of any relevant - 4 - local condition) already been asked and answered in the decision of this Board (differently constituted) in Megahy et al v Ministry of Community Safety and Correctional Services, GSB #2002-2103 et al, September 12, 2007 (Brown). [10] The employer did not seriously challenge the presumptive precedential effect of that decision and did not seek to distinguish it in this regard. Rather, employer counsel advised that his instructions were to ask me to review the decision and conclude that it was manifestly wrong and should not be followed. [11] In the earlier decision in this matter regarding Vanier, I referred to the decision in Megahy. Vanier dealt with whether the employer, pursuant to the terms of the 2001 memorandum of settlement (i.e. the MOS that was in place prior to (what the employer asserts was) the implementation of the hands-up system), was obligated to offer escort duty work to classified COs who had not indicated their availability to be assigned such work. I reviewed the decision as follows: The Board [in Megahy] noted that the MOS made no distinction between COs who had and had not previously indicated their availability and ultimately concluded that (in the absence of any local overtime protocol) the 2001 MOS “obligated the employer to refrain from using police as escorts without first making a reasonable effort to determine whether classified correctional officers were available to do this work, including those officers who had not submitted a sheet indicating a willingness to perform all types of work on overtime. One way for the employer to have fulfilled this obligation would have been to establish a s ystem allowing employees to indicate their availability for escort duty outside of the regularly scheduled hours.” I have said that the 2001 MOS is potentially relevant to our case. In particular, it is difficult to see how the parties’ rights and obligations at VCFW for the purposes of the instant case could ever be determined by reference (as in the Megahy case) to the 2001 MOS alone. While, as we shall see, the VFCW local overtime protocol did not come into effect until March 2004, one must also recall that the earliest of the grievances [from VCFW] before me was not filed until September 2004. Thus, to engage any period of time where no local overtime protocol was in place, the September 2004 grievance would need to reach back, in one fashion or another, to a period greater than six months prior to the date it was filed. While the union did not relinquish that possibility, it appears to me to be a less than likely one. The parties did not specifically or extensively address this point and I say no more about it – we shall return to it if and when it is necessary to do so. - 5 - But while the parties did not extensively address how the VCFW claims might extend to a period governed only by the 2001 MOS, they did address, somewhat more fully, the treatment which ought to be accorded to the Megahy decision. Given the somewhat hypothetical context in which this concern currently arises coupled, however, with the recognition that the question might actually arise more directly at a different institution, I limit my remarks to the following. I was not persuaded that the decision in Megahy is either wrong or ought not, for whatever reason, to be followed. However, the parties, or at least the union, described the Megahy decision as supporting the proposition that where the only governing provisions are those of the 2001 MOS, the employer is obligated to canvass COs who have not indicated their availability. While there may be some (at least presumptive) force to the assertion, I am not necessarily persuaded of its universal applicability, given, in particular, the wording of the final sentence (cited above) of the award. It may well be that the application of the decision will vary by institution, depending on the context in which it is said to apply. [12] In the Vanier decision it was not, strictly speaking, necessary for me to rely upon the Megahy award, since, at Vanier, there was a local protocol in place which, I found, necessitated an “all-call”. However, as the parties did address the applicability of the Megahy award, I considered it and dealt with it in the fashion set out above. The employer now asks, in a context where the award has a more direct application to the facts, that I examine or re- examine the soundness of that award. [13] The employer suggests that the Megahy award is lacking in a number of respects. It claims that the Vice-Chair: a) Erred in interpreting the MOS to require an “all-call”, when there was no specific or precise language in the MOS to necessitate such a conclusion. b) Erred by not giving adequate consideration to the fact that a hands-up system was a longstanding system in place in the Ministry. c) Erred in misconstruing the words “exhausting the procedures” in paragraphs. 