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HomeMy WebLinkAbout1990-0582.Union.91-02-06 T ,r.t . ONTARIO EMPLOy/tS DE LA COURONNE CROWN EMPLOYEES DEL'ONTARIO ~', _ _ GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS , 180 OUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G IZ8 TELEPHONEITElEPHONE: (416) 326-1388 180, RUE OUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), M5G lZ8 . FACSrM(LEfr~LÉcOP!E : (416) 326- 1396 582/90 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING AqT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of ontario (Ministry of correctional Services) Employer . BEFORE: R. Kennedy Vice-Chairperson E. Seymour Member D. Halpert Member FOR THE D. Wright GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE J. Ravenscroft EMPLOYER Grievance Administration Officer Human Resources Management Ministry of Correctional Services HEARING: January 16, 1991 " . - 1- - 2 - AWARD Article 4.1 of the collective agreement between the parties provides as follows: 4.1 When a vacancy occurs in the Classified Service for a bargaining unit position or a new classified position is created in the bargaining unit, it shall be advertised for at least ten (10) working days prior to the established closing date when advertised within a ministry, or it shall be advertised for at least fifteen (15) working days prior to the established closing date when advertised service~wide. All applications will be acknowledged. Where practicable, notice of vacancies shall be posted on the bulletin boards. In a grievance dated March 18, 1990, the Union alleged that the Employer was in violation of Article 4 at the Wellington Detention Centre and sought an order that the Employer immediately post and fill vacancies sufficient to bring the complement of staff at the Centre up to approved levels. It is the Employer's position that at the time of the grievance there existed no vacancies or new positions to be filled that would bring into play the provisions of Article 4. Fundamental to the dispute is a disagreement between the parties as to the approved complement of correctional officers at Wellington. There are presently and were at the date of the grievance 46 correctional officers in the Classified Service employed at the. institution, and it is the Employer's position that that is the approved complement level. It is the Union's position that there ought to be 55, and that argument rests solely; exclusively and specifically on the contents of a document delivered by the Employer . . ¡. I , '\ - 3- to the Union in the context of certain discussions that took place between the parties during the period November 1989 to February 1990. That document . purported to be an accurate listing of the staffing in all correctional institutions across the Province and, in particular with respect to the Wellington Detention Centre, indicated an approved complement of 52 correctional officers. Subsequent to the delivery of that document, the parties did reach an agreement that across-the- Province staffing in the institutions would be increased by a total of 115 correctional officers, to be allocated among the various institutions as the Employer might determine. Three of those additional correctional officers were, in fact, assigned to the Wellington Detention Ce·ntre. Accordingly; it is the Union position on this arbitration that that document together with the subsequent increase establishes the complement of correctional officers at Wellington to be 55 and that there are, therefore, presently ·nine vacancies. It is further the Union position that the E~ployer is now estopped from denying the correctness of the document,· it being the Union position that they accepted as correct the figures contained in the document and in reliance thereon entered into the settlement as to the level of increase in staffing. It is the Employer's position that the document in question, in -. indicating 52 correctional officers at the Wellington Detention Centre, included nine correction~ officers employed at another institution called Camp Dufferin, which up until April of 1989 had been consi<iered for administrative purposes as part of the . . . . I - 4- Wellington Detention Centre. Although that situation changed in April of 1989, the government statistics were out of date for various reasons at the time that the document that was given to the Union was generated. For a period of three days in October of 1989 various forms of job action took place within the Employer's correctional institutions, ranging from work stoppages, slow downs, lock downs and work-to-rule practices. These actions were undertaken by employees on the basis of a stated concern for health and safety matters in general and understaffing and overcrowding in particular. The Employer obtained an injunction preventing such actions, but at the same time the Minister directed the parties to sit down and to discuss the various outstanding issues. The Union struck a negotiating team, and four meetings were held during the period November of 1989 to March of 1990. At the outset the Union compiled their own statistics with respect to the