HomeMy WebLinkAbout2004-3577.Union.09-02-18 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
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GSB#2004-3577
UNION#2005-0999-0001
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 Community Safety and Correctional Services)
Employer
BEFOREVice-Chair
Felicity D. Briggs
FOR THE UNION
David Wright
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYER
Brian Loewen
Ministry of Government Services
Counsel
HEARING
November 18, 2008.
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Decision
[1]In January of 2005 the Union filed a grievance alleging that the Employer has violated
?Articles 2, 3 and Article COR 8 of the Collective Agreement, in regards to overtime
violations and remedies offered to employees.? By way of remedy the Union requested
that the ?Employer be directed to abide by the Collective Agreement and the
jurisprudence of this Board.?
[2]In an effort to efficiently litigate this matter, the parties agreed to put before me a
question regarding appropriate remedy following a breach of the Overtime Protocol. In
brief, it was the Union?s view that if a Correctional Officer is improperly overlooked for
an overtime opportunity in contravention of the Protocol, the Employer should be obliged
to pay an amount equal to the missed opportunity. It was the Employer?s position that on
those occasions where, for whatever reason, the Protocol is not followed, the appropriate
redress is an in-kind remedy.
[3]The issue of the scheduling and payment of overtime has been a matter of keen interest to
these parties for many years. Some history and facts were reviewed by the parties. It was
both interesting and helpful that there were no disputed facts.
[4]For some time the matter of scheduling overtime was determined and managed by each
institution. To that end, in June of 1998, there was an ?Overtime Distribution Agreement?
signed for Correctional Officers at the Guelph Correctional Centre. That procedure stated
the following:
The parties agree that the overtime policy is to ensure a fair and equitable distribution of
overtime at the Guelph Correctional Centre, and is in keeping with Article Cor. 8 of the
Correctional Bargaining Unit Collective Agreement.
Procedure
a)Correctional Officers interested in overtime will put their availability to work overtime in
the overtime computer located in the Tower office.
b)All Correctional Officers will receive a security password and code for access to the
overtime computer program. Instructions for the overtime sign up procedures are posted
at the overtime computer located in the Tower.
c)It is the responsibility of Correctional Officers to input their availability for overtime,
using the overtime computer instructions.
d)Correctional Officers may input their availability into the overtime computer for up to 45
days in advance.
e)The Scheduling Officer/Shift Manager will ensure the Officer with the least amount of
accumulated overtime hours is called first in order to equalize overtime distribution.
Hours will accumulate over a Two Calendar Month period after which the previous
month?s totals will be eliminated. For example, June and the ongoing month (July).
Entering August, June totals will be dropped and accumulation will be based on
July/August and so on.
f)Correctional Officers who wish to remove their names from the overtime list who are
aware that they are unable to work the overtime shift(s) they have signed up for, shall
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advise the Scheduling Manager in the most expedient manner, or in their absence, the
Flight Manager, followed by written verification.
g)Correctional Officers who place their names on the overtime list must be prepared to
work that overtime. Those Correctional Officers who are contacted for that overtime shift
and refuse the shift, will have the refusal noted, and the refusal will be counted as a shift.
h)When a message service is encountered a message will be left for the employee. This
information will be recorded on the overtime computer.
i)When the Scheduling Officer/Flight Manager is unable to contact an employee who is
signed up for overtime, this information and the time will be recorded on the overtime
computer.
j)Correctional Officers on an approved leave may not work an overtime shift on the shift
for which they have been granted leave, or any part of that shift.
k)The time frame of one hour or less prior to the start of any shift shall be deemed ?last
minute hiring? and the first person contacted, in proper order, who accepts the shift shall
be hired. If the manager is unsuccessful in this attempt any Officer may be hired for
overtime regardless if they are previously signed up for overtime. Every attempt will be
made by the manager to initially offer 1 ? 4 hours overtime in these cases.
This will allow the manager to re-access the computer overtime list in order to ensure
those officers signed up for a partial shift have an opportunity to be hired for the
remainder of that shift. Any last minute hires will be recorded on the overtime computer,
detailing the reasons, and names of the individuals involved.
l)Should an individual have a concern in regards to the hiring of a specific overtime shift,
they should contact the Scheduling Manager directly with their concerns at the earliest
time. The Scheduling Manager will review the individuals concern and, if necessary
demonstrate that the reason for the overtime hire which is reflected on the overtime
computer screen is in keeping with this agreement. Where possible when an error is
discovered the Scheduling Manager shall attempt to rectify the situation with the affected
individual.
m)This agreement may be reviewed by either party, upon the receipt of written notice by
and to the parties of this agreement.
