P/0004/88
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Marrision, Williamson & Mellon
Grievor
- and -
The Crown in Right of Ontario (Ministry of Correctional Services)
Employer
BEFORE
J.E. Emrich G. Deszca
Chairman Member
FOR THE GRIEVOR
R.D. Marrison B. Mellon J.R. Williamson
FOR THE EMPLOYER
J.F. Benedict Manager, Staff Relations & Compensation Ministry of Correctional Services
HEARING
July 20, 1988
The grievors are employed at the Whitby Jail as first level supervisory staff classified at the OM 14 level within the Management Compensation Plan. The grievors claim that “by its failure to adequately and expeditiously address the erosion and eventual elimination of salary differentials between first level managers and their subordinates, the employer has engaged in arbitrary and discriminatory conduct and has acted in bad faith, given the perennial nature of the problem”.
Since the mid to late 1970’s, salary increases awarded to bargaining unit classes have consistently outstripped the salary revisions granted to management classes. Consequently any salary differential between the two classes has been reduced, or eliminated. Since 1986, the compression of salary differential has become particularly acute, as shown in an excerpt from a table filed as Exhibit #3:
Year
CO2
CO3
Percentage Difference
OM14
CO2 - CO3
CO3-OM14
Percentage Difference
CO2-OM14
1986 Hourly Yearly
15.33 31806.40
16.17 33633.60
5½ %
16.45 34217.00
.84 1747.20
.28 584.00
5.2%
1.12 2330.60
1987 Hourly Yearly
16.02 33321.60
16.90 35152.00
5½ %
17.19 35756.00
.88 1830.40
.29 604.00
1.7 %
1.17 2434.40
1988 Hourly Yearly
16.75 34840.00
17.97 36753.60
5½ %
17.19 35756.00
.92 1913.60
.48 997.60
2.7 %
4.42 916.00
By way of remedy, the grievors ask that the employer be required to implement a different compensation system which would eliminate recurrent salary compression problems. In the alternative, the grievors seek a declaration that the employer has acted in bad faith, treated the grievors arbitrarily and has discriminated against them.
The employer took the position that the grievance was not arbitrable and relied on this Board’s decision in Smalley and Ministry of Correctional Services P/0013/85, and a decision of the Classification Rating Committee, McLagan and Ministry of Correctional Services P/001/85. In McLagan, the chairman noted that the jurisdiction of the Classification Rating Committee was limited to determining whether an employee is properly classified and does not extend to the rectification of salary relationships.
In Smalley, the grievor claimed a 3% salary increase for three months in 1985 when wages of bargaining unit personnel exceeded that paid to his position as shift supervisor, classified at OCR 14. In that case, the grievor did not claim that there had been a misapplication of the compensation plan to his classification as OCR14, nor did he claim that the employer had treated him arbitrarily, discriminatorily or had acted in bad faith in respect to the wages paid. In Smalley, the Board upheld the employer’s objection that the Board lacked jurisdiction to revise compensation levels for management personnel. At p.7, the Board held;
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 wit the passage of time”.
Filed with the Board were memoranda dated may 12, 1986 and July 7, 1987 from the Deputy Minister wherein the salary compressions issue is mentioned as a problem and notice is given of retroactive salary increases to be awarded to first level supervisory staff in an effort to alleviate the problem. Subsequently, much greater salary increases were awarded through arbitration to bargaining unit personnel, resulting in a negative differential in 1988. In October 1987, a background paper was prepared to review the problem of salary compression and to develop proposals to alleviate the problem. At p.2, the following conclusion is reached and suggestions developed to address the problem:
It would appear that the problem of salary compression will have to be alleviated by action from within the ministry with assistance from the Human Resources Secretariat.
The most satisfactory resolution appears to be a total revision of management and bargaining unit levels in institutions.
The following proposals could be considered and are included for discussion:
Eliminate the CO 1 and CO 2 classification in conjunction with the establishment of one range of salary classification for correctional officers.
Eliminate or discontinue the use of the CO 3 classification.
Where present OCR 14 staff actually supervise correctional officers, reclassify these positions to OCR15. Non-supervisory OCR 14 positions would remain unchanged.
Where present OCR 15 staff actually supervise correctional officers, reclassify those positions to OCR 16. Non-supervisory OCR 15 positions would remain unchanged.
Discontinue the use of the AM 16 classification.
Where present AM 17 staff actually supervise OCR 15 shift supervisors (proposed to be reclassified to OCR 16) reclassify those positions to AM 18. Non-supervisory AM17 positions would remain unchanged.
The essence of the grievors’ complaint is that since the employer has recognized the inequity of the salary compression problem, its failure to provide a long-term effective solution manifests bad faith and constitutes arbitrary, discriminatory conduct.
While this panel of the Board sympathizes with the grievors’ plight, it has reached the conclusion that it lacks jurisdiction to deal with their complaint. As late as October 1987, it is apparent that the employer recognized the need for effective long-term solutions to an inequitable salary compression problem and was searching for means to redress the problem. Subsequently, pursuant to an arbitration award, bargaining unit classes of employees obtained an increase that substantially exceeded the increase granted to management classes, over the 1986 and 1987 years. No further increase had been granted to the management classes for the 1988 year as the date of the hearing. The resultant differential between salaries of supervisors and their subordinates thus became a negative differential by 1988. However, in view of the evidence that the increases to the bargaining unit were handed down by an arbitration award, rather than by settlement, the Board finds that the grievors have not met the onus upon them to establish discriminatory or arbitrary conduct on the part of the employer or conduct in bad faith. Furthermore, the Board finds that this sort of problem, which involves rectification of salary relationships between supervisory employees and their subordinates governed by a collective bargaining regime, is not a matter over which this Board can exercise jurisdiction. It is a matter that is better addressed through the appropriate channels to the Civil Service Commission.
In the result, the grievances are dismissed.
Dated this 14th day of December, 1988.