GSB# 2001-1151

UNION# 2001-0517-0123

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(May 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

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Felix Lau Counsel Ministry of Government Services

HEARING

May 2, 2006 and April 10, 2007.

Decision

There are 193 individual grievances in this matter, all of which allege as follows:

I grieve that management violated, but not limited to Art. 2, Art. 6 and the correctional salary schedule of the collective agreement by providing unequal pay for the same work.

The Employer has denied any violation of the collective agreement and has also raised a preliminary objection to the grievors’ claim regarding the salary schedule. This Decision addresses both the Employer’s preliminary objection and the merits of the grievance.

Facts

The parties proceeded by way of an Agreed Statement of Facts and documents. They are as follows:

1. By the summer of 2001 the Employer experienced staffing pressures at the Toronto East Detention Centre and the Toronto Jail. The Employer had a two-step response to the staffing pressure.

2. The first step involved the Employer requesting from Correctional Staff, those in the classified and unclassified service, at the Vanier Centre for Women and Maplehurst Correctional Centre whether they were interested in temporary reassignment to the Metro Toronto West Detention Centre and Mimico Correctional Centre.

3. The second step involved the Employer requesting from Correctional Staff, those in the classified and unclassified service, at the Toronto West Detention Centre and Mimico Correctional centre whether they were interested in temporary reassignments to the Toronto East Detention Centre and the Toronto Jail. There was no set number of reassignment opportunities at the time that the expression of interest was posted.

4. In regard to the Toronto West detention Centre, an expression of interest was posted on August 15th 2001 at the Institution’s three bulletin boards. The document was also distributed, via mailboxes in the Institution’s mailroom, to all Department Heads, Operation Managers, East/West Wings, and all other managers. A copy of this document is attached as Appendix 1.

Appendix 1 is a memo to “All Unclassified Correctional Officers” regarding “Availability of Contract Opportunities at Other Institutions.” This memo states as follows:

As a result of staffing pressures at other correctional facilities within the Central Region, I am advising all unclassified correctional officers of the availability of temporary reassignments at the following institutions:

Toronto East Detention Centre; and

Toronto Jail

Unclassified correctional officers who are interested in a temporary interim contract (up to 40 hours per week, plus possible overtime for a maximum period of six months) at one of these institutions, should submit a written request to the undersigned in order to be considered.

Officers who participate in this reassignment will receive additional compensation for travel expenses at the following fixed rates:

• $18.00 per shift in lieu of kilometric rates; and

• Two hours pay per shift in lieu of travel time.

Expressions of interest should be submitted no later than August 23rd, 2001. In the event that classified correctional officers are interested in a temporary assignment to one of the above institutions, they may also submit a request to be considered.

The determination of the number of assignment opportunities will be based upon a review of the staffing needs of the institutions in the Central Region, including the needs of the Toronto West Detention Centre. …

5. Eight Correctional Officers from the Toronto West Detention Centre expressed an interest in a reassignment. The names of the persons who did express an interest are as follows: CO David Brooks (Classified); CO Wayne Pineau (Unclassified); CO Catherine Romans (Unclassified); CO Barb McClelland (Classified); CO John Chandra (Classified); CO John Lawson (Classified); CO Pauline McKnight (Classified); and CO Mark Woods (Classsified). All of the COs with the exception of CO David Brooks obtained temporary reassignments. At the time of the reassignment, CO Brooks was no longer on the Employer’s payroll. The temporary assignments were originally scheduled to last three months, although some individuals subsequently requested extensions. Letters outlining the temporary assignments for each of the officers are attached as Appendix 2.

Appendix 2 is a memo concerning “Temporary Assignment Toronto East Detention Centre” and provides, in relevant part, as follows:

Please be advised that, in accordance with your response to …[the] memorandum dated August 15, 2001, titled “Availability of Contract Opportunities at Other Institutions”, you will be assigned Correctional Officer duties at the Toronto East Detention Centre effective Monday September 17, 2001. …

During this assignment, you will be reimbursed for travel expenses in accordance with Mr. Carroll’s August 15, 2001 memorandum, specifically, $18.00 per shift in lieu of kilometric rates, and two (2) hours pay per shift in lieu of travel time.

