P/0024/99
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Armstrong et al.
Grievor
- and -
The Crown in Right of Ontario (Ministry of Correctional Services)
Employer
BEFORE
Naresh C. Agarwal
Chair
Decision
BACKGROUND
The Grievors are employed as operational managers at the Hamilton-Wentworth Detention Centre within the Ministry of Correctional Services (“Ministry”). They sent individual, but otherwise identical, grievance letters dated September 13, 1999 to Mr. B. McDonnell, Deputy Superintendent, Operations asking for a pay increase, shift premium increase, and an incentive rate as was experienced by bargaining unit employees retroactive to April 1, 1999. In his response dated September 16, 1999, Mr. McDonnell denied their request. Subsequently, the operational managers filed a group grievance dated September 27, 1999 with the Public Service Grievance Board (“Board”) seeking the same relief.
The Board sent a Notice of Grievance to the Ministry on October 12, 1999. In his response dated November 1, 1999 on behalf of the Ministry, Mr. Mooney objected to the Board’s jurisdiction to hear the present grievance and apply the terms of the OPSEU Collective Agreement to the Grievors. He also submitted that the Board had recently ruled on the issue at hand in Laird et al (P/0050/95) and Blakney et al (P/0144/96) and should not rehear it.
On November 4, 1999, the Board forwarded copies of Mr. Mooney’s response and the two cases cited therein to the Grievors individually, and asked them to make written submissions along the following lines:
“The Board has reviewed the information supplied at the time of application and on its face this appears to be a similar fact situation to that set out in Laird et al (P/0050/95) and Blakney et al (P/0144/96), which would indicate that the Board is without jurisdiction in this matter. The Board requests that you review the material enclosed and forward your submissions to the Board, to be received not later than November 30, 1999. The submissions must articulate how your fact situation differs from that in Laird et al (P/0050/95) and Blakney et al (P/0144/96), your position regarding the Board’s jurisdiction and why the Board should not dismiss this grievance without a hearing if it determines that it is without jurisdiction.
Based upon the submission requested, the Board may:
Decide that there is sufficient factual difference and/or questions regarding its jurisdiction to merit a hearing;
Request further submission from the parties before deciding to hold a hearing;
Dismiss the grievance if the submissions are not received in a timely manner;
Dismiss the grievance based upon the correspondence from the Ministry and the submission of the applicant without a further hearing.
As a final comment, should you determine from your review of the material that the Board is without jurisdiction, you have the option of withdrawing the grievance. If you decide to withdraw, please forward the withdrawal to the Board in writing.
If you require further information or have any questions, please do not hesitate to contact this writer at (416) 326-1382.
Yours truly,
L. H. Stickland
Secretary”
The Board did not receive any written submissions from the Grievors either individually or collectively.
DECISION
The Grievors are seeking the same pay increase, shift premium increase, and incentive rate as given to bargaining unit employees effective April 1, 1999 pursuant to changes in the collective agreement negotiated by their union (OPSEU) with the Government of Ontario. They point to their Ministry’s past practice of extending to operational managers the increases in compensation accruing to bargaining unit employees from changes in the terms of the collective agreement. The Grievors’ are demanding the same treatment with respect to the gains experienced by bargaining unit employees effective April 1, 1999 and are seeking this as a remedy from the Board.
The Board’s jurisdiction to hear grievances and grant remedies arises from the Public Service Act. The terms and conditions of employment which apply to operational managers, and over which the Board has jurisdiction, are set out in Regulation 977 and Orders in Council made pursuant to the Public Service Act. There is nothing in this Act, which requires that the employer treat operational managers in the same manner as bargaining unit employees, or that its policy concerning terms and conditions of employment for operational managers benchmark the terms of the collective agreement applicable to bargaining unit employees. The Board, therefore, does not have the authority to apply to operational managers the terms of the collective agreement negotiated by OPSEU for the bargaining unit employees.
I also examined the two prior cases, Laird et al and Blakney et al, cited by Mr. Mooney in his letter dated November 1, 1999. The Board has addressed the issue of entitlements of operational managers vis-à-vis bargaining unit employees in these cases. Based on the information available to the Board, I find the situation in this case to be a similar fact situation to that set out in the two prior cases in terms of the parties involved, the central issue to be decided and the relief being sought. In Laird et al, the Board noted that because terms and conditions of employment for operational managers are set by employer policy, while those for bargaining unit employees result from negotiation of a collective agreement, logically there would be different outcomes for the two groups of employees. It went on to issue the following ruling in the matter.
“There are practical reasons why an employer may want to ensure that managerial staff receive benefits that are at least equal to those enjoyed by bargaining unit employees. These include issues relating to staff morale and not wanting to discourage bargaining unit employees from accepting promotions into management. These type of considerations, however, do not create entitlement on the part of management staff.” (emphasis added)
I fully concur with the ruling and the reasons for the ruling in Laird et al, which were cited and fully adopted in Blakney et al [and also another subsequent case, Johnson and Smith (P/0001/99, P/0005/99)].
In conclusion, I agree with Ministry’s view that re-litigating the issue of operational managers’ entitlement to the provisions of the collective agreement applicable to bargaining unit employees would be an inefficient use of time and resources, given the Board’s clear lack of jurisdiction and its recent rulings on the subject. I see no merit or justification in allowing the present grievance to proceed to a hearing. Accordingly, this grievance is hereby dismissed.
Dated at Toronto, this 21st day of February, 2000.