[5]In 2006 the Ministry and the Union negotiated a Memorandum of Agreement regarding
the scheduling of overtime that would govern the entire province. By all accounts it is
similar to the agreement entered into at Guelph Correctional Centre set out above. In May
of 2008, the parties renewed that Agreement with a few changes. The May 2008
Agreement stated, in part:
Introduction
At the present time, there are a variety of practices amongst institutions with respect to
the distribution of overtime. In order to streamline the assortment of existing practices,
the ministry and the union have developed this set of principles, which must be applied in
the development of a local overtime distribution system.
As per the Collective Agreement (COR 8), a local overtime distribution system must
distribute overtime fairly and equitably after having ensured that all operational
requirements are met.
Purpose
The Overtime Protocol has been developed with the intent to:
Distribute overtime opportunities in a fair, equitable and consistent manner,
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Ensure the process is administratively and operationally feasible, and
Ensure the process is open and transparent
Guiding Principles
must
The local worksite overtime protocol be founded on the following principles:
A Fair and Equitable System
The underlying principle of a fair and equitable system is to attempt to equalize the
opportunity for overtime hours over a specific and reasonable period of time. The goal is
to distribute the overtime opportunities amongst all eligible employees fairly. The goal is
not to ensure that all employees work the same number of hours, given that individual
choice and circumstance may restrict actual overtime hours worked.
Compliance with the Ontario Human Rights Code
Overtime protocols must comply with the Ontario Human Rights Code, such that they
contain provisions that ensure interested employees with disabilities are given
opportunities to work overtime to the extent that their medical restrictions allow.
Transparency
The computerized overtime tracking system will guide the overtime hiring process
according to the overtime protocol. Whenever the overtime protocol is not followed, a
deviation report will be created including the reasons for the deviation.
To ensure transparency, employees in the same bargaining category at the local level will
have access to the following reports.
A daily overtime distribution report will include the following information
Employee name
Date and time of input
Contact result
Shift being hired\hours of the shift
Total hours of overtime opportunity for the distribution period
Name of hiring person
A daily deviation report, which will list every occurrence where the protocol was not
followed and the reason for the deviation.
Decision to Hire Overtime
To the extent possible, overtime opportunities will only be offered once the non-overtime
classified and non-overtime unclassified resources have been exhausted.
Overtime Protocol
Once a decision is made to hire overtime, the following overtime procedures shall be
followed:
1)Pursuant to section two (2) of the Provincial Overtime Protocol, individuals
registering or modifying availability for the ?Active Hiring Period? will be
considered a late entry as defined below.
(a)ACTIVE HIRING PERIOD
The period of time, defined as the current day plus three additional days
hence. This is the period of time where hiring managers can make offers for
overtime shifts.
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(b)LATE ENTRY
Late Entries include overtime availability registered or any change of
overtime availability for a day that falls within the Active Hiring Period.
2)Staff may add or remove themselves from the availability list for a given shift no later
than 8 hours prior to the commencement of that shift. However, staff may not remove
their availability for a given shift if an offer for that shift has been made.
For clarity, when staff make changes to their availability during the Active Hiring Period
(as per point #1 above), the availability will become a LATE ENTRY.
3)It is the responsibility of each employee to provide the employer with a single current
phone number where he/she can be contacted.
4)Overtime calls will be made on a sequential basis. The first person called will be the
most senior person on the overtime list having the least number of overtime
opportunity hours.
5)All overtime will accumulate over a consecutive four (4) calendar month period after
which the oldest month?s totals will be eliminated. For example, upon entering
August, April?s totals will be dropped and the accumulated totals will be based on
May to August (Note: The Hiring Protocol computer program automatically performs
this function).
6)The manager will allow the phone to ring no less than five (5) times before moving to
the next employee on this list. If an employee has message capability, the manager
will leave a message indicating that an overtime opportunity is available. If the
manager is aware that an employee is at work when the overtime offer is made, the
manager will page/notify the employee at work rather than calling the contact
number.
7)Where the manager leaves a message or a page, there will be a five (5) minute ?call-
back? time allotted prior to moving to the next employee on the list. Overtime hours
will be assigned to the employee(s) who responds first.
8)If another overtime opportunity arises that day, an employee will be called again. If
the calls are at least two hours apart and no contact is made, the employee will not be
called again for overtime, as part of the protocol, in that calendar day.