The assignment will be for a period of approximately three (3) months, and upon its conclusion, you will return to your position at the Metro West Detention Centre. You may or may not return to your current work assignment or schedule.

6. As part of the reassignment, the individuals selected were provided with additional compensation. They were each paid $18.00 per shift in lieu of kilometric rates and two hours pay per shift in lieu of travel time.

7. CO Wayne Pineau’s reassignment lasted a total of 26 months from September 17th, 2001 until November 17, 2003. CO Pineau received the additional compensations for approximately 16 months from September 17, 2001 until January 31st 2003. Copies of reassignment extensions for CO Pineau are attached as Appendix 3.

8. CO Catherine Romans’ reassignment lasted a total of approximately 20 months from September 17th 2001 until May 26, 2003. CO Romans’ receipt of the additional compensation ended before the end date of her reassignment. Copies of reassignment extensions for CO Romans are attached as Appendix 4.

9. CO Barb McClelland’s reassignment lasted approximately 1 month from September 17th 2001 until October 22nd 2001. CO McClelland received the additional compensation throughout that time. A copy of a letter terminating the reassignment for CO McClelland is attached as Appendix 5.

10. CO John Chandra’s reassignment lasted a total of approximately 20 months from September 17th 2001 until May 23rd 2003. CO Chandra received the additional compensation for approximately 16 months from September 17th 2001 until January 31st 2003. Copies of reassignment extensions for CO Chandra are attached as Appendix 6.

11. CO John Lawson’s reassignment lasted a total of approximately 24 months from September 17th 2001 until September 28th 2003. CO Lawson received the additional compensation for approximately 16 months from September 17th 2001 until January 31st 2003. Copies of reassignment extensions for CO Lawson are attached as Appendix 7.

12. CO Paul McKnight’s reassignment was effective September 17, 2001 but she did not report.

13. CO Woods’ reassignment lasted a total of 2 months from September 17, 2001 until November 17, 2001. CO Mark Woods received the additional compensation for a total of 2 months. Copies of reassignment extensions for CO Woods are attached as Appendix 8.

14. There were no further expressions of interest posted at the Metro West Detention Centre with respect to these temporary assignments. No other employees at the Metro West Detention Centre were given the opportunity to fill these reassignments and no other employees applied to be reassigned.

15. In the fall of 2001, 193 individual grievances were filed alleging a violation of Articles 2 and 6 of the Collective Agreement. A same grievance and list of Grievors is attached as Appendix 9.

All of the grievors are Correctional Officers at the Toronto West Detention Centre and did not apply for the reassignments. They were paid according to the collective agreement. Further, all of the extensions of the reassignments were at the request of the individual Correctional Officers, not the Employer.

Positions of the Parties

1. The Employer

The Employer raised a preliminary issue in regard to the grievors’ ability to grieve about compensation paid to other employees. It asserts that the grievors’ have no individual claim since it is undisputed that they were paid in accordance with the collective agreement. It asserts that they may not bring a “me too” claim when they have suffered no loss or had any of their rights violated. To rule otherwise, the Employer asserts, would allow employees to challenge actions that the Employer has made in relation to other employees. It asserts that this would be inconsistent with GSB case law which requires that a grievor be materially affected by the Employer’s action. In support, the Employer cites to OPSEU (Anthony et al.) and Ministry of Labour (2004), GSB No. 1999-1977 et al. (Abramsky); OPSEU (D. Meades) and Ministry of Correctional Services (1989), GSB No. 1322/88 (Kirkwood). The Employer submits that the Union may have had a valid claim regarding the terms of the reassignments in issue here, but not the individual grievors. In support, it cites to Re Toronto Workers International Union, Local 323 and Imperial Tobacco Co. (Ontario) Ltd. (1972), 1972 CanLII 1962 (ON LA), 24 L.A.C. 417 (H.D. Brown).

