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HomeMy WebLinkAbout1992-0926.Elliott et al.95-06-05 " - " ,. l ( . ' . ':- ONTARIO EMPLOYES. DE LA COURONNE .. :, CROWN EMPLOYEES. DE: L'ONTARIO 1111' GRIEVANCE COMMISSION DE I ._~- ----- SETTLEMENT REGLEMENT --::iJ'::> --- BOARD DES GRIEFS 180 DUNDAS STREET WEST. SUlTE2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 926/92, 1335/93 OPSEU # 92E298-92E309, MCS-U762 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (ElliGlttet al) Grievor - and - The Cr@wn in Right of ontario (Ministry of Correctional Services) Employer BEFORE H Finley Vice-Chairperson I Thomson Member D Clark Member FOR THE D Wright GRIEVOR Counsel Ryder, Wrlght, Bl'air & Doyle Barristers & Solicitors FOR THE J Benedict EMPLOYER Manager, Staff Relations & Compensatlon Ministry of the Solicitor General & Correctional Services HEARING July 7, 1994 November 2, 1994 , GSB 0926/92 1335/93 DECISION On January 18, 1992, Curt BIshap (C02), the PresIdent afthe Lacal at the Sault Ste. Mane JaIl, filed a gnevance allegIng that The emplayer IS vIOlatmg ArtIcle 5 1.2 by refusmg to. pay those employees of the Sault Ste Mane JaIl In accordance With the salary range they are entItled In the next hIgher rate af pay of the appropnate classIficatIOn. ThIS IS also contrary to. the practIce of other InstItutIOns WIthIn thIS PravInce. He asked That the emp1ayer abIde by the CollectIve Agreement and pay all those emplayees effected [SlC.] SInce the date af ImplementatIOn af thIS InstItutIOn Pohcy or the InclUSIOn of thIS ArtIcle In the CollectIve Agreement That all payments be retraactIve to. the date ImplementatIOn shau1d have been Implemented for each emplayee See ArtIcle 5 1,2 mfra, Mr BIshop became aware of the alleged wage dIscrepancy when dealmg With a group of gnevances whIch arose aut of the ImplementatIOn of an arbItratIOn award. In January, 1992 he was not famIlIar WIth the Wllliamsill_arher award whIch had been Issued In February , 1991, (OESEU 0Y..llllamsillarheL)_and..Ihe_Cr.o~oLDntarw-CMilllstr.y_oLCorre.dl.onaLS.eIY.l.c,es) GSB 1448/90,1449/90,1466/90), and only learned of It In the summer af 1992 when the Uruon CIrculated InfOrmatIOn to the umon preSIdents follOWIng the Issuance of a Ment Pay Pohcy for unclaSSIfied CorrectIOnal Officers, mfra. At the tlme he filed thIS gnevance, Mr BIshop dId not speak. to the IndIVIdual Gnevors about the matter and only contacted them In Apnl, 1992 when a umon Staff RepresentatIve IndIcated to hIm that It would be preferable for the Gnevors to file IndIVIdually At th1S t1me, he told them that they were recelvmg less pay than employees dOIng the same Job In other InstItutions even though they themselves had more tlme In the OntarIO PublIc ServIce He also drew theIr attentIOn to the eXIstence of a second level CO 1 rate Mr Bishop teStlfied that he belIeved, at that tlme, that none of the twelve mdlVIdual Gnevors was aware of the second level COl rate, nor of the discrepancy m wages between InstItutIOns and that he was not aware that other CorrectIOnal OffIcers throughout the Provmce were gnevmg theIr pay He testIfied that he had the Gnevors file wIthm the tIme frame set out m the CollectIve Agreement. On Apnl 20, 1992 twelve CorrectIOnal Officers at the Sault Ste Mane Jall filed mdivIdual gnevances allegmg they were "Improperly classIfied" m theIr present posItIOns and askmg that they be properly claSSIfied accordmg to the duties [they] now perform With full retroactIvIty and benefits accordmg to the CollectIve Agreement. At the hearmg, DavId Wnght, for the Uillon, m pomtmg out that