staffing levels in the various institutions, and representatives of the Employer indicated that those statistics were inaccurate. The Employer then produced the comprehensive list of staffing levels that reflected all institutions in the Province operated by the Employer, and it is that document that forms the b.asis of the Union's case. In March the parties did agree to an increase in staffing levels in the aggregate number of 115, and three of these were allocated by the Ministry to Wellington. . . " l ) , . . \. "I - 5 . It is undisputed that prior to October of 1989 the staffing at the Wellington Detention Centre never exceeded 43 correctional officers in the classified staff, and , this was increased to 46 as a result of the arrangements completed in March of 1990. It is further undisputed that prior to April of 1989, the institution known as Camp Dufferin was a part of Wellington for administrative purposes and that as of October 1989 there were nine correctional officers in classified staff employed at Camp Dufferin. . Camp Dufferin did become a separate administrative' unit in April of 1989t but it may be noted that in the document provided by the Employer to the . . Union which purports to cover all institutions there is no reference whatsoever to Camp Dufferin. . The evidence on behalf of the Union was given by Paul Lane1 the President of Loca1108 and a member of the negotiating team that handled the discussions in question. It was his evidence-in-chief that the Union Dever challenged and did· accept the accuracy of the Ministry document with respect to staffing but that they did indeed feel that some of the figures contained .in that document were incorrect. He indicated that on more than one occasion the~ gave to the Ministry what Mr. Lane described as "an opportunity to correct the figures'\ but that in response the Ministry never made any corrections and said the figures were accurate. When this matter was covered in cross-examination, Mr. Lane was asked if in the course of the - .. I . . . - , . - 6 - discussions the Union had asked Ministry representatives specifically about any of the institutions that they considered to be inaccurately recorded, and twice Mr. Lane responded that they had given the Ministry every opportunity to correct any inaccuracies. When asked to answer the question directly; he agreed that the Union . had never raised any specific concerns with respect to the figures. They only asked the Ministry in general if the figures were accurate. Mr. Lane also agreed in the course of cross-examination that the figures with respect to the Wellington Detention Centre and the °absence of any reference to Camp Dufferin were two specific areas that at the time of the discussions the Union considered the figures to be inaccurate, and he could not recall what any of the others were. He was asked as to whether he could recall what the Union's original figure for staffing at Wellington was, and he responded that he could not recall but that it was somewhere in the 40's. His evidence did not specify any other areas of the document that the Union considered to be inaccurate, and there was no evidence at the hearing establishing any other inaccuracies. For the Employer, evidence w~ given by James Cassidy, a Regional Manager responsible for the Wellington Detention Centre, and by Don Poynter, the Superintendent of Wellington. Their evidence as to the approved complement of correctional officers in the Classified Service at Wellington and Camp Dufferin, the I· · .~ ! , ., l - 7 - actual staffmg levels including unclassified staff and overagesJ and the reason for the staffing figures that were set out in the Ministry's do~ument given to the Union, formed the basis of the factual conclusions previously set out in this award and were not challenged in any material respect by evidence on the part of the Union. It is true that in the context of cross-examination the Union was successful in creating some minor and immaterial discrepancies in total staffing levels as between the recollections of the witnesses and the contents of documents filed, but based on the totality of the evidenceJ the conclusion is inescapable that the approved staffing level for correctional officers in the Classified Service at Wellington Detention Centre was, for a substantial period leading up to October of 1989, 43 correctional officers. That level waS increased to 46 as a result of the discussion that took place between the Employer and the Union concluding in March of 1990. The Union did produce a further document issued by the Ministry in August of 1990 that was a voluminous report summarizing the spending within the institutions on staff clothing. The r Union sought to rely on an appendix to that document that indicated that at Wellington Detention Centre there were a total of 64 staff for whom uniforms were provid~d. It was the Union speculation that. this must mean 64 correctio~al officers and that when the unclassified staff were deducted, this too would indiCate a staffing level of about 55. Superintendent Poynter, however, stated categorically in his evidence that he had been involved in the