9)The manager will indicate the outcome of a phone call as one of the following:
Employee accepted
Employee declined
Message left
Telephone busy
No answer
10)Once a person has accepted or declined an overtime opportunity, no further overtime
opportunities will be offered in that calendar day, under the protocol.
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11)Overtime opportunities will be counted towards overtime distribution, whether the
hours are worked or declined. For example, if an employee is offered a 12 hour
overtime opportunity and declines that offer, he/she will be considered to have
worked the hours for the purpose of overtime distribution subject to a maximum of 12
hours per day. However, all hours actually worked will be reflected in the ?hours of
opportunity total? (HOT) and are not subject to the 12 hour maximum for declined
hours.
12)The employee being offered an overtime shift must either accept the entire shift or
decline the opportunity and the total hours offered will be credited to the person.
Offering to work a partial shift is not an option for the employee.
13)Where an overtime period is a shift extension of four hours or less such hours shall be
subjected to distribution as per the overtime protocol. However, staff must indicate
their availability on the shift extension opportunity box on the computer. For clarity,
and by definition, an extension of shift can be 4 hours or less prior to the
commencement of a shift or four hours or less at the completion of a shift.
14)Where the employer is booking overtime in advance of the current calendar day, the
hours offered will be entered on the day they are offered.
15)When it is known that an employee is on bereavement or special and compassionate
leave, he/she will not be called for overtime for the full period of the leave.
16)No person may work overtime on any part of a regularly scheduled shift for which
he/she has been given authorized leave. If the person requests to work overtime in
this instance, all hours worked during the regularly scheduled shift will be paid at
straight time and the authorized leave will be cancelled for that period.
17)An employee who is absent due to sickness will not work overtime within 11.5 hours
of a missed shift. If pre-booked overtime falls within 11.5 hours of a missed shift, it
will be cancelled. (emphasis not mine)
[6]There are additional provisions in the Overtime Protocol Agreement which are not
relevant to this dispute. It is stated in Appendix C, attached to the Agreement, that ?the
local OPSEU Local President (or designee)? will be provided with either eight or four
hours per month ?to specifically monitor the overtime distribution as per the Provincial
Overtime Protocol and bring discrepancies to management?s attention in a timely
manner.?
[7]As mentioned above, the 2008 Overtime Protocol Agreement is very similar to the
Agreement signed in 2006. The main difference is that Correctional Officers no longer
th
day of the previous month. In
have to provide their availability for a month by the 15
the 2008 Protocol, Correctional Officers can input their availability for an indefinite
period of time, months and even years into the future if they so elect.
[8]Mr. Fredrick Tucker designed the computer software system that incorporates the parties?
agreement regarding overtime as set out above. He testified in these proceedings and
reviewed the system as well as the HPRO (Hiring Protocol) Manual which explains the
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system he created. In the forward to that manual it is said that ?for Line Staff, HPRO
solicits and promotes volunteer overtime by virtue of its aboveboard and transparent
operation that generates confidence in its equitableness.? It goes on to say that ?a critical
ingredient of HPRO is the set of rules or protocols that ensure a fair and equitable
distribution of overtime hours.?
[9]The system Mr. Tucker designed monitors and performs a number of functions regarding
the scheduling of Correctional Staff. However, the only aspect of the software reviewed
before me was the overtime protocol portion. According to Mr. Tucker, who installed the
system and trained people to use it, Correctional Officers have an opportunity to input
their overtime availability virtually without restrictions. In order to do that the CO would
first select a day for which s/he is available. They would then indicate the shift(s) for
which they are available. This is done by inserting the appropriate shift codes. It is
noteworthy that there are many different shifts in a day and each of those shifts have a
designated code. For example, in the Power Point Presentation explaining the HPRO
system, there are seventeen different shifts listed for one particular calendar day and each
of those shifts has a distinct code. Correctional Officers also can indicate if they are
prepared to work for a part shift or a shift extension.
[10]Built within the system is an ?Active Hiring Period?. This is set out in the Protocol as
?the period of time defined as the current day plus three additional days hence. This is the
period of time where hiring managers can make offers of overtime.? Another relevant
definition is a ?Late Entry? which ?includes availability registered or any change or
availability for a day that falls within the Active Hiring Period.?
