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HomeMy WebLinkAbout2015-0652.Union.2021-06-09 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# 2015-0652 UNION# 2015-0108-0004 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 Jane Letton Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING DATES February 22, 2021 - 2 - Decision [1] This matter involves a Union grievance dated February 27, 2015, in which the Union claims that the Employer contravened a Compressed Work Week Agreement (“CWWA”) dated January 12, 2014. The CWWA was in place at the Elgin Middlesex Detention Centre (“EMDC”) for most of 2014 and for 2015. In effect, the CWWA replaced a Compressed Work Week Agreement (“the previous Agreement”) that was in place for almost three years and came to an end in early January of 2014. [2] The previous Agreement is the subject of a decision that will be released on the same date as this decision. The previous Agreement was based on 147 classified Correctional Officer (“CO”) positions and required that “every effort will be made to backfill the 147 lines on a daily basis.” Having regard to the obligation to backfill on a daily basis, the Employer could be in breach of the previous Agreement if the daily hours for classified COs fell below the minimum required staffing level of 147 COs. The Employer took the position in this case that there was no obligation to backfill on a daily basis under the CWWA. However, the Employer was prepared in the circumstances to address the issues in this case on the assumption that it was obliged to backfill on a daily basis under the CWWA. [3] Paragraph 1 of the CWWA provides that it is based on 158 classified CO positions. The central issue raised by the Union grievance is whether the EMDC fell below the minimum staffing level on statutory holidays during the operation of the CWW. The parties agree that there was a shortfall of 27.5 hours in 2015. They also agree that there was a shortfall of 7.5 hours in 2014, subject to a dispute over whether a pilot project agreement concerning a community escort team (“CET Agreement”) can be applied to affect the Employer’s obligations under the CWWA. The Union argues that the application of the CET Agreement to the CWWA would mean that the CWWA would effectively be based on 165 classified CO positions in 2014 and that the shortfall in hours would therefore be 148.5 hours in 2014. The Union raised the issue of the applicability of the CET Agreement for the first time in December of 2020. - 3 - [4] The CET Agreement is dated August 12, 2013. The community escort pilot project commenced on January 6, 2014, and was to be in place for a period of one year. Paragraph 2 of the CET Agreement provided that the escort team shall be comprised of 7 COs and paragraph 5 provided as follows: “The seven (7) correctional officers on the escort team will be in addition to the current complement of correctional officers and the eleven (11) correctional officers to be added to the current complement at EMDC.” Union counsel emphasized the significance of paragraph 5 when advancing the Union’s position that the CET Agreement should be applied to the CWWA so that it would be based on 165 classified CO positions in 2014. [5] I agree with the Employer’s submission that there is no proper basis to support the Union’s position on the applicability of the CET Agreement to the CWWA. The Employer’s contention that the Union’s position about the CET Agreement should be rejected on the ground that it was raised too late in this process has some merit. More importantly, however, it is quite clear that the parties agreed to base the CWWA on 158 classified positions. The CET Agreement was executed about 4 months before the parties entered into the CWWA. The reference in paragraph 5 of the CET Agreement to the current complement of COs at the EMDC can only be for the purposes of that Agreement. I can appreciate why the Union believes that the 7 additional escort team positions should be reflected in the CWWA for 2014. Although the parties could have agreed to base the CWWA on 165 classified officer positions, the clear wording of the CWWA indicates that the parties agreed that it would be based only on 158 classified officer positions. [6] Accordingly, the shortfall in hours in 2014 and 2015 amounts to 35 hours. I note that this shortfall takes into account exhausts. Given that the shortfall in hours relates to statutory holidays, the compensation owing based on these hours must be calculated using 2x the CO regular hourly rate of pay. The Employer argued that the appropriate regular CO hourly rate to use when calculating compensation owing is the average CO hourly rate of $29.29. The Union argued that the highest hourly rate of $32.64 should be used since it is more likely that senior COs missed the opportunity to work the hours. Since it is unlikely that all the COs who missed the opportunity to work - 4 - the hours would have been at the highest hourly rate, I find in the circumstances that it is appropriate to use the second highest CO hourly rate of $31.73 when calculating the compensation owing. [7] Therefore, in light of the above approach, I have determined that the compensation owing for the 35 hour shortfall is $2,221.10. Further to the request of counsel, I remit this decision to the parties to finalize the payment details. The Board will remain seized of the Union grievance. Dated at Toronto, Ontario this 9th day of June, 2021. “Ken Petryshen” Ken Petryshen, Arbitrator