2 (f) and 2 (g) of the MOS as referring to COs rather than to the protocol. d) Erred in failing to adequately consider the impact of a six month trial on- call protocol for escort duty which pooled certain COs from a number of Toronto area institutions and provided participants with pagers, an example, the employer asserts, of a method for “signing-up”. - 6 - e) Erred in failing to adequately consider the fact that the MOS contemplated its incorporation [or, more accurately, the negotiation of its incorporation] into local overtime protocols. [14] Further, the employer argues that, even if Megahy is accepted as good law, it does not create an absolute requirement that all COs be canvassed for escort duty assignments even if they have not indicated their availability. First, whatever obligations it creates are in respect of classified COs only – on this point the parties agree. Second, neither is an “all-call” an absolute requirement. Rather, the employer must have made “a reasonable effort to determine whether classified correctional officers were available to do this work”. What constitutes a “reasonable effort” may depend on a multiplicity of factors, such as timing, operational needs and public safety. [15] The decision of the Chair (as he then was) in the case of Re Blake, GSB File 1276/87, May 3, 1988 is well-known to members of the community that frequents this Board. Its most-cited portion provides: Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the private sector is not appropriate for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this board, the continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load. We are mindful, however, that there is no provision for appeal and there are limits to judicial review. While it is our view that the “manifest error” theory is too lax a standard, we recognize that there may be exceptional circumstances where an earlier decision of this board might to be reviewed. At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determined on a case by case basis. The onus will be on the party seeking review to establish exceptional circumstances. [16] Thus, it is only where it can be demonstrated that a decision is more than merely “manifestly wrong” or, perhaps the same test articulated somewhat differently, where there - 7 - are exceptional circumstances that this Board will be persuaded to decline to follow one of its prior decisions. [17] The award the employer now (for the second time – having already done so once, unsuccessfully, before me in this matter) impugns and asks me to reject was decided some seven years ago. Whatever the employer’s view of the award may be, it has apparently not been sufficiently troubled to seek judicial review, the more conventional method of challenging a result at this Board. And neither am I satisfied that it has ventured anywhere close to the territory circumscribed by the onerous standard of review in this context. I have not been persuaded that the decision is more than “manifestly wrong” (or even merely “manifestly wrong”). And neither have any exceptional circumstances been identified such that I might reconsider the view expressed in my prior award and decline to follow or accept the Megahy award as settled law. Indeed, had I been called upon (and I have not) to determine whether the decision was merely correct, I would not likely have been persuaded otherwise, [18] I turn briefly to the more specific points raised by the employer. With respect to points (a) and (c) above, the mere fact that the employer disagrees with the Board’s interpretation in Megahy is not an adequate basis upon which to seek its reversal. With respect to a hands-up system being a longstanding system within the Ministry, there is no evidence before me to support such an assertion, certainly not as of the time of the Megahy award (and, in any event, the parties have asked that I not take account of local conditions at this stage of the proceedings). I do not know what evidence was before the Megahy Board with respect to the pilot project of pooling CO resources. None was before me and I fail to see the import of a six-month trial protocol which may or not have survived. Finally, with respect to the contemplated incorporation of the MOS into local protocols, the parties have explicitly asked that, for the purposes of this decision, I not consider any local protocols, even if such were negotiated. [19] I am not persuaded that it is appropriate to decline to follow the Megahy award. [20] Further, in respect of the employer’s submissions regarding the application of Megahy and, in particular, whether reasonable efforts, if made, are sufficient to satisfy the - 8 - employer’s obligation, consideration of that issue is premature. It can be revisited, should the need arise, in the context of specific facts related to local conditions which I have been asked to ignore, for now. [21] This brings me to the next question – did the execution of the 2004 MOS serve to put in place the hands-up system? In asking me to conclude that it did, the employer points to paragraph 3 of the MOS: 3. a) The parties agree to the attached Agreement (Appendix A) that will take effect once unclassified correctional officer training begins as per paragraph 1 (c). [paragraph 1 provided that all classified and unclassified COs would be so trained. Such training was to be offered first to classified COs.] b) Appendix A will be computerized, will integrate the assignment of regular shifts, overtime duties and unclassified hours, and will provide for the assignment of escort duties and overtime to those correctional officers that indicate their availability for such assignments and commit to undertaking assignments when offered. [22] The employer relies on the concluding words of 3(b) as embracing the hands-up system. It acknowledges that the new system was not immediately operative, but commenced, as contemplated by 3(a) once the training for unclassified COs began. [23] The employer also reminds me of my comments in the Vanier case. In that case, I was required to assess the combined impact of the 2004 MOS and the local protocol as is evident from the