[11]The Late Entry is important because a CO who sets out his or her availability within the
Active Hiring Period goes to the bottom of the list. To be clear, even when a CO has the
least number of overtime hours worked, if they made a Late Entry, they become the last
person considered for an overtime opportunity.
[12]A review of some of the reports that can be accessed from Mr. Tucker?s system is useful.
There is an ?Overtime Availability Report? which sets out the availability list prior to
overtime offers according to a ranking arranged with classified officers before
unclassified; primary officers (that is officers who made their availability known early)
before late entries; those officers with the least hours of opportunity total (H.O.T.) to
those with the most; officers with the most seniority to the least; and those with the
earliest input date.
[13]There is also a H.O.T. Report which is a list of all staff alphabetically with their
respective total of all overtime opportunities from the beginning of the tracking period up
to and including the selected date.
[14]Other computer screen pages include ?Overtime Offers? which shows the daily offers
grouped by shift code and indicates contact information such as whether a message was
left for an officer or if the officer was actually contacted and accepted or rejected the
shift; and the ?Unclassified Daily Distribution? showing all the regular straight-time
hours offered to unclassified staff for the selected date.
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[15]According to one computer screen, the steps to be followed by Managers for making shift
offers are:
Select the desired date
Select the desired shift
Select the appropriate staff name
Select the contact information
Enter a comment/rationale as required
Click the ?OK? button
[16] Mr. Tucker testified that if an offer was accepted or declined by a CO the value of the
shift at issue is added to their HOT hours, which in turn affects their ranking for future
opportunities.
[17] Managers are to record if a person was bypassed and why. For example, a CO might be
passed over in the event s/he could not be reached when a phone call was made; because
the listed accommodation needs of the CO made them ineligible for the required work; or
because the overtime shift hours overlap with hours the officer was absent due to illness.
[18] The Collective Agreement contains provisions regarding overtime. The relevant
provisions are as follows:
COR8.1 The overtime rate for the purposes of this Agreement shall be one and one-half (1 ½)
times the employee?s basic hourly rate.
COR8.2 In the assignment of overtime, the Employer agrees to develop methods of distributing
overtime at the local workplace that are fair and equitable after having ensured that all its
operational requirements are met.
COR8.2.2 In this article, ?overtime? means an authorized period of work calculated to the nearest
half-hour and performed on a scheduled working day in addition to the regular working period, or
performed on a scheduled day(s) off.
COR8.3.1 Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven
and one quarter (7 ¼ ) hours or eight (8) hours as applicable, shall be paid at the overtime rate.
UNION SUBMISSIONS
[19] It was the Union?s position that the Ministry?s unique system of assigning overtime,
developed as the result of the negotiated Protocol, was created with the hope that errors in
the assigning of overtime would be virtually eliminated. While that has not happened,
mistakes are significantly reduced by this Protocol it was conceded. However, there can
be no dispute that on occasion, a Correctional Officer who has made it known that s/he is
available to work overtime is bypassed and the available overtime opportunity is given to
a fellow officer in error.
[20] Mr. Wright, for the Union, noted that the Overtime Protocol is based on a four month
calendar period. That ?rolling? four months is an always changing picture that means the
relative ranking of Correctional Officers can alter dramatically from one period to the
next. For this and other reasons an in-kind remedy is impossible to schedule so that it
does not offend the Protocol, or more specifically the rights of Correctional Officers.
9
[21] It is apparent from the Protocol that a CO may be called for overtime work more than
once in a calendar day. If s/he did not actually speak with the manager earlier in the day
and was therefore not assigned overtime, another attempt might be made to reach the CO
with a different overtime opportunity later in the day. Once spoken to, whether that CO
accepts or declines, she is not called again with an offer to work overtime on that
calendar day. As a result of this provision of the Protocol, the pool of potential officers
may be altogether different for the next overtime opportunity. According to the Union,
this further illustrates why in-kind remedies are not the appropriate redress for violations
of the Protocol.
[22] Mr. Wright suggested that in those systems where overtime is assigned on the basis of
seniority or strict equalization, an in-kind remedy may be easily provided. However, in
the complex system developed by these parties, an in-kind remedy would cause a further
breach of the Protocol. For example, the Employer could not assign an in-kind overtime
shift at a later time to a particular CO because there is no way of knowing whether that
CO would have received that particular overtime shift in the normal course of events.
[23] The Union conceded that the jurisprudence stands for the proposition that there is a
presumption in favour of in-kind remedies. However, that presumption is wholly
dependent upon no further violations of an overtime protocol being caused. That simply
cannot happen with this Protocol.