survey that led to that report and that , · I ! J - 8 - with respect to the total, it reflected all unifonned staff, both management and bargaining unit. It was his récollection that at the time of the survey there were 46 correctional officers in the Classified Service, 10 in the unclassified and 7 operational managers, totalling 63. He was unable to explain the discrepancy between the 63 that he recalled and the 64 that appeared in the report. In view of his positive evidence as to the nature of the survey that was conducted and the fact that it reflected actual staf£: both for management and the bargaining unit, as opposed to any theoretical approved staffing level, we do not fmd that that discrepancy is in any way significant. Superintendent Poynter did recall that at the material time the number of unclassified staff from time to time had been variable and that there could have been 11 unclassified staffat the time the survey was taken. It is clear and indisputàble that the approved complement for correctional officers in the Classified Service at the Wellington Detention Centre as of the date of the grievance was 46. The only indication of a greater level is to be found in the document that was produced by.the Employer to the Union in. the course of the staffing discussions. That document was clearly in error, not with respect to the overall staffing levels within the Provinc~, but rather in failing to distinguish with respect to the Wellington Detention Centre which of the numbers listed applied to I .. I. . J - "- 1 -~ - 9 - . the Wellington Detention Centre itself and which àpplied to Camp Dufferin. Hence, the only basis for the position asserted by the Union must rest on the tenuous argument that the Employer is now estopped from denying that the approved complemeòt at Wellington is other than one would norminally conclude from a . reading of the document. The estoppel argument fails on two counts. First, there must be reliance by the Union on a representation of the Employer. It is a somewhat unique twist on the various cases wherein it is attempted to assert an estoppel that the Union relies on the accuracy of a document ~hich in its own evidence it acknowledged that it knew was inaccurate on the specific points that are material to the position taken. At all material times the Union knew that the approved complement· for a long period of time at the Wellington Detention Centre had been 43. Th~ Union also knew that correctional officers were employed at Camp Dufferin and that tþeir numbers did not appear in the total staffing document. The Union's explanation on that latter point that they thought Camp Dufferin was being treated as something different is in no sense persuasive. The a~tion of the Employer in delivering the document in question in no sense misled ~he Union as to the approved staffmg levels at Wellington Detention Centre or elsewhere. That document was, in fact, accurate in all material respects on the issue for which it was being put forward, namely the .overall staffing levels throughout the Province. Its only weakness was its failure to fully explain the actual composition of ., , , .; - 10 - the figures given for Wellington. The Union was fully aware of the actual situation and consciously avoided raising the question with the Employer. One can only 8pecula~e as to why they did not raise the matter at· the time. The second requirement upon which to found an estoppel is that the party relying on the representation act to its detriment. In this case the parties were looking at overall staffing levels within the Province of Ontario and an appropriate increase to that level on a provincial basis which would then be allocated at the Employer's discretion to the institutions most in need. There is no basis whatsoever in either the evidence or in logic to suggest that, if the document had correctly allocated total staffing as between Wellington and Camp Dufferin, it would have had any ~ffect on the fmal outcome of the issues being discussed. There is an additional flaw in the argument asserted by the Union. The existence of an approved complement does not of itself establish the existence of a vacancy. 4 vacancy exists only if in the reasonable opinion of the Employer the work is required, and notional staffing levels are by no means conclusive that there exists a vacancy that should be filled. Reference may be made to Klonowski 16/83 (Teplitsky). Even had the Union p<?sition as to approved complement been correct, there- was no evidence to support any argument that a vacancy existed. The .' . ~ . ; ...} "'- , ..ã - 11 - institution waS staffed on the same basis as it had been for a substantial p~riod of. time. In view of the. position we have taken on the principal issues, it is not necessary to deal with the arguments of the Employer with respect to entitlement on the part of the Union to negotiate staffIng or the jurisdiction of this Board to consider such issues. In the result, the grievance is dismissed. DATED this 6th1ay of February, 1991. ~ Ross L. Ke:;',..ledy- Vice-Cn3i=pe·r50n ~ ·£L G'~"«--<~ '~. .' lP> -,,_ E. Seymour. Member . f) Æ/,r- D. Halpert. .Member