GSB# 2002-1457, 2002-2196, 2002-2244, 2002-2068, 2003-0268, 2003-0891, 2003-3699, 2003-3765, 2003-3952, 2003-4110, 2004-0251, 2004-1297, 2004-1298, 2004-1448, 2004-1546, 2004-1576, 2004-1786, 2004-2862

UNION# 2002-0234-0068, 2002-0234-0106, 2002-0234-0107, 2002-0233-0035, 2002-0233-0037, 2002-0234-0105, 2003-0521-0020, 2003-0521-0057, 2003-0467-0048, 2003-0999-0033, 2004-0467-0002, 2004-0999-0001, 2004-0582-0002, 2004-0467-0013, 2004-0467-0014, 2004-0234-0398, 2004-0368-0045, 2004-0368-0049, 2004-0234-0448, 2003-0234-0129

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cartwright et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors -and- Tim Mulhall Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Sean Kearney Senior Counsel Management Board Secretariat

HEARING

October 5, 2005.

Decision

At issue is whether the Employer, the Ministry of Community Safety and Correctional Services, has violated the collective agreement, specifically Article 8.5.2, when it failed to pay to the grievors the negotiated OPSEU wage increases while they served in temporary acting assignments as Operational Managers. Article 8.5.2 provides as follows:

When an employee is temporarily assigned to a non-bargaining unit position, he or she shall continue to pay dues to OPSEU and continue to be covered by the Collective Agreements for the entire term of the temporary assignment.

It is the Union's contention that this provision provides that the grievors, while on temporary assignment outside of the bargaining unit, remain covered by the collective agreement, and are therefore entitled to benefit from all of its provisions, including negotiated pay increases to their home position. The Employer strongly disputes this contention.

Facts

At the hearing, the parties agreed to an Agreed Statement of Facts and the Employer called one witness. The Agreed Statement of Facts states as follows:

1. The grievors Robert Cartwright, Kevin D'Andrea and Richard Camman were (and are) correctional officers. As of January 1, 2002 they were Correctional Officers 2 at the top step in the pay grid (page 351 of the Collective Agreement).

2. As set out in the Comparative Analysis [a separate document prepared by the Employer], entered into as an exhibit in these proceedings, on November 5, 2001 Mr. Cartwright was temporarily assigned to the position of Operational Manager, a non-bargaining unit position. He remained in the acting position until February 25, 2002 when he returned to his CO2 position. He was again given a temporary assignment as an Operational Manager as of May 6, 2002 and held the position until September 6, 2004, on which date he returned again to his CO2 position.

3. Similarly Mr. D'Andrea was temporarily assigned to the acting OM position on May 29, 2001. He went back to the CO2 assignment on February 25, 2002 and was reassigned to the acting OM position on May 6, 2002. He returned to the CO2 position on September 6, 2004.

4. Mr. Camman was temporarily assigned to the acting OM position on July 20, 2001, returned to the CO2 position on February 25, 2002, and was back as an acting OM on May 6, 2002. He returned to his CO2 position on February 17, 2003, was reassigned as an acting OM on April 22, 2003 and held that assignment through December 31, 2004.

5. The Collective Agreement in force for the period January 1, 2002 to December 31, 2004 was entered into in May, 2002. Included in the terms were those in Article COR 16 (page 333) providing for wage rate increases effective on the dates set out in the Article.

6. The longstanding practice in the Ontario Public Service for bargaining unit employees placed into temporary management assignments outside the bargaining unit has been to pay them at least 3% more than they were being paid in their home position at the commencement of the assignment. It is possible to be paid more than 3% depending on the nature of the temporary management assignment that is being commenced. The Union has been aware of this longstanding payment and never objected. Nor has AMAPCEO or PEGO ever objected to their members receiving higher pay while on temporary assignment outside their bargaining units.

7. With respect to those bargaining unit members who are placed into temporary assignments in management the Pay on Assignment Operating Policy has been in effect since 1996 and sets out how employees are to be paid during their temporary assignments.

