GSB#2005-1545, 2007-2811, 2007-2812, 2007-2813, 2007-2814, 2007-2815, 2007-2816, 2007-2817, 2007-2818, 2007-2819, 2007-2820, 2007-2821, 2007-2822, 2007-2823, 2007-2824, 2007-2825, 2007-2826, 2007-3348, 2007-3517, 2007-3518, 2007-3519, 2007-3520, 2007-3521
UNION#2005-0248-0090, 2007-0248-0549, 2007-0248-0550, 2007-0248-0551,
2007-0248-0552, 2007-0248-0553, 2007-0248-0554, 2007-0248-0555, 2007-0248-0556,
2007-0248-0557, 2007-0248-0558, 2007-0248-0559, 2007-0248-0560, 2007-0248-0561,
2007-0248-0562, 2007-0248-0563, 2007-0248-0564, 2008-0248-0010, 2007-0248-0582,
2007-0248-0583, 2007-0248-0584, 2007-0248-0585, 2007-0248-0586
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Carson)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Bram Herlich
Vice-Chair
FOR THE UNION
John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Michelle Dobranowski Ministry of Government Services Counsel
HEARING
June 9 and July 3, 2009.
DECISION
1Some 23 grievances have been referred to me, including 21 individual grievances and 2 group grievances. They raise a common issue. The grievors all commenced their employment as unclassified employees with the Ministry of Community Safety and Correctional Services in the position of "General Duty Officer" at the Hamilton Wentworth Detention Centre ("HWDC"). For our purposes, HWDC can be described, at the relevant time, as a "mixed facility" i.e. one which was responsible for the care, custody and control of inmates as well as young offenders. Accordingly, the HWDC had a "youth side" component in addition to the more conventional correctional unit. The employer set the grievors' rate of pay at a level corresponding to the wage rate attached to the classification of Correctional Officer 1 ("CO1"). The grievors claim that their rate of pay ought to have been set at a level equivalent to the (higher) rate of pay attached to the classification of Youth Worker. This latter rate of pay is the one which was assigned to bargaining unit employees, hired as a result of the same recruitment and training process undergone by the grievors, but who were assigned to work in "stand-alone" youth facilities operated by the Ministry of Children and Youth Services.
2The union advances two bases in support of the grievance. First it relies on Article 31A.2.1 of the Central Collective Agreement, a provision which appears under the heading "Wages" and which applies exclusively to unclassified employees. It provides as follows:
The rate of the equivalent civil service classification shall apply. If there is no equivalent classification, the rate shall be set by the ministry involved and the Union shall have the right to negotiate the rate during the appropriate salary negotiations.
3The union relies only on the first sentence of the provision and claims that the "equivalent civil service classification" is that of Youth Worker and that the grievors' wage rates should have been set accordingly.
4In a separate alternative challenge to the propriety of the wage rate adopted by the employer, the union claims that representations were made to the grievors that they would be paid at the Youth Worker rate. These representations are said to have been made in a variety of ways and times and may differ from grievor to grievor. But, in any event, the union asserts that this Board ought, in one fashion or another, to require the employer to follow through on its promises; it ought to be estopped from reneging on its representations.
5The employer has raised preliminary issues in respect of each of these arguments. In relation to the first, the employer argues that these grievances are nothing more than poorly disguised classification grievances, which, it is well known, are precluded from being dealt with by this Board pursuant to the terms of both the collective agreement and the provisions of the Crown Employees Collective Bargaining Act.
6In response to the union's appeal to equity, the employer submits that, even assuming the alleged representations were made, they are not enforceable under the collective agreement since they were made, in all cases, to individuals who may now be grievors but who, at the relevant times, were not employees. (I note that whatever the facts may be regarding these alleged representations, there is no dispute that, in each and every case, they were made at a time prior to the commencement of any employment relationship with the individuals in question.)
7The parties agreed to deal with the employer's objections on a preliminary basis. In order to facilitate that end, they prepared agreed statements of fact, thus eliminating the need for any viva voce evidence at this stage of the proceedings. It must be emphasised, however, that these facts were agreed to only for the purposes of this decision regarding the preliminary issues. In particular, as will be seen shortly, the employer has agreed that there is an essential identity of core duties as between the CO1 grievors and those persons employed as Youth Workers at "stand-alone" youth facilities operated by the Ministry of Child and Youth Services in accordance with the Child and Family Services Act. The employer has also agreed that the representations relied upon by the union, were made. These factual admissions were made in the spirit of a "best case scenario approach", the employer essentially taking the position that even if all of the facts asserted by the union are true, either or both of the preliminary objections ought to prevail. Of course, in the event either or both of the objections are dismissed, neither the employer nor the union are bound to the agreed facts about to be set out for the purposes of the merits of the case.
