HomeMy WebLinkAbout1988-0013.Union.89-01-30 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTARtO
GRIEVANCE CQMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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0013/88
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: 0?SEU (Union Greivance)
Grtevor
- and -
The Crown in R~ght of Ontario
(Management Board of Cabinet)
Employer
Before: R.J, Roberts Vice-Chairperson
T. Kearney Member
R. Trakalo Member
For the Srievor: A, Ryder
Counsel
Gow]Jng-*a Henderson
Barristers & Solicitors
For the Employer: N. Eber
C~ur, s~ ~
~a. vr istep~ and
At the outset of the hearing in this matter, counsel for the
Employer raised two objections to jurisdiction. It was agreed
that formal argument on these preliminary objections would not be
heard until after an agreed statement of facts had been read into
the record and that following such argument, the Board would
receive submissions upon the merits of the case.
The agreed statement of facts was as follows:
On December 3, 1987, negotiators for the parties executed a
Memorandum of Settlement under which they agreed "To unanimously
recommend to their principals certain items of agreement upon
wages for employees in the Correctional Services Category. On
December 23, the parties executed a 1988 Wage Agreement for the
Correctional Services Category which reflected this settlement.
Wage increases were to be effective January 1, 198~ and the
Employer was to implement all increases within a period of fifty
days from the date.of notice of ratification from the Union.
agreed that as a result, the fifty day period for implementation
expired on or about February 11, 1988.
The 1988 Wage Agreement was implemented with respect to
wages increases on January 8, 1988. This meant that employees
were entitled to a retroactive payment for the period January 1
2
to 7, 1988. All employees except unclassified Correctional
Officers at. the Metro East Detention Centre received their
retroactive payment on February 4, 1988, well within the fifty
day period for implementation.
On or shortly before March 1, 1958, the Union was advised of
the situation regarding the failure to pay retroactivity to the
unclassified employees at the Metro East Detention Centre.
Realizing that employees in the Correctional Services Category
are employed at three Ministries -- Correctional Services, Health'
and Community and Social Services -- the Union became concerned
that the failure to pay retroactivity to unclassified staff might
be general in nature. As a result, the Union immediately filed a
grievance under Article 27.12.2 of the Working Conditions
Agreement.
Article 27.12.2 forms part of a series of three Articles of
the Working Conditions Agreement relating to Union grievances.
These three Articles read as follows:
UNION GRI~-VANCE
27.12.1 Where any difference between tl~e Employer and
the Union arises from the interpretation, applica-
- tion, administration or alleged contravention of the
. Agreement, the Union strait be entitled to file a
grievance at the second stage of the grievance
procedure provided it cloes so within thirty (30) days
fotlowing the occurrence or origination of the ciro
cumstances giving rise to the grievance.
27,12.2 Where the difference between the Employer and
the Union involves more than one [1) ministry, the
Union shall be entitled to file & grievance with the
Director. Staff Relations Branch provided it does so
within sixty (60) 0ays following the occurrence or
origination of tt~e circumstances giving rise to the
grievance.
27 12.3 A submission of the grievance to the D~rector. Staff
Relations Branc~ under lh~s sec:~on shaft be con-
sidered to be the second stage of the grievance
procedure tot the purpose ofth~s Arhcle Umon
grievances shall be s~gned bv the President or V~ce-
As can be seen, Article 27.12.1- sets forth the procedure to be
followed in filing a Union grievance involving a difference
between the Union and a single Ministry. Article 27.12.2 sets
forth the procedure for differences involving more than one
Ministry. This procedure provides a more liberal time limit for
filing, sixty days instead of thirty days following the
occurrence, and specifies that the grievance should be filed with
the Director, Staff Relations Branch rather than the Deputy
Minister of a particular Ministry or' his designee.
