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HomeMy WebLinkAbout1992-2964.Fazakas et al.06-04-20 Crown Employees Commission de ~jj Grievance Settlement reglement des griefs Board des employes de la Couronne "'Il..." Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. : (416) 326-1388 Fax (416) 326-1396 Telec. : (416) 326-1396 GSB# 1992-2964 UNION# 93A037, 93A039 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Fazakas et al.) Union - and - The Crown in Right of Ontario (Mini stry of the Attorney General) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Gavin Leeb Barrister and Solicitor FOR THE EMPLOYER Lucy McSweeney, Senior Counsel [May 9] Meredith Brown, Counsel [July 28] Ministry of Government Services HEARING May 9 and July 28, 2005. 2 Decision Ms. S. Difederico, Ms. 1. Fazakas and Ms. L. Usselman, while unclassified employees working at the Hamilton Courthouse, filed two sets of grievances in the early 1990s. One set were job competition grievances and the other set concerned merit pay. Both sets of grievances came before the Grievance Settlement Board ("the Board") for mediation on April 22, 2003. The parties subsequently agreed to proceed separately with the two sets of grievances. At this time, the only job competition grievances that have not been withdrawn are those filed by Ms. Difederico. With respect to her job competition grievances and a termination grievance she filed dated December 15, 1992, the Employer took the position that they should be dismissed for undue delay. In a decision dated February 22, 2005, I determined that I would not dismiss these grievances at that time for delay and that the Board would hear the merits of the grievances. The hearing is continuing with respect to these grievances filed by Ms. Difederico. This decision deals with the merit pay grievances of Ms. Difederico and Ms. Fazakas filed on August 6, 1992. The Union withdrew the merit pay grievances filed by Ms. Usselman. Ms. Fazakas, who became a classified employee on December 7, 1992, filed an identical merit pay grievance in 1996 which does not add anything to the claim made in her earlier grievance. Ms. Fazakas's grievance on merit pay filed in November of 1996 is both unnecessary and untimely, and therefore is dismissed. The Employer did not take the position that the merit pay grievances should be dismissed for undue delay. Two issues arise from the merit pay grievances. The first is whether they should be dismissed as untimely, as argued by the Employer. The second is what retroactive effect should be given to these grievances in the circumstances. The factual context for these grievances was 3 provided by an Agreed Statement of Facts, brief testimony from Ms. Difederico going to the timeliness issue and some of the Board's decisions which addressed merit pay and retroactivity during the relevant period. In addition to setting out a part of the factual context, the Agreed Statement of Facts also refers to the issues raised by the merit pay grievances. The substance of the Agreed Statement of Facts reads as follows: l. The Grievors, Ms. Jeannie Fazakas and Ms. Sylvia Difederico commenced their employment with the Ministry of the Attorney General ("MAG"), at the Hamilton Courthouse, in the position of Office & Systems Cashier and Clerk (OAG 6), on December 5, 1988 and March 17, 1987, respectively. 2. Ms. Fazakas held the position of Office and Systems Cashier and Clerk, OAG 6, from her date of hire in 1988 through to January 2004, with the exception of two acting assignments as a Judge's Secretary (OAG 9) and Client Services Representative (OAG 8). Her employment status changed from unclassified to classified on December 7, 1992. Ms. Fazakas is currently employed at the Hamilton Courthouse as a Client Services Representative, OAG 8. 3. Ms. Difederico's employment with the Ministry was terminated January 17, 1993. On April 25, 1994, she was rehired as a Court Services Officer (Usher and Messenger). She is currently employed at the Hamilton Courthouse and holds contracts as a Court Records Clerk (OAG 6) and Court Services Officer (Usher and Messenger). Her employment status remains unclassified. 4. On February 5, 1991, the Grievance Settlement Board (GSB) released a decision called Williams Barber in which unclassified correctional officers grieved that they did not receive merit pay while unclassified, despite the fact that they worked continuously for the Ministry and improved in skill and ability in the same manner as their classified colleagues (who did receive merit). The GSB agreed, and ruled that under the collective agreement the grievors' unclassified service should count for the purpose of merit pay. 5. The Williams Barber decision was judicially reviewed by the employer. The Divisional Court dismissed the employer's application on March 18, 1992 and upheld the GSB decision. 6. MAG reviewed the Williams Barber decision and drafted a policy to implement the decision within the Ministry. The policy, called "Merit Increases for Unclassified Staff' ["the Policy"] was implemented in May 1992, and provided that unclassified employees (including the Grievors) would receive merit raises on their next contract 4 renewal date. Since that time, per the Policy, the Ministry has given merit raises to unclassified staff who otherwise meet the criteria for merit. 