Re Ontario in Right of
[24] The Union relied heavily upon an early Board decision. In
Ontario (Ministry of Correctional Services) and OPSEU (Union)
May 8, 2001,
GSB#0236/98 (Lee), a local overtime protocol from the Guelph Correctional Centre was
at issue and the matter of in-kind remedies was thoroughly canvassed. Mr. Wright
contended that there is no real difference between the Protocol that was in place at
Guelph Correctional Centre and the Provincial Agreement that is before this Board.
Indeed, the essential characteristics are virtually identical. Vice Chair Lee considered at
length the appropriate remedy for breaches of the GCC protocol and he found for the
Re Toronto Area Transit Operating Authority and
Union. In accordance with
Amalgamated Transit Union (Blake et al)
May 3, 1988, GSB#1276/87 (Shime), this
Board is compelled to arrive at the same result given that there are no new facts or issues
to cause a thorough arbitral review. The decision of Vice Chair Lee was not manifestly
wrong nor are there special circumstances in this case that would lead to a different
result.
Re Ongwanada and OPSEU, Local 433
[25] The Union also relied upon (July 30, 2008),
Re Bingo Press & Specialty Ltd. And Retail Wholesale
unreported (Goodfellow);
th
Canada, C.A.W. Division, Local 462 Re
(2002), 107 L.A.C. (4) 347 (Newman); and
The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU
,
(Chard)
January 271994, GSB #1398/93 (Kaplan).
EMPLOYER SUBMISSIONS
[26] The Employer asserted that while the transparency of the system is one of its greatest
benefits, it is also one of the biggest problems. Errors are quite apparent and even in
instances when Correctional Officers might not have otherwise known of a breach of the
Protocol, the transparency of the system will alert them to an error. This often causes
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grievances that result in a CO receiving a windfall. It is this result of payment for work
not performed that the Employer is asking this Board to redress.
[27] Mr. Loewen, for the Employer, contended that it is wrong for an employee to be paid for
work that s/he does not actually perform. That payment of monies over compensates the
actual violation. Indeed, anything more than a declaration of a breach should be
considered by this Board to be over compensation. However, in the alternative, if some
further remedy is to be given, it should be an in-kind remedy. Such redress would allow
for equilibrium and provides some return to the Employer in exchange for money spent.
[28] The Employer said a CO who was inadvertently bypassed should not be paid at premium
rates for a shift not worked. That damage is compounded by the fact that it is entirely
possible that the same CO may have been already been compensated for that same shift
as the result of being offered the very next overtime opportunity. The same CO would
have been offered the next available overtime shift because they continued to be the
officer on the list with the least number of overtime hours worked.
[28] The Employer submitted that because there is now a four month rolling window, if a
mistake is made at the beginning of the period, there is a lot of time remaining in the
period to allow for the error to be corrected. An in-kind remedy could be assigned at the
very next shift perhaps. This is difficult to show with any degree of certainty because we
do not know who would have accepted the next opportunities offered. However, as noted
above, it might well be that the CO was already compensated because his or her HOT
hours were not increased. Indeed, it could be said that such an error is self-correcting.
[30] Mr. Loewen noted that if a CO missed an overtime opportunity due to an inadvertent
error we have no way of knowing whether that particular CO would have accepted the
offer of overtime in the first instance. It might have been turned down. An offer of an in-
kind remedy will put the CO in the precisely the same position they would have
otherwise have been in, that is, with an offer of overtime work they can elect to accept or
reject.
[31] The Employer suggested that an in-kind remedy can be provided with relative ease. An
extra scheduled shift of CO duty can be assigned or a shift of extra training such as
education regarding health and safety matters could be arranged. To be clear, this would
be work or training that would not otherwise be offered.
32] The Employer stated that Vice Chair Lee was wrong. Specifically, his view that the
Employer must be able to show that an in-kind remedy does not offend the Protocol is an
improper shifting of onus. The onus should be on the Union to prove that an in-kind
remedy is not appropriate. In any event, the Employer can meet in-kind remedy
restrictions contemplated by Vice Chair Lee.
[33] The list of COs to be considered for overtime is not static, according to the Employer. It
is ever changing and for that reason, it cannot be considered to be analogous to a
seniority system as suggested in the earlier decision.
[34] Even if earlier decision of the Board is right, circumstances have changed that require
another arbitral consideration. Specifically, the equalization period is now twice as long
11
as it was in 2001. Further, the Employer is offering an offer of work that is an extra
complement or for training purposes.
