GSB # 0410/97, 0411/97, 701/96, 0080/97, 2131/96
OPSEU # 97D665, 97D666, 96A665, 96A431, 97A147
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Group Grievance, Clapperton et al)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General and Correctional Services)
Employer
BEFORE Ken Petryshen Vice Chair
FOR THE Richard Blair
GRIEVOR Counsel, Ryder Wright Blair & Doyle Barristers & Solicitors
FOR THE Len Marvy
EMPLOYER Counsel, Legal Services Branch Management Board Secretariat
HEARING February 10 and April 11, 2000
DECISION
In a decision dated March 12, 1999, the GSB concluded that the Employer contravened Article 31.7.1 of the Collective Agreement. This provision provides for an in lieu payment for benefits of an amount equal to 2% of the basic hourly rate for all hours worked, exclusive of overtime, for “all full-time unclassified employees”. In essence, I decided that the provision required the Employer to pay the 2% benefit to unclassified employees who work full-time hours in a week (without counting the hours for which employees were entitled to an overtime premium) once they completed any four distinct full-time weeks of work. Without detailing their positions, the Union had argued for a broader interpretation of Article 31.7.1 and the Employer had argued for a narrower one. The effect of my interpretation of the provision was that more unclassified employees were entitled to receive the 2% benefit.
The Employer recognizes and the Union agrees that, subsequent to March 12, 1999, the Employer is obliged to pay the 2% benefit to unclassified employees according to the interpretation contained in the March 12, 1999 decision. However, the parties disagree with respect to the Employer’s obligations prior to March 12, 1999. The Union takes the position that the retroactive payment of the grievances should not be limited to the 30 days prior to the dates the grievances were filed. The Union also claims that non-grievors should be compensated for a period of time prior to March 12, 1999. The Employer takes the position that non-grievors are not entitled to any retroactive payment and that grievors are only entitled to be paid for a period starting 30 days prior to the date their grievances were filed.
The facts relevant to these remedial issues can be summarized as follows. Article 31.7.1 is a new provision in the 1994-1998 Collective Agreement and became effective upon ratification on March 31, 1996. The first time an issue was raised about the payment of the 2% benefit is when Ms. L Morrow, an unclassified employee at the Whitby Jail, wrote a note dated May 9, 1996, to a payroll clerk at the jail which asserted that she had not yet received the 2% benefit. At a MERC meeting on June 19, 1996, Mr. Barry Scanlon indicated that the Union would refer the 2% benefit issue to the CERC. On July 22, 1996, Ms. Morrow filed the first grievance alleging that the Employer had failed to pay the 2% benefit. Mr. Clapperton, another employee at the Whitby Jail, filed an individual grievance to the same effect on August 2, 1996. Between October 9, 1996, and March 25, 1997, four group grievances were filed on behalf of 66 grievors claiming a violation of Article 31.7.1. On April 17, 1997, the Union filed the following grievance:
The Union grieves that the Employer has failed to implement Article 31.7.1 of the collective agreement as it applies to unclassified employees at the Stratford Jail.
SETTLEMENT DESIRED
That the Employer apply Article 31.7.1 of the collective agreement to all unclassified employees of Stratford Jail with interest.
I do not propose to set out the submissions of counsel in detail. To a large extent, the Union based its position that non-grievors are entitled to a retroactive payment on the Union grievance dated April 17, 1997. In counsel’s submission, the GSB can expand the remedy requested in the grievance so that all unclassified employees entitled to a remedy can be covered by the Union grievance. The Union also asserts that the Employer, given the earlier grievances, was well aware that this was an issue of general application for all unclassified employees. On the issue of retroactive payment, the Union claims that it is appropriate in these circumstances to start the payment for all unclassified employees, and certainly for those employees who grieved, from the time the Employer was put on notice that there was an issue relating to its interpretation of Article 31.7.1. Whether that starts with Ms. Morrow’s note dated May 9, 1996, or at a latter time, the Union submits that retroactive payment should not be limited to the usual 30-day period before the filing of the grievances.
In addressing the issue of whether non-grievors are entitled to compensation for a period of time prior to March 12, 1999, I commence with the premise that the GSB essentially obtains its jurisdiction from the provisions of the relevant collective agreement and from the grievances before it. In this case, the GSB has before it two individual grievances, four group grievances and the Union grievance dated April 17, 1996. From the wording of the Union grievance, I can only conclude that the Union intended to grieve only on behalf of the unclassified employees at the Stratford Jail and that it intended only to claim relief for those employees. If I were to expand the scope of the Union grievance to cover non-grievors outside of the Stratford Jail, I would be exceeding my jurisdiction. I do not have a Union grievance before me which would apply to unclassified employees who work in jails other than the Stratford Jail. The general rule is that all employees will benefit from a decision in the Union’s favour from the date of the decision and any retroactive relief will be awarded only to employees who are covered by grievances. There is no reason in this case for departing from the general approach. Accordingly, it is my conclusion that the unclassified employees who are entitled to compensation prior to March 12, 1999, assuming they meet the requirements of Article 31.7.1, are those who filed the individual grievances, those who are covered by the group grievances and the employees at the Stratford Jail who are covered by the Union grievance.
I was referred to a number of GSB decisions which addressed the issue of retroactive payment in circumstances where the violation is of a continuing nature. These cases indicate that retroactivity will normally be limited to the period of time within which it was permissible for a grievor to file a grievance. Under this Collective Agreement that period is 30 days prior to the day the grievance is filed. The GSB has recognized some limited exceptions to the usual rule. Generally, these exceptions arise in circumstances where it would be inequitable for the Employer to rely on the usual rule.
In my view, the circumstances here do not warrant an exception to the usual rule. There is no evidence before me to support the conclusion that the Employer improperly influenced employees to affect or delay the filing of grievances. There are no circumstances present from which one could conclude that it would be inequitable for the Employer to rely on the usual rule. Therefore, the unclassified employees who are covered by the grievances and who are entitled to compensation, should receive compensation starting from a period of time 30 days before the filing of the relevant grievances.
I will continue to retain jurisdiction in order to deal any further remedial issues which may arise between the parties in connection with this matter.
Dated at Toronto, this 10th day of July, 2000.