On the merits, the Employer claims that there is no violation of Article 6 here because the reassignments were temporary assignments and Article 6, the posting provision, did not apply. It asserts that the assignments here were not “vacancies” in the classified service within the meaning of Article 6, and that under the terms of Article 8.6.1, there was no requirement to post these temporary positions. It also relies on Article 8.6.2 of the collective agreement, and Article 22.14.6 which states that the “GSB shall have no jurisdiction to alter, change, amend or enlarge any provision in the Collective Agreement.” In support, the Employer cites to OPSEU (D’Silva) and Ministry of Environment (1989), GSB No. 0538/88 (Dissanayake); OPSEU (Fox) and Ministry of Correctional Services (1990), GSB No. 663/90 (Wright); OPSEU (Union Grievance) and Ministry of Correctional Services (1994), GSB No. 1681/91 (Watters); OPSEU (Union Grievance) and Management Board Secretariat (2000), GSB No. 0105/99 (Mikus); OPSEU (Union Grievance) and Ministry of Housing (1991), GSB No. 3017/90 (Watters) and OPSEU (Union Grievance) and Ministry of the Solicitor General and Correctional Services (1999), GSB No. 2061/94 (Briggs).

The Employer acknowledges that the August 15, 2001 memo regarding the expression of interest in the temporary reassignment was addressed to “All Unclassified Correctional Officers”, but it asserts that this did not violate the collective agreement. It contends that of the eight Correctional Officers who applied, six were classified officers. Therefore, it asserts that classified employees were fully aware of this opportunity.

The Employer further argues that there can be no independent violation of Article 2 – that any claim that the Employer is not acting fairly must be in relation to rights under the collective agreement. Here, it asserts because there is no violation of Article 6 or any other right under the collective agreement, and therefore, there can be no violation of Article 2. In support, it cites to OPSEU (Anthony et al.) and Ministry of Labour (2004), GSB No. 1999-1977 et al. (Abramsky); OPSEU (D’Silva) and Ministry of Environment, supra.

2. The Union

In regard to the preliminary issue, the Union asserts that the grievors are directly affected by management’s actions in this matter. It claims that one of the fundamental purposes of a collective bargaining agreement is to ensure consistency in compensation – equal pay for equal work. Where the Employer pays other employees more for doing the same work, it asserts that this gives rise to an individual claim under the collective agreement. Counsel for the Union argues that the Union also may have had a valid grievance here because the Employer failed to pay kilometers and travel time in accordance with the collective agreement and therefore, in effect, individually bargained with the employees in violation of its right of exclusive representation. But it asserts that any claim that the Union may have made does not detract from the grievors’ ability to grieve management’s actions. The Union notes that, unlike some collective agreements, this collective agreement provides very little difference between what an individual and what the Union may grieve. In support, the Union cites to OPSEU (Arlene Hawley) and Ministry of Natural Resources (1988), GSB No. 2592 (Dissanayake). The Union submits that the issue of remedy for the grievors is different than the issue of whether or not they have the right to grieve what occurred.

On the merits, the Union argues that there has been a violation of Article 6 of the collective agreement. It asserts that four of the reassignments lasted far longer than the original three months, including two which lasted 20 months, one that lasted 24 months and one that lasted 26 months. In light of this, the Union asserts that “vacancies” did exist and the requirements of Article 6 applied.

The Union further argues that the Employer acted improperly when it posted the August 15, 2001 memo only to “All Unclassified Correctional Officers”. Although the memo, in a paragraph, stated that classified Correctional Officers may also submit a request to be considered, the memo was not addressed to them. As a result, the Union asserts that many classified Correctional Officers would not have known about the opportunity and did not apply. It suggests that the 193 grievances filed in this matter should be viewed as additional “expressions of interest” in the reassignment.

Decision

1. The Preliminary Issue

Upon careful consideration of the facts and case law, I conclude that the grievors may not raise a claim concerning the wages or compensation paid to other employees. The case law is clear that an employee “should be able to grieve any employer conduct which affects him/her in a material way and which he/she feels is in contravention of the collective agreement.” OPSEU (Arlene Hawley) and Ministry of Natural Resources, supra at p. 5. Or, put differently, an individual “cannot pursue a grievance if the individual is not directly affected by the circumstances giving rise to the grievance.” OPSEU (Meades) and Ministry of Correctional Services, supra at p. 7.

