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HomeMy WebLinkAbout2017-2068.Union.19-12-16 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# 2017-2068; 2018-0159; UNION# 2017-0582-0013; 2018-0582-0004 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 Richard Blair Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Legal Services Branch Counsel HEARING September 18, 2019 - 2 - Decision [1] I have two Union grievances before me. The one dated April 3, 2017 complains about the contracting out of bargaining unit work at the Toronto East Detention Centre (“TEDC”). The one dated March 22, 2018 claims that the Employer contravened article 1 of the Collective Agreement by allowing non-Ministry employees to perform bargaining unit cleaner work at the TEDC. This type of grievance is generally referred to as a bargaining unit integrity (“BUI”) grievance. The essence of the Union’s position on these grievances is that the Employer has contravened the Collective Agreement by not having Cleaner 2 positions at the TEDC. The Union requests that I direct the Employer to post and fill some Cleaner 2 positions at that institution. [2] The facts giving rise to the grievances were not in dispute. The Employer called the only witness, namely Deputy Superintendent L. Mansley. After he confirmed the contents of his will-say statement as true, Mr. Mansley was cross examined by counsel for the Union. The will-say statement, absent references to relevant documentation, sets out the relevant facts as follows: Will-Say of Lorne Mansley Background I am currently assigned to the position of Deputy Superintendent, Services at the Toronto East Detention Centre. On April 3, 2017, OPSEU Local 582 filed a grievance alleging a violation of Articles 1 and 2. The grievance challenges the use of an outside contractor to complete cleaning duties at the Toronto East Detention Centre (TEDC). On March 22, 2018, the OPSEU filed a Union grievance alleging a violation of “article 1 and any relevant employment legislation by allowing non-ministry employees to perform bargaining unit cleaner work at the TEDC." By way of remedy the union is asking that the Employer post and fill as per the collective agreement, any lost dues are remitted to OPSEU as a result of this “inappropriate employment relationship” and compensation for any - 3 - bargaining unit member “who may be negatively impacted by this inappropriate employment relationship.” Inmate Worker Program Historically the TEDC has used the inmate worker program to provide inmates to clean the institutional staff areas under the supervision of a Correctional Officer. These areas include the administration offices in the exterior trailer and in the first floor of the main building, the lunch room, hallways, interview rooms, and staff engagement centres. The inmate worker program is also responsible for cleaning the inmate library. There has not been a Cleaner position at TEDC. However, there are Cleaner positions in a number of other correctional facilities within the Ministry. In addition to cleaning duties, inmates are also assigned through the inmate worker program to perform a variety of work at TEDC. These include work in the kitchen, laundry, maintenance, stores, Admitting & Discharge (A&D) unit, and court and transfer cells. For instance, inmates assigned to the kitchen will assist staff to perform cooking and cleaning duties. Inmates who are assigned to maintenance and who have “outside clearance” can also be directed to perform exterior maintenance and painting. Both Cooks and Maintenance workers are positions within the Correctional Bargaining Unit. The standing orders for TEDC set out specific criteria for determining which inmates would be assigned to the inmate worker program. Each inmate is interviewed by TEDC’s program staff within a week or two of admission to determine their suitability for the program. Factors considered for admission include the inmates’ fitness to work, criminal history, and security status. Inmates in the program are housed separately in their own living unit. Cleaning of Inmate Living Areas Inmates are responsible for cleaning their own living areas (assigned cells, dayroom, showers) as part of a regular housekeeping schedule. Inmates are provided with cleaning equipment (such as mop, bucket, broom) and detergents to facilitate the cleaning. Pursuant to TEDC’s standing orders and the process in the Ministry, there is a scheduled clean-up time for the inmates’ living areas, which typically takes place in the morning. Each inmate is responsible for cleaning their own cell. Additionally, an inmate who is designated as the unit cleaner (otherwise known as an inmate trustee) is responsible for cleaning the unit’s dayroom and showers. Historically, the inmate trustee is the same person who also hands out meals to other inmates. - 4 - Section 3.11 (Housekeeping) of TEDC’s standing orders speaks to the cleaning of the inmates’ living areas. Among other things, this standing order sets out the areas to be cleaned, the equipment to be provided, and the process to be followed by inmates and staff. Bee-Clean Contracts Starting in June 2012, TEDC has used an external contractor (Bee-Clean) to conduct monthly cleanings of the main control room and the A&D control room. This initiative began after the Joint Health and Safety Committee raised security concerns with an inmate cleaning crew being granted access to the control rooms. Consequently, the TEDC solicited a quote from Bee- Clean for cleaning these areas. The arrangement with Bee-Clean is for one night a month at the monthly cost of $423.75 ($375 plus HST). The arrangement requires Bee-Clean to perform wall-to-wall vacuuming, wet mop floors with a germicidal solution, and dust horizontal and vertical surfaces (i.e. furniture, interior windows and doors, air grills, etc). The terms of the arrangement with Bee-Clean have remained the same as of the date of the grievances. TEDC also contracts with another outside contractor (JanPro) to conduct forensic level cleaning on an as-needed basis. Typically, JanPro’s services are retained if there is a refusal by inmate workers to clean the area as it is soiled by feces or excessive blood borne pathogens or that administration has chosen to retain JanPro’s services as there may be residual