8. More recently, on April 1, 2002, the Pay for Performance Policy was also implemented. This policy sets out annual pay increases on April 1 of each year of between 0 and 8% to management and acting management employees based on their performance. This policy replaced a merit based system for management employees which provided for annual pay increases of 0 to 5%. While those at the top of the management salary range were not entitled to receive annual increases under the old merit based system, they are entitled to lump sum payments under this new policy.

9. Both the Pay on Assignment Operating Policy and the Pay for Performance Policy were determined by the Employer, and the Union played no role in the design of either policy. Both policies will be entered as exhibits for the purpose of these proceedings.

10. The Employer says that while on temporary assignments as Operation Managers, the grievors Cartwright, D'Andrea and Camman were paid in accordance with the Pay on Assignment Operating Policy and the Pay for Performance Policy. The above grievors say they were not paid in accordance with the policies. The Employer maintains that these grievors have been paid pursuant to the aforementioned policies while the Union takes no position on this issue. It is agreed that neither the Public Service Grievance Board nor the Grievance Settlement Board have jurisdiction to determine whether the grievors were in fact paid in accordance with the two aforementioned policies. The policies do not provide for an independent binding resolution of any disputes between the employees covered by the policies and the Employer, although the Employer has advised that it will compensate anyone, including the three grievors, who have not been paid in a manner consistent with the pay policies.

11. The grievors Cartwright, D'Andrea and Camman were on acting Operational Manager assignments during all or part of the period January 1 to March 31 in each of the three years covered by the collective agreement. During those respective time periods, they received increases pursuant to the Pay on Assignment Operating Policy and the pay for Performance Policy but were not paid the increases set out in Article COR 16. Increases paid under the Pay on Assignment Operating Policy and the Pay for Performance Policy were effective April 1 of each of those years, if they were applicable to the three grievors.

12. When the three grievors returned to their "home" assignments as CO2's, they were paid as per COR Article 16. The Pay on Assignment Operating Policy stipulates that upon reassignment to one's home position, an employee must receive the rate of pay he or she would have attained if they acting assignment had not happened.

The parties also agreed that the treatment of OPSEU employees in regard to pay while on acting management assignments has not been the subject of collective bargaining negotiations between the parties.

Ms. Carmen Penn, a Senior Policy Analyst at Ontario Shared Services, since 1994, testified regarding the Pay on Assignment Operating Policy and its practices prior to that policy as well. The Pay on Assignment Operating Policy was implemented in 1996 and it superseded the Manual of Administration. She testified that under both policies, an employee's salary, while on temporary assignment, did not track annual increases to their home position. She stated that the Employer has "never done that." Instead, while on the acting assignment, the employee's salary would be "governed by the acting position, regarding adjustments." These included merit increases under the old system, and pay for performance increases under the new system, as well as general, across-the-board increases for management personnel.

On cross-examination, Ms. Penn acknowledged that those general salary increases, until 2002, were "pretty much the same" as the OPSEU increases and that, until April 2001, those general increases took place on January 1, the same time as the OPSEU increases. In 2001, however, with the advent of the Pay for Performance policy, all management salary increases (general increases and pay for performance) became effective April 1, instead of January 1 or the employee's individual anniversary date. This was done to align salary increases to the Employer's fiscal year.

Ms. Penn further testified that when employees on a temporary acting assignment return to their home position, they are paid their home position salary, as if they had never left. If there had been an increase in their home position salary while they were in the acting assignment, they would receive the increased rate, effective their date of return. They would not, however, be provided with any retroactive payment for the period of the acting assignment.

Ms. Penn testified that between 2000 and 2004, there were approximately 1700 acting management assignments, with approximately 400 of them in the Ministry of Community Safety and Correctional Services. The average pay increase received by an employee in an acting management position in the Ministry was 4%. To her knowledge, there have not been any other grievances concerning pay while in acting positions.

