Ale xander P.

Polishuk (r etired)
Andrew F. Camman
Anthony F. Steele
Susan A. Toth
Aislyn Griffin

January 19, 2016

CECBA Reform Group
To Whom It May Concern:
Re: January 9, 2016 Memorandum of Settlement accepted by OPSEU
We have now had the opportunity to thoroughly review the new Memorandum of
Settlement (MOS) accepted by OPSEU on behalf of the Corrections Bargaining Unit on
January 9, 2016.
The new MOS adopts the November 23, 2015 MOS with only five changes. These
changes include:
1. The Salary Progression Freeze between January 1, 2016 and December 31, 2017
has been removed from the November 23, 2015 MOS. The Salary Progression
will now be determined by the arbitrator.
2. The agreement to eliminate COBUSA positions in some MCSCS facilities has also
been removed.
3. The agreement with respect to Compensating Time Off (CTO) has changed
slightly, so that between April 1, 2016 and December 31, 2016, only 36 hours may
be accumulated, but after January 1, 2017, up to 100 hours can be accumulated.
4. Finally, both OPSEU and the employer agree to submit to voluntary arbitration
as allowed by section 4 of CECBA, only for the remaining disputes which are
listed as: special wage adjustments between January 1, 2016 and December 31,
2017, and the issue of progression through pay grids.
For all practical purposes, very little has changed between the current MOS accepted by
OPSEU without ratification and the November 23, 2015 MOS that was rejected by the
vast majority of the members of the bargaining unit.
We are informed by your committee that members have responded in different ways at
different institutions. Many generally lauded the potential for arbitrated decisions which
they imagine will mean substantial pay increases. Those at the other end of the spectrum
were suspicious of OPSEU and derisive of the removal of the agreement from ratification

as well as the continued insertion of a clause which serves no other purpose than to
protect OPSEU as the bargaining agent.
You have tasked me to provide my legal opinion on the meaning of the changes to these
Memorandum of Settlement from the last agreement in an effort to assist your members
in determining what further steps CRG should take, if any.
The voluntary arbitration that is currently underway was agreed to by both OPSEU and
the Employer pursuant to CECBA. There is no mandatory language in the agreement that
OPSEU and the Employer will continue to settle all disputes by binding arbitration in the
future. The agreement that purports to create a Corrections Only bargaining unit that
would be subject to interest arbitration remains unchanged from the November 23,
2015, MOS. As we indicated in our letter of December 3, 2015, the language used in the
Memorandum of Agreement: Development of a Standalone Collective Agreement for the
Correctional Bargaining Unit offers no guarantees or certainty for the creation of a
standalone CBU with mandatory binding arbitration. None of the language in the
Memorandum of Agreement for COR-only has changed under the new January 9, 2016
MOS. The language continues to be permissive and vague and provides no compulsory
promise for a COR-only or binding arbitration.
Removal of the Right to Ratify Agreement
You have expressed concern that OPSEU would accept the new MOS without sending
such agreement to ratification by the members by a vote.
Section 44 of the Labour Relations Act requires that collective agreements or
memorandums of settlement have no effect until it is ratified by a vote, where more than
50% of those voting vote in favour.
Section 2(1) of CECBA specifically adopts the Labour Relations Act unless otherwise
modified by subsection 2(2). Section 44 of the Labour Relations Act is not modified by
CECBA and therefore, on an initial view, it appears that section 44 would apply to this
situation. This research is still only preliminary but raises an important question about the
validity of the January 9, 2016 MOS between OPSEU and the Government of Ontario.
Your committees concerns relate to the reasoning for why your union would take such a
step at this juncture given the assistance your group has provided them during
negotiations. I suggest to you that the reports that OPSEU publicly decried you as
insignificant is at odds with this behavior. Clearly OPSEU fears that your watchdog role
could undermine their work. Their last agreement was rejected after you warned your
members of its failings. Whatever the reason, it is an unusual step when a union decides
to unilaterally accept an agreement which was so soundly rejected by its members in the
last ratification vote. And we believe it is illegal to do so.
This does not end the discussion. We believe your rights have been violated but you
have indicated that your members have had a mixed reaction. A straw vote seems to
indicate that the faith your members have in the binding arbitration for wages would carry

the day. The process to rectify the denial of your right to ratify would likely hold up the
arbitration of the wages and if the end result is that the MOS would be ratified it would be
useless to litigate that issue. For this reason we do not recommend any legal action but
do suggest that all your members express their displeasure at this dangerous precedent.
Removal of the Freedom to Choose a Bargaining Agent in the Future
Under the new MOS, (by incorporation of the last offer), should a COR-only bargaining
unit be created, it would be forced to continue to have OPSEU as its bargaining agent
unless all original six bargaining units jointly agreed to remove OPSEU. This is, in our
opinion, is contrary to the Supreme Court of Canadas decision in Mounted Police
Association of Ontario v. Canada (A.G.), 2015 SCC 1. In that case, the Supreme Court
of Canada held that s. 2(d) of the Charter of Rights and Freedoms protects a meaningful
process of collective bargaining that provides employees with a degree of choice and
independence sufficient to enable them to determine and pursue their collective interests.
If the new MOS establishes anything, it is recognition that the community of interest
between the COR-only bargaining unit and the rest of the unionized workforce is not a
shared experience. Community of interest has been defined by labour boards across the
country as a fundamental factor in the determination of an appropriate bargaining unit to
be represented by a union. Therefore, your bargaining unit should not be restricted from
selection of its bargaining agent by other units which do not share your community of
interest. Doing so would, in our opinion, violate your Charter right to select the bargaining
agent of your choice.
Furthermore, where your choice of bargaining agent is contingent on the all of the original
six bargaining units agreeing to unseat their status, your COR-only bargaining unit will
forever remain tied to whims of the larger unit. This renders your COR-only bargaining
unit status a hollow victory.
To make it clear for those of your members who wish to retain OPSEU as your bargaining
agent, removing this clause from the agreement does not mean that we are decertifying
OPSEU, but it means that should you become disenchanted with their performance, you
continue to hold that power. Without the power to remove your bargaining agent, you will
rely on their benevolence to accomplish bargaining unit gains. I liken this to electing a
party to govern without the right to choose a different party in subsequent elections.
Our recommendation is to have this clause removed from the agreement which would
begin by application to the OLRB.
Summary
While there have been public pronouncements that Correctional workers in the CBU are
now deemed essential and will be subject to binding arbitration, these statements are
not corroborated by the current MOS, which remains permissive and optional. Your right

to ratify agreements negotiated by your union has been abrogated and your right to select
a bargaining agent that will represent your community of interest has been threatened.
We have recommended that no legal action be undertaken in respect of the first illegal
act and that an application to protect the second right be launched to the OLRB.
Rectifying the second breach of your rights will do nothing to impede progress on the
arbitration of the wage dispute. Indeed, the preservation of your right to select a
bargaining agent will effectively demonstrate to any bargaining agent: you work for us
now! This can only enhance the motivation of OPSEU to work hard during the arbitration
and over the next two years to ensure that a COR-only bargaining unit be created and
CECBA amended to allow and institute binding arbitration for the new COR-only
bargaining unit.
However, should you decide not to accept our advice to pursue an application to the
OLRB at this point in time, we suggest that you continue to monitor OPSEU and the
Employers commitment to abiding by the terms of the MOS, maintaining the essential
service designation, and most importantly, creating a COR-only bargaining unit. Should
anything change, or concerns arise, you can reassess your decision not to pursue an
application.
We await your instructions.
Yours very truly,
POLISHUK, CAMMAN & STEELE

Andrew Camman
Susan Toth
AC/st