following (at paragraph 60): It is true that nothing in this MOS explicitly contemplates or requires an all-call once COs who have signed up in advance for overtime have been canvassed. And if the MOS were the only applicable document, the employer’s ultimate position would be far more persuasive. We are dealing, however, with the interaction between this MOS and the local protocol. [24] For the purposes of the instant decision, however, the MOS is the only applicable document and the employer urges me to now find its position to be more persuasive and, indeed, conclusive. - 9 - [25] The union does not dispute that the theme of a hands-up system is sounded in the MOS, but it denies that any such system was immediately implemented by its terms. In that regard, it does not rely exclusively only on paragraph 3(a) which like the employer, it acknowledges postponed the implementation of the hands-on system (at least) until the commencement of escort training for unclassified COs. But the union also points to paragraph 3(b) and its use of the future tense, which, it argues, acknowledges that the actual implementation of the new hands-up system is deferred to a date uncertain. And thus, unless and until the system is computerized, and fully integrates the assignment of regular shifts, overtime duties and overtime assignments, the system is not yet in place. In other words this portion of the MOS remained prospective in nature. [26] Having considered the matter, I am persuaded, for the reasons that follow that the union’s view is to be preferred. [27] The movement within this Ministry away from a series of patchwork local conditions, depending largely on the absence, presence and content of local agreements governing the distribution of escort work has been tedious and protracted. Finally, with the advent of the execution of the POP and the implementation of the HPRO system, principles of fairness, equity, consistency and transparency have been entrenched in a system which is administratively and operationally feasible. Separate local regimens have been discontinued in favour of one transparent system. Assignments for all overtime opportunities, including escort duties, have been integrated. And the entire system has been computerized, providing ready access and dispassionate administration. It was not always thus. And while the parties may have, much earlier, begun to define the shape of the target aimed for, it took much time for the arrows to find their mark. [28] The parameters of the ultimate system were first described in (paragraph 7) of the 2003 MOS between the parties as follows: A new protocol for the assignment of correctional officers to the escort of inmates committed to their institution in the community will be developed and implemented. The new protocol will be computerized, will integrate the assignment of regular shifts, overtime duties and unclassified - 10 - hours, and will provide for the assignment of escort duties and overtime to those correctional officers that indicate their availability for such assignments and commit to undertaking assignments when offered. [29] This MOS was, as I found in the Vanier decision, largely prospective with respect to escort duty issues. At paragraph 39 I described this executory portion of the MOS as “little more than a signpost along the route”. There is no doubt that the destination contemplated by both the parties and this metaphor is the HPRO system. There was, however, more travelling required from the point of the 2003 MOS to reach journey’s end. [30] It is not insignificant that the words later found in paragraph 3(b) mirror those above from the 2003 MOS. The new protocol (included as Appendix A to the 2004 MOS) had clearly been in development but not yet implemented at the time. And the 2004 MOS goes on, using virtually identical words, to describe what the protocol (i.e. Appendix A) will be. All signs point to the POP. There is no evidence before me that any other system was computerized, integrated overtime and escort assignments, dispensed with local agreements or provided the fairness, consistency, ease and transparency the parties had set as their goal. The POP agreement, unlike its predecessors, including the 2004 MOS, did not contemplate the ongoing applicability of local protocols. Rather, the POP, once implemented, marked the primacy of Ministry-wide rules and the demise of local protocols. But even the POP agreement (as the Vanier decision makes clear) did not, at the time of its execution, herald the actual commencement of the new system. [31] In this context, I am unable to conclude that the execution of the 2004 MOS (even allowing for a delay to commence unclassified training) can possibly be seen to mark the start of a new hands-up system. [32] Having regard to the foregoing, I am satisfied that, prior to the commencement of the hands-up system the employer was obliged (assuming, for the purposes of the instant decision, that there were no relevant local conditions to consider) to canvass classified COs for escort duty, even where such COs had not indicated their availability to accept such assignments. Further, I am not persuaded that the 2004 MOS marked the implementation of the hands-up system (even allowing for the delay until the commencement of unclassified training). Rather, that system was not - 11 - effective until a system exhibiting the characteristics identified in paragraph 3(b) of the 2004 MOS was implemented. Dated at Toronto, Ontario this 21st day of July 2014. Bram Herlich, Vice-Chair