The Stage Two meeting was held on Mar~h 21, 1988. By that
time, the Union had determined from its own enquiries that all
unclassified staff except those a% .the Metro ~ast Detention
Centre had been paid their retroactivity. Moreover, it was
agreed that the reason that the seventeen unclassified employees
at Metro East did .not receive their retroactivity was a mere
administrative oversight. Ultimately, on April 14, 1988, the
Metro East employees received their retroactive payment.
This, however, did not end the controversy between the
parties. Certain questions of procedure and principle had arisen
between them and it was to. obtain a resolution of these
differences that they brought the. matter to the Grievance
4
Settlement Board. We will first turn to consider the procedural
issues which were raised in the preliminary objection of the
Employer.
I. The Form of the Grievance:
Two preliminary objections were raised regarding the form of
the grievance. The first objection was that the grievance should
not have been filed as a Union grievance but rather as an
individual grievance under Article 27.2.1 of the Collective
Agreement. Secondly, it was submitted in the alternative that if
this were found to be a proper U~ion grievance, it should have
been filed under Article 27.12.1 and not Article 27~12.2, which'
is the route followed where more than one Ministry was involved.
We will consider these submissions seriatim hereinbelow.
Turning to the first objection, counsel for the Employer
submitted that the subject matter of the complaint was
inappropriate to a Union grievance. The complaint, counsel
contended, was only that certain 'employees did not receive a
retroactive increase. This did not raise, it was submitted, any
issue of general importance to the Union. MOreover, the fact
that seventeen employees were involved, counsel suggested, did
· not suffice to convert the complaint to a Union grievance.
5
In support of this contention, counsel referred us to R__e
Canadian Broadcastin~ Corporation and National Association of
Broadcast Employees and Technicians (1973~, 4 L.A.C. (2d) 263
(Shime). In that case the learned arbitrator gave the following
general breakdown of the different types of grievances:
(:0 individua! employee griewnces where the snbject-m~tter
.f the m'ieva~ce is personal to the employee;
(b) group grievances where a number of employes with in-
dividual grievances join together in filing their ~Jev-
anco. Tl~is ty~ of ~ievance is really
individual grievance;
(c) union or ~olicy grievances where the subj~t-matter of
the gcievance is of general in~r~t and where individual
employees may or may not ~ affected at the time that
the grievance is fil~;
(d) there is a hybrid ~pe of grievance which is a combina-
tion of the policy grievance and the individual grievance.
In this type of situation, although one individual may
affected, he may ~ aff~t~ in a way that is of concern to
.. all mem~rs of the'bar~ining unit. Thus, the individual
may ~'ieve on ~e b~is of how he
while the union my al~ ~ieve citing the individual
as an example of how ce~in conduct may aff~t the
members of the bargaining unit gene~lly.
We find that the ~rievance before us is most appropriately
characterized as a hybrid type of grievance falling under
category (d), above. While it is true that the individuals
affected .could h~ve grieved individually, the Union also was
empowered to grieve what it feared was a decision on the part of
management which could afiect all of'the unclassified members of
the bargaining unit. That decision, as will become more. evident
later on in this award, probably was to regard the 1988 Wage
Agreement as inapplicable to unclassified staff. In light of
6
this, the Board must deny this preliminary objection. It was not
inappropriate to file a Union grievance in the circumstances of
the present case.
Turning to the second preliminary objection, counsel for the
Employer submitted that, given the involvement of only Ministry
in this matter, the Union grievance should have been filed under
Article 27.12.1 of the Working Conditions Agreement, supra,
rather than Article 27.12.21 which was specific to differences
involving more than one Ministry. Because of the differences in
the times for filing, i.e., thirty days as opposed to sixty days,
and the location for filing-the grievance, it was submitted, this
was a critical difference. Upon learning that only one Ministry
was involved, counsel suggested, it was incumbent upon the Union
to refile under Article 27.12.1. To permit the Union to do
otherwise, it was submitted, would lay the groundwork for
potential abuse of the Union grievance provisions of the Working
Conditions Agreement by encouraging the Union to seek to
circumvent the more stringent time limits of Article 27.12.1 or
file a grievance with the Director, Staff Relations~Branch
instead of' the Deputy Minister of the Ministry involved so as to
frustrate the ability of the Ministry to know the case it had to
meet.
