GSB# 2018-2461; 2018-2462; 2018-2463; 2018-2464; 2018-2465; 2018-2466; 2018-2467; 2018-2468 2018-2644; 2018-2693; 2018-2694; 2018-2695; 2018-2696; 2018-2697; 2018-2698; 2018-2699; 2018-2700; 2018-2701; 2018-2702; 2018-2703; 2018-2704; 2018-2705; 2018-2706; 2018-2707; 2018-2866; 2018-2867; 2018-2868 2018-2869; 2018-2903; 2018-2904; 2018-2905; 2018-2906; 2018-2907; 2018-2908; 2018-2909; 2018-2910; 2018-2911; 2018-2912; 2018-2913; 2018-2914; 2018-2915; 2018-2916; 2018-2917; 2018-2918; 2018-2941; 2018-2942; 2018-2943; 2018-2944; 2018-2945; 2018-2946; 2018-2947; 2018-2948; 2018-2949;

2018-3064; 2018-3065; 2019-0058; 2019-0793

UNION# 2018-0630-0014; 2018-0630-0015; 2018-0630-0016; 2018-0630-0017; 2018-0630-0018; 2018-0630-0019; 2018-0630-0020; 2018-0630-0021; 2018-0205-0034; 2018-0205-0035; 2018-0205-0036; 2018-0205-0037; 2018-0205-0038; 2018-0205-0039; 2018-0205-0040; 2018-0205-0041; 2018-0205-0042; 2018-0205-0043; 2018-0634-0024; 2018-0701-0031; 2018-0701-0032; 2018-0701-0033; 2018-0701-0034; 2018-0701-0035; 2018-0446-0023; 2018-0446-0024; 2018-0446-0025; 2018-0446-0026; 2018-0446-0027; 2018-0446-0028; 2018-0446-0029; 2018-0446-0030; 2018-0446-0031; 2018-0446-0032; 2018-0446-0033; 2018-0446-0034; 2018-0446-0035; 2018-0446-0036; 2018-0446-0037; 2018-0432-0011; 2018-0432-0012; 2018-0432-0013; 2018-0432-0014; 2018-0446-0038; 2018-0649-0028; 2018-0649-0029; 2018-0649-0030; 2018-0649-0031; 2018-0102-0027; 2018-0102-0028; 2018-0102-0029; 2018-0102-0030; 2018-0102-0031; 2018-0585-0024; 2018-0585-0025; 2018-0205-0047; 2018-0546-0033

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Brown et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour, Training and Skills Development)

Employer

BEFORE

Diane L. Gee

Arbitrator

FOR THE UNION

Seung Chi (Grievance Officer) Ontario Public Service Employees Union

FOR THE EMPLOYER

Henry Huang (Counsel) Treasury Board Secretariat Legal Services Branch

HEARING

December 3, 2019

DECISION

1These matters are grievances filed by Occupational Health and Safety (“OHS”) and Employment Standards Inspectors who work in the Ministry of Labour. The grievances allege the Employer is in violation of articles 2, 3 and UN 16 of the Collective Agreement by placing newly hired Inspectors at Step 4 of the salary scale instead of at Step 1. The Union provided particulars to the Employer following which the Employer advised it intended to bring a motion to have the grievances dismissed on the basis that the Board lacks jurisdiction and, in the alternative, the particulars do not make out a prima facie case. The motion was heard on December 3, 2019. This decision determines the outcome of the two motions.

2The Union’s particulars can be summarized as follows:

a. Inspectors are hired into a geographic area of the province and a specialty area. There are Inspectors who work in the Central East Region (“CER”) and Inspectors who work in other Regions of the Province. Inspectors are hired into specialty areas that include: Construction OHS; Industrial OHS; and Employment Standards.

b. In August 2018 the Employer hired 22 Inspectors. The Inspectors hired to work in the CER as a construction OHS Inspector (“New Construction CER Inspectors”) were started at Step 4 of the salary scale. All of the Inspectors hired to work outside of CER, or hired as Industrial OHS or Employment Standards Inspectors within CER (“New Non-Construction CER Inspectors),” were started at Step 1.

c. The instant grievances were filed by Inspectors who the Union has identified as falling into the following four groups:

Group 1 – Construction and Industrial Inspectors who were at or above Step 4 when they filed the grievances. This group is earning the same wage rate, or more, than the New Construction CER Inspectors.

Group 2 – Construction OHS Inspectors who were at Step 2 or 3 and worked in CER when they filed the grievance; this group is performing work in the same geographic area and specialty, earning a lower wage rate than New Construction CER Inspectors.

Group 3 – Construction OHS Inspectors, Industrial OHS Inspectors; and Employment Standards Inspectors who were at Step 2 or 3 and worked at regional offices outside of CER when they filed the grievance. Those in this group all work in a different geographic area than the New Construction CER Inspectors and, in the case of the Industrial OHS and Employment Standards Inspectors, work in a different specialty area than the New Construction CER Inspectors.

Group 4 – Construction OHS Inspectors hired in 2018 and placed at Step 1 (the New Non-Construction CER Inspectors). This group includes Inspectors hired at the same time as the New Construction CER Inspectors who were placed at Step 1 and not Step 4.

d. The particulars reference Public Service Commission Directives on the “Pay on Assignment Operating Policy” (the “Policy”) effective March 18, 2011 which state at paragraph 7.1 that new employees must be paid at the minimum rate of the salary range with the added provision “Market conditions may justify exceptions.” The Policy states that an employee provisionally assigned to a position must be paid the minimum rate with the provision that the Deputy Minister, or their designate, must approve paying a provisional employee higher than the minimum.

e. On or about July 20, 2017 the Employer held a meeting at which the CER Inspectors were told by an Assistant Deputy Minister (“ADM”) that new hires would be placed at Step 3. According to the particulars the ADM stated: “…those inspectors who were at Step 1 and 2 would be moved to Step 4.”

f. The new hires undergo a mandatory eight-month training program that consists of both classroom and field training. As part of the field training, the incumbent inspectors take the newly hired inspectors out on the field and show them what they do on a daily basis. The newly hired inspectors received their starting rate during this training period.

g. One of the members of Group 2, Ian Bosner, was hired in 2015. When he was hired, he asked two members of management if he could be placed at a higher rate. He was told “…all new hires must start at Step 1.”

h. Mr. Bosner was directed to train a New Construction CER Inspector.

i. One of the members of Group 3, Anthony Burzese, was hired in 2014 as an Industrial Inspector. When he was hired, he asked if he could be placed at a higher rate. He was told by a member of management “…all new hires would be placed at the first step without any exceptions.”

j. One of the members of Group 4, Scott Caswell, was hired as an OHS Inspector outside of CER in 2018. When hired he asked about his starting salary and was told by a member of management: “… all new hires were placed at Step 1. A second member of group 4, Thomas Smith, was also offered an OHS Inspector position outside of CER in 2018. He asked a member of management if the starting salary was negotiable and was told: “… the starting salary was not negotiable.”

3The Employer has brought two motions. The Employer asks that the grievances be dismissed on the basis of no prima facie case and further that the GSB lacks jurisdiction.

4The Union relies on OPSEU (Martin et al) and Ontario Ministry of Community and Social Services) 2015 CanLII 60449 (ON GSB) for the test that is applied in order to determine whether there is a prima facie case. The test set out therein, which I adopt, is as follows:

The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words “capable of supporting the violation” are of some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support the conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party’s theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party’s theory is reasonable and it has provided particulars which come if true, would result in a finding a breach on the application of that theory, the motion should be dismissed.

5To paraphrase the test set out in Martin et al., the process to be followed to determine whether there is a prima facie case is to: (1) identify the Union’s legal theory; and (2) determine whether the facts particularized could be sufficient to result in a finding that there has been a violation of the collective agreement in the manner alleged.

6Thus, I begin then with the Union’s legal theory. The Union submits the grievances raise two issues:

a. Did the Employer act in bad faith when it exercised its management rights and placed the New Construction CER Inspectors at Step 4?

b. Did the Employer violate article 3.2 of the Collective Agreement that prohibits discrimination on the basis of Union membership?

7I will deal with the Union’s legal theory that the grievors have been the subject of discrimination on the basis of Union membership first. The facts that have been particularized in support to this theory are that those placed at Step 4 were, at the time of such placement, not union members, and those the Employer did not move up to Step 4 as per its earlier statements were union members. Accepting the Union’s characterization of the new hires at the time of placement on the salary scale as “non-union members” I find these facts insufficient to establish a prima facie case on the basis of union membership. The particulars indicate that not all “non-union members” were placed at Step 4. No newly hired Inspector hired into a Region outside of CER was placed at Step 4. No newly hired Inspector hired into CER as an Industrial or Employment Standards inspector was placed at Step 4. The facts are not sufficient to suggest that the Employer’s decisions were based on union membership. I find there to be no prima facie case that the Employer violated article 3.2 of the Collective Agreement that prohibits discrimination on the basis of Union membership.

8The second legal theory advanced by the Union is that the Employer acted in bad faith when it exercised its management rights and placed the New Construction CER Inspectors at Step 4. The Union argues:

a. It was unreasonable and unfair that the New Construction CER Inspectors got paid their starting rate, that is salary at Step 4 of the grid, while being trained.

b. It was unreasonable and unfair that Mr. Samec had to train a New Construction CER Inspector for seven months who was getting the same rate of pay as he was.

c. It was totally unreasonable that a New Construction CER Inspector was paid more than Mr. Bonser who trained him.

d. It was misleading and unfair for the Employer to say it would move Inspectors at Steps 2 and 3 to Step 4 and then not doing so when the Employer placed the New Construction CER Inspectors at Step 4. Existing Inspectors were not treated the same as new hires.

e. The Employer acted unreasonably and in bad faith when it placed some of the new hires at Step 4 but not others.

f. It was unreasonable and in bad faith for the Employer to have told some existing and some new inspectors that their placement on the salary scale was not negotiable and then place the New Construction CER Inspectors at Step 4.

9The facts that have been particularized in support of this theory are:

a. The Employer has a Policy that states: “employees are to be paid equitably in their assigned salary ranges, taking into account factors such as skills and job-related experience, relationships to peers and career progression.” The policy provides that new “non-provisional” employees must be paid at the minimum rate of the salary range with the proviso that market conditions may justify exceptions. With respect to “provisional” new employees the policy states employees are to be paid the minimum rate in the salary range and that the Deputy Minister, or a designee, must approve paying an employee a rate above the minimum

b. When Anthony Burzese, was hired in 2014 as an Industrial Inspector he asked if he could be placed at a higher rate. He was told by a member of management “…all new hires would be placed at the first step without any exceptions.”

c. When Ian Bosner was hired in 2015, he asked two members of management if he could be placed at a higher rate. He was told “…all new hires must start at Step 1.”

d. On or about July 20, 2017 the CER Inspectors were told by an ADM that new hires would be placed at Step 3. The ADM further stated: “…those inspectors who were at Step 1 and 2 would be moved to Step 4.”

e. The New Construction CER Inspectors were paid their starting rate (Step 4) during the eight-month training period.

f. Daniel Samec and Ian Bosner, two existing Construction OHS Inspectors in CER, had to train the New Construction CER Inspectors who were placed at Step 4. Ian Bosner was at Step 4 and Mr. Samec was at Step 2 on the salary grid.

g. Scott Caswell was hired in 2018 and was one of the newly hired group of Inspectors that included the New Construction CER Inspectors. He was hired as an OHS Inspector outside of CER. When hired, he asked about his starting salary and was told by a member of management: “… all new hires were placed at Step 1. Similarly, Thomas Smith was offered an OHS Inspector position outside of CER in 2018. He asked a member of management if the starting salary was negotiable and was told: “… the starting salary was not negotiable.”

10The grievance alleges a violation of Articles 2, 3 and UN 16 of the Collective Agreement. Article 2.1 is the Management Rights Provision. Article 3.2 prohibits discrimination by reason of an employee’s membership in the Union. Article UN 16 is the Salary Provision. I have dismissed the Union’s allegation that there has been a violation of Article 3. There are no facts that would establish a breach of Article UN 16. The only remaining Article is Article 2.1, the Management Rights Provision.

11The GSB has significant jurisprudence to the effect that an exercise of management rights can only be challenged where management’s actions could adversely affect an express or implied collective agreement right. There must be an allegation that the Employer’s conduct interfered with the grievor’s rights under the collective agreement. The Dobroff et al., supra, decision, relied upon by the Employer, contains a lengthy and very thorough analysis of the Board’s jurisprudence. It concludes at page 25: “… this Board’s jurisdiction remains restricted to matters arising either explicitly or implicitly from the collective agreement. In other words, the matter must be governed by an express or implied term of the collective agreement.”

12Accordingly, the next question to be answered is what provision of the collective agreement is impacted by the Employer’s exercise of its discretion to place the New Construction CER Inspectors at Step 4 instead of Step 1 of the salary grid. The Union relies on Articles 2, 3 and UN 16. Article 2 is the management rights provision which cannot, on its own, found a grievance. The allegations under Article 3.1 have been dismissed above on the basis that there is no prima facie case. The particulars do not mention any facts that could implicitly or explicitly amount to a violation of Article UN 16.

13Having found no provision of the collective agreement that, on the Union’s theory of this case, is implicitly or explicitly impacted by the Employer’s exercise of its discretion to place the New Construction CER Inspectors at Step 4 the result is that the Board does not have jurisdiction to entertain this grievance.

14For the foregoing reasons, the grievance is dismissed.