Re Good Humour-Breyers, Simcoe and U.F.C.W., Local 633
[35] The Employer relied upon
th
Re Bluewater Health and Ontario Nurses?
) 182 (Kirkwood);
(2003), 120 L.A.C. (4
Association
(May 17, 2004), unreported (Brandt).
UNION REPLY
[36] The Union submitted that the Employer provided no submissions or facts that would lead
to a finding that the decision of Vice Chair Lee was manifestly wrong. It was conceded
that Vice Chair Lee did state that there might be circumstances when an in-kind remedy
was appropriate. However, the only suggestions made by the Employer before this Board
regarding the type of work that would be offered for an in-kind remedy are precisely
those put before Vice Chair Lee. The suggestions might be characterized somewhat
differently but they remain the same. Simply put, there is not sufficient change of fact or
circumstance that would lead to a different result.
[37] The Union disagreed with the Employer contention that an officer would get a windfall
because their HOT hours do not go up. That is not the case. If a CO is paid for an
overtime shift their HOT goes up.
[38] The Union concluded by stating that the Employer must show that it will not create
further breaches to the Overtime Protocol by an in-kind remedy and it has failed to do so.
That was true before Vice Chair Lee and the situation has not changed in the instant
dispute.
DECISION
[39] By all accounts, the purpose of the overtime protocol is to ensure that overtime is
distributed to those wishing to do the work in a fair, equitable and consistent manner. It
was very clear from the evidence that much time and effort has been taken to develop a
system that is operationally feasible and highly efficient in its application. The parties are
to be commended for these efforts.
[40] There was no dispute between the parties that the earlier decision of this Board is of some
considerable import. The Union asserted that the facts and issues are virtually identical
and so too should be the result. The Employer suggested that either the Board ?got it
wrong? when the matter was considered in 2001 or the facts have changed sufficiently for
a fresh look at the issue.
[41] In matters such as this where a similar or identical issue to one previously considered by
the Board is being addressed, it is appropriate to contemplate the standard or ?test? to
Re Blake
apply. That standard was considered by the then Chair of the Board in (supra).
In that decision Chair Shime was being asked to come to a result quite disparate to an
earlier decision of the Board. In his considerations he said at page 7:
But more important is that the decision in the Francis case is a decision of the Grievance
Settlement Board. In the private sector ad hoc boards of arbitration have a separate and
distinct capacity to decide each case on its own merits. Recognizing that individual, but
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different, decisions on the same point might cause confusion, arbitrators have balanced
the interests of individual decision making with predictability by generally adopting a
policy that they will not depart from earlier decisions unless such decisions are
manifestly in error.
But the Grievance Settlement Board is one entity ? it is not a series of individually
constituted boards of arbitration. Under Section 20 (1) of The Crown Employees
Collective Bargaining Act there is a ?Grievance Settlement Board ? that is, - one Board.
Under Section 20(4) the Grievance Settlement Board may sit in two panels and under
Section 20(6) a decision of the majority of the panel is ?the decision? of the Grievance
Settlement Board.
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 might be exceptional circumstances where an earlier decision of
this Board might 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.
Re Blake
[42] Setting aside the obvious legal propriety of that decision, the result in (supra)
makes good labour relations sense. Over the years these parties have come to rely on the
predictability of this Board. Indeed, their ability to move forward in their ongoing
dealings depends upon this foundation. One can only imagine the chaos that would beset
the parties and the Board if it were a regular occurrence that one panel of the Grievance
Settlement Board overturned or reviewed the result of another.
[43] For this reason, it is appropriate for this panel to first address the earlier Board decision
by Vice Chair Lee regarding overtime for Correctional Officers at the Guelph
Correctional Centre. As noted earlier, it was the Union?s position that Vice Chair Lee?s
decision dealt with an overtime protocol which is virtually identical to that before me and
Re (Blake)
therefore I am bound by (supra) to follow his determination. The Employer
was of the view that the Board is entitled to a fresh look because the overtime protocol
before this Board is different. Further, the type of in-kind remedy being offered by the
Employer in the instant case is distinct from that considered by Vice Chair Lee. Finally,
the Employer was of the view that Vice Chair Lee was wrong in his reasoning and result.
[44] After consideration, I am of the view that the facts and submissions proffered to Vice
Chair Lee are virtually identical to those made before me. Before I consider the
similarities in further detail, it would be useful to review the prior decision in total. I
found it thoughtful and well reasoned.