:
We have given these submissions very careful consideration;
however, in the circumstances of the present case we are not o£
the view that the failure o~ the Union to re-file under Article
27.12.1 should be fatal to its grievance. Two observations have
led us to this conclusion. First, the agreed statement of facts
leaves no doubt that the Union grievance was filed under Article
27.12.2 in good faith. At the time, the Union believed that the
non-payment of retroactivity to unclassified staff was general
and not isolated. The grievance was filed virtually immediately,
well within the thirty day limit of Article 27.12.1.
Secondly, the interests of the Ministry were not shown to
have been compromised by the fact that the grievance was filed
wi~h ~he Director, StaZf ~elations Branch rather than the
Ministry's Deputy Minister or his designate. The documents which
were placed before the Board indicated that the Ministry of
Correctional Services was quickly informed of =he nature of the
grievance and took steps to correct the administrative oversight
which caused the problem.
Given ~hese circumstances, it seems to us that the essential
requirements of Article 27.1 were met and that it would be
overly-technical and contrary to 'the promotion of good labour
relations to require the Union to re-file its grievance merely
because, as matters turned out, only one Ministry was involved.
In light oX the good faith of the Union, the de facto compliance
with the more stringent time limits of Article 27.12.1, and the
lack of any discernable injury to the interests of the Hinistry,
the grievance at hand is regarded as sufficient to confer upon
the parties and this Board the power to determine the merits of
the complaint raised therein. Accordingly, the second
preliminary objection is dismissed.
II. The Merits
The crux of the dispute between the parties upon the merits
was the question whether the retroactive payments* made by %he
Employer to all unclassified staff were solely made pursuant to
Article 3.3.2 of the Working Conditions Agreemen~ or were also
required to be paid under the provisions of the 1988 Wage
Agreement for the Correctional Services Category. Counsel for
the Employer submitted that, by its terms, the 1988 Wage
Agreement did not apply to unclassified staff. Counsel for the
Union submitted that it did.
From our review of.these submissions, it seems to us that we
ought to accept the position put forward by counsel for the
Employer. Article 3,3.2 of the Working Conditions Agreement,
which forms a part of a number of provisions relating solely to
unclassified staff, reads as follows:
9
3.3.2 Employees covered by this Section shall be
entitled to the same provisions regarding
retroactivity of salary revisions as those agreed
upon for the Civil Service Salary Category to
.which they correspond.
This provision expressly entitled unclassified staff to the same
provisions for retroactivity as those established' in a Wage
Agreement for the corresponding Civil Service Category. For this
reason, it seems totally inconsistent with the notion that the,
parties considered unclassified staff to~ be within the Civil
Service Categories for which wage agreements were negotiated. In
fact,' if that were the case Article 3.3.2 would be redundant
since entitlement would automatically arise by virtue of
inclusion within the scope of the Wage Agreement.
Counsel for the Union relied heavily upon .a previous
decision of this Board. Re Sysiuk and Ministry of Natural
Resources (1980), G.S.B. # 191/79 (Weatherill). In- that case,
the Board concluded after reviewin0 the terms of the Working
Conditions Agreement and the Wage Agreement for the Technical
Services Category that the parties intended the latter to
encompass both classified and unclassified staff. In reaching
this conclusion, however, the Board never made reference to any
provision of the Working Conditions Agreement which was similar
to'Article 3.3.2 of the Agreement before this panel and it seems
likely that at that time such a provision did not exist.
Accordingly, it might well .have been the case that in 1979, when
the operative facts of sySi~k occurred,.the parties intended the
Wage Agreement to cover both types- of employees. Ours is a
different case. There seems to be little doubt that the presence
of Article 3.3.2 in the current Collective Agreement constitutes
a solid indication that the parties did not intend unclassified·
staff to be considered Dart of the Civil Service Categories for
which they negotiated their 1988 Wage Agreements.
