P/0013/85

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Mr. Robert D. Smalley

Grievor

• and -

The Crown in Right of Ontario (Ministry of Correctional Services)

Employer

BEFORE

J. E. Emrich E. Sigurdson

Chairperson

Member

FOR THE GRIEVOR

R.D. Smalley

FOR THE EMPLOYER

J.F. Benedict Manager, Staff Relations Personnel Branch Ministry of Correctional Services

HEARING

June 26, 1986.

DECISION

The Grievor is employed at the Wellington Detention Center as a shift supervisor, which position is classified as OCR 14 and is first level management. This classification falls within the operational module of the management compensation plan. Although the grievance was originally filed on October 18, 1985 by six grievors, the others have withdrawn and only Mr. Smalley appeared at the hearing to present the case. The relevant portion of the grievance is to the following effect:

"We the undersigned, as per Regulation 881 under the Public Service Act, Section 50 (2), formally grieve the following:

That in the months of January, February and March,1985, that an employee with the classification of C.O. 3 (Corporal) was paid at an hourly rate in excess of that paid to the undersigned who have the classification of OM-14 (Shift Supervisor).

We request by way of settlement, the following:

A three percent raise in hourly rate for the months of January, February and March, 1985. This three percent to be based on an hourly rate for the months specified. (To be paid as a retro award.)

This award is necessitated by a longstanding problem with salary compression and our increasing frustration with the apparent inability to address the situation satisfactorily."

It is apparent from the face of the grievance, and the submissions of the parties that the grievor alleges no misapplication of the compensation plan to his classification as OCR 14, nor is there any allegation of arbitrary, discriminatory conduct or conduct in bad faith on the part of the Employer in respect to the wages paid to the grievor for the three months in question. The grievor admitted that the essence of his complaint was the adequacy of his rate of compensation in relation to bargaining unit personnel he is required to supervise in the course of his work, in particular, the position of C03, corporal.

The parties were agreed that since the mid-nineteen seventies, the salary differential between bargaining unit personnel classified as CO3 and management personnel in the position of OCR 14 has been eroded. Over this period, these bargaining unit personnel gained substantial increases in compensation through arbitration awards relative to the salary revisions for management personnel which occurred on a less frequent basis. The problem, referred to by the parties as "the salary compression problem", was exacerbated by the effect of retroactive salary increases awarded to the bargaining unit personnel in accordance with collective agreements operating on a calendar year basis, whereas salary revisions for management personnel were granted infrequently with an effective date in April of the particular year in question. Over the past several years, these factors have contributed to the diminution or elimination of the wage difference between the two categories of employees which was particularly marked during the three month interval from January to April of 1985. The grievor explained that this problem has caused a degree of demoralization and resentment among the shift supervisors.

Mr. Benedict advised the Board that the salary revision date for management personnel has recently been changed to January to coincide with the effective date of the negotiated or arbitrated increases for bargaining unit personnel. Mr. Benedict raised at the outset his objection to the Board's jurisdiction to review the adequacy of the management compensation plan as it pertains to the grievor. He acknowledged that management salaries had suffered a diminution in differentials since the management compensation plan was implemented in the mid-nineteen-seventies. Without prejudice to his objection to jurisdiction, Mr. Benedict filed in evidence a memorandum dated May 2 , 1986 from the Deputy Minister, Correctional Services which announces certain increases to salary for the position OCR 14 which were thought to address the salary compression issue. The memorandum provides as fol1ows: (Unable to replicate the memorandum, a hard copy of this decision with the memorandum is available in the PSGB Library)

Mr. Benedict argued that it was the exclusive function of the Civil Service Commission to set and review compensation levels for management personnel and that this Board would exceed its jurisdiction if it were to appropriate to itself the function of rectifying salary relationships. In support of his position, Mr. Benedict referred the Board to the following provisions of The Public Service Act R.S.O. 1980 c.418 as amended, s.1 ( a ), ( c ), s. 3, s.4 (b) which provides that the Civil Service Commission is accorded the function of recommending the salary range for each classification, except for those positions for which the salary range is negotiated pursuant to the Crown Employees Collective Bargaining Act, s.30 (1) (b), s.30 ( 2 ) ( 3 ) and the provisions of Regulation 881 as amended, in particular, s.49 and Part I, s.1 ( a ) of Schedule 1 to the Regulation. Mr. Benedict also referred the Board to McLagan P-001/85, Prof. C. Gordon Simmons, Chairman, a decision of the Classification Rating Committee dated November 18, 1985 in which the salary compression problem was grieved by shift supervisors at the Chatham Jail under the guise of a claim of improper classification. At p.3 of the award, the Committee reviews the nature of the jurisdiction of the Classification Rating Committee to examine the nature of job content actually performed by a grievor to ascertain whether or not the grievor is properly classified. At p.4, the Committee draws the conclusion that it lacks jurisdiction to address the problem of salary differentials between the grievors and their subordinates:

It can therefore be seen that the committee has no authority to rectify salary relationships that may have gone awry with the passage of time. While committee members may sympathize with the plight in which certain grievors find themselves in relation to the scheme of things, they lack jurisdiction to assist them. Indeed, in the instant case, the members of the committee were impressed by the presentation of the grievors which highlighted a problem that exists, especially in those classes of management that are closest to the top of the bargaining unit levels. However we lack jurisdiction to resolve this issue and the grievances are therefore dismissed.

The jurisdiction of this Board to consider and address complaints in relation to ''working conditions and terms of employment" is set out in R.R.O. 1980, Reg.881 ss.50-61. The jurisdiction of the Classification Rating Committee is set out in s.57 of the same Regulation and is limited to claims for classification and claims of improper classification. The ambit of the terms ''working conditions and terms of employment” would certainly subsume claims pertaining to classification but would encompass as well claims pertaining to a wide range of issues, including claims of improper salary payments.

Access to the application of ss.50 to 57 of Reg.881 is governed by s.49, the relevant subsections of which read as follows:

49 (1) Subject to subsection ( 2 ) and ( 3 ) , sections 50 to 57 apply to persons who are employed in the public service under the jurisdiction of a deputy minister and who have been so employed continuously for at least the preceding six months.

( 2 ) Section 50 to 57 do not apply to persons in the positions or classifications set out or described in Schedule 1.

Reference to Schedule 1 reveals that it is comprised of two parts; Part I contains certain definitions of groups of positions for interpretive purposes and Parts II and III contain the operative exclusions, insofar as s.49(2) of Reg.881 is concerned. The grievor, whose position falls with in the operational module of the management compensation plan under the auspices of the Ministry of Correctional Services, and who has worked in this position for nearly a dozen years, clearly falls outside the exclusions contained in Parts II and III of Schedule 1, and falls within the ambit of s.49(1) of Reg.881. Subsections 49(1) and (2) of Reg.881 and Schedule 1 were considered and construed to the same effect in a decision of this Board cited as P-917/83 Brown, July 19, 1933 (Jackson) at p.8.

Thus, while this Board has jurisdiction to entertain complaints as to “working conditions and terms of employment" by the grievor, the question arises as to whether the nature of the issue raised in this grievance is arbitrable. In the instant case, it is the adequacy of the grievor's rate of pay under the management compensation plan that is challenged; it is not a claim that the plan has been misapplied in some way to his circumstances. It is the exclusive function of the Civil Service Commission to set levels of salary for positions governed by the management compensation plan; accordingly this Board finds that the nature of the complaint raised in this grievance as to the adequacy of the grievor's salary relative to the wages paid to the CO3 bargaining unit position to be inarbitrable. As did the Classification Rating Committee in the McLagan case, this Board concludes that it lacks authority to "rectify salary relationships that may have gone awry with the passage of time."

The Board does not doubt that the problem of salary compression has given rise to indignation and frustration on the part of the grievor and his fellow shift supervisors. However, the Board is heartened to note that the salary increases described in the Deputy Minister's memorandum of May 2nd, 1986 have restored for the time being a differential favouring the classification of OCR 14 relative to the bargaining unit position CO3. It is the continuing concern of the grievor that this differential be maintained in the future. While this Board might commiserate with the grievor’s apprehension it lacks jurisdiction to assist him. The Board notes that Mr. Benedict offered assurances on behalf of the Employer that the grievor and his cohorts at Wellington Detention Centre are respected and valued employees.

In the result, the Board finds that the grievance of Mr. Smalley is inarbitrable for the reasons given. Accordingly, the grievance is dismissed.

Dated this 8th day of September, 1986.