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HomeMy WebLinkAbout1994-2520UNION97_04_16 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREETWESr; SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILEITELECOPIE (416) 326-1396 GSB # 2520/94 OPSEU # 95U006 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of ontario (Ministry of the Solicitor General & Correctional Services Employer BEFORE W Kaplan Vice-Chairperson FOR THE D Wright GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE A Gulbinski EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING March 25, 1997 2 Introduction By Memorandum of Agreement dated July 31, 1996, the parties decIded to put two issues before me 1 Do the merit pay awards of the GSB dated March 3, 1994 and March 11 , 1996, apply to individual employees of the Ministry who had not filed a grievance regarding merit pay by March 3, 1994? 2. Does the holiday pay decision of the Board dated November 27, 1995 apply to individual employees of the Ministry who had not filed a grievance regarding holiday pay either prior to November 1, 1994 (the date that the Ministry implemented its policy change) or prior to November 7, 1995, (the date of the hearing of the holiday pay case)? Issue #1 On March 3, 1994, a panel of the Board chaired by Helen Finley released an intenm decision pertaining to a number of grievances (Hammond/Maier #1, 2426/90,2723/91) that alleged that the employer had failed to pay the appropriate merit increase to correctional officers Suffice it to say that the various cases concerned employees who began their public service careers as unclassified correctional officers It was then Ministry practice to pay unclassified employees in the Correctional Officer classification at the bottom rate of the CorrectIonal Officer 1 (hereafter "C01 ") class, regardless of their length of employment as a C01 After appointment to the classIfied service and completion of a one-year training period, Correctional Officers were raised from the bottom C01 rate to the bottom rate of the Correctional Officer 2 (hereafter "C02") class The top C01 rate IS higher than the bottom C02 rate 3 In June 1990, Daniel Williams, a Correctional Officer, filed a grievance claiming a retroactive merit increase to the top C01 rate for the period August 21, 1987 to August 29, 1988, the second year of his employment as an unclassified Correctional Officer His gnevance also claimed retroactive adjustments and compensation in his pay as a C02 since his his appointment to the classified service on August 29, 1988 Other correctional officers also grieved, and a panel of the Board found that the gnevors ought to have been paid at the C01 second level rate as of the commencement of the first contract of service whIch began after they had worked full-time for the equivalent of one full year for the Ministry as a C01 After an unsuccessful attempt at judicial review, the Ministry issued a policy statement announcing that unclassified employees would be entitled to merit increases to the top rate of the C01 classification beginning on July 1 , 1992 The policy did not provide for any retroactive wage adjustments or adjustments to current rates for C02s affected In the past by the Ministry's C01 merit increase policy In the result, the various grievances referred to above were filed and proceeded before the Finley panel The main issue to be determined by that panel was retroactivity After considering various authoritIes, the Finely panel, asked and answered a number of questions concerning retroactivity The Board .concluded that the "time when" or the pivotal point in time for the commencement of retroactive payments should be the time at which it was confirmed to the Employer, and therefore the Employer was fully aware, that it must provide compensation (not retroactivity) in line with Williams/Barber No explanation was offered by the Employer for its choice of July 1, 1992 as the commencement date and it appears to have been selected quite apart from the grievance and arbitral processes Although most of the grievances were filed subsequent to this date, a number were filed prior to it and for those Grievors, the 20-day rule 4 would apply, that is, the retroactivity dates for grievors will be March 18, 1992, or 20 days prior to the filing of their specific grievances, whichever is earlier In selecting this option, the board has rejected the concept of "full retroactivity", a remedy provided for in exceptional circumstances, and has also rejected the concept of employee awareness as an appropriate route in this particular situation Following this last option would result in years of hearings to determine the point in time of the subjective awareness of each single Grievor, and there are more than 800 individual Grievors. In arriving at its decision, the Board strove to strike a reasonable and practical balance within the context of the Grievance Settlement Board jurisprudence In summary then, retroactivity should date from March 18, 1992, for Grievors who filed on or subsequent to this date and the 20-day rule should be applied to those who filed prior to March 18, 1992 .at 18-19) This decision was judicially reviewed, and upheld Among other matters, the issue of retroactivity for certain categories of grievors was remitted to the Board in Hammond/Maier #2 (Finley)(decision released March 11, 1996) The Board found that it did not have jurisdiction to revisit the issue of retroactivity However, should the loss incurred by these individuals result in the same anomaly, that is, their being paid less than employees with less experience, then compensation with interest as set out in the Memorandum of Settlement of September 1995, should be made, providing they meet the criteria in Williams/Barber that is, during their unclassified service they have accumulated at least one year of service, were working full time, and, were doing the same duties as a classified Correctional Officer, so that their compensation is not at odds with the principle in Williams/Barber (at 25) Notwithstanding this decision, the parties still were unable to resolve all implementation issues and, as noted in the outset of this award, by Memorandum of Agreement dated July 31, 1996, they deCided to put the following question before me Do the merit pay decisions (set out above) apply to individual employees of the Mmistry who had not filed a grievance regarding ment pay by March 3, 1994, the date of the first of these 5 awards? Issue #2 On November 27, 1995, the Board issued an award in Union Grievance 2520/94 That case raised a number of issues, and one of them involved determining the appropriate retroactive date The facts underlying this issue can be readily summarized, namely, a grievance was filed in another ministry taking issue with certain practices Identical practices were followed by the Ministry of Correctional Services A panel of the Board upheld the grievance, and that award, Simcoe et al (1725/91), was formally brought to the attention of this Ministry Simcoe et al was not judicially reviewed, indeed, it was implemented in full The matter of retroactivity was put before me and I decided that the proper retroactive date was twenty days prior to the date upon which the Ministry of Correctional Services was first informed of the Simcoe et al award That decision did not, needless to say, deal with individuals who had not grieved UNION ARGUMENT Issue #1 In brief, it was the union's submission that there was a large cadre of individuals who were historically underpaid as a result of the Ministry of Correctional Services not advancing them on the pay grid in an appropriate way Union counsel noted that a union grievance was filed on June 18, 1992, and that grievance was, in fact, referred to in both of the Hammond/Maier awards The whole point of union gnevances, counsel observed, was to preclude individuals from having to file grievances, and given that the employer was put on notice of this grievance, there was no 6 reason why non-grievors should be disentitled to the same remedy awarded to those employees who had grieved In anticipation of an employer estoppel argument, counsel argued that this grievance had to be placed in historical context, and took the position that once it was there was no evidence that the union had ever abandoned it Not only was there reference to the grievance in the first Hammond/Maier award, the fact that it was coming before the Board was set out in correspondence between union and management counsel There was really little doubt but that the Board was seized of the matter While there may not have been initial discussions about it as the parties went about implementing the Hammond/Maier decisions, counsel argued that this made some sense given that there were a lot of individual circumstances that had to be resolved first. Moreover, the union never did anything that would indicate to management that it was no longer interested in pursuing its claim on behalf of employees who had not grieved and who were, in its view, covered by the union grievance When it became clear, as the parties worked out the various entitlements of different categories of employees, that non-grievors were not to be included, the union responded and asserted their entitlement. What evidence there was, counsel argued, was of the union's desIre that implementation matters come back before the Board demonstrating the unIon's continuing wish to have this important issue add ressed Even if there was some delay, there was not, counsel submitted, any evidence of detrimental reliance on management's part. In addition, the union took the position that Article 85.2 of the collective agreement was applicable It states "The salary increases shall be 7 retroactive and payable from their effective dates on a full or pro-rata basis to all employees who are or were employed during the relevant time periods and shall apply to all overtime worked" In the union's submission, this provision could be relied on given the dicta in Hammond/Maier #2 respecting anomalies There were, indeed, some anomalous situations, and the proper application of this provision, counsel suggested, could correct them Issue #2 In the union's submission, the retroactivity awarded in Union Grievance 2520/94 should also apply to individuals who did not grieve prior to November 1, 1994 or prior to November 7, 1995 In brief, the union took the position that when the Ministry of Correctional Services was first informed of the Simcoe et al decision, that put it on notice that the GSB had determined that one of its practices was contrary to the collective agreement and, accordingly, the union argued that retroactivity together with interest should be given to all affected employees EMPLOYER ARGUMENT Issue #1 While it was true enough that the June 18, 1992 union grievance was briefly mentioned in the first of the Hammond/Maier awards, the fact of the matter, in the employer's submission, was that this grievance was never pursued It had no GSB number, and had never been received by the employer Even more important, and creating in management's view one of the elements of an estoppel, the union never made mention of it and never sought, at any relevant time, to secure retroactivity for non-grieVing 8 employees In fact, during all of the lengthy discussions aimed at implementing the terms of the Hammond/Maier awards, the union focused on individual circumstances, never taking the position that a global solution, given the union grievance, should be considered Had the union taken that position, at a relevant time, the employer could have responded to it, and the union's failure to do so created detriment, another element establishing an estoppel A number of authorities were carefully reviewed and applied to this case Finally, with respect to Article 85 2 of the collective agreement, the employer took the position that it had nothing to do with this case it being a provision concerned with the retroactivity of salary increases not the retroactive implications of GSB awards Issue #2 With respect to issue two, the employer noted that no union grievance relating to this issue was filed until January 1995 (when a union grievance was filed), by which time the Simcoe et al award had been fully implemented The whole purpose of the grievance procedure was to require individuals and the union to bring their concerns forward in a timely way; to assert rights when violated, not to jump on a bandwagon years after the fact. There was, therefore, no basis, in the employer's submission, for retroactivity beyond the normal rule The union was seeking to depart from that rule, to significantly depart, the employer argued, and such departures should be limited, in management's view, to the most exceptional cases And this, the employer submitted, was not such a case 9 DECISION Issue #1 As set out above, the matter to be determined in this case is whether the Board's merit pay awards of March 3, 1994 and March 11, 1996 apply to individual employees of the Ministry who had not filed a grievance regarding merit pay by March 3, 1994 A careful review of the two Hammond/Maier awards leads me to conclude that while the matter of retroactivity has already been dealt with in those earlier awards, the question of coverage was not and that the parties have conferred upon me by their July 31, 1996 Memorandum of Agreement the jurisdiction to determine that question, one which I find must be resolved in the union's favour Hammond/Maier #1 referred to the June 18, 1992 grievance That decision was issued on March 3, 1994 and it provided for certain specific retroactivity It was, on March 24, 1995, judicially reviewed and upheld In September 1995, the parties entered into a Memorandum of Understanding which was directed at implementing the Board's award It is clear on its face, however, that this Memorandum of Understanding does not constitute a complete protocol for the implementation of Hammond/Maier #1 And the union, the evidence establishes, made that perfectly clear Hammond/Maier #2 arose when the union requested a hearing to deal with "certain grievances that remain unresolved (at 8, Hammond/Maier #2) The June 18, 1992 grrevance is also referred to in Hammond/Maier #2 In fact, the specific remedy that grievance seeks is fully set out (at 22, although it appears that the citation of the statement of grievance is taken from the 10 Maier grievance as set out in Hammond/Maier #1 at 1) Nevertheless, the two matters presented to the Board in Hammond/Maier #2 were quite specific dealing with the entitlements of identifiable groups of grievors The Board then issued its ruling, and the relevant part of that ruling is set out above The Board confirmed its ruling on retroactivity In the aftermath of this decision, the union again made it clear, in correspondence with management, that remaining unresolved was the status of the union grievance and the entitlement of employees who had not grieved Obviously, union grievances can preclude the need for individuals to file grievances However, it also clear, that while the Board in the two Hammond/Maier decisions was seized with the union grievance, it and the parties focused their attention on the individual claims of specific grievors The union grievance continued to be outstanding and it covers employees who had not grieved The employer knew about the union grievance, this is made clear in the correspondence that was exchanged between counsel Given the presence of this union grievance, and given the jurisdiction conferred on me, I can only conclude that eligible non-grievors are entitled to the same retroactive date as was awarded to grievors in the two Hammond/Maier awards, subject to the limitation set out below This is not a case where the employer can claim that it knew nothing of the matter in dispute Hundreds of grievances as well as a union grievance were filed There is simply no justification in these circumstances for non-gnevors, whose rights and entitlements were subsumed in the union gnevance, a grievance which I find was properly before the Board, not to obtain the same benefits, namely, partial retroactivity, as awarded to grievors To hold otherwise would result in a failure by the Board to hear 1 1 and decide a matter properly before it. It would also be completely unfair to large numbers of employees whose entitlements were being advanced in the union grievance and who are entitled to the same disposition as individual grievors However, it is extremely noteworthy that when the parties went to implement the two Hammond/Maier decisions, they did not discuss their possible applicability to non-grievors Nor was the matter of the outstanding union grievance raised While the elements of an estoppel may not be technically present - there is no evidence of detriment, and what detriment there is is arguably being relieved against by the remedial portion of this award - the evidence does suggest that the parties have, from the outset, focused, in their implementation discussions, on specific identifiable individual grievors, and groups of grievors I n these circumstances, I am of the view that while eligible non-grievors are, by virtue of the union grievance, entitled to the same retroactivity as grievors, they are not entitled to full interest. Their entitlement to interest ends following the issue of Hammond/Maier #1 Finally, and for whatever this observation is worth, I do not think that Article 85.2 is applicable That provision, as the employer representative pointed out in her submissions, has to do with the retroactivity of salary Increases, it has nothing to do with retroactive entitlements arising out of a GSB award and cannot serve as a basis for finding an "anomaly" of the kind referred to in Hammond/Maier #2 thereby permitting an extension of the remedy awarded Issue #2 As set out above, the matter to be determined in this case is whether the 12 Board's November 27,1995 decision applies to employees of the Ministry who had not filed a grievance regarding hOliday pay either prior to November 1, 1994 (the date that the Ministry implemented its policy change) or prior to November 7, 1995, (the date of the hearing of the holiday pay case) In my view, having carefully considered the submissions of the parties, I am of the view that the decision does apply to employees who had not grieved It applies because the Ministry of CorrectIonal Services was formally put on notice that one of its practices was contrary to the collective agreement and, as noted in the earlier award, having been so notified, the Ministry then maintained the status quo at its peril It could have, and should have, changed its practices to comply with the terms of the GSB's decision It did not, and all of its employees who were adversely affected are now entitled to the same retroactivity as provided in that earlier award for employees who grieved I can see no reason in this case to depart from the Board's usual practice of awarding interest having found a collective agreement breach Obviously, interest will only be payable where employees, grievers and non ,grievors alike, elected to accept compensation instead of one or more days off In lieu DATED at Toronto this 16th day of April 1997 ';1/ I~ ~ William Kaplan Vice-Chairperson