7. Prior to the implementation of the Policy, it was the practice of the Ministry's Court Services Division not to award merit increases to unclassified staff. At that time unclassified staff, such as the Grievors, received only cost of living increases and any other negotiated pay adjustments. 8. OPSEU did not file a policy or other union grievance, with respect to the Merit Increases for Unclassified Staff policy. 9. In August 1992, Ms. Fazakas, Ms. Difederico and Ms. Lynn Usselman (Johnston) filed grievances alleging that they had not been paid at the proper wage progression levels after working the equivalent of one full year. They sought a remedy retroactive to one year after their initial date of hire. 10. The Grievors were advised in writing on August 13, 1992, that the Employer objected to the timeliness of their grievances, as the change in Ministry policy re: merit increases to unclassified staff was implemented in May 1992, and they did not file their grievances until August 6, 1992. 11. In November 1996, Ms. Fazakas and Ms. Usselman (Johnston) filed additional grievances alleging a similar violation of the collective agreement, namely that they had not been paid at the proper wage progression retroactive to their initial date of hire. 12. Both grievances of Ms. Usselman (Johnston) have been withdrawn by OPSEU The two grievances of Ms. Fazakas and the one grievance of Ms. Difederico are still in dispute. 13. Both Grievors seek a remedy which would award them merit raises for the period between the anniversary of their date of hire and the implementation of the Ministry's change in policy in May 1992. 14. The parties ultimately negotiated a change to the language in the MBC-OPSEU collective agreement to clarify that unclassified staff were entitled to merit raises. This change did not appear in the January 1, 1992-December 31, 1993 collective agreement. The changed language was first negotiated in the January 1, 1994- December 31, 1998 collective agreement and stated in Article 31.2.2 that: "A full- time unclassified employee coved by Article 31 [terms of employment for unclassified employees] shall be entitled to the same provisions regarding progression through the salary range and retroactivity of salary revisions as those agreed upon for the Bargaining Unit to which they correspond." In order to appreciate counsels' submissions, it is useful to review the facts in the context of the results of some of the decisions which addressed the merit pay issue. It is evident from the 5 decisions referred to by counsel that the issue of merit pay for unclassified employees first arose in the early 1990s in the Ministry of Correctional Services ("the MCS"). The general practice in the MCS was not to give merit increases to unclassified employees. Mr. D. Williams challenged this practice in a grievance filed in May of 1990 in which he claimed entitlement to a retroactive merit increase back to August 21, 1987. The Board heard his grievance and the grievances of five other Correctional Officers ("COs") in early January of 1991. In a majority decision dated February 5, 1991, the Board determined that the grievors were entitled to merit pay and that they should have been paid at the CO 1 second level after working the equivalent of one full year as a C01. See, Williams Barber et aI., GSB 1448/90, 1449/90 and 1466/90 (Samuels). The Divisional Court dismissed an application for judicial review of Williams Barber in a brief endorsement on March 18, 1992. The Court simply indicated that the Board's interpretation of article 3.3.1 of the Collective Agreement was not patently unreasonable. On August 4, 1992, approximately five months after the Court's decision, the MCS introduced a Merit Increase Policy for Unclassified Staff ("the MCS Policy"), which became effective July 1, 1992. Many grievances were filed in the MCS on the merit pay issue. Indeed, there were in excess of eight hundred such grievances, some before the Divisional Court decision and many after. One of the grievances was a Union grievance dated June 18, 1992, claiming that the Employer failed to pay appropriate merit increases to COso These grievances were before the Board in Hammond Maier, GSB 2426/90 and 2723/91 (Finley) where the Union sought relief from what was referred to as the 20-day retroactivity rule. Under the grievance procedure, an employee was obliged to discuss a complaint with his supervisor within 20 days of first becoming aware of the complaint. After reviewing a number of decisions and responding to some general questions from the parties, the Board, in a decision dated March 3, 1994, determined that the date for assessing retroactivity was March 18, 1992, the date of the 6 Divisional Court decision. Retroactivity for grievances filed after this date would be based on March 18, 1992, and the 20-day rule would apply to grievances filed prior to that date. Given the number of grievances, the Board indicated that it attempted to reach a practical balance within the context of the Board's jurisprudence. This decision was judicially reviewed, and upheld on March 24, 1995. In Re OP SEU (Union) and Ministry of Solicitor General and Correctional Services, GSB 2520/94 (Kaplan), the Board was asked to decide whether the Hammond Maier decisions (there was a subsequent decision dated March 11, 1996) applied to individual employees of the Ministry who did not file a merit pay grievance by March 3, 1994, the