GSB# 2004-1463, 2004-1473, 2004-1814, 2004-1985

UNION# 2003-0517-0069, 2004-0517-0055, 2004-0517-0061, 2004-0517-0078

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Beek et al.)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

T. Stephen Lavender, Grievance Officer Ontario Public Service Employees Union (April 3 & July 6, 2006)

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors (April 13, 2007)

FOR THE EMPLOYER

Simon Heath Counsel Ministry of Government Services

HEARING

April 3, July 6, 2006; April 13, 2007.

Decision

I have before me a number of grievances filed by Correctional Officers ("COs"). The grievors had been employed as COs previously by the Ministry of Community Safety and Correctional Services ("the Employer"), had been away for differing periods after separation and were then rehired. Upon rehire, the Employer placed the grievors at the first step of the pay range of the CO2 classification. The Union alleges that other rehired CO2s were given a rate of pay above the start rate, even though their circumstances were no different from those of the grievors. The Union alleges that this differential treatment of the grievors constitutes a contravention of the Collective Agreement. The Union requests that the grievors be placed at the appropriate step of the CO2 classification and be paid damages for their losses.

On July 6, 2006, I entertained submissions from the parties on the issue of whether, assuming a violation of the Collective Agreement, the grievors would be entitled to an order directing the Employer to pay them at the top step of the CO2 classification. For the reasons contained in a decision dated October 5, 2006, I reserved my decision on the remedial issue. Given the Employer's position that the GSB does not have jurisdiction to deal with these grievances, a hearing was held in which counsel addressed this issue. It is clear from the submissions that these issues are related. This decision addresses the question of whether the GSB has the jurisdiction to adjudicate these grievances. I will focus on those authorities relied upon by counsel when they addressed the arbitrability issue.

The Employer has a "Pay on Assignment Operating Policy" that was revised November 6, 1998. The relevant provisions of this policy are as follows:

PURPOSE

To ensure that employees are paid equitably in keeping with pay principles,

policies and collective agreements for permanent and temporary assignments, and to ensure that discretionary pay decisions are defensible.

APPLICATION AND SCOPE

This operating policy provides for pay treatment with respect to a new employee's initial appointment, and to subsequent assignments such as promotions, lateral assignments and temporary assignments.

In case of disagreement between this policy and the applicable collective agreement or legislation, the applicable collective agreement or legislation shall prevail.

PRINCIPLES

Employees should be paid equitably in their assigned salary ranges, taking into account such factors as skills and job related experience, relationships to peers and career progression.

INITIAL ASSIGNMENT – NEW EMPLOYEES

Non-provisional

New employees must be paid at the minimum rate of the salary range of the class of the position to which they are assigned. Market conditions or cases where candidates have better-than-average experience and qualifications may justify exceptions.

The Employer also has a rehire policy for COs that is dated August 2004.

Although the Correctional Officers Re-Hire Policy ("the Policy") has a number of

features, the relevant aspects for our purpose are as follows:

a) Re-employment within 6 months of separation from Correctional Services, shall be reappointed to same class and salary at time of separation provided clearance received in areas of references, security and medical. Individuals who have not completed basic training, i.e. the Correctional Studies Introductory Program, will be required to complete prior to re-hire.

b) Re-employment within 6 – 24 months of separation from Correctional Services, shall be reappointed to minimum of salary rate of applicable classification (CO1/CO2) provided additional criteria as outlined in part A is fulfilled (clearances and training). Updating the training may be necessary and shall be reviewed by the manager and staff training representatives.

c) Re-employment after 24 months of separation from Correctional Services, shall be treated as a new hire and all aspects of the recruitment, clearances and training program shall apply.

The Policy clearly provides that an individual rehired within 6 months of separation will be placed at the same step of the salary range he or she had at separation, while someone rehired after 6 months has elapsed will be placed at the first step of the salary range. The grievors were rehired after they had been separated from Correctional Services for more than 6 months. Under the Collective Agreement and on the face of the Policy, it would appear that it was appropriate for the Employer to place them at the first step of the CO2 salary range. However, the grievors and the Union assert, as noted previously, that there were a number of persons who were rehired as CO2's who were in the same position as the grievors, but were placed at the top step of the salary range upon rehire or at a step higher than the first step. The Union does not challenge the Policy or, apparently, the Employer's exercise of its discretion to place a rehired CO2 at one of the three steps of the salary range. It does allege, however, that the grievors were not placed at the proper step of the salary range upon their rehire. The Union claims that the Employer has exercised its discretion unreasonably, arbitrarily or in bad faith when deciding where to place the grievors within the salary range of the CO2 classification, and that this dispute is clearly a matter within the GSB's jurisdiction. Counsel for the Union referred me to the following decisions: OPSEU (Bousquet) and Ministry of Natural Resources (1991), GSB No. 541-90 et al. (Gorsky); OPSEU (Campbell) and Ministry of Government Services (1990), GSB No. 1257-88 (Samuels); OPSEU (Neary) and Ministry of Agriculture and Food (1988), GSB No. 57-88 (Saltman); OPSEU (Baylis) and Ministry of Correctional Services (1990), GSB No. 1762-89 (Samuels) and OPSEU (Williams/Barber) and Ministry of Correctional Services (1991), GSB No. 1448-90 et al. (Samuels).