The Employer prepared a comparative analysis, which compared the salary (including all increases) for each grievor that they actually received versus what they would have received if they had been paid the OPSEU salary increases in Article COR 16. It also showed what they would have received if they had remained in their home position of CO2. The analysis shows that, for Mr. Cartwright, for the period of January 1, 2002 to February 25, 2002, his salary as an acting manager was less than it would have been if he had remained a CO2. The same is true for Mr. D'Andrea and Mr. Camman. Overall, however, due to various management general increases and Pay for Performance increases, the grievors earned more under the Employer's approach than they would have if they received the CO2 rate, plus three percent.

Positions of the Parties

The Union

The Union alleges that Article 8.5.2 is an unusual provision in that it specifically states that employees, while on temporary assignment to positions outside of the bargaining unit, remain "covered by the Collective Agreements for the entire term of their assignment." This provision, the Union submits, requires that the terms of the collective agreement, including all negotiated wage increases, apply to the grievors while in their acting assignments.

The Union notes that the parties were more specific in Article 8.5.1, in regard to an employee temporarily assigned to a position in another bargaining unit. That provision reads:

Where an employee is temporarily assigned to a position in another bargaining unit for a period of more than thirty (30) days, he or she will on the thirty-first (31st) day commence paying dues and be governed by the terms of the Collective Agreement of the position to which he or she has been assigned except that pensions, insured benefits entitlements, and entitlements under Article 20 (Employment Stability) will continue to be governed by the rules applicable to the employee's position in the OPSEU bargaining unit.

In contrast, it argues, Article 8.5.2 is a more general provision, providing that the OPSEU collective agreement continues to apply.

The Union submits that under Article 8.5.2, the Employer, at a minimum, must provide acting employees with the increases negotiated under the collective agreement, plus 3%. It may choose, then, to pay them more, as it has in the past, with no objection from the Union. It submits that although the Union could object to such extra payments, as the employees' exclusive bargaining agent, the Union has not objected. Any such extra payments, it contends, are gratuitous payments. But what the Employer cannot do, the Union submits, is fail to pay acting employees the negotiated increases. In support, it cites to Re Hamilton Health Sciences Centre and ONA (2004), 2004 CanLII 55275 (ON LA), 125 L.A.C. (4th) 217 (Slotnick).

The Union submits that, for many years, the pay for employees in acting managerial assignments did not cause concern to the employees or the Union because management pay increases followed the OPSEU negotiated increases. Consequently, an employee on a temporary assignment, who received at least a 3% increase upon the commencement of the assignment, kept pace with their home position because management increases paralleled the OPSEU increases.

That all changed, the Union submits, in 2002, with the significant wage increases negotiated by OPSEU for Correctional Officers, effective January 1, 2002. The new collective agreement provided, for Correctional Officer 2s at the highest step, a wage increase of 8.69%. This payment was made in the Fall of 2002, and when the grievors' did not receive it, these grievances followed.

In support of its position, the Union cites to Robert Cartwright and Ministry of Community Safety and Correctional Services, PSGB No. P-2003-1986(2005), in which Vice-Chair O'Neill determined that the Public Service Grievance Board (PSGB) did not have jurisdiction to hear the grievance of Mr. Cartwright – the same grievor in this matter. In that case, Mr. Cartwright, while on an acting assignment as an Operational Manager, grieved regarding applications he had made for a number of managerial postings. The Employer objected to the jurisdiction of the PSGB on the basis that the grievor was a member of the OPSEU bargaining unit, citing Article 8.5.2, and therefore not eligible to grieve the denial of a managerial posting before the PSGB. Vice-Chair O'Neill agreed, concluding that because Mr. Cartwright was a member of the bargaining unit at the time he grieved, he could not, under the Public Service Act, file a grievance before the PSGB. In the Union's view, the Employer cannot have it both ways – argue before the PSGB that Mr. Cartwright is a member of the bargaining unit covered by the collective agreement, and argue here that he is not entitled the benefits negotiated under that collective agreement.