date of the first Hammond Maier decision. In its April 16, 1997 decision, the Board noted that the Hammond Maier award addressed the issue of retroactivity, but not coverage. Based the Union grievance dated June 18, 1992, the Board determined that eligible non-grievors were entitled to the same retroactive date as awarded to grievors in HammondMaier. One other decision which dealt with grievances about merit pay in the MCS is Re OPSEU (Elliott et al) and Ministry of Correctional Services, GSB 926/92 and 1335/93 (Finley). I refer to it at this point for completeness and I will comment on it in more detail later in this decision. The Ministry of the Attorney General ("MAG" or "the Employer") also had a practice in its Court Services Division of not paying merit increases to unclassified staff. In contrast to the grievance activity on the merit pay issue in the MCS, it appears that Ms. Difederico, Ms. Fazakas and Ms. Usselman were the only employees in the MAG that grieved about merit pay, and they did so approximately 411z months after the Divisional Court decision in Williams Barber. Unlike 7 what occurred in the MCS, the Union did not file a policy grievance against the MAG concerning a failure to pay merit pay to unclassified employees. It is likely that the MAG became aware of the merit pay issue subsequent to the release of Williams Barber. There is a reference in a MAG debriefing note dated October 15, 1991, that the MAG decided to adopt a practice of paying merit increases to unclassified staff. The policy was not implemented until May 26, 1992, some 211z months after the Divisional Court decision in Williams Barber. The Merit Increase for Unclassified Staff Policy ("the MAG Policy") provided that unclassified employees would receive merit increases on their next contract renewal date. Given that unclassified contracts were renewed generally in April of each year, this meant that unclassified employees in the MAG would not receive any merit increases until April of 1993. Ms. Difederico was unaware of the MAG Policy when she filed her merit pay grievance on August 6, 1992. While dealing with the issue of job competitions in August of 1992 with Union representative Ms. B. Marshall, the subject of merit increases was discussed. Ms. Marshall advised Ms. Difederico, Ms. Fazakas and Ms. Usselman that they should have been receiving merit increases because they worked full-time hours with no break in service. Up until then, Ms. Difederico was not aware that she was entitled to merit pay. Within a day or two after their discussion with Ms. Marshall, the three employees filed their merit pay grievances. In denying the grievances, the Employer took the position that the grievances were not timely because the MAG Policy had been implemented months earlier. I first turn to the issue of whether the grievances before me are timely. The Union takes the position that they are timely for essentially two reasons. It argues that the 20-day time limit under article 27.2.1 of the Collective Agreement does not start to run until an employee 8 subjectively believes that he or she has a complaint that could be a violation of the agreement. Counsel submitted that the grievors were unaware that they had a complaint about merit pay and did not appreciate that there was a contravention of the Collective Agreement until their discussion with Ms. Marshall. He noted that they grieved within two days of their discussion with Ms. Marshall. The Union also argues that merit pay is a matter of a continuing nature, making a grievance timely if filed within 20 days of an employee being paid. In support of these submissions the Union referred me to Re OPSEU (Pierre) andMinistlY of Correctional Services, GSB 0492/86 (Verity), Re OP SEU (Clerk 6 General) and Management Board of Cabinet, GSB 564/82 (Kennedy) and Re Religious Hospitaillers of St. Joseph of Hotel Dieu of Kingston and OPSEU (1992),29 L.AC. (4th) 326 (Stewart). Counsel for the Employer noted that the MAG policy was in effect when the grievances were filed in August of 1992 and that for many years neither the grievors, nor anyone else in the MAG for that matter, had raised an issue about merit pay. Counsel submitted that this situation could not be salvaged by the submission that the grievances were of a continuing nature. Counsel also argued that the individual awareness test should not be applied in circumstances where the Union was aware of an ongoing issue for some time and did not advise its members. In counsel's submission, the timeless issue should be linked to the Union's knowledge. Counsel also noted that Ms. Fazakas did not testify and we therefore do not know when she became aware of the right to complain about merit pay. The grievance procedure in the 1992-1993 Collective Agreement is in article 27. The relevant part of this article is 27.2.1, which provides as follows: An employee who believes he has a complaint or difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. 