GSB# 1999-1977, 2000-1013, 2001-0969, 2001-0970

UNION# 00D159, 00D390, 01B311, 01B312

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Anthony et al.)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Richard Blair Ryder, Wright, Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Andrew Baker Counsel Management Board Secretariat

HEARING

March 12, 2002.

WRITTEN SUBMISSIONS

December 18, 2003; January 14, April 27, 2004.

Award

The grievances at issue relate to the implementation of a Memorandum of Agreement entered into between the parties on April 18, 2000. The Employer has moved to dismiss the grievances. This Award addresses the Employer's motion.

Facts

The parties proceeded by way of written facts supplied by the Union. For the purposes of its motion to dismiss, the Employer took the position that the accuracy of the facts supplied by the Union was not relevant, but that, if necessary, it would be prepared to rebut a number of the Union's submissions.

The facts supplied by the Union are as follows:

1. In negotiations for the Collective Agreement for the period January 1, 1999 to December 21, 2001, the Union and Employer negotiated a new pay framework for the Inspector, Auditor and Investigator classifications in the ADM (administrative) bargaining unit. The manner of implementation of that framework, which is Exhibit 1 in these proceedings and is contained at pages 188-191 in the Collective Agreement, was not finalized. The Letter of Understanding setting out the framework is dated June 25, 1999.

2. Subsequently, OPSEU took issue with the Employer in respect of the manner of implementation of the framework, and a Union grievance – Policy Grievance #00U031- was filed.

3. That grievance was subsequently settled by memorandum of April 18, 2000.

4. Although the April 18 memorandum was entered into, and resolved certain issues concerning the implementation of the June 25, 1999 Letter of Understanding, the Letter of Understanding dated June 25, 1999 remained in force and was not superseded by the Memorandum of Agreement dated April 18.

5. In the meantime, numerous individual grievances concerning placement on the pay grid had been filed. Some were withdrawn. Others were not, including the grievances of Robert Wright, Robert Anthony, Judith Cragg, Anne Hoy, and Diana Pawlick-Bradley. In addition, further grievances, including grievances which allege that the Employer had acted improperly by implementing the April 18 settlement, were filed, including the grievances of Steven DePhrophetis, Dale Moreau, and Mark Shurvin.

6. In addition, grievances were filed alleging that some employees with less years of service than the grievors had been preferentially granted accelerated progress through the wage grid, resulting in a comparative wage disadvantage to employees with greater service in the same classification.

7. In the April 18, 2000 memorandum the Union and Employer agreed that effective January 1, 1999, employees who were paid at the maximum rate of their previous class for a period of 12 months or more would be assigned a new anniversary date of January 1, 1999, and any wage adjustments would be made accordingly. In practical application, such persons were therefore placed on the new wage grid at step 1 effective January 1, 1999 and, due to the stipulated anniversary date, were given their anniversary date "bump" on the grid to the second level.

8. By contrast, persons who had been at the maximum of their previous class for less than 12 months, or who had not attained the maximum of the previous class, retained their original anniversary date. As a consequence, they were placed at the first step of the new grid, and did not become entitled to advancement through the grid until their actual, unadjusted anniversary dates.

9. The effect of using time spent at the top of the previous grid, as opposed to years of service, was to create significant anomalies. For example, Occupational Health and Safety Officers were previously under a three-step grid; Employment Standards Officers were on a five-step grid; Employment Standards Auditors were on a six-step grid. On this basis alone, the April 18, 2000 memorandum resulted in a situation where a Health and Safety Officer would be at the top of the previous grid – and possibly have been so for twelve months – significantly sooner than the Employment Standards Officers and Auditors, and, as a result, would have entitlement to the altered January 1, 1999 anniversary date where more senior employees in the Employment Standards classification did not.

10. The effect of this was seriously exacerbated by the effect of the Social Contract Act. Because that Act "froze" persons for a three year period ending in 1996, Employment Standards Officers and Auditors hired in the early 1990's were still, by January 1, 1999 either not at the top of their previous grid or had not been at the top for a twelve-month period. Such persons, including the grievors, were at a disadvantage by comparison to later hires unaffected by the provisions of the Social Contract. Comparatively, an Employment Standards Officer/Auditor hired in 1990, and a Health and Safety Officer hired in 1996, would end up in the same place in the new pay framework by 2002 or 2003.

11. As a consequence of the application of the Memorandum an employee hired on January 1, 1999 would be placed at the bottom of the grid – together with employees with many years of service who, by reason of not yet having twelve months at the maximum of their old grid, were placed there also.

12. It was not the intention of the April 2000 Memorandum or the implementation of the new wage framework that junior employees would be advantaged by comparison to more senior employees. The intention of the new pay framework, rather, was to provide separation between senior employees and less senior employees and new hires within their classification.

13. The June 25, 1999 agreement pursuant to which the negotiated framework was initially implemented stated: "Employees whose current salaries are below the minimum of the new range for their revised class shall move to the new minimum." The agreement also stated, "Employees whose current salaries are equal to or between the minimum and the maximum of the new range for their revised class shall move to the step that is closest to but not less than their existing rate of pay."