Are these really disguised classification grievances?
8The background and other facts necessary for the determination of the first issue were prepared by the employer and read as follows:
Prior to 2002 the Ministry of Correctional Services was responsible for the care and custody of Young Offenders. At HWDC a Youth Justice Unit (YJU) was established in 1985. It was staffed by Correctional Officers hired as General Duty Officers and subject to the underfill requirement.
In 2002 responsibility for the care and custody of Young Offenders was transferred to the new Ministry of Children and Youth Services. A number of stand-alone facilities were transferred to the MCYS and operated by that Ministry. For a period from around 2002 to this year, the YJU at HWDC was continued.
During this period the YJU at HWDC was directed by the Youth Centre Facility Administrator who was an MCYS employee, reporting to both MCYS and MCSCS. At this point in the proceedings the parties cannot agree on a statement defining the different reporting responsibilities of the Facility Administrator. The Deputy Youth Centre Facility Administrator was an MCYS employee, who reported directly to the Youth Centre Facility Administrator. Day to day supervision of General Duty Officers in the YJU was by Operational Managers who were responsible to the Facility Administrator.
During this period the General Duty Officers in the YJU at HWDC were designated employees of the MCSCS as Correctional Officers. They were paid as COs, either at the CO1 or CO2 pay rate.
Both classified and unclassified General Duty Officers in the YJU at HWDC were subject to the underfill requirement whereby they were appointed as CO1s and paid at the CO1 rate of pay for their first 1912 hours of work after which time the underfill requirement was removed and those individuals moved to the CO2 rate of pay. CO1s in the YJU at HDWC performed the same duties as the CO2s (both classified and unclassified).
In the 2004 Collective Agreement a Youth Worker (YW) classification was established. Ever since then, YW wage rates are the same as CO2 rates.
The CO2s (and the CO1s) in the YJU performed the same core duties as the YWs in stand-alone facilities operated by the MCYS, operated under the Child and Family Services Act and worked in accordance with the Manual promulgated by the MCYS.
After 2002 the Employer recruited Youth Service Workers for both the stand-alone and shared facilities. Applicants were selected for training at Belcairn.
At the end of the Belcairn training individuals going to stand-alone facilities and individuals going to shared facilities were all awarded the same certificate indicating they had completed training in the Youth Services Studies Program.
The training provided at Belcairn was the same for those appointed to positions in the shared facilities and the stand-alone facilities; however additional training was later provided to General Duty Officers in the YJU at HWDC (e.g. Case Management Training, Incentive Level Computerized Training, Suicide Policy for Youth).
Qualifications for newly hired General Duty Officers working the YJU (post-2004) at HWDC were higher than those for COs working in the adult parts of the facility.
From time to time GDO's from the YJU were required to do night rounds on the adult side of the institution when contact with inmates was minimal and vice versa. Staff on both sides, including GDOs in the YJU, were required to respond to emergencies anywhere in the facility.
With the exception of the scenarios set out in paragraph 12, at HWDC there was no cross-over of employees between the adult side and the YJU, unless the requisite training to work with youth or adults had been completed.
The decision to pay the unclassified staff entering employment in the Youth Justice Unit at HWDC at the CO1 level was simply the administrative implementation by the institution of the Ministry's practice of starting Correctional Officers at the CO1 rate of pay and maintaining them at that level until the requirements for underfill removal were met.
9The employer asserts that the purpose of the collective agreement provision in question: ("the rate of the equivalent civil service classification shall apply") is to insure that unclassified employees are paid at the same rate as their classified co-workers employed in the same position. That is precisely what is happening here: the grievors were/are all paid on the same basis as other (classified) General Duty Officers employed at HWDC (whether on the "youth side" or not) – all were/are paid as CO1s and are subject to the underfill policy, moving to the CO2 rate only after the requisite service period.
