HomeMy WebLinkAboutP-1999-0024.Armstrong et al.00-00-00 Decision
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P/OO24/99
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Armstrong et al
GIievor
- and -
The Crown III RIght of Ontano
(Mimsm of Correctional ServIces)
Employer
BEFORE Naresh C AgarwaL Ph.D ChaIr
2
BACKGROUND
The Gnevors are employed as operatIOnal managers at the HamIlton-Wentworth
DetentIOn Centre wIthm the Mimstry of CorrectIOnal ServIces ("Mimstry") They sent
mdIvI dual , but otherwIse IdentIcal, gnevance letters dated September 13 1999 to Mr B
McDonnell, Deputy Supenntendent, OperatIOns askmg for a pay mcrease ShIft premIUm
mcrease and an mcentIve rate as was expenenced by bargammg umt employees
retroactIve to Apnl 1 1999 In hIS response dated September 16 1999 Mr McDonnell
demed theIr request. Subsequently the operatIOnal managers filed a group gnevance
dated September 27 1999 wIth the PublIc ServIce Gnevance Board ("Board") seekmg
the same relIef
The Board sent a NotIce of Gnevance to the Mimstry on October 12, 1999 In hIS
response dated November 1 1999 on behalf of the Mimstry Mr Mooney obJected to the
Board's JunsdIctIOn to hear the present gnevance and apply the terms of the OPSEU
CollectIve Agreement to the Gnevors He also submItted that the Board had recently
ruled on the Issue at hand m 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 therem to the Gnevors mdIvIdually and asked them to make wntten
submIssIOns along the followmg lInes
"The Board has revIewed the mformatIOn supplIed at the tIme of applIcatIOn and
on ItS face thIS appears to be a sImIlar fact sItuatIOn to that set out m Laird et al
(P/0050/95) and Blakney et al (P/0144/96), WhICh would mdIcate that the Board IS
wIthout JunsdIctIOn m thIS matter The Board requests that you reVIew the
matenal 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 m Laird et al (P/0050/95) and Blakney et al
(P/0144/96) your posItIOn regardmg the Board's JunsdIctIOn and why the Board
should not dIsmIss thIS gnevance wIthout a heanng If It determmes that It IS
wIthout JunsdIctIOn.
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Based upon the submIssIOn requested, the Board may
1 DecIde that there IS suffiCIent factual dIfference and/or questIOns regardIng ItS
JunsdIctIOn to ment a heanng;
2 Request further submIssIOn from the partIes before deCIdIng to hold a heanng;
3 DIsmIss the gnevance If the submIssIOns are not receIved In a tImely manner
4 DIsmIss the gnevance based upon the correspondence from the Mimstry and
the submIssIOn of the applIcant wIthout a further heanng.
As a final comment, should you determIne from your reVIew of the matenal that
the Board IS wIthout JunsdIctIOn, you have the optIOn of wIthdrawIng the
gnevance If you decIde to wIthdraw please forward the wIthdrawal to the Board
In wntIng.
If you reqUIre further InfOrmatIOn or have any questIOns, please do not hesItate to
contact thIS wnter at (416) 326-1382
Yours truly
L H. StIckland
Secretary"
The Board did not receive any written submissions from the Gnevors eIther
IndIVIdually or collectIvely
DECISION
The Gnevors are seekIng the same pay Increase, ShIft premIUm Increase, and InCentIve
rate as gIven to bargaInIng umt employees effectIve Apnl 1 1999 pursuant to changes In
the collectIve agreement negotIated by theIr umon (OPSEU) wIth the Government of
Ontano They pOInt to theIr Mimstry's past practIce of extendIng to operatIOnal
managers the Increases In compensatIOn accruIng to bargaInIng umt employees from
changes In the terms of the collectIve agreement. The Gnevors' are demandIng the same
treatment wIth respect to the gaInS expenenced by bargaInIng umt employees effectIve
Apnl 1 1999 and are seekIng thIS as a remedy from the Board.
4
The Board's JunsdIctIOn to hear gnevances and grant remedIes anses from the PublIc
ServIce Act. The terms and condItIOns of employment WhICh apply to operatIOnal
managers, and over WhICh the Board has JunsdIctIOn, are set out m RegulatIOn 977 and
Orders m CouncIl made pursuant to the PublIc ServIce Act. There IS nothmg m thIS Act,
WhICh reqUIres that the employer treat operatIOnal managers m the same manner as
bargammg umt employees, or that ItS polIcy concermng terms and condItIOns of
employment for operatIOnal managers benchmark the terms of the collectIve agreement
applIcable to bargammg umt employees The Board, therefore, does not have the
authonty to apply to operatIOnal managers the terms of the collectIve agreement
negotIated by OPSEU for the bargammg umt employees
I also exammed the two pnor cases, Laird et al and Blakney et a~ cIted by Mr Mooney m
hIS letter dated November 1 1999 The Board has addressed the Issue of entItlements of
operatIOnal managers VIS-a.-VIS bargammg umt employees m these cases Based on the
mformatIOn avaIlable to the Board, I find the sItuatIOn m thIS case to be a sImIlar fact
sItuatIOn to that set out m the two pnor cases m terms of the partIes mvolved, the central
Issue to be decIded and the relIef bemg 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 bargammg umt 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 followmg rulIng m the matter
"There are practIcal reasons why an employer may want to ensure that managenal
staff receIve benefits that are at least equal to those enJoyed by bargammg umt
employees These mclude Issues relatmg to staff morale and not wantmg to
dIscourage bargammg umt employees from acceptmg promotIOns mto
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 m Laird et ai, WhICh were
cIted and fully adopted m Blakney et al [and also another subsequent case, Johnson and
SmIth (P/0001/99 P/0005/99)]
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In conclusIOn, I agree wIth Mimstry's VIew that re-lItIgatmg the Issue of operatIOnal
managers' entItlement to the provIsIOns of the collectIve agreement applIcable to
bargammg umt employees would be an mefficIent use of tIme and resources, gIven the
Board's clear lack of JunsdIctIOn and ItS recent rulIngs on the subJect. I see no ment or
JustIficatIOn m allowmg the present gnevance to proceed to a heanng. Accordmgly thIS
gnevance IS hereby dIsmIssed.
Dated at Toronto thIS 21 st day of February 2000
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Naresh C Agarwal, Ph.D Chair