The Union also relies on OPSEU (Gallagher) and Ministry of Government Services (1990), GSB No. 1522/89 (Watters). In that case, the Board ruled at p. 7 that Article 6.1 [which is the same as Article 8.1.1] "is applicable to a temporary assignment outside of the bargaining unit as occurred in this instance." The Board reasoned: "This result flows naturally from a reading of article 6.5 [now Article 8.5.2] which preserves collective agreement rights 'where an employee is temporarily assigned to perform the duties and responsibilities of a position not covered by this Collective Agreement.'"

Finally, the Union cites to Brown and Beatty, Canadian Labour Arbitration, Third Edition, regarding "Alteration of Wages" and "Overpayment". The Union notes that an inequity was created when the Employer adjusted the payment of managerial wage increases and failed to follow the OPSEU increases. This resulted in having acting managers, who started after the January 1, 2002 OPSEU increases took effect, make more money than the grievors who had been acting managers since 2001. The Union contends that this inequitable result must be considered in the interpretation of Article 8.5.2 of the collective agreement.

The Employer

The Employer asserts that the language of Article 8, including Article 8.5.2 is ambiguous, and must be read in light of the parties' consistent past practice to tie an acting employee's salary to their acting position, not their home position. The Employer submits that the employee's home salary is important only for determining their starting salary in the acting position, based on Article 8.1.1. From that point on, however, until the employee returns to his or her home position, the employee's salary is tied to the acting position. It submits that this is how acting assignments have been treated for at least twenty years, and is clearly set out in the Pay on Assignment Operating Policy. The Employer asserts that the Union's position, if accepted, would completely alter this consistent past practice.

The Union's interpretation, the Employer submits, would financially disadvantage many employees on acting assignments – including the grievors, and have huge ramifications. It contends that what the Union is seeking – to tie an acting employee's salary to their home position rate plus 3% - would be detrimental to many acting employees. It argues that the Union cannot have it both ways – tie an acting employee's salary to their home position and yet also be given raises tied to their acting position, even though that is what it seeks.

The Employer contends that because the collective agreement is ambiguous when considered as a whole, its meaning must be determined in light of the parties' consistent past practice. In support of its position that past practice controls where the language of a collective agreement is ambiguous, the Employer cites to Re Community Living Oakville and OPSEU, Local 249 (1997), 1997 CanLII 25139 (ON LA), 61 L.A.C. (4th) 289 (Tims); Quaker Oats Co. of Canada and Service Employees Union, Locla 183 (Robichaud Grievance) (2000), 2000 CanLII 50109 (CA LA), 91 L.A.C. 94ht) 1 (Emrich); OPSEU McEwan and Norman) and Ministry of Community and Social Services (1987), GSB No. 519/85 et al. (Verity).

Alternatively, the Employer submits that the Union is estopped from relying on its interpretation of Article 8.5.2. It submits that all of the elements of estoppel are present in this matter. In this regard, the Employer notes that the Union has never before objected to the Employer's pay practices in regard to acting assignments, nor have the parties tried to bargain any changes. In these circumstances, the Employer contends that the Union cannot rely on its rights under the collective agreement. In support, the Employer cites to Re City of Lethbridge and CUPE, Local 70 (1986), 1986 CanLII 6648 (AB GAA), 26 L.A.C. (3d) 81 (England); Re CN/CP Telecommunications and Canadian Telecommunications Union (1981), 1981 CanLII 4518 (ON LA), 4 L.A.C. (3d) 205 (Beatty), endorsed, Re Canadian National Railway Co. et al. and Beatty et al. 1981 CanLII 2953 (ON HCJDC), [1981], 128 D.L.R. (3d) 236 (Ont. Div. Ct.).

Decision

After carefully considering the language in the collective agreement, the facts and arguments of the parties, I conclude that the grievances must be dismissed.