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[45] Vice Chair Lee reviewed some of the case law regarding the overarching issue of in-kind
remedies and, not surprisingly he found that ?in general, arbitrators appear to subscribe to
the view that an in kind remedy is the preferred approach, providing it is practical to
implement such a remedy.?
[46] He set out four factors to be considered sequentially in determining the appropriate
remedy for breaches of the local overtime protocol then at issue. The first factor was the
Collective Agreement and it was noted that the parties agreed there was no specific
provision in either the Collective Agreement or the Overtime Protocol Agreement that
dealt with the issue of remediating a breach. Vice Chair Lee did note that ?on its own,
article 8.2.1 may have provided the employer with some degree of ?flexibility? regarding
overtime distribution and remedy. However, the generality of this article is now subject
to the specific provisions outlined in the local agreement. Nothing in the language of
article 8.2.1 or the local agreement either expressly prescribes or specifically restricts the
range of remedies available.? He went on to say that ?....I am not persuaded that the
language contained in the collective agreement or the local agreement provide the
employer with any degree of ?flexibility? with respect to an appropriate remedy for an
overtime violation.?
[47] According to Vice Chair Lee the second factor to be taken into account is whether the
system considered in the protocol is a true equalization system. In this regard he said, at
page 14:
A true equalization system typically provides a formula that attempts to equalize the
opportunity for overtime assignments over a specified period of time. The goal is to
establish fairness amongst employees in the overtime distribution group; it does not
ensure that all employees actually work equal amounts of overtime.
An important characteristic of a true equalization system is that the group to which the
overtime is offered must be static, that is, there is no opportunity to opt out. Furthermore,
as opportunities arise, everyone in the group is credited with the hours offered, whether
they accept or decline the overtime assignment. Employees transferring from other
departments, or employees who are off work for extended periods of time, are normally
credited with the average overtime hours accumulated by the group when they join, or re-
join, the group. New hires either receive the group average or are awarded the highest
accumulated hours plus one when they join the group.
The system in place at GCC does not include the characteristics outlined above. Due to
the voluntary nature of the equalization system at GCC, the overtime pool is not static.
As a result, COs are free to opt in and out of the overtime pool as they see fit. In fact,
given that there are up to eleven different shifts that a CO can sign up for on any given
day, there can be as much as eleven different pools each day. As a result of this complex
process, the task of equalizing overtime over the specified time period is virtually
impossible to achieve. Accordingly, I agree with the union that the system for distribution
overtime at GCC is not a true equalization system. Consequently, it is not feasible for the
system itself to automatically correct mistakes in the allocation of overtime. (Emphasis
not mine)
[48] The third question Vice Chair Lee reviews is whether an in-kind remedy can still be
offered given that the overtime distribution system at issue was not a true equalization
system. He decides it cannot for two reasons. Firstly, given the relatively short period of
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time for equalization as set out in the local agreement, a CO might be ?unavailable for the
entire balance of the equalization period.? The other reason, at page 15, was:
Secondly, even if the affected CO is available, other COs in the various pools, on any
given day, and for any given shift, may have accumulated fewer overtime hours. Article 6
of the local agreement imposes a mandatory obligation on the employer to select the CO
with the least amount of accumulated overtime hours when an overtime assignment
occurs. The language does not provide for any exceptions. In certain respects, the system
in place at GCC is actually analogous to a seniority system insofar as it clearly identifies
the individual entitled to overtime on any given occasion. The language contained in
article 6 would be rendered meaningless if the employer was allowed to place an
aggrieved CO to the top of the overtime list whenever an error occurred. For the
aforementioned reasons I am not convinced that an in-kind remedy would be consistent
with the local agreement or is practical to implement given the nature of the overtime
distribution system at GCC. (Emphasis not mine)
[49] Finally, Vice Chair Lee considered the issue of whether a ?special overtime opportunity?
could be used in the event of a lost overtime opportunity. He was given a few scenarios
to review in cases where there had been inadvertent breaches of the protocol. The
examples of special opportunities provided to the Vice Chair included in-kind remedies
where the Employer provided overtime opportunities that were the same number of
hours; allowed the officer to accept the assignment at their discretion; assignments of
work that the Employer would not otherwise require anyone to perform; and assignments
of overtime work that involved training and not regular correctional duties, with twelve
hours paid for eight hours of training.