10The union (the employer continues) is seeking to have this Board compare the duties of the grievors with those of their unclassified counterparts working as Youth Workers in the stand-alone facilities in order to secure the higher rate of pay associated with the Youth Worker classification. This has the classic look of a classification grievance. Indeed, the union's case is based, in essence, on the claim that the classification allocated to the grievors was improper.
11The employer relies principally on the case of OPSEU (Foreman et al.) and Ministry of Education (2005), GSB No. 2002-1806 (Abramsky) where a grievance based on the same language (found in Article 32.6.1 in respect of seasonal employees) was dismissed – the Board viewed the union in that case to be improperly attempting to enter a "back door" to have what was, in essence, a classification grievance determined.
12The union, not surprisingly, views the matter differently. It begins by accepting that this Board has no authority to deal with a classification grievance. Indeed, it makes little sense to even contemplate a classification grievance in respect of an unclassified employee. Only classified employees have classifications, but all bargaining unit employees have positions and rates of pay. And this grievance is about proper rate of pay, not about classification. Article 31A.2.1 provides certain enforceable guarantees for unclassified employees with respect to their rates of pay.
13The union points to cases such as OPSEU (Barker et al) and Ministry of the Attorney General (1993), GSB No. 1992-2476 (Kaplan) and OPSEU (Yole) and Ministry of the Solicitor General and Correctional Services (2002), GSB No. 1995-1004 (Briggs) where this Board has clearly confirmed its authority to determine the "equivalent classification" for the purposes of administering the application of collective agreement language now found in Article 31A.2.1 (and 32.6.1).
14While the union acknowledges that the grievance in the Foreman case was dismissed because the Board found it to be a disguised classification grievance, it is suggested that the case represents a high water mark decided on facts that can readily be distinguished from the ones before me.
15It may be useful to briefly review the cases referred to by the parties.
16In Barker, a group of unclassified court constables had been paid at the OAG 2 rate for some six years when the employer, relying on asserted changes in duties, determined to alter those rates to those associated with a lower rated classification. The union grieved relying on the same collective agreement sentence at issue here (it was then found in Article 3.3.1). And the employer, as it does before me, moved that the grievances be dismissed because, among other things, they were really classification grievances. (It may be of interest to note that at the time, there was no general obstacle to bringing classification grievances to this Board. The employer's position was premised on the perhaps unremarkable assertion – unchallenged by the union and apparently accepted by the Board – that, unlike their classified counterparts, unclassified employees had no right to file classification grievances. So while the general terrain regarding the Board's role in respect of classification grievances may have been different, the characterization of the improper "end run" or "back door" effort to improperly advance a classification grievance remains apt.)
17The Board dismissed the preliminary objection and offered the following (at page 11):
…These grievors are not challenging their classification. What they are doing is seeking the review of their compensation, which is determined by management selecting an "equivalent" classification. This is the only sense in which the grievances pertain to classification, and in no way can they be described as classification grievances of the kind that frequently come before this Board. The grievors are entitled under Article 3.3.1 of the Collective Agreement, to be paid the wage rate assigned to an equivalent classification, and that entitlement carries with it a corresponding entitlement to grieve the comparator classification assigned to them for the determination of wages where the allegation is made that it is not equivalent. The matter of equivalence is an issue for the Board to decide.
18The decision in Yole related to the underfill policy described in the facts set out above. At that time the employer, as it does now, applied its underfill policy in a manner which contemplated the movement from CO1 to CO2 based on a service requirement. However, this movement was accorded only to classified COs. The grievors in the case were all unclassified CO1s who had met the service requirement but were still being paid at the CO1 rate. There was no dispute that they performed precisely the same functions as their classified CO2 counterparts. The employer argued that the grievances were, in essence, classification matters (and by this time the provisions of the Crown Employees Collective Bargaining Act precluded this Board from entertaining classification grievances). The Board rejected the employer's objection, followed the decision in Barker and observed as follows (at page 16):
…I disagree that a finding of arbitrability contravenes section 52 of CECBA. I am not being asked to amend a classification system, create or amend a new classification, classify an employee or change an employee's classification. I am being asked to determine if the wage rate of CO2 is the appropriate civil service equivalent for these grievors.
19The Foreman case appears, or so the employer suggests, to have moved matters in a somewhat different direction. The grievors in the case were unclassified seasonal employees in a school operated by the Ministry of Education. They were paid at the rate associated with the classification of Residential Counselor 2; they grieved under Article 32.6.1 claiming that the "equivalent civil service classification" was Child Care Worker 2, a higher rated classification.