evidence as the area may be a crime scene site. Business Case In 2017, TEDC submitted a business case requesting approval to hire four Cleaners positions, which will be in the OPSEU bargaining unit. The business case referred to the heavier use of existing staff areas and the installation of five office trailers for which the inmate worker program will not be permitted to access. Additionally, the business case raised a concern about TEDC’s ability to meet the requirements of the institutional cleaning policy using the existing complement of Bee-Clean and inmate worker program. The business case also referred to TEDC’s ability to reassign the Correctional Officer to regular duties if the officer is no longer required to supervise the inmates performing cleaning work under the inmate worker program. The business case was submitted to the Central Regional Office and was then forwarded to the Assistant Deputy Minister’s office. The business case was rejected by the ADMO, and no cleaner positions were approved. - 5 - [3] The key fact in this case is that the TEDC has not had anyone employed in a Cleaner position to perform cleaning work. The cleaning work has essentially been performed by inmate workers as part of the inmate worker program. A very minor amount of cleaning work is performed by an external contractor in the central control and the admitting & discharge control rooms. Union counsel indicated that the forensic cleaning on an as-needed basis by another contractor was not an issue in this case. [4] In recognition that additional cleaning work is needed to meet the requirements of the institutional cleaning policy, management at the TEDC developed a business case in 2017 for the hiring of four Cleaner positions. The business case was rejected. The evidence indicates that the need for Cleaner positions at the TEDC continues. [5] The focus of the Union’s submissions was on the fact that the TEDC and the Union agree that Cleaner 2 positions should be filled at the TEDC. Union counsel emphasized that the cleaning standards established by the institutional cleaning policy are not being met because the Ministry has refused to allocate sufficient resources to address the problem. Given this failure on the part of the Ministry, counsel requested that I address this issue by directing the Employer to post and fill Cleaner 2 positions at the TEDC. [6] The Employer took the position that there has not been a breach of the Collective Agreement since there has not been a violation of the BUI principles. Employer counsel argued that bargaining unit integrity had not been breached in this case because the cleaning work at issue has never been performed by a bargaining unit member at the TEDC. Counsel also argued that the amount of cleaning work performed by the external contractor is so minimal that it should be captured by the de minimus principle. [7] I was referred to the following decisions by counsel during submissions: OPSEU (Union) and Ministry of Health and Long-Term Care (2002), GSB No. 1942/94 et al. (Fisher); Vancouver Shipyards Co. v. Marine Shipbuilders, Local 506, [2004] - 6 - B.C.C.A.A.A. No. 155 (Hickling); OPSEU (Spicer) v. Ontario (Ministry of Labour), [2012] O.G.S.B.A. No. 82 (Herlich); and, OPSEU v. Ontario (Ministry of Transportation), [2010] O.G.S.B.A. No. 86 (Watters). [8] This is a unique case in that the management at the TEDC and the Union agree that there is need for some Cleaner 2 positions at the institution. The business case for hiring Cleaner positions was rejected by the Assistant Deputy Minister’s Office even though it is quite obvious that the TEDC is unable to meet the cleaning standards set out in the institutional cleaning policy without the addition of some Cleaner positions. However unfortunate this situation is for the local parties, the only issue I can address in relation to the two grievances before me is whether the absence of Cleaner positions at the TEDC and the use of an external contractor to perform some cleaning work constitute contraventions of the Collective Agreement. As Employer counsel noted, this is not a case where the Union has alleged a breach of article 9, the health and safety provision, or claimed that the Employer has failed to post vacant positions. In my view, the Employer’s position that there has not been a violation of the Collective Agreement in the instant case has considerable merit. [9] There is no provision in the Collective Agreement which prohibits the Employer from having work performed by persons not in the bargaining unit. However, the Board has determined that there is an implied term in the Collective agreement that prohibits the Employer from using non-bargaining unit employees to perform bargaining unit work. See, OPSEU (Union), supra. An issue that can arise in deciding whether this implied term has been breached is whether the work in question is bargaining unit work that is covered by the prohibition. The Board has previously determined an important factor to consider when deciding whether the work at issue is covered by the implied prohibition is whether the work is exclusive to the bargaining unit. If the work at issue has not always been assigned to employees in the bargaining unit, it is likely to be determined that the work is not bargaining unit work over which the Union can claim jurisdiction for its members. - 7 - [10] There is obviously cleaning work being performed at the TEDC, primarily by inmate workers. It is also clear that the cleaning work at the TEDC has not been performed by a bargaining unit employee in a Cleaner position. This is clearly a case where cleaning work at the TEDC is not bargaining unit work over which the Union can claim jurisdiction for its members. As well, I agree with the Employer’s position that the minor amount of cleaning work performed by the external contractor is also captured by the de minimus principle. [11] For the foregoing reasons, I find that the circumstances of this case do not constitute a violation of the Collective Agreement since there has not been any impact on the integrity of the bargaining unit at the TEDC. Accordingly, the grievances dated April 3, 2017 and March 22, 2018 are hereby dismissed. Dated at Toronto, Ontario this 16th day of December, 2019. “Ken Petryshen” Ken Petryshen, Arbitrator