14. At least one of the grievors – Mr. Stepphen DeProphetis – was entitled, by virtue of the application of his old anniversary date of March 17 (Mr. DeProphetis had not been at the top of the grid on January 1, 19999) to move to the top of the old grid on April 1, 1999 – rate of $1028.60 per week. That salary was, in fact between the minimum and maximum of the new range ($1000.000 and $1158.00 per week respectively).

15. Although Mr. DePhrophetis' salary, current as of the June 25, 2000 date of signing of the Agreement at page 188 of the Collective Agreement, was between the minimum and maximum of the new range as it applied to Employment Standards Auditors, he was nonetheless placed at the bottom of the new grid, which was less than his then current rate of pay.

16. Additionally, each employee in the ADM unit was entitled, by virtue of the general wage increases negotiated in the collective bargaining process, to a 1% wage increase effective January 1, 1999. With respect to persons who were at the "old" fourth step of the Employment Auditor 2 class - $991.75 – the result of the 1% increase was to move that rate to $1001.67 effective January 1, 1999, as reflected in the wage schedule forming part of the 1999-2001 collective agreement. This rate also falls between the minimum of maximum of the range negotiated as part of the new framework which, as noted above, were $1000.00 and $1158.00 respectively. Notwithstanding this, Employment Standards Auditors at the fourth step fo the old grid were placed at the first step rather than the second step. The first step fo the new grid, before application of the 1% increase to that grid, was $1000.00, less than the $1001.67 rate.

17. Subject to the factual issues related in paragraphs 14, 15, and 16 above, there is no dispute that the employees who were selected to receive the January 1, 1999 anniversary date were those who were identified by the Memorandum of Settlement as determined by the Employer. Further, there is no dispute between the Employer and the Union that, subject to paragraphs 14, 15 and 16 above, the Employer adhered to the Letter of Understanding and the settlement of April 18, 2000.

18. As noted above, there were additional grievances concerning the issue of some employees having received preferential acceleration through the pay grid. In particular, grievances were also filed by Steven DeProphetis, Dale Moreau, and Mark Shurvin in October/November 2001 alleging that certain employees with less years of experience as Employment Standards Auditor 2's than the grievors were receiving a higher rate of pay relative to the grievors, and had benefited from an expedited merit increase.

19. More particularly, employee and ESA 2 Rick Hughes was on a temporary assignment from his ESA position to the position of Provincial Specialist in the AMAPCEO bargaining unit from December 1999 to July 20, 2001. Upon his return July 23 to his ESA position, he was placed in the highest level of the new wage grid, based on the Employer ascribing to him merit increases that he "would have received" had he been in the ESA position. This is conformed in a memorandum dated July 30, 2001 from Hamilton District Manager Duncan Martin.

20. Management Board of Cabinet has issued a directive, dated December 6, 1996, which notes that merit increases are based on performance during the past review period and are "predicated on the employee having been in attendance on the job sufficiently for managers to assess the employee's performance."

21. The ESA 2 position left vacant by Mr. Hughes during his acting assignment was filled, on a secondment, by Ms. Connie McCourt. During her secondment, Ms. McCourt received an expedited merit increase, as a result of which she earned the same rate of pay as the three grievors despite fewer years on the job.

22. The grievances allege that the Employer has acted unreasonably, improperly and inequitably, and in a discriminatory manner, by paying certain employees with less years of experience as ESA 2's a higher rate of pay than the grievors even though the grievors have more experience in the job.

Positions of the Parties

A. For the Employer

The Employer moves to dismiss all of the grievances. In terms of the grievances related to paragraphs 1-17, it asserts that there is no dispute between the parties under the collective agreement. It asserts that the case law is clear that where no dispute exists between the parties, the Board has no jurisdiction over the matter. In support, it cites to OPSEU (Amaral et al.) and Ministry of Finance, GSB No. 1636/98 (Carrier); OPSEU (Hartley) and Ministry of Transportation, GSB No. 2446/96 (Fisher).

In regard to paragraphs 18 –22, the Employer moves to dismiss the grievances on the basis that the allegations do not cite a breach of the collective agreement and do not raise a prima facie breach of the collective agreement. It notes that the Union has not alleged a breach of the wage provisions or any provision of the collective agreement.

The Employer further asserts that its decisions regarding the merit increases of the two cited individuals were appropriate and do not constitute preferential treatment, as alleged. Nevertheless, it asserts that the union has not asserted how the Employer's actions discriminated against the grievors, nor asserted how its alleged preferential treatment of the two individuals could be considered a decision that was made in bad faith or in a discriminatory manner towards the grievors. It contends that there is no allegation that the grievors were detrimentally impacted by the Employer's decision in regard to the merit increases of the two cited individuals. It relies on OPSEU (Ashley et al.) and Ministry of Community, Family and Children's Services, GSB No. 2001-1700 et al) (Abramsky), that for proposition that for the Board to exercise jurisdiction to review an area reserved to management's discretion (merit increases), the decision must impact a right contained in the collective agreement.