The Employer takes the position that the grievances are inarbitrable for two reasons. Firstly, the Employer claims that its treatment of the grievors is not contrary to the Collective Agreement and that all the grievors are really asserting is that they are being treated inequitably because of the way in which the Employer has paid other rehires. The Employer argues that there is no valid grievance for which the GSB can assume jurisdiction because the grievors are not directly affected by the Employer's actions. In addition, the Employer submits that the Policy is external to the Collective Agreement and that any grievance relating to how the Employer exercised its discretion under the Policy during the rehire process is beyond the jurisdiction of the GSB. Counsel for the Employer relied on the following decisions: OPSEU (Anthony et al.) and Ministry of Labour (2004), GSB No. 1999-1977 et al. (Abramsky); OPSEU (May et al.) and Ministry of Community Safety and Correctional Services (2007), GSB No. 2001-1151 (Abramsky); OPSEU (Belanger et al.) and Ministry of Community Safety and Correctional Services (2006), GSB No. 199-1782 et al. (Harris); OPSEU (Nunn) and Ministry of Correctional Services (1995), GSB No. 141-93 (Kaufman); OPSEU (Lesieur et al.) and Ministry of the Environment (2005), GSB No. 2002-1756 and 2003-3511 (Briggs); OPSEU (Cherwonogrodzky et al.) and Ministry of Finance (2004), GSB No. 2002-0994 et al. (Gray) and OPSEU (Anderson) and Ministry of Natural Resources (2003), GSB No. 2183-02 (Stewart).

The Employer submitted that the circumstances here are in essence similar to those in OPSEU (Anthony et al.), supra, and OPSEU (May et al.), supra, and that the principles in these decisions should lead me to conclude that the GSB has no jurisdiction to hear these grievances. In the first decision, three grievors alleged that two employees with less experience had received expedited merit increases with the result that they were being paid the same as the grievors. In response to a motion from the Employer to dismiss the grievances, the Union argued that the Employer had improperly exercised its management rights in administering the pay provisions. Although she expressed some sympathy for the grievors, the Vice-Chair concluded that the GSB did not have jurisdiction for the following reasons at p. 8:

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 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 exercise 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.

In OPSEU (May et al.), supra, the Employer offered COs a temporary reassignment to the Toronto East Detention Centre and the Toronto Jail to address staffing pressures at these institutions. The COs that accepted the reassignment received additional compensation for travel expenses - $18.00 per shift in lieu of kilometric rates and two hours pay per shift in lieu of travel time. All of the grievors were COs at the Toronto West Detention Centre who did not apply for the reassignments. The Union claimed that the grievors were directly affected by management's actions since one of the purposes of a collective agreement is to ensure equal pay for equal work and that this principle is violated when the Employer pays others more for doing the same work. As a preliminary matter, the Employer argued that the grievors could not grieve compensation paid to other employees. The Vice-Chair found for the Employer on the preliminary issue, commenting at p. 8 as follows:

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 grievances." OPSEU (Meades) and Ministry of Correctional Services, supra at p. 7.

After referring to the reasoning in OPSEU (Anthony et al.), supra, the Vice-Chair

commented further at p. 9 as follows:

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 West Detention Centre –more. Although this may have created an inequality, 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.

In support of its second position the Employer referred to a number of decisions cited above where the GSB dismissed grievances which alleged a failure to comply with a particular Employer policy where the subject matter of the dispute was not covered by the terms of the Collective Agreement. The GSB has determined that it did not have the jurisdiction to consider such matters as whether the Employer breached the Ministry Agreement and Apparel Policy by not providing uniforms (OPSEU (Belanger et al.), supra), whether it breached a policy relating to the reimbursement of legal fees (OPSEU (Nunn), supra), and whether the Employer is obliged to pay certain membership fees for employees (OPSEU (Lesieur et al.), supra, OPSEU (Cherwonogrodzky et al.), supra) and OPSEU (Anderson), supra).

