GSB#2005-1545

Appendix “A”

UNION#2005-0248-0090

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/ Ministry of Children and Youth Services)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Paul Meier Ministry of Government Services Labour Practice Group Counsel

HEARING

June 27, 2011.

Decision

1There are a number of grievances before the Board in this matter. They raise similar or related issues. In a decision which related to some, but not all, of these grievances the Board found that the grievors in those cases had not been paid in accordance with the rate of the equivalent civil service classification, as required by Article 31A.2.1 of the collective agreement.

2Those grievors were (at least at the time of their grievances) unclassified employees hired to work on the “youth side” of the Hamilton Wentworth Detention Centre. The employer paid them at a rate equivalent to that of CO1. This Board upheld their grievances, finding that the “the equivalent civil service classification” was YW (or, alternatively, CO2, which would yield the same rate as YW).

3Since the issuance of the Board’s award on September 7, 2010, the parties have been involved in efforts to resolve any and all remedial issues arising out of that award. When the hearing in this matter resumed, on June 27, 2011, I was advised that they had been largely, though not entirely, successful in those efforts.

4However, since the Board’s award in those matters, a number of fresh grievances, including a policy grievance, have also been filed on behalf of grievors who may be similarly situated (i.e. hired as unclassified employees to work on the youth side of a correctional facility and paid at rate equivalent to that of the CO1 classification). Those grievances or, more specifically, the union grievance was filed on November 15, 2010, approximately two months after the decision of this Board described earlier.

5The parties have agreed to put all of these matters before me. I have been advised that they have expanded their discussions in an effort to resolve all of the outstanding grievances (i.e. both those that were and those that were not the subject of the earlier award of the Board referred to above).

6However, the parties are of the shared view that a resolution of a discrete aspect of the union’s remedial ambitions may well be of critical assistance to the process and may enhance the parties’ ability to resolve all other outstanding issues.

7As a consequence, the parties agreed to seek a ruling with respect to that discrete issue.

8And, in order to maximize expedition, the parties agreed that this issue be determined through a process of mediation-arbitration (“medarb”). That agreement was without prejudice to any positions they might take regarding such procedural matters should there ultimately remain further issues to be litigated. And, of course, the fact that the instant decision is the product of a medarb process means (in accordance with Article 22.16.7 of the collective agreement) that this decision, while it will resolve the particular issue in this case between the parties, will, otherwise and absent the parties’ contrary agreement, be without precedential value. Further, in the interests of expedition, the reasons herein will be presented economically.

9The issue that separates the parties is the potential reach of retroactive compensation in what may be described as the “new” grievances i.e. those that were filed subsequent to those that were dealt with in the Board’s September 7, 2010 decision. The only “new” grievance that was filed with me was the union grievance dated November 15, 2010. I was advised that there were other individual and group grievances, specifics, however, were not provided and I restrict my inquiry to the union grievance dated November 15, 2010.

10The question the parties wish answered is how far back can a claim for retroactive compensation properly extend. This, to be clear, is not a question of timeliness. It is rather a question of retroactivity of damages in the event the grievance is successful.

11The employer asserts, relying on Article 22.2.1 and the Board’s caselaw, which has enlisted that article to answer questions of retroactivity, that damages can/should not be awarded for any period of time prior to 30 days (as defined in the collective agreement) before the grievance was filed, i.e. prior to October 1, 2010.

12The union articulated a number of alternatives. Its main position, however, was that employees covered by the union grievance should be able to claim full retroactivity. What that might mean in any specific case will, of course, vary with the individual’s date of hire or first employment as a “youth side” CO. And again, while we were not provided with any specific facts, it is theoretically possible that some of the employees in question started around the time that the MCYS assumed responsibility for stand alone Youth Facilities in April 2004.

13In any event, there was no real dispute between the parties that the decisions of this Board have dealt with the question of retroactive payment in relation to continuing grievances in a fairly consistently manner (see, inter alia, OPSEU (Fazakas) and Ministry of the Attorney General (2006), GSB No. 1992-2964 (Petryshen)) – the approach is summarized in OPSEU (Clapperton) and Ministry of the Solicitor General and Correctional Services (2000), GSB No. 1997-0410 etc. (Petryshen) at paragraph 6:

I was referred to a number of GSB decisions that addressed the issue of retroactive payment in circumstances where the violation is of a continuing nature. These cases indicate that retroactivity will normally be limited to the period of time within which it was permissible for a grievor to file a grievance. Under this Collective Agreement that period is 30 days prior to the day the grievance is filed. The GSB has recognized some limited exceptions to the usual rule. Generally, these exceptions arise in circumstances where it would be inequitable for the Employer to rely on the usual rule.

14The inequity which might give rise to an exception to the rule must be more than simply an appeal to prevent the employer from benefiting from its failure to adhere to the terms of the agreement as it is difficult to imagine the circumstances in which such would not apply – the exception would have long ago consumed the rule.

15Further, there is an equitable consideration that actually undermines the union’s position here. I was advised that, with respect to the grievances that have been resolved, the parties, by agreement, used the so-called 30-day rule to limit the recovery of individual grievors. To confer a greater possible scope for recovery on those employees whose cases were not part of the original grievances and whose claims were advanced, in some cases at least, years later, does not strike me as an attractive blueprint for doing equity.

16On the other hand, the issuance of the Board’s prior award in this matter marks a date, as of which, the employer cannot persuasively assert that it was unaware of any collective agreement violation or that the matter underlying the claim otherwise constituted either an unknown or an open issue.

17Having regard to the foregoing, I believe it would be equitable to marginally adjust the application of the Board’s normal rule. The limit for any retroactive claims will be the date of the Board’s award, September 7, 2010. To be clear, no claims for any retroactivity arising out of the November 15, 2010 union grievance will be entertained for any period prior to September 7, 2010.

Dated at Toronto this 19^th^ day of July 2011.

Appendix A

Grievor

GSB#

Union File#

Fisher, Nic

2007-2811

2007-0248-0549

Agyekum, George

2007-2812

2007-0248-0550

Armstrong, Mike

2007-2813

2007-0248-0551

Baccega, Maria

2007-2814

2007-0248-0552

Defreitas, Ricky

2007-2815

2007-0248-0553

Boughner, Brian

2007-2816

2007-0248-0554

Henry, Nicole

2007-2817

2007-0248-0555

Hunt, Crystal

2007-2818

2007-0248-0556

McCracken, Cindy

2007-2819

2007-0248-0557

Overmeyer, Tyler

2007-2820

2007-0248-0558

Powell, Tracey

2007-2821

2007-0248-0559

Raworth, John

2007-2822

2007-0248-0560

Shannon, Loni

2007-2823

2007-0248-0561

Smith, Stacey

2007-2824

2007-0248-0562

Southcote, Grant

2007-2825

2007-0248-0563

Walkinshaw, Travis

2007-2826

2007-0248-0564

Knowles, Breanne et al

2007-3348

2007-0248-0010

Lariviere, Gregory

2007-3517

2007-0248-0582

Perera, Sanjay

2007-3518

2007-0248-0583

Coelho, Dolly

2007-3519

2007-0248-0584

Knowles, Breanne

2007-3520

2007-0248-0585

Hurd, Hugh

2007-3521

2007-0248-0586

Union

2010-2297

2010-0999-0030