GSB#2007-3897, 2007-3898, 2007-3899, 2007-3900, 2007-3901, 2007-3902, 2007-3903,

2007-3904, 2008-0008, 2008-0009, 2008-1410, 2008-1444, 2008-1481

UNION#2007-0546-0046, 2007-0546-0047, 2007-0546-0048, 2007-0546-0049,

2007-0338-0001, 2007-0338-0002, 2007-0338-0003, 2007-0338-0004, 2007-0545-0051,

2007-0546-0052, 2007-0310-0043, 2007-0310-0044, 2007-0546-0056

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Mackay et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Val Patrick Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Caroline Cohen Ministry of Government Services Labour Practice Group Senior Counsel

HEARING

June 3, 2011.

Decision

1In July of 2009 an award issued in this matter in which the Board found that the employer, by failing to create and fill a single PO3 position, was in violation of its obligations under Appendix COR5 of the collective agreement.

2After a sojourn in the Divisional Court, hearing in this matter resumed before me to deal with the issue of remedy flowing from the award.

3As outlined in the prior award, the 2002-2004 collective agreement between the parties included Appendix COR5 ( hereinafter “COR5”) to the correctional bargaining unit collective agreement. The material portion for our purposes reads:

The Employer shall undertake a review and update of the Probation Officer class standards and shall establish a Probation Officer 3 classification effective January 1, 2002.

4As of the date of the initial hearing in this matter (July 9, 2009), the employer had yet to create, let alone fill, a single position within the PO3 classification.

5For the reasons set out in my prior award, I found that failure to be a breach of the collective agreement and, in particular, COR5 thereof.

6Almost two years later, when the parties appeared before me for the second time on this matter, the employer was still yet to create, let alone fill, a single PO3 position.

7Employer counsel advised, however, and this was not disputed by the union, that it now had an intention (no specific timetable was disclosed) to create, post and thereby fill a total of eight PO3 positions – one per Ministry in each of the four Regions served by the two Ministries that employ probation officers. It asserted that the implementation of this plan would bring it into compliance with the terms of the collective agreement and the prior award in this matter.

8The union disagreed. Indeed, it was quickly obvious that the parties could not have more diverging views regarding the origin of PO3 species, or, more specifically, how it is that PO3 positions ought to be created and filled.

9The employer’s view, consistent with its intention to create and fill eight new positions, is fairly conventional, depending upon the well known “post and fill” process outlined in the collective agreement. Essentially, the employer (subject, of course, to its collective agreement obligations) determines its operational needs and, to the extent that necessitates the creation of new positions, those positions are posted and filled in accordance with the job competition provisions of the collective agreement.

10The union posits a much more automatic process for the creation of PO3 positions. Essentially, in its view, all that separates PO2s from PO3s is time. The former simply and seamlessly evolve into the latter over time. No process of identifying operational needs or job posting is required.

11It is not only the parties’ theoretical conceptions that diverge so dramatically. If the initial decision in this matter might be seen to have affirmatively answered the question as to whether not creating or filling a single PO3 position was a breach of the employer’s collective agreement obligations, this decision may be seen to be addressing the question of how many PO3 positions is/was the employer obliged to fill. The employer’s answer, as we have seen, is eight. For its part, the union clung to its view that progression from PO2 to PO3 is automatic. Although it posited no specific number, I note that, in the prior hearing, it asserted that some 500 of the then complement of some 800 PO2s ought properly to have advanced to the PO3 level. There is no reason to believe the number would have diminished since then (on the contrary).

12But while the gulf between the parties’ positions may be substantial, the union made an important concession. Not only did it not advance any alternative position, it also accepted (subject to one caveat) that, if its position regarding the manner of progression from PO2 to PO3 is rejected, the employer’s proposal to post and fill eight PO3 positions would bring it into compliance with its obligations and with the terms of the Board’s prior award. (The only reservation the union expressed in that context was that there might be some remaining issue regarding compensation owing to the employees who, as a result of the process, become PO3s).

13In that context, my task is somewhat simplified. At least initially, I need only examine the propriety of the union’s position regarding remedy.

14There was no viva voce evidence placed before me. The parties filed the following further agreed facts:

i. In 2006 OPSEU filed a grievance regarding the classification of PO2s (grievance summary attached). This grievance is still before the JSSC.

ii. The class standards for PO 1, 2, and 3 provide that a PO1 will progress to a PO2 after s/he has completed PO training/Exams and have 2 years’ service. A posting is not required for a PO to move from a PO1 to a PO2.

iii. In MCSCS there are no PO1s. Employees are hired as PO2s and then “underfilled” as PO1s. That is, they are paid as PO1s until they have completed two years of work and successfully completed an examination. See attached job posting for PO2.

iv. The employer’s staffing policy provides for “underfill” (pay on assignment) that applies to PO1s. Underfill assignment is defined in the policy as placement of regular employees in positions for which they are not fully qualified nor are they required to perform the full range and/or level of duties and responsibilities for the established position, and paid at a classification level lower than that of the established position. The Policy is attached.

v. This can be distinguished from the COs, who are hired as CO1s. The CO class standard (attached) do [sic] not provide for “progression”. The class standard dates back to 1970. Initially there were 7 gradations of correctional officer; only classes 1 to 3 are still in use.

vi. The now vacant CO3 classification in the c.a. required posting (see job spec attached, as well as the Burrell decision which, at page 3, references to the posting of the CO3 position)

vii. Other classifications in the c.a. require posting (sample postings attached)

[The documents referred to were marked as exhibits and are not reproduced herein]

15The union’s argument, elusive though it may be, appears to hinge on the assertion that the creation of the PO3 is, at least effectively, the creation of a new level on the wage grid for a single unified classification of PO. In this view PO1s, PO2s and PO3s represented little more than transition points on the salary grid.

16The agreed facts, as amplified by the parties’ largely undisputed submissions on the point, disclose that movement from PO1 to PO2 is typically automatic. And while there may be individual variations, it appears that the typical scenario involves commencing as a PO1 (at least for salary purposes and, in some cases, for both salary and classification purposes) and progressing to the PO2 level after completing the requisite training and service requirements. Thus, typically, the move from PO1 to PO2 occurs two years after commencement of employment. It is a seamless move and not one which is effected under the posting provisions. The union seeks a similar type of automatic transition from PO2 to PO3.

17One might encounter significant difficulty in any attempt to find an explicit collective agreement blueprint for the PO1 to PO2 process just described. Notwithstanding this, the parties have explicitly agreed that this is and has been the practice. In addition, it also appears to be rooted (though perhaps not to quite the extent or with the same level of clarity asserted by the employer) in the terms of the Class Standards. These clearly identify the PO1as the “entry and training” level position, which progresses to the PO2, which, in turn, is identified as the “working level” position. Thus, the undisputed manner in which PO1s become PO2s is built upon an artifice of practice and adherence to the employer generated Class Standards.

18There is, of course, no practice to point to with respect to the movement from PO2 to PO3. And neither do the Class Standards assist the union in that regard. For while they specifically identify PO1s and PO2s as training and full working level positions respectively, and explicitly contemplate the progression from one to the other, no such terms are found in relation to PO3s. PO3s are described as “team leader positions” and nothing in the Class Standards contemplates a progression from PO2 to PO3 or how that would be effected.

19Indeed, it is in relation to this last point where the frailty of the union’s position is most evident. Even assuming one could find some basis for some sort of automatic progression from PO2 to PO3, it is impossible, perhaps apart from creating schemes out of whole cloth, to see how that would be effected. The union argues that the PO2 to PO3 progression should mirror the PO1 to PO2 progression. It argued, however, that the transition should occur one year after the PO2 reaches the top of the PO2 salary level. While there may be some intuitive attraction to the submission, it does not mirror the PO1 to PO2 transition.

20The salary structure for the PO classifications is curious. The collective agreement identifies a start rate and seven subsequent semi-annual increases for PO1s. (One might wonder why such a protracted grid is required if PO1s typically move to PO2 after 2 years.) PO2s have a start rate followed by 5 annual increases. It is at that point, i.e. one year following attaining the maximum PO2 level that the union argues PO2s should automatically become PO3s. (PO3s are provided with a start rate followed by 4 annual increases to progress to the maximum salary.) In any event and whether the transition point is identified as 2 years (like the PO1 to PO2 progression) or the end of the PO2 grid, there is absolutely nothing in practice or in writing anywhere to support such a result.

21The union’s argument to justify the automatic progression (even apart from the mechanics of any such progression) is no more convincing. It is built on the assumption that all POs constitute a single classification and that PO1s, PO2s and PO3s are just steps along the salary grid. Indeed, the union went so far as to argue that the PO3 is nothing more than a new level added to the salary grid for what it asserts is the single classification of PO.

22While the union may well wish it to be so, that is not enough to effect the task. It is clear from the collective agreement and the salary rates contained therein, as well as the Class Standards, that there are 3 different Probation Officer classifications. The mere fact that they share some common nomenclature does not transform them into a unitary classification. There are an impressive number of classifications under the collective agreement which are similarly described (to take but one example, Attendant 1, Attendant 2, Attendant 3 and Attendant 4) without being thereby incorporated into a single unitary classification. If the parties intended such a result in respect of probation officers, one would have expected to find some clues leading to that result. There are none. On the contrary, the very words of COR5 speak to the establishing of “a Probation Officer 3 classification” (emphasis added).

23There is simply nothing in the collective agreement, the parties’ practice or even the Class Standards to support the remedial result sought by the union and its position must therefore be rejected.

24In view of the foregoing, I note the parties’ agreement that the employer’s proposed plan to post and fill a total of eight PO3 positions will bring it into compliance with the collective agreement and with this Board’s prior award in the matter.

25I will remain seized with respect to any issues of compensation which may be due to the successful applicants in the hiring process.