In OPSEU (Anthony et al.) and Ministry of Labour, supra, a similar situation arose. In that case, among other claims, three individual grievors alleged that two other employees, with substantially less seniority, had been unfairly given merit increases which resulted in their being paid the same as the grievors. The Employer moved to dismiss these claims asserting that the Employer’s actions did not discriminate against the grievors and that they had not been detrimentally impacted by the Employer’s actions. The Union claimed that the Board had jurisdiction to determine whether the administration of the pay provisions of the collective agreement was done in a fair and equitable manner, free from arbitrariness and bad faith. It claimed that the salary treatment of the two favoured individuals created an invidious situation in which employees with substantially different years of experience were being paid the same amount for the work in question.

In dismissing the grievances, the Board stated as follows at pp. 7-8:

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 the 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 is asserts resulted in an inequitable situation. But for the Board to have jurisdiction, an inequitable situation is not enough. …

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 same reasoning applies here in terms of the grievors’ claim pertaining to “the correctional salary schedule of the collective agreement by providing unequal pay for the same work.” It is undisputed that the grievors were paid in accordance with the collective agreement. Their claim is that the Employer paid six other employees – the ones who were reassigned to the Toronto East Detention Centre – more. Although this may have created an inequity, it does not give rise to a claim or difference that directly affects the grievors. As established in OPSEU (Anthony et al.), supra, an individual may not grieve the Employer’s actions in regard to the compensation of other employees.

Without question, the Union would have had a valid grievance concerning what occurred. The Employer offered employees terms inconsistent with the collective agreement. The collective agreement does not provide for a “fixed” payment of $18.00 per shift in lieu of kilometric rates or guarantee two hours of pay per shift in lieu of travel time. When the Employer made this offer and paid it, it was in violation of the collective agreement and violated the Union’s right of exclusive representation. The Union, however, did not grieve the Employer’s action. Although some issues may give rise to both a Union and individual grievance, as occurred in OPSEU (Arlene Hawley), supra, for an individual grievance the Employer’s conduct must affect the individual in a material way.

Accordingly, the Employer’s preliminary motion to dismiss the grievors’ claim in regard to the salary schedule is allowed.

2. The Merits

I further conclude that there has been no violation of Article 6 of the collective agreement. I base this conclusion on the specific facts of this case, the provisions of the collective agreement and the relevant jurisprudence.

Article 6, Posting and Filling of Vacancies or New Positions, applies when a “vacancy occurs in the Classified Service for a bargaining unit position…” and proceeds to delineate how the posting process must occur. Article 8, Temporary Assignments, deals with the situation “[w]here an employee is assigned temporarily to perform the duties of a position …” Article 8.6.1 states when a temporary position must be posted under Article 6. It states:

Where an employee is assigned temporarily to a position, Article 6 (Posting and Filling of Vacancies or New Positions) shall not apply except where:

(a) the term of a temporary assignment is greater than six (6) months’ duration, and

(b) the specific dates of the term are established at least two (2) months in advance of the commencement of the temporary assignment.

Further, Article 8.6.2 provides: “In no case shall any provision of this Central Collective Agreement with respect to the filling of, assignment or appointment to a vacancy apply to temporary assignments, except as provided in Article 8.6.1.”

Originally, the reassignments in issue here were for a three-month period. They were made to alleviate a staffing shortage at the Toronto East Detention Centre and the Toronto Jail. One of the employees selected did not report at the new location. One assignment lasted only a month. Another lasted two months. Two lasted 20 months. One lasted 24 months and one lasted 26 months. All of the extensions beyond the original three-month assignment were made at the request of the individual employees, not the Employer. Pointing to the more extended periods, the Union asserts that these were really “vacancies” at Toronto East Detention Centre, not temporary reassignments.