Before leaving this matter, the~ Board would like to make an
observation which might be of assistance to the parties in the
administration of these agreements. Article- 3.3.2 entitles
unclassified staff to "the same provisions regarding
retroactivity of salary revisions" as classified staff in the
corresponding Civil Service Categories. While we did not have
the benefit of submissions from the parties upon the precise
meaning of the words which we have quoted,' it seems to us that at
first blush these words entitle unclassified staff to the benefit
of more than a provision of a Wag~ Agreement establishing the
date from which increases are retroactive. There would seem to
be room for including within the scope of the term-"Drovisions
regarding retroactivity" the provision of the Wage Agreement
addressing implementation, at least as it relates to implementing
payment of the retroactive adjustment. However, in the absence
of submissions upon this issue, we are content to leave the
11
parties with this observation and are not prepared to make a
final and binding determination of the matter.
Accordingly, we must conclude that because'the unclassified
staff were not included within the Correctional Services Category
for which the 1988 'Wage Agreement was negotiated, they were not
entitled under that Agreement to a benefit of its provisions
regarding implementation. They were entitled under Article 3.3.2
of the Working Conditions Agreement to "the same provisions.
regarding retroactivity" as those established for classified
staff in this Wage Agreement. The question whether Article 3.3.2
also entitled them to claim the benefit of the provisions of the
Wage Agreement regarding implementation as they related to
payment of retroactivity was. not placed squarel~ before this
panel and so will be left to another day. In light of these
conclusions, the grievance must be dismissed.
DATED at LondOn, Ontario, this 7th day of February, ]989.
s, Vice-Chairperson
"! d~$$ent" (Dissent attachedJ
T. Kearney - Member
R. ~ Trakalo - Member
DISSENT
In my opini6n when, on the third day of September 1987
(EX 4) and on the 23rd day of December 1987 (EX 5) the parties
agreed to certain terms "in respect of the Correctional Services
Category" they agreed, after analyzing the documents, to a
general salary increase "to all classifications and to the
retroactive payment of. such increase" to all employees who are or
were in the category. In my view, the parties must be taken to
have been bargaining in respect of all employees in that category
of the bargaining uni~.
Those are the employees who had been covered by the
agreement, and there is nothing to suggest any agreement to
exclude any group which had up until those negotiations took
place been included. Article 3 of the Agreement clearly does not
provide expressly for retroactivity to either the classified or
unclassified staff. It provides for retroactivity to all
employees in the category. Of course, the increases provided for
in the Agreement are increases to the "classifications" in the
category, because that is~what the system of salary payment -
both to classified and unclassified staff dictates. There is, in
my view no limitation of scope, either expressed or implied, in
the retroactivity provision set out in Article 3.3.2 of the
Agreement~. In my opinion, the benefit applies equally in the
case of the unclassified as the classified employee.
The learned Chairman of this instant case on page'10
of his award suggests that 3.3.2 entitles unclassified staff to
"the same provisions regarding retroactivity of salary
provisions" as classified staff in the corresponding Civil
Service Categories. He concludes while not having the benefit of
submissions from the parties upon the precise meaning of the
words which he quoted (I~sug§est union Counsel did make
submissions 9oing to this matter).
It appeared to the Chairman "that these words entitte~
unclassified staff to the benefit of more than a provision of the
Wage Agreement establishing the rate from which increases are
retroactive".
I agree with the Chairman that th~rs is room for
including within the scope of the term "provisions regarding
retroactivity" the provision of the Wage Agreement addressing I
implementation, at least as it relates to implementing payment of
the retroactivity adjustment.
In conclusion, in my opinion, the grievance should be
allowed.
Dated at Ottawa, this ~0th day of January, 1989.
T.J. Kearney
TJK/bv