these were not classIficatIOn grievances, confirmed the substance of correspondence of June 12, 1992 and June 24, 1992 between the Employer and the Uillon which set out a restatement ofthe gnevances as follows I gneve that the employer did not pay me properly under the collectlve agreement, ie [SlC] 2nd level CO 1 after 1 year Settlement desIred Retroactive adjustments m pay, benefits and credIts to which I am entitled and any accrued mterest. Jm1 Benedict, for the Employer, dId not contest thIS change Paul Gmtard, one ofthe twelve Gnevors, testIfied, as a representative gnevor He stated that the filmg of hIS gnevance on Apnl 20, 1992 was tnggered by Curt BIshop's mformmg him and others that after 1 year as an unclassIfied CorrectIOnal Officer, he should have gone to the "top of the CO 1 pay" Mr Gmtard had not preViously been aware that there were two levels m the CO 1 pay scale, nor that he had a nght to challenge hiS rate of pay At the time, Mr Gmtard testIfied, Mr Bishop suggested to hIm and the others that they should each file an mdividual gnevance and he himself did so wIthm a week of this dIscussIOn. On May 25, 1993, concerned WIth a lack of actIOn on the matter, the UnIon filed a gnevance WIth respect to the Sault Ste Mane JaIl ThIS gnevance reads as follows The MInIstry has vIOlated the Collective Agreement with respect to workmg condItIOns, benefits and salarIes by creatmg meqUIty amongst CorrectIOnal Officers It asked that the Employer 1) Cease and DesIst Current Practice. 2) Take Immediate correctIve actIOn. 3) Conduct employee relatlOns m a harmOnIOUS manner m [SlC] which good labour relatIOns dictate At the hearmg, the parties agreed that the Umon gnevance would be adjourned SIne d.1.e. At that tIme, the parties also filed the followmg OPSEU (Elhot[t] et al) - and - MImstry of CorrectlOnal Services AGREED STATEMENT OF FACT 1 The mdIvIdual gnevors were mItlally hIred as unclassified CorrectlOnal Officers on the followmg dates Paul GUItard Apnl, 1990 AI PIghm February, 1990 Grace Rowsell June, 1989 Bnan ElllOt[t] December, 1990 Herb MIller July, 1990 JanIce Zultek December, 1987 Glen Waldorf August, 1987 Frank Tomchak Apnl, 1990 Dave Sleeman June, 1989 Rma Guill Apnl, 1990 Annetta Mornson February, 1990 Cal Osbourne November, 1990 2 All gnevors have been employed as Correctional Officers (first as unclassIfied, then as claSSIfied) at the Sault Ste Mane JaIl from their mItIal 3 date of hue as unclassIfied CorrectIOnal Officers through to the present. 3 All of the gnevors were appomted to the classIfied serVIce as CorrectIOnal Officer 1 on January 1, 1992. The gnevors were placed at the first step of the CorrectIOnal Officer 1 pay scale on January 1, 1992 4 On the date of the gnevances (Apnl 20, 1992), the gnevers were all paId at the first step of the CorrectIOnal Officer 1 pay scale 5 EffectIve July 1, 1992, the attached DIrectIve of the MInIstry [*], dealIng wIth the placement of unclassIfied employees on the pay gnd for purposes of ment Increases, became effectIve. [*] REFERENCE DIrectIves and GUIdelInes, D 5 6 & G 5 6 DelegatIOns of Authonty Manual (Personnel Management AuthontIes) CollectIve Agreement, ArtIcle 3 & 7 PURPOSE To prOVIde for ment Increases for unclasSIfied employees. POLICY UnclassIfied employees WIll be elIgIble for ment Increases provldmg theIr work IS satIsfactory Ment Increases must be annual or semI-annual, as outlIned In the Class Salary Schedules, untIl the employee attams the maxImum of the range PROCEDURES An unclassIfied employee must worl-. the same number of regular hours (non-overtIme hours), as a claSSIfied staff member In the same claSSIficatIOn to be elIgIble for a ment Increase Regular (non-overtlme hours) mcludes all hours whether regularly scheduled, lITegularly scheduled, or call-m. The follOWIng chart converts annual/semI-annual to hours of worl-. 