[50] In considering this matter of whether a ?special overtime assignment? adversely affects
the rights of others, he said at page 17:
Firstly, assuming that the work in question is CO work, the assignment may be one that CO A or
someone else in the CO overtime pool, would otherwise be entitled to claim. If indeed that was
the case, then Article 6 of the local agreement stipulates that overtime be assigned to the CO in
the overtime pool with the least amount of accumulated overtime hours. Consequently, the
supernumerary assignment would be inconsistent with the local agreement.
Secondly, given that CO A has a history of requesting numerous overtime shifts, CO A may be
entitled to a regular overtime shift on the day that she decides to work her supernumerary
assignment. Obviously, there would be no advantage to CO A in that type of situation.
Thirdly, if CO A was brought in to do non-CO work, it would likely lead to further problems. For
example, if CO A performed maintenance, kitchen or administrative duties, it would adversely
affect the rights of employees in those positions.
Fourthly, if the proposed assignment does fall squarely within the scope of a CO?s duties and
responsibilities, or is entirely different from the work normally performed, the employee may be
forced to accept an assignment that was substantially different from the one that was originally
missed.
Finally, I agree with union counsel that there would likely be constant disagreement between the
parties as to whether a CO is actually performing supernumerary work and not ?regular? work
within the CO classification. The fact that the employer at the time of the infraction would not
normally require the work to be done on an overtime basis, does not answer the question whether
15
or not the CO s could still be entitled to the work if offered as an overtime assignment at some
point in the future. Indeed, the proposed assignment may be one in which the employer has in the
past required a CO to do on an overtime basis.
Given the unique and complex nature of the overtime distribution system at GCC, and for reasons
outlined above, I am not convinced that the proposed supernumerary assignment is consistent
with the local agreement or is practical to implement.
[51] Finally, Vice Chair Lee rejected a ?special training opportunity? where an officer
undergoes training for eight hours and is paid for twelve. He stated, at page 19, ?As
stated above, the purpose of contract remedies is to place the party harmed in a position
as close as possible to the one that would have been occupied if no breach had occurred.
This proposed remedy provides CO A with an extra four hours pay, whereas had there
been no beach, she would have received twelve hours pay. In addition, this proposal also
involves work of a substantially different nature from the work that was missed.?
[52] As must be apparent from the above, when the decision of Vice Chair Lee is considered
in full, there are no significant differences in facts or arguments between the case then
and the matter before me now. I appreciate that the Protocol signed by the parties in 2008
is somewhat more elaborate. However, for the purposes of this decision, there are no
substantive changes. The calendar period for the accumulation of overtime is now four
months rather than two and the present Protocol allows a CO?s to input their availability
for a period far beyond forty five days. Neither of those changes constitutes a change
sufficient to allow for this Board to find for the Employer.
[53] The Employer did rely upon the doubling of the ?rolling? calendar period mentioned
above. In my view, four month is still an insufficient period of time to ensure that
mistakes, inadvertent or otherwise, can be addressed. Indeed, throughout the Employer?s
submissions it was said that it is now ?more likely? than an error made can be fixed. It
was conceded by the Employer that it could not prove that the extra two months of time
redressed this concern.
[54] The only issue that might be said to be fresh is the Employer?s offer of training that it
would otherwise not schedule. However, in my view this is not particularly different from
the facts considered by Vice Chair Lee. Again, as he noted, it is quite conceivable that the
parties would spend much time and energy differing on whether the training offered
would be something that CO s would not otherwise receive.
Re Blake
[55] As noted by Chair Shime in (supra), there ?might be exceptional circumstances
where an earlier decision of the Board might be reviewed.? He also stated that ?the onus
will be on the party seeking review to establish exceptional circumstances.? I am of the
view that the Employer has failed to discharge this onus. There has been nothing
proffered either in fact or argument that has convinced me there are exceptional
circumstances of the type that would allow me to come to a decision that differs from that
of Vice Chair Lee.
[56] I also have taken into account the fact that Vice Chair Lee conceded that
?notwithstanding the foregoing, given a different fact situation where the employer could
demonstrate beyond a doubt that the ?special? assignment was a genuine extraordinary
opportunity that could be reasonably achieved in circumstances that do not adversely
16
affect the rights of other employees, this form of remedy could be appropriate.? That
remains true. However, that is not the case before me.
[57] For those reasons, I find for the Union in this matter. I remain seized in the event of
difficulties implementing this decision.
th
Dated at Toronto this 18 day of February 2009.
Felicity D. Briggs, Vice-Chair