9 InRe OPSEU (Pierre) , supra, Ms. Pierre filed her grievance on March 4,1986, after she became aware of her right to do so from speaking with the Chief Steward on February 25, 1986. The events giving rise to her grievance occurred no later than November of 1985. In addressing the timeliness issue, the Board commented as follows at page 14 about what is necessary to comply with the time limit: What is required on the part of the employee to comply with the mandatory 20 day time limit, is knowledge or awareness that there has been a violation or a possible violation of the provisions of the Collective Agreement. Article 27.2.1 contemplates the knowledge on the part of the employee - a subjective concept. In finding the grievance timely, the Board determined that".. .the date the grievor learned of the events or circumstances giving rise to her grievance (whether in February or November, 1985) is not the determining factor. The Board finds as a fact that prior to February 25, 1986 the grievor had neither the knowledge nor the belief that her concerns were amenable to resolution under the Collective Agreement." The Pierre decision was upheld on judicial review. In its endorsement dated July 11, 1990, the Divisional Court wrote, "The words 'believes' and 'becoming aware' found in Article 27.2.1 clearly establish that it is only the subjective awareness of the employee that she has a complaint arising out of a possible violation of the agreement that sets the 20-day time limit running." The Employer's timeliness objection focuses on the filing of the grievances in relation to the introduction of the MAG Policy. However, Ms. Difederico did not file her merit pay grievance against the MAG Policy because she was not aware of this policy. In any event, Ms. Difederico did not have a subjective awareness that she had a complaint about merit pay and she did not understand that there was a possible violation of the Collective Agreement until she spoke with Ms. Marshall in August of 1992. Although she did not testify, I am prepared to infer 10 from the evidence that Ms. Fazakas was in the same position in this regard as Ms. Difederico. Ms. Fazakas participated in the discussion with Ms. Marshall and both grievors filed their grievances soon after that discussion. The application of the Pierre test to these circumstances leads to the conclusion that the grievances were filed within the time limit prescribed by article 27.2.1. In my view, the knowledge of the Union is irrelevant when determining whether an individual grievance is timely because the words in article 27.2.1 make clear that it is the employee's belief that it critical, not the Union's. In these circumstances, it would be wrong to impute the Union's knowledge to the employee. Although unnecessary, I would also find that the grievances are timely because they are continuing grievances. I turn now to the issue of what is the proper retroactivity date for these grievances. During the course of the thorough submissions of counsel, I was referred to many decisions, mostly GSB decisions, which deal with the issue of retroactivity. Many of them refer to the 20- day retroactivity rule. For example, inRe Smith, GSB 237/81 (Roberts), dated March 5,1985, the Board made the following comments about the rule: The usual rule is that, barring the existence of circumstances which would make it inequitable for the Ministry to rely upon it, retroactivity will be limited to the period of time within which it was permissible for the grievor to file his grievance. In the case of this Collective Agreement, that period is 20 days prior to the day upon which the grievance was actually filed. See Re OP SEU and Ministry of the Attorney-General, G.S.B. 71/76, in which the Board stated: "While it is, in our view, clear that the employer failed to comply with the provisions of Article 10.3 throughout the period from January 18, 1976, we do not believe that these employees who initiated their complaint only on May 25, 1976, may properly claim relief throughout that period. To the contrary, and to hold otherwise, would be to improperly penalize the employer for the breach of an agreement of which it was not aware. Thus, where as here, the breach of the agreement is in the nature of a continuing one, boards of arbitration have consistently limited an employee's right to claim damages for the breach of the agreement to the period of time within which it was permissible to file his grievance. Re: Union Gas Co. of Canada Ltd (1972),21 L.AC. (2d) 45 (Weatherill). Re: Automatic Screw Machine Products Ltd (1972),23 L.AC. 396 11 (Johnston). Re: National Auto Radiative Manufacturing Co. (1967), 18 L.AC. 326 (Palmer)." (emphasis added in original) The primary issue to be determined in this case is whether it would be inequitable to limit relief to a period of 20 days before Ms. Fazakas and Ms. Difederico filed their grievances. The Union takes the position that the remedy should extend back to the time when the grievors first would have been entitled to receive merit pay. For Ms. Difederico this would be before the end of 1987 and for Ms. Fazakas it would be the middle of 1989. Alternatively, the Union argued that retroactivity should go back to March 18, 1992, the date selected in Hammond Maier. The Employer takes the position that the grievors are not entitled to any relief in the circumstances and that, in effect, the Board should endorse the MAG Policy. In the alternative, the Employer argued that any remedy should not go back beyond the 20 days before the grievors filed their gnevances. In arguing that full retroactivity was appropriate in this case, counsel for the Union emphasized that there is no dispute that the grievors were entitled to merit pay. He submitted that when balancing the interests of the