20The Board felt compelled to note that around the same time that those grievances were filed a number of the classified Residential Counselor 2s at the same school had also filed grievances – those were classification grievances under Article 22.12 of the collective agreement. Those grievances were not before the Board in Foreman; they were pending before the Joint System Subcommittee (JSSC). (While classification grievances cannot be dealt with by this Board; that does not mean they cannot be filed – Article 22.12 deals with classification grievances. Unresolved classification grievances are referred to the JSSC, composed of equal employer and union representation. Under the terms of the Article, where the parties at the JSSC concur, their decision is binding; where they do not the matter remains unresolved unless and until concurrence is reached. This is the process the grievances filed by the classified grievors appears to have followed. The unclassified seasonal grievors whose case came before the Board in Foreman appeared to not opt for that process (whether or not it was available to them – see the earlier comments in the discussion of Barker above); as already noted, they filed their grievances under Article 32.6.1.)
21The employer objected that the grievances in Foreman were disguised classification grievances, improperly brought before the Board.
22The Board noted at the outset of its decision that the issue is significantly complicated by the Board's jurisprudence. In that regard, it first reviewed the decisions in Barker and Yole which, as we have already seen, affirm this Board's ability to determine the "equivalent civil service classification" for the purposes of Articles such as the one under consideration here. It went on, however, to observe that the Board has also determined that it does not have jurisdiction over grievances which, in essence, raise classification issues, even though they are not framed or characterized as such – a number of such cases were then catalogued e.g. OPSEU (Aiken et al.) and Ministry of Health (1993), GSB No. 1987-0678 (Gorsky) where the grievor claimed she should have been placed at the top of OAG-8 salary grid rather than the spot on that grid to which she had been assigned; the Board found that the grievance really stemmed from an alleged misclassification at the hiring stage; OPSEU (Rosamund) and Ministry of Citizenship, Culture and Recreation (1998), GSB No. 1996-2086 (Leighton) where the grievor's claim regarding her bumping rights depended upon the resolution of a classification issue; OPSEU (Boyer) and Ministry of the Environment (2001), GSB No. 2000-0742 (Abramsky) where the grievor claimed a higher rate of pay during a period alleged to have been a temporary assignment – there was, however, also an outstanding classification grievance making the corresponding claim pending at the JSSC; and OPSEU (Wilson) and Ministry of Transportation (2000), GSB No. 1992-3164 (Dissanayake) a case involving a number of grievors who had been reclassified by the employer but sought as a "compensation" issue to have their new wage rate implemented retroactively – those grievances were dismissed. One should note, however, that at least part of the claim of another of the grievors was not dismissed on a preliminary basis – his (former) position had been reclassified by order of the Board and he was seeking the claimed proper retroactivity pursuant to that award – the Board was content that was essentially a compensation and not a classification issue.
23Of course, none of the just cited cases involved unclassified employees with clear collective agreement rights to have their wages set by reference to the "equivalent civil service classification".
24This Board has undergone a dramatic shift in respect of its involvement in classification issues. Indeed, it might be suggested that events have unfolded in a fashion such that one of its "meat and potatoes" subject areas (there was once a statutory right to grieve classification matters and have them heard by the Board) is now nowhere to be found at the Board's table (there now being a statutory prohibition on classification matters coming to the Board). In those circumstances it may not be entirely surprising that established bargaining agents, with their history, experience and institutional memories, may, on occasion, seek creative ways of presenting what may, at heart, be classification issues. The Board has made it clear, however, that it will not permit this to happen.
25On the other hand, that does not mean that the mere utterance of the word "classification" inside a Board hearing room amounts to the death knell to any particular grievance. The Board must not shrink from administering the provisions of the collective agreement which constitute the parties' bargain. That is the balance the Board attempted to strike in Foreman as I must do here.
26It may be suggested that unclassified employees do not always enjoy all of the same collective agreement rights accorded to their classified counterparts. But Articles 31A.2.1 (and 32.6.1) confer a substantive right on unclassified employees that does not appear to have any clear (substantive or procedural) equivalent in the provisions applicable to classified employees. The fact that the typical inquiry and evidentiary terrain likely to be involved in the adjudication of rights under those provisions may resemble those of classification grievances cannot amount to a default negation of the right negotiated by the parties.