Article 8.5.2 states as follows:

When an employee is temporarily assigned to a non-bargaining unit position, he or she shall continue to pay dues to OPSEU and continue to be covered by the Collective Agreements for the entire term of the temporary assignment.

Contrary to the Employer's position, I find nothing ambiguous about this language – patently or latently. Employees in acting assignments – where there is no other bargaining unit – "continue to be covered by the Collective Agreements for the entire term of the temporary assignment." Where the employee is temporarily assigned to a position in another bargaining unit, Article 8.5.1 applies. In that case, the employee, after 31 days is "governed by the terms of the Collective Agreement of the position to which he or she has been assigned" with certain exceptions. Therefore, Article 8.5.1 and Article 8.5.2 must be read together to mean that where an employee is temporarily assigned to a "non-bargaining unit position", the OPSEU collective agreement continues to apply. I find no substantive difference in the parties' use of the term "governed by" under Article 8.5.1 and "covered by" under Article 8.5.2.

This conclusion that the collective agreement continues to apply to employees in temporary positions outside the bargaining unit is supported by decision of the PSGB in Cartwright et al. and Ministry of Community Safety and Correctional Services, supra, as well as OPSEU(Gallagher) and Ministry of Government Services, supra.

The question then becomes whether the collective agreement entitles the grievors to negotiated wage increases in their home position, such as found in Article COR-16, while they are working in an acting management position? In my view, for the reasons expressed below, the answer is "no."

The collective agreement establishes wage rates for work performed in a classification. One must perform work in the classification in order receive pay for that work. When an employee is on a temporary assignment, they are no longer performing work in their home position, but are working in another classification, and their pay is tied to that classification. This is clearly evident from Article 8.

Under Article 8.1.1, when an employee is temporarily assigned to perform the duties of "a classification with a higher salary maximum" for more than five days, he or she must be paid acting pay "in accordance with the next higher rate in the higher classification…." Conversely, where the temporary assignment is to a "position in a classification with a lower salary maximum", and there is no work reasonably available to him in his home classification, the employee "shall be paid the lower applicable classification rate to which he or she was assigned…." Only if there is work available in the employee's home classification does the employee's salary continue "to be paid at the rate applicable to the classification from which he or she was assigned." (emphasis added) This provision obviously protects employees from being assigned to lower classified positions, when work in their own, higher paid classification is available. Yet the fundamental idea that an employee is paid for the work performed in a temporary assignment – whether lower or higher - remains.

Essentially, when the grievors were temporarily assigned to acting operational manager positions, they were not working as CO2s, and were not entitled to receive the negotiated wage increases for CO2 work under Article COR 16. Even though the collective agreement continued to apply to them, they were not entitled to benefit from that provision since they did not perform CO2 work.

Nor were the grievors entitled to the negotiated increases under Article 8.1.1. In the Union's submission, the grievors, while working as temporary acting managers, should have received the pay increases provided to the CO2s under Article COR 16. In part, this is based on the view that an acting employee receives their home position pay, plus a minimum of 3%. This is based on Article 8.1.1. But that provision deals only with determining the level of pay at the commencement of the acting assignment. Under this provision, the employee's home position salary is compared to the "next higher rate in the higher classification." If that results in at least a three percent increase, he or she is paid that next higher rate. However, if "such a change results in an increase of less than three percent (3%), [then] he or she shall receive the next higher salary rate again." This provision, however, does not thereafter tie the acting employee's salary to their home position, plus three percent, for the duration of the acting assignment.

By its terms, Article 8.1.1 does not provide for that, nor does the parties' past practice support such an interpretation. On the contrary, the parties' past practice clearly demonstrates that an acting employee's salary, while in the temporary assignment, is tied to the acting position. The Union submits, however, that the parties' past practice reveals no such thing. It notes that increases received by acting managers, until 2001, always paralleled the OPSEU increases, thereby maintaining the minimum three percent differential – irrespective of whether the increases were labelled the OPSEU increases or the management ones. The evidence of Ms. Penn, however, was that the increases received by acting managers were managerial increases, not OPSEU increases, although the management increases generally followed the OPSEU increases. But even more importantly, she testified that acting managers also received merit increases, and more recently, pay for performance increases – increases only available to managerial employees. The Agreed Statement of Facts and the comparative analysis confirm that the grievors received increases pursuant to the Pay on Assignment Operating Policy and the Pay for Performance Policy during their acting assignments. This fact demonstrates that an employee on a temporary acting assignment is paid based on the work they perform during that assignment – not based on their home position.

Further, when employees return to their home position, their salary is again tied to their home position, including any negotiated increases to that position, since that is the work they will again be performing. Thus, the grievors when they returned to their home position of CO2 on February 25, 2002, received the benefit of Article COR 16. An employee returning to their home position, however, does not receive any retroactive payments for those increases for the time period that they worked in the acting position. Consequently, it is clear that an employee's pay is tied to the classification of the work they are performing.

In sum, while the grievors were in acting operational manager assignments, they were no longer working as CO2s. They were therefore not entitled to the CO2 wage increase. Instead, while they were acting as operational managers, their pay was tied to that higher classification. I find, therefore, that the Employer did not violate the collective agreement when the Employer did not apply Article COR 16 to the grievors' wages, while they worked in their acting assignments.

Further, in the alternative, even if I am wrong regarding this interpretation of the collective agreement, I would find that the Union is estopped from asserting its rights under the collective agreement. In this regard, I find all of the required elements of equitable estoppel to be present. There has been a very lengthy past practice to tie an acting employee's salary, including any increases, to their acting position, not their home position. Throughout this time, the relevant collective agreement language has remained unchanged. The Union has never challenged management's actions in this regard, until these grievances, and consequently, the parties have not dealt with this issue in collective bargaining. In these circumstances, it would be inequitable for the Union to now assert that that the Employer is violating the collective agreement in the manner alleged.

In so ruling, I realize that for a period of time, due to the substantial wage increase provided for CO2s under Article COR 16 – an 8.69% increase – the grievors were temporarily financially disadvantaged by their acting assignment. From January 1, 2002 until February 25, 2002, they were actually making less than the CO2s they were managing, a situation which is quite strange. Likewise, an employee starting an acting assignment immediately after January 1, 2002, would have been paid more than the grievors for the same work. These circumstances, though difficult for the grievors, were not caused by any violation of the grievors' rights under the collective agreement. Consequently, although I am sympathetic to the grievor's situation for the period from January 1, 2002 to February 25, 2002, I have no authority to provide a remedy, since there has been no violation of the collective agreement.

Similarly, I have no jurisdiction to rule on the grievors' assertions that they were not paid in accordance with the Pay on Assignment Operating Policy or the Pay for Performance Operating Policy. Nevertheless, I would note that it seems very unfair that no process exists for an acting manager to challenge the Employer's compliance with its own policies. The grievors, when in an acting managerial position, appear to be in a "no man's land", whereby neither the PSGB nor the GSB have jurisdiction over such claims. I would urge the Employer to review this situation and determine an appropriate method of providing the grievors, and similarly situated others, with an avenue for potential redress.

Conclusion:

1. I conclude that under Article 8.5.2, the collective agreement continues to apply when "an employee is temporarily assigned to a non-bargaining unit position."

2. I conclude, however, that the collective agreement does not give the grievors, while working in a temporary operational manager assignment, the right to receive the negotiated wage increases under Article COR 16 for a CO2 position. Nor are they entitled to that wage rate under Article 8.1.1.

3. Even if this interpretation of the collective agreement is wrong, I conclude that the Union is equitably estopped from enforcing its rights under the collective agreement.

4. The grievances are dismissed.

Issued at Toronto this 11th day of October, 2005.