grievors, who had been deprived wrongly of merit pay for a number of years, and the Employer who has contravened the Collective Agreement, the Board should favour the grievors. Counsel argued that the fact that the Employer had no knowledge of a claim until the grievances were filed is irrelevant and that the grievors are merely seeking payment now of monies that the Employer has saved over the years. Counsel also relied on the maxim that where there has been a wrong, there must be an appropriate remedy. Counsel also argued that there is a direct relationship between the right to grieve where an employee has been unaware of a violation of the Collective Agreement and the appropriate 12 remedial period. In other words, the lack of awareness of a violation by an employee gives rise to an entitlement to full retroactivity. Counsel noted that although the decisions on retroactivity do not specifically rely on this rationale, the rationale underlies the results in some of the decisions. Counsel referred in particular to Re Williams Barber, supra, Re OPSEU (Pierre), supra, and Re OPSEU (Clerk 6 General) and Management Board of Cabinet, supra. Counsel placed considerable reliance on Williams Barber, a case in which full retroactivity was given and which was upheld on judicial review. Counsel submitted that any subsequent decisions that depart from Williams Barber are wrong in law. In this regard, counsel referred to Re Blake et ai, GSB 1276/87, in which the then Chair, in effect, indicated that a panel of the Board should follow the decision of another panel unless there are exceptional circumstances which justify not doing so. With respect to the Union's alternative position, counsel argued that certain features of this case warranted the conclusion that the date of March 18, 1992 is the appropriate retroactivity date for the grievors. He noted that it is evident from the debriefing note that the MAG had knowledge of the merit pay issue and that it had decided to change its practice in October of 1991, yet it waited for seven months before it implemented the MAG Policy. Counsel suggested that implementation of the MAG Policy was skilfully timed to ensure that unclassified employees in the MAG did not receive merit pay until April of 1993. Counsel argued, as well, that the Divisional Court decision in Williams Barber finally resolved the issue of merit pay for the government and noted that because of Vice-Chair Kaplan's decision in Re OPSEU (Union), supra, even non-grievors in MCS were given retroactivity to March 18, 1992. Counsel argued that in these circumstances the grievors should at least receive retroactivity back to March 18, 1992. 13 In addition to the decisions referred to previously, counsel for the Union relied on the following decisions: Re OPSEU (TGndenheuvel et al) andMinistry of the Environment, GSB 2086/91 (Low), Re OPSEU (Cameron) and Ministry of Correctional Services, GSB 2174/87 (Draper), United Food and Commercial Workers Union Local 280P v. Pride of Alberta Meat Processors Co. (c.o.b. Gainers), [1998] AJ. No. 466 (Alberta C.A), Re Leisure World Nursing Homes Ltd, North Bay and Service Employees Union, Local 478 (1983), 12 L.AC. (3rd) 345 (Langille), Re OPSEU (Kimmel Leaf) and Ministry of Government Services, GSB 1391/90 (Kaplan), OPSEU v. Ontario (Ministry of Community and Social Services), [1986] OJ. No. 152 (Div. Ct.) andRe OPSEU (Cleveland) and Ministry of Correctional Services, GSB 2350/92 Stewart). Counsel for the Employer argued that there are no exceptional circumstances present in this case which would justify departing from the application of the well-entrenched 20-day rule. She submitted that there is no basis for giving retroactivity for a period of time when the employees in the MAG, including the grievors, the Union and the Employer did not believe that there was an issue about merit pay. Counsel submitted that the purpose of the 20-day rule is to prevent a remedy going back for a period of time when an employer is unaware of a challenge to the way it administers the collective agreement. Counsel argued that the rule prevents an employer from being penalized when it has not been given the opportunity to address a possible contravention of the collective agreement. Counsel submitted that there are limited exceptions to the rule and that they arise primarily because it would be inequitable to apply the rule due to an employer's conduct. Counsel submitted that there is no valid reason for linking a right to retroactivity to an 14 employee's awareness of a violation. Apart from the absence of arbitral support for this approach, counsel submitted that what is critical is the making of a claim against an employer and not the fact that a claim had not been made earlier because an employee was unaware of a violation. In counsel's view, an employee awareness test does take into account that an employer would be penalized for a time when it was unaware of a potential violation. Counsel also maintained that what took place in the MCS was irrelevant for determining a retroactivity date for these grievors, since the focus must be on what was occurring in the MAG. Contrary to the Union's submission, counsel argued that Williams Barber should not be followed. Counsel noted that the majority in that case did not specifically deal with retroactivity or the 20-day rule. She also argued that the result in that case