4 Hrs.ofWork Annual SemI-annual Schedule Schedule 4 2080 hours 1040 hours Schedule 3 1885 hours 942 5 hours Schedule 6 mImmum of mImmum of 1885 hours. 942 5 hours An employee must be performmg the same core dutIes as a classIfied employee m the same classIficatIOn/posItIOn. Ment Increases are to be applIed the first of the month follOWIng completIOn of the reqUIred number of hours of work. A contract may be opened to apply a ment mcrease at thIS tIme Regular (non-overtIme) hours of work. for employees on an unclaSSIfied contract WIll mclude paId leaves-of-absence. Regular (non-overtIme hours) accumulate throughout the work penod of the employee, prOVIdIng the employee remams m the same pOSItIOn and claSSIficatIOn and provIdmg there IS no break m servIce ChIef admInIstrators are to ensure that audItable attendance records are maIntaIned for unclaSSIfied staff to support the hours of work and that documentatIOn eXIsts to support the work performance of the employee UnclaSSIfied staff are expected to partICIpate fully m the PPR process Upon appomtment to claSSIfied staff from unclaSSIfied staff, the Cruef Admmlstrator wIll determme the annIversary date, In consultatIOn WIth the relevant personnel admmlstrator, and conSIderatIon wIll be gIVen to hours worked dunng the unclassIfied servIce For procedures regardIng deferral of ment mcreases, refer to the DIrectIves and GUIdelInes (D 5 6 and G 5 6) Normally the deferral or demal of a ment Increase respectmg an unclaSSIfied employee for performance reasons, wIll cause chIef admlmstrators to conSIder, very closely, contract renewals 5 EFFECTIVE ThIs polIcy IS effectIve July 1, 1992 All unclassIfied employees wIth the reqUIred number of hours worked as of July 1, 1992, wIll be elIgIble for a ment mcrease on that date These DIrectIves and GUIdelmes above were m response to the JudICIally reVIewed and confirmed Wilharns\'f3..arheI, supra, declSlon, No Salary Schedule IS set out m the January 1, 1989 to December 31, 1991 (blue) CollectIve Agreement. However, Salary Schedules are mcluded m the January 1, 1992 to December 31, 1993 (green) CollectIve Agreement whIch was SIgned on March 5, 1992 and pnnted and dIstnbuted thereafter Schedule II sets out the CorrectIOnal ServIces Categones and shows CorrectIOnal Officer 1, WIth two salary levels and CorrectIOnal Officer 2 and 3, each WIth three salary levels. CORRECTIONAL SERVICES CATEGORY ClaSSIficatIOn notes and salary allowances applIcable to claSSIficatIOns m the category [AddItIOns m square brackets are for clarIficatIOn and to ensure conSIstency oftermmology m the decIsIOn] None 50561 CORRECTIONAL OFFICER 1 [ClassIficatIOn] [Salary Range - 2 levels] [Level 1] [Level 2] CO-OI 01/01/92 1703 1849 09/01/93 1739 1887 50563 CORRECTIONAL OFFICER 2 [ClassIficatIOn] [Salary Range - 3 levels] [Levell] [Level 2] [Level 3] CO-O 1 01/01/92 18 35 19 83 2099 01/01/93 1872 2022 21 39 6 50565 CORRECTIONAL OFFICER 3 [ClassIficatIOn] [Salary Range - 3 levels] [Level 1] [Level 2] [Level 3] CO-O 1 01/01/92 2099 21 46 2203 01/01/93 21 39 21 86 2244 Movement through the salary system IS governed by the folloWIng artIcle of the CollectIve Agreement. PAY ADMINISTRATION 5 1 1 PromotIOn occurs when the Incumbent of a classIfied posItIOn IS assIgned to another posItIOn In a class WIth a hIgher maxImum salary than the