The fact that a temporary assignment gets extended does not create a “vacancy” which must be posted under Article 6. It is the Employer who determines when a “vacancy” exists and, in the absence of any allegation of bad faith, it has up to two years to make that determination. As stated by Arbitrator Mikus in OPSEU (Union Grievance) and Management Board Secretariat, supra at p. 11:

The Employer has the exclusive jurisdiction to determine whether a vacancy exists and the classification of that position if it does exist. However, it is clear from the jurisprudence that right is not unfettered and is to be exercised on an objective assessment of the available work. That limitation on the Employer’s discretion has been specifically expressed in Article 31 [Conversion of Unclassified Positions to Classified Positions]. While the Employer can, in the first instance, create a temporary or unclassified position, there is a temporal limitation on how long that position can exist outside of the provisions of the collective agreement. After two years, if the need for the duties of the position continues, the Employer must convert it to a classified position which would then be subject to the posting requirements of the collective agreement.

Here, with the exception of Mr. Pineau, all of the reassignments ended within a two year period.

In OPSEU (Fox) and Ministry of Correctional Services, supra, the Employer made two temporary assignments, for a six-month period, in connection with an experimental program called the Electronic Monitoring Program at Mimico Correctional Centre. The assignments continued well beyond the original six month period – 1½ years – and the Union argued that the temporary assignments had been prolonged in time to the point were the incumbents were performing the duties of permanent positions. The Board analyzed the issue by deciding “whether or not, in any objective sense, a vacancy exists at the Mimico Correctional Centre.” (Decision p. 12). It decided that even though the assignment had lasted far in excess of the original six months, the assignment was still temporary in nature, given the experimental nature of the program. It concluded at p. 13:

It would…be unreasonable to expect the Ministry to go through the procedure of posting and holding a competition for a position which is experimental only and which exists temporarily as part of an experiment. In other words, we hold that the position is temporary in nature and that pending completion of the experiment no “vacancy” exists requiring posting under Article 4 [now 6] of the Collective Agreement.

The same reasoning applies here, even though the assignments were not part of an experiment. They were made to address staffing shortages, and there is no evidence that there was a permanent need for extra staff.

Similarly in OPSEU (Union Grievance) and Ministry of Housing, supra, the Employer’s decision to fill a classified position with a temporary assignment, rather than post for a vacancy, was upheld based on the “Employer’s uncertainty as to its future staffing needs.” (Decision at p. 8).

Further, the Board has clearly held that a temporary assignment must be posted, under Article 6, only when both requirements in Article 8.6.1 are met. It is undisputed that the second, if not the first, requirement of Article 8.6.1 was not met. Indeed, there was no set time for the temporary assignments and each one differed. Further, Article 8.6.2 states:: “In no case shall any provision of this Central Collective Agreement with respect to the filling of, assignment or appointment to a vacancy apply to temporary assignments, except as provided in Article 8.6.1.” Consequently, when the requirements for posting under Article 8.6.1 have not been met, Article 6 cannot not apply. OPSEU (D’Silva) and Ministry of Environment, supra; OPSEU (Union Grievance) and Ministry of Correctional Services, supra.

Accordingly, I conclude that the temporary assignments at issue here, even though some of them lasted well beyond the original time period, were still temporary assignments and were not “vacancies” under Article 6. They were temporary assignments, designed to alleviate staffing pressures, and because the requirements of Article 8.6.1 were not met, there was no requirement to post for them.

I also cannot find a violation in the fact that the August 15, 2001 memo was addressed to “All Unclassified Correctional Officers”. Paragraph 3 of the agreed facts, it should be noted, states that the Employer requested “from Correctional Staff, those in the classified and unclassified service…whether they were interested in temporary reassignments….” Under the agreed facts, therefore, both groups were solicited, even though the memo was addressed to unclassified officers. Also, the memo did invite classified officers to apply and six of the eight officers who applied were classified employees. There is no evidence to support the Union’s suggestion that classified staff were unaware of this memo and consequently did not apply.

As to the claim that the Employer violated Article 2 in its actions, I must agree with the Employer that, standing alone, there is no independent claim that may be made under Article 2. It must be tied to the exercise of some right under the collective agreement. OPSEU (D’Silva) and Ministry of Environment, supra; OPSEU (Anthony et al.) and Ministry of Labour, supra.

Conclusion

For all the reasons set forth above, the grievances are dismissed.

Issued at Toronto this 25th day of April, 2007.