is inconsistent with the general thrust of the arbitral jurisprudence. Counsel submitted that the Board should conclude that the MAG Policy, with its prospective feature, was an appropriate response in the circumstances and dismiss the grievances. Alternatively, if any remedy is warranted, counsel argued that only the application of the 20-day rule would be appropriate. In addition to cases referred to previously, counsel relied on the following decisions: Re OPSEU (Burrows) and Ministry of Labour, GSB 0379/88 (Mitchnick), Re OPSEU (Ababio et al) and Ministry of Revenue, GSB 1295/88 (Watters), Re OPSEU (Hillman) andMinistry of Transportation, GSB 2007/89 (Kaplan), Re OPSEU (Hadwen et al) Ministry of Revenue, GSB 284/89 (Gorsky), Re OPSEU (Kay, Milak, McCauley Truchon et al) andMinistlY of Transportation, GSB 93/88 (Barrett), Re OPSEU (Letourneau) and Ministry of Correctional Services, GSB 1158/92 (Stewart), Re OPSEU (Union Grievance) and MinistlY of Solicitor General and Correctional Services, GSB 2520/94 (Kaplan) and Re OPSEU (Clapperton et al) and Ministry of Solicitor General and Correctional Services, GSB 0410/97 (Petryshen). 15 Having regard to the submissions and the facts in this case, it is my conclusion that it is appropriate to apply the 20-day retroactivity rule. This rule has been a feature of the GSB' s jurisprudence for many years. The Union's submissions which focused on how to balance the interests of the grievors and the Employer in this instance appear to be arguments for abandoning the rule altogether. The rule was developed and has been applied in order to provide for such a balancing of interests. Although the rule has exceptions, the case law does not suggest that an employee's lack of awareness of a violation of the collective agreement creates an exception to the rule. In my view, although relevant to the timeliness of a grievance, an employee's awareness of a violation is not a relevant consideration when deciding whether retroactivity is appropriate. Timeliness and retroactivity are distinct issues. Since it is likely that grievances are filed when an employee or a union becomes aware of a violation, there would be no need for the 20-day rule if the employee awareness test the Union proposes were adopted. I agree with the submission of counsel for the Employer that Williams Barber and the Divisional Court decision are not particularly helpful precedents on the retroactivity issue. The reasons of the majority in Williams Barber and the Divisional Court endorsement do not refer to the 20-day rule and they do not explain why full retroactivity was appropriate. I prefer to follow those decisions which specifically address the issue of retroactivity and these decisions rarely award full retroactivity. The Union's alternative position in particular raises questions about the significance of an employer's knowledge of a violation and the relevance of events which occur in another Ministry. Knowledge on the part of an employer about a possible violation is a consideration. In my view, however, the employer must be aware that there is a claim being made relating to its 16 administration of the collective agreement. The fact that a decision has been made by the GSB on grievances in another Ministry is not, by itself, determinative of a retroactivity issue. Support for the preceding analysis can be found in two decisions that, in my view, are particularly helpful. These decisions address some of the Union's submissions and they provide an appropriate framework for dealing with retroactivity. Re OPSEU (Elliott et al), supra, is a retroactivity decision dealing with merit pay for unclassified staff at the Sault St. Marie Jail. The grievances had not been included in the many grievances that were before the Board in Hammond Maier. Mr. Bishop, President of the Local Union, filed a policy grievance dated January 18, 1992, when he was alerted to certain wage discrepancies when dealing with other grievances. He was unaware of Williams Barber when he filed the policy grievance and he did not discuss the grievance with affected employees. He subsequently told employees about the policy grievance when he advised twelve COs to file individual grievances, which they did on April 20, 1992. The twelve grievors were unaware of a merit pay issue prior to their discussion with Mr. Bishop. They did not know that there were two levels in the COl pay scale and that they had a right to grieve merit pay. The grievors had been hired as unclassified COs between 1987 and 1990. The Union demonstrated that COs at other institutions with less service reached the second level of the CO 1 classification earlier and therefore were being paid more than the gnevors. The Board in that case referred to a number of retroactivity decisions. In particular, it considered Williams Barber and the Divisional Court decision upholding the decision. The Vice-Chair also considered HammondMaier, one of her decisions, in which the Board rejected full retroactivity and the concept of employee awareness. The Union argued, as it did before me, that the grievors should be paid retroactively to their first anniversary date and that there was no 17 reason not to follow the approach in Williams Barber. The Union also submitted that Hammond Maier was decided on its particular facts and that it did not establish general principles. In concluding that it would