B. The Union

The Union asserts that its facts do raise an issue between the parties, as set out in paragraphs 14 to 17. It submits that there was no general statement to the effect that there was no dispute between the parties.

In terms of paragraphs 18 to 22, the Union asserts that the Board has the jurisdiction to determine whether the administration of the pay provisions of the Collective Agreement have been undertaken in a fair and equitable manner free from arbitrariness or bad faith. It asserts that the salary treatment of the two individuals created an invidious situation in which employees with substantially different years of experience are being paid the same amount for the work in question, and contravened the Employer's own policy. In support of its argument concerning the Board's jurisdiction, the Union cites to Re Metropolitan Toronto and Toronto Civic Employees Union, Local 43 et al. (1977), 1977 CanLII 1278 (ON HCJ), 79 D.L.R. (3d) 249 (Ont. Div. Ct.) and Re York University and York University Faculty Association (1980), 1980 CanLII 4081 (ON LA), 26 L.A.C. (2nd) 17 (Beatty).

Decision

A. The Motion to Dismiss in Relation to Paragraphs 1-17.

The Board's case law is clear that where no difference or dispute exists between the parties, the Board has no jurisdiction to proceed and the grievances must be dismissed. OPSEU (Hartley et al) and Ministry of Transportation, supra; OPSEU (Amaral et al.) and Ministry of Finance, supra. In this case, that principle applies except in relation to paragraphs 14-16. Those paragraphs allege that the Employer failed to comply with the terms of the parties' agreements. In relation to these paragraphs, there is clearly a difference between the parties. Accordingly, in relation to paragraphs 1 to 17, the grievances are dismissed except in relation to paragraphs 14 to 16.

B. The Motion to Dismiss in Relation to Paragraphs 18 –22.

These paragraphs assert that the Ministry preferentially treated two employees in relation to their merit pay increases and, by doing so, acted unreasonably, improperly, inequitably and in a discriminatory manner. This preferential treatment, the Union alleges, resulted in their being paid at the same level as the grievors who had more years of service.

It is easy to appreciate the grievors' frustration and their feelings of unfairness in relation to the April 18, 2000 memorandum of agreement. The terms of that agreement, in light of the number of steps in their former pay scale combined with impact of the Social Contract Act, created, as the Union asserts, "significant anomalies." It is also easy to appreciate their frustration in regard to the merit increases received by Ms. McCourt and Mr. Hughes. Unfortunately, despite the sympathy I feel for the grievors, I find that this is not a case over which the Board has jurisdiction.

The problem is that the Union has not alleged any unfairness or discrimination in regard to the Employer's actions in relation to the grievors. It has alleged improper action in relation to two other individuals – Mr. Hughes and Ms. McCourt - which it asserts resulted in an inequitable situation. But for the Board to have jurisdiction, an inequitable situation is not enough. In OPSEU (Ashley et al) and Ministry of Community, Family and Children's Services, supra at p. 14-15, the Board held:

The decision in OPSEU (Bousquet), supra, does not assist the Union. The Board in that case did not adopt a general duty of good faith and reasonableness in the exercise of management rights. …[U]nder Bousquet, supra, the jurisdiction of the Board to review the Employer's exercise of a right reserved to management is derivative – it depends on the existence of a provision in the collective agreement which might be adversely affected by management's actions.

The Board's jurisdiction depends on an allegation that the Employer's action interfered with the grievors' rights under the collective agreement. In this case, those elements are missing. There is no allegation that the Employer improperly denied the grievors a merit pay increase – only that the Employer improperly granted it to Hughes and McCourt. Nor is there an allegation that the Employer's actions impacted any rights of the grievors' under the collective agreement.

The decisions cited by the Union do not support a different conclusion. In Re Municipality of Metropolitan Toronto, supra, it was determined that the method by which the Employer transferred the grievor (pursuant to its management rights under the collective agreement) was unfair to him. The Court held that there was a duty to act fairly towards employees "in the administration of the agreement." In Re York University, supra, it was determined that the employer had acted arbitrarily and discriminatorily towards the grievors. The board of arbitration held that the employer had a duty to act fairly and without discrimination "in exercising their discretion under a collective agreement in the absence of clear language to the contrary." (26 L.A.C. (2nd) at p. 18). In this case, there is no allegation that the Employer acted improperly toward the grievors, or that it violated the collective agreement.

Accordingly, I conclude that the grievances as they relate to paragraphs 18-22 must be dismissed.

Conclusion:

For all of the foregoing reasons, I conclude:

1. The grievances as they relate to paragraphs 1-17 are dismissed, except as to paragraphs 14-16.

2. The grievances as they relate to paragraphs 18-22 are dismissed.

Issued at Toronto this 28th day of April, 2004.