27Classified employees may file classification grievances. Their ultimate resolution, however, will be subject to the somewhat unconventional JSSC process. Even assuming unclassified employees have the right to file classification grievances (I note that Article 22 – which includes Article 22.12 "Classification" – is among the Articles which specifically apply to the major categories of unclassified employees – see Article 31A.16.1), there is something clearly counterintuitive about an unclassified employee seeking to secure a classification in that manner (hence the Board's apparent implicit acceptance, dating back at least to Barker, of the proposition that unclassified employees cannot file classification grievances). But Article 32A.2.1 addresses a different, or perhaps more accurately, a much more limited issue. And (as has already been observed in Yole) the vindication of the right it confers does not require this Board to amend or create a classification or classification system or to classify an employee or change their classification. While the resulting inquiry may resemble and cover similar evidentiary terrain to that of a classification grievance, it is for the purpose of insuring that there has been compliance with a wage provision negotiated by the parties.
28Neither am I of the view that the decision in Foreman dictates that the need to insure that disguised classification grievances do not make their way to this Board means that grievances under Article 32A.2.1 can never proceed. Rather, when asked to do so, the Board will engage in a process of analysis and characterization to determine the true nature of the grievance before it. In the Foreman case there was clearly a full-fledged union assault on the propriety of the inclusion of a number of positions – occupied by both classified and unclassified employees – in the RC2 classification. Although the Foreman panel was seized with only the grievances of the unclassified employees, it was clearly aware of the coordinated union onslaught suggesting that both groups of employees were in fact doing the work of a higher rated classification. In that context, it is not surprising that the Board – notwithstanding the union's purported reliance on Article 32.6.1 – concluded that the matter was, in essence, a classification grievance.
29The matrix of facts before me is quite different. One of the significant concerns that animated the Board's decision in Foreman is not present here. There is no risk of inconsistent results as between the instant process and that of the JSSC. The instant case involves unclassified employees; but there is no suggestion before me that any of the relevant classified employees are advancing classification grievances which might involve a similar inquiry.
30There is no generalized complaint that all CO1s (at HWDC or elsewhere) ought to be classified or paid as Youth Workers. Rather, there is a very specific context here. The employer recruited significant numbers of individuals to become trained to work in facilities housing young offenders. They underwent specific training to effect that purpose. However, once they commenced their employment, their wage rates – even though they may have all performed the very same core duties - depended only upon whether they were assigned to the "youth side" of a Ministry of Corrections facility (with an historical "underfill" policy) or to a facility operated by the Ministry of Child and Youth Services.
31The parties agreed facts suggest both that "CO1s in the YJU at HDWC performed the same duties as the CO2s (both classified and unclassified)" and also that "the CO2s (and the CO1s) in the YJU performed the same core duties as the YWs in stand-alone facilities operated by the MCYS". In that context, it is perhaps hardly surprising that there is a dispute between the parties as to what constitutes the "equivalent civil service classification" for the purposes of determining the wage rates for the unclassified employees on the YJU side of the HWDC.
32I am satisfied that is an appropriate issue for this Board to determine and the employer's preliminary objection in that regard must be and hereby is dismissed.
The second preliminary objection
33The employer's second preliminary objection relates to the union's alternative argument. Having regard to my finding on the first branch of the case, I have decided to defer any determination of this question. I shall decide the issue if and when it becomes necessary for the disposition of this matter to do so.
34I also note that, in reviewing materials relevant to the case, I have, in addition to the cases relied upon by the parties, reviewed the decision of the Ontario Court of Appeal in Loyalist College and Ontario Public Service Employees Union (2003), 2003 CanLII 29709 (ON CA), 63 O.R. (3d) 641. The Court, in its very first sentence, indicates that the case "raises the general question whether a collective bargaining regime precludes individual bargaining of the terms or conditions of employment". The decision may well be material to a determination of the issue before me. The parties have not had the opportunity to make any submissions regarding the application, if any, of the Court of Appeal decision to this case. They will be given that opportunity before I make or issue any decision with respect to the employer's second preliminary objection.
35The employer's first preliminary objection has been dismissed herein and the parties are directed to contact the Registrar with a view to setting hearing dates to deal with the merits of the union's claim.
Dated at Toronto this 30th day of July 2009.