not depart from the 20-day retroactivity rule, the decision states as follows: [The Board]. . . agrees with the Union's argument that HammondlMaier responded to a particular set of circumstances and that the ruling in the award does not establish principles of retroactivity. The Board rej ects the argument of the Employer that the fact the Grievors were classified at the time they grieved, renders them ineligible to receive a remedy which would affect their pay during the period when they were unclassified and which continues to affect their compensation. The Board also rejects the Union's argument that a balancing of the interests between Employee and Employer is inappropriate in the case at hand and that retroactivity should, as in Williams/Barber, date from the date of the beginning of the breach, that is the first anniversary date of each Grievor. The twenty-day rule applied to retroactivity is one of the means by which interests of both parties are balanced and is based on the time limit set out in the Collective Agreement for the filing of grievances. It relates to the obligation of a Grievor to bring a grievance to the attention of the Employer within this agreed-upon time frame rather than withholding the information thereby placing the Employer at a disadvantage. In the case at hand, the Employer was placed on notice on January 18, 1992, when Mr. Bishop filed the grievance on behalf of the twelve Grievors. The Board has concluded that it is appropriate for the Grievors to receive retroactivity in relation to that date. In other words, they are to be moved to Level 2 of the Correctional Officer 1 Classification 20 days prior to January 18, 1992, and the Board so orders. The result of this is that they will be in Level 2 at the time they moved into the Correctional Officer 2 Classification and this is to be reflected in the adjustment to their pay. The Grievors are to receive interest at 7% compounded annually. The Board specifically declined to follow the approach in Williams Barber, even though the grievances before it were filed in the same Ministry and the Employer was obviously aware of the decision. The Board also noted that the 20-day rule is designed to balance the relevant interests. The fact that the grievors were unaware of a violation when they grieved did not result in a departure from the rule. 18 The other case is Re OPSEU (Union Grievance) and Ministry of Solicitor General and Correctional Services, supra, a decision of Vice-Chair Kaplan dated November 27, 1995. The subject matter of the grievances in that case was holiday pay under a compressed work week. On August 11, 1992, the Board had issued a decision referred to as Simcoe et al dealing with the entitlement of Residential Counsellors in the Ministry of Community and Social Services ("the MCSS") to holiday pay under a compressed work week. The MCSS and OPSEU resolved the outstanding holiday pay issues in a Memorandum of Settlement dated November 25,2994, in which they selected a retroactivity date of September 28, 1992. Subsequent to the release of Simcoe et ai, in excess of one thousand holiday pay/compressed work week grievances were filed in the Ministry of Solicitor General and Correctional Services ("the MSGCS"). Fifty-two grievances were filed in December of 1992, with the earliest filed on December 17, 1992. One of the early grievances explicitly referred to the Simcoe et al decision. In December of 1994, the MSGCS changed its practice in this area to comply with the Collective Agreement and its new policy was applied retroactively to November 1, 1994. One of the issues in the case was whether the grieving employees were entitled to compensation for the period prior to November 1, 1994. The Union took the position that the retroactivity date should be 20 days prior to the issuing of the Simcoe et al decision, since this was when the employer first became aware of the breach. As alternatives, the Union argued that September 28, 1992, the retroactivity date selected in the MCSS should be the governing date, or December 17, 1992, the date when the first grievance was filed in the MSGCS. In determining the proper retroactivity date, the Board found it was appropriate to depart from the 20-day rule. However, it did not select a date based on the release of the Simcoe et al 19 decision or one based on the one selected in the MSGCS. Instead, it selected the date of December 17, 1992, and set out its reasons for doing so as follows: . . . Without undertaking a detailed analysis of the differing positions of the parties, it seems to me, on the facts of this particular case, that retroactivity should not begin until this Ministry received a grievance alleging a breach and referencing the GSB's decision in the Simcoe case. Once the first grievance was filed formally bringing to the Ministry's attention an allegation of a violation of the Collective Agreement along with a decision of the Board finding that the exact same practice in another Ministry was contrary to the Collective Agreement - and it was an agreed fact between the parties that this Ministry was notified of the Simcoe case in one of the earliest December grievances that was filed - the employer acted at its own peril by not expeditiously addressing the issue. This is not a case of the Ministry simply receiving notification of an alleged breach of the Collective Agreement through the filing of one or more grievances. If it were, the result of this award would be much different, and would have, almost certainly, resulted in the application of the usual retroactivity rule. Rather, this is the case of the Ministry receiving numerous grievances, many of which referenced a decision of this Board stating that a practice that existed in another Ministry, in all material respects identical to a practice in this Ministry, was contrary to the Collective Agreement. Another panel of this Board made that finding, and decisions of this Board are final until overruled. Not only was this decision not taken to judicial review, it was eventually implemented in full. The ministry can hardly, in these circumstances, claim to be taken by surprise. Nor can it state that it was awaiting a finding of this Board. This Board had made a finding, and that finding was communicated to it. The date of communication is, of course, important... Nevertheless, I also find the issuance of a GSB award is not necessarily sufficient, at least it is not in this case (being somewhat sensitive to the size and diverse operations of government), to bind every Ministry insofar as a retroactivity date is concerned should other grievances alleging the same violation of the Collective Agreement subsequently be filed referencing one of the Board's awards. Obviously, there can be no hard and fast rule. What there must be is a measure of common sense applied to the facts of particular cases. .. The important date in the instant case, in my view, is the date when a grievance was first filed bringing both the alleged violation of the Collective Agreement to the attention of the Ministry along with the Simcoe award. For our purposes, it is significant that the Board departed from the 20-day rule only in circumstances where a grievance had been filed in the MSGCS along with a reference to a GSB decision in another Ministry. The filing of a grievance in the MSGCS was critical for determining a retroactivity date and a decision in another Ministry was not determinative. The 20 mere filing of a grievance without referencing the GSB decision would not have warranted a departure from the rule. In the case at hand, I find that there is no equitable justification that would warrant departing from the 20-day retroactivity rule. There is certainly no justification for awarding full retroactivity given that the circumstances here are not exceptional. Williams Barber is not persuasive on the issue of retroactivity, whereas the approach in Re OPSEU (Elliott et al), supra, is persuasive. The 20-day rule balances the relevant interests between employee and employer, and an employee's awareness of a violation is not a valid consideration. There is also no justification for selecting a retroactivity date of March 18, 1992. Since the consensus is that Hammond Maier did not establish general retroactivity principles and its particular result represents a practical compromise, there is no valid reason to select March 18, 1992 as the retroactivity date for these grievors. In any event, the circumstances involving merit pay in the MCS has little relevance when selecting a retroactivity date for grievances filed in the MAG. Although the MAG was aware of Williams Barber, the first claim regarding merit pay made against the MAG was when Ms. Fazakas and Ms. Difederico filed their grievances in August of 1992. It would penalize the Employer in these circumstances if retroactivity were granted beyond 20 days prior to August 6, 1992. I do not agree with the Employer's contention that no remedy is appropriate for Ms. Difederico and Ms. Fazakas in light of the MAG Policy. The MAG decided to alter its practice of not providing merit pay to unclassified employees in October of 1991. It is not particularly surprising that it elected to wait for the judicial review of Williams Barber before it implemented the MAG Policy. The MAG implemented its policy relatively soon after the Divisional Court 21 decision in Williams Barber, but not before the renewal of the unclassified contracts in April 1992. As noted previously, the prospective nature of the MAG Policy meant that employees would not benefit from it until April 1993, when unclassified contracts were renewed again. Contrary to the Union's suggestion, there is no concrete evidence to suggest that the Ministry timed the implementation of the MAG Policy to improperly delay merit increases to unclassified employees. However, there is no reason for the remedy in this case to be governed by the prospective feature of the MAG Policy. The Board in HammondMaier indicated that the commencement date of July 1, 1992, for the MCS Policy was not determinative since "it appears to have been selected quite apart from the grievance and arbitral processes." In my view, these comments apply equally to the MAG Policy. Ms. Difederico and Ms. Fazakas were entitled to merit pay when they filed their grievances and it is only appropriate to apply the usual retroactivity rule. Accordingly, the grievances dated August 6, 1992 are allowed in part. The Employer is directed to compensate the grievors for any losses attributable to its failure to pay merit pay to the grievors for the period commencing 20 days prior to August 6, 1992, with interest calculated in the usual way. I will remain seized of these grievances. Dated at Toronto, this 20th day of April, 2006.