P/0003/98, P/0004/98, P/0005/98, P/0006/98, P/0007/98, P/0008/98, P/0009/98, P/0010/98

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Group Grievance, Newman et al.

Grievor

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services)

Employer

BEFORE

D.J.D. Leighton

Vice-Chair

FOR THE GRIEVOR

Mr. Newman

FOR THE EMPLOYER

Fateh Salim, Counsel Legal Services Branch Management Board Secretariat

HEARING

January 18, 2001.

Decision

The grievors were Operational Managers at the Millbrook Correctional Centre, in the Ministry of the Solicitor General and Correctional Services when they forwarded their grievances to the Public Service Grievance Board (the Board) as follows:

We grieve that our employer has inadequately compensated us for statutory holidays provided for by subsection 63(3) of Regulation 881 made under the Public Service Act, and that the employer is also in violation of the Employment Standards Act, 26(5)

The grievors relied on a decision of the Grievance Settlement Board, Simcoe et al and the Ministry of Community and Social Services (1992) 1725/91 (Gorsky), and minutes of settlement signed pursuant to a group grievance filed by certain operational managers at Whitby Jail, Williamson et al and the Ministry of the Solicitor General and Correctional Services, P/0041/92; P/0002/95, to argue that they were entitled to twelve hours of lieu time for every statutory holiday between June 1, 1993 and October 1994. Since November 1, 1994 when the employer began the “Compressed Work Week Agreements and Statutory Holidays Policy,” (the Policy) the grievors have received twelve hours of lieu time for statutory holidays. Before this policy the grievors received only eight hours of credit. Bargaining unit members received retroactive compensation in lieu time for this practice when the Grievance Settlement Board decided in Simcoe, that the practice was wrong and they were entitled to be credited twelve hours of statutory holidays. The grievors argue that it is only fair that they receive the

same benefit as the bargaining unit, for the period of time before the policy was changed.

The employer made two objections to the grievances. First, it was the employer’s submission that the grievances were not timely, having been filed in 1998 , some four years after the claim arose. Second, counsel argued that the grievors’ complaint is identical to the grievance decided by the board in Blakney et al and the Ministry of the Solicitor General and Correctional Services (1997) P/0144/96 (Leighton). In Blakney the grievors argued that they should be accorded the same benefit and rights as the bargaining unit members got as a result of the Simcoe decision. They also relied on the minutes of settlement from Whitby on the same issue. The board in Blakney dismissed the grievances and counsel submits that the board is bound by the principle of stare decisis to dismiss these grievances.

Decision

Having carefully considered the submissions of the parties, I find that I must dismiss the grievances on the grounds that they are both untimely and without merit. A delay of four years in grieving without any evidence to justify such delay is too much. With regard to the merits, this board has held consistently that with regard to merits a claim by managers based only on the argument that bargaining unit members have been given the benefit must fail.

As the board held in Laird et al and the Ministry of the Solicitor General and Correctional Services (1988) P/0050/95 (Springate):

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 types of considerations, however, do not create entitlement on the part of management staff.

As a matter of policy the Ministry set November 1, 1994 as the effective date for its new approach to compensating employees for scheduled days off on a holiday. The GSB decided that this date was not appropriate for bargaining unit employees. It did so on the basis that in August 1992 it had found the employer’s prior policy to be in violation of the OPSEU collective agreement. The reasoning adopted by the GSB did not apply to the grievors. They were not covered by the collective agreement and had not raised an independent challenge to the employer’s prior policy. There is, accordingly, no basis for the Board to require that the employer adopt an earlier retroactivity date with respect to the application if its new policy to the grievors. Having regard to this conclusion, the remaining outstanding grievances are hereby dismissed.

While this board is not bound to follow a previous decision, for the sake of consistency, the decision ought to be followed unless the earlier one is wrong. There was no argument that the consistent line of cases in this area, the most recent being Johnson, Smith and the Ministry of the Solicitor General and Correctional Services (1999) P/0001/99; P/0005/99 (Agarwal), is wrong. These cases have found repeatedly that management employees have no legal entitlement based on terms and conditions of employment accorded to bargaining unit members as a result of the negotiation of a collective agreement.

Since this is the basis of the grievors’ complaint, the grievances must be dismissed.

For the reasons noted above, I hereby dismiss the grievances.

Dated at Toronto, this 6th day of February, 2001.