The GSB has jurisdiction under the Collective Agreement and its enabling statute, the Crown Employees Collective Bargaining Act, to address all differences between the parties arising from the interpretation, application, administration or alleged violation of the Collective Agreement. The exercise of determining whether a dispute arises under a collective agreement was described by the Supreme Court of Canada in Regina Police Ass. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360 at para. 25 as follows:

To determine whether a dispute arises out of the collective agreement, we must therefore consider two elements: the nature of the dispute and the ambit of the collective agreement. In considering the nature of the dispute, the goal is to determine its essential character. This determination must proceed on the basis of the facts surrounding the dispute between the parties, and not on the basis of how the legal issues may be framed: see Weber, supra, at para. 43. Simply, the decision-maker must determine whether, having determined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations. It is clear that the collective agreement need not provide for the subject matter of the dispute explicitly. If the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide: see, e.g., Weber, at para. 54; New Brunswick v. O'Leary, supra, at para. 6.

In considering the essential character of this dispute in the context of the Collective Agreement, it is my view that the circumstances here are significantly different from those in OPSEU (Anthony et al.), supra, and OPSEU (May et al.), supra. The Union is alleging that the placement of the grievors upon their rehire at the first step in the salary range of the CO2 classification constitutes a contravention of the Collective Agreement. It has alleged in this matter that the Employer has taken actions against the grievors that are improper under the Collective Agreement. The Correctional Salary Schedule containing three steps in the salary range for the CO2 classification is a part of the 2002-2004 Collective Agreement. The Union has not claimed that the Employer has acted improperly towards those rehired COs who were placed at higher steps of the salary range. Rather, it asserts that the Employer has improperly exercised its discretion in relation to the grievors because it did not treat them in the same way it treated others who were similarly situated. The Union's claim does not rest merely on a failure of the Employer to exercise its management rights properly, but it links the exercise of such rights to a specific provision of the Collective Agreement, namely the Correctional Salary Schedule. Although the Collective Agreement does not specifically address rehiring, it is not the case that the Policy is completely external to the Collective Agreement since it addresses the placement of rehired employees within the CO2 salary range, thereby linking the exercise of the Employer's discretion to a subject covered by the Collective Agreement. It is my conclusion that the essential character of this dispute concerns the placement of the grievors within the salary range of the CO2 classification and raises a question of the administration of the pay provisions.

Decisions relied on by the Union illustrate that the GSB has determined that it has jurisdiction to resolve disputes about the placement of employees within the salary range of a classification. In OPSEU (Campbell), supra, four grievors were reclassified pursuant to a Board order and they were placed at the first step of the salary range of their new classification. The grievors challenged this placement and it was argued that they should have been placed at the top step of the salary range. The Board determined that the issue raised was a matter within its jurisdiction and it found at p.4 that "the wage levels are a part of the collective agreement. They were bargained by the parties. Questions concerning their "application" can be referred to us."

In OPSEU (Neary), supra, the grievor claimed that the Employer acted in a discriminatory and unlawful manner in placing her at the start range of her classification when it subsequently placed another employee at a higher step. The grievor obtained her position in a competition and, after an assessment of her qualifications and experience, she was placed at the first step of the FPI 1 classification. An unsuccessful applicant, Mr. Henderson, did poorly during the interview and was eliminated from the competition. Shortly thereafter, there was another posting for the same position and on this occasion Mr. Henderson was the successful applicant. Unlike the grievor, he was placed at the second step of the FPI 1 classification. The Employer took the position that the grievor's claim of discriminatory treatment related to her placement on the salary grid was not arbitrable. The Board took jurisdiction of the grievance and it concluded at p. 7 that "Management has responsibility for placing employees on the salary grid in the course of administering the pay provisions of the collective agreement and at least to that extent, the issue raised in the grievance is arbitrable."

In OPSEU (Baylis), supra, the grievor claimed that the Employer did not live up to a promise to place him on a certain level on the salary grid. The Employer argued that the Board did not have jurisdiction because the Employer has complete discretion to place an employee anywhere on the salary grid. The Board disagreed. It concluded that Neary was correct and in so doing, commented at p. 2 as follows:

…The parties have a collective agreement establishing the salary rates. Though management has wide powers in the matter of placement of employees on the salary grid, and therefore there are few opportunities for an employee to grieve placement successfully, nonetheless, placement on the salary grid is a matter of administration of the collective agreement. And, pursuant to section 19(1) of the Crown Employees Collective Bargaining Act, a difference concerning the administration of a collective agreement may be referred to this Board for determination. …

In my view, the Union has accurately characterized the essential nature of this dispute. The decisions that it relies upon support the conclusion that a claim of improper placement within the salary range of the CO2 classification arises out of the Collective Agreement and is arbitrable.

For the foregoing reasons, it is my conclusion that the GSB does have the jurisdiction to entertain these grievances. The Union will have the opportunity to establish that the Employer exercised its discretion improperly when it placed the grievors at the first step of the CO2 salary range. The Registrar is directed to schedule additional hearing dates for this matter in consultation with the parties for the purpose of dealing with the merits of the grievances and any other outstanding issues.

Dated at Toronto, this 12th day of July, 2007.