Canadian Labour Reporter

May 10, 2021

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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provision — article 12.1 — stated that each teacher would be granted two days per year, as long as a substitute was available and a planned program was set up. The second section — article 12.2 — stipulated that teachers could "accumulate personal days to a maximum of five." Normal practice was to allow teachers to accumulate up to seven days of personal leave — five from previous years as per article 12.2 and the two for the current year, as per article 12.1. The practice changed in 2019, when the school board's super- intendent called the union's associate coordinator of collec- tive bargaining about a notice she would be sending about the personal leave days. The asso- ciate coordinator said he under- stood it was two-plus-five days but the superintendent said that wasn't her interpretation. A few days later, she sent him a letter indicating that the school board would be ending the prac- tice of allowing teachers to accu- mulate seven personal days. Instead, teachers would only be allowed to accumulate the five days provided under article 12.2 — including two from the current year under article 12.1. The associate coordinator didn't respond and neither party raised the issue during collective bargaining, after which a new collective agreement was rati- fied. Afterwards, the associate coordinator wrote to the super- intendent indicating that the union interpreted the collective agreement as allowing five accu- mulated personal leave days in addition to the two days granted by article 12.1. The school board didn't change its mind and the union filed a policy grievance. However, the school board sent a letter to all teachers stating that they could accumulate a maximum of five days, including for the current year. Any teachers who had accumulated more could use the extra days but going forward could bank a maximum of five. The arbitration board found that both articles 12.1 and 12.2 were clear and unambiguous. The purpose of 12.1 was "clearly to provide two personal leave days to a teacher for use during that particular school year," but it didn't address the circumstances if a teacher didn't use those days in that school year, said the arbi- tration board. As for 12.2, the arbitration board found that it allowed teachers to accumulate personal leave days that were unused in a particular year for use later and limited how many can be accumulated to five. The "gram- matical and ordinary sense of 'accumulate'" meant unused days from prior school years and not the days earned in the current year, said the arbitration board, adding that there was no limit to how many years into the future in which the accumulated days could be used. The arbitration board found that the union's interpretation achieved the purposes of both articles and because the accumu- lated days were different than the annual allocation, the two arti- cles didn't need to cross-refer- ence each other. However, the school board's interpretation — that the accu- mulation of days included the two new days granted each year — would require a clear link between the articles, which there was not, said the arbitra- tion board. The arbitration board noted that had the inten- tion been to include the new days in the accumulated total, then article 12.1 could have had clear wording referring to that. The grievance was allowed and the school board was ordered to restore the personal leave days accumulated by any teachers who were affected by the change in practice. Reference: Holy Family Catholic Regional Division No. 37 and ATA. D.P. Jones — chair. Anna Maria Moscardelli, Stefan Pahulje for employer. Joel Michaud for employee. Dec. 9, 2020. 147 C.L.A.S. 3 The four arriving officers freed the first officer, and 12 more officers arrived and piled on the inmate, striking him numerous times and applying pressure points. After about three minutes, the inmate was restrained and raised to a standing position. The inmate was escorted away with his hands cuffed behind his back and blood drip- ping from his head. The inmate was placed in a segregation cell with leg shackles. After about four hours, the inmate received medical treat- ment for a cut to his forehead and bruises, scrapes, and swelling on his back, shoulders, face, and nose. There were no permanent injuries. FRCC investigated and deter- mined that the inmate had been subjected to 48 hard strikes by at least four officers in the pres- ence of four supervisors and other staff. It concluded that the offi- cers' actions were "a brutal beating which was entirely unnecessary and contrary to the policies, prin- ciples and training governing the use of force" as well as the standards of conduct for corrections branch employees. On Dec. 11, one correc- tional officer, one instructor, and three supervisors were suspended without pay while FRCC deter- mined appropriate discipline. They were converted to paid suspensions after the union protested. On Feb. 21, 2018, the five officers and supervisors were fired. Several other officers were disciplined for the incident and the union grieved the dismissals. It argued that the inmate had not been under control, handcuffing was the priority, and hard strikes were permissible when there was a serious risk to officer safety — something that was consis- tent with training. The arbitrator found that one officer and one instructor who each inflicted 10 or more strikes on the inmate acted disproportionately and unreasonably. There was insuf- ficient assessment and planning for the use of force and it wasn't the minimum necessary force — the inmate wasn't completely controlled, but there wasn't a risk of escape and there was a significant number of other officers to help out, said the arbitrator. "The force options model required communication at all stages, in a form suitable to the circumstances," said the arbitrator. "Officers should have persisted in trying to communicate and de-escalate, while simultaneously seeking to compress and contain the inmate, as they were doing from the moment of their arrival." The arbitrator also found that the "precipitous and excessive application of force," along with a failure to appropriately commu- nicate with the inmate to try to de-escalate the situation likely prolonged the physical struggle and further compromised officer safety and risk to the inmate. The arbitrator found that termi- nation was appropriate for the officer and instructor who issued the excessive number of hard strikes and breached the code of conduct. However, the three super- visors who allowed the altercation to continue but acknowledged making mistakes deserved lesser discipline. FRCC was ordered to reinstate them with suspensions of six, five, and three months, respec- tively, on their record along with a demotion for each. Reference: British Columbia (Province) and BCGEU. Arne Peltz — arbitrator. Peter Gall, Melanie Vepond, Justina Sebatiampillai for employer. Andrea Davis, Hasan Alam, Dora Tsao for employee. Dec. 16, 2020. 147 C.L.A.S. 35 Two used excessive force, others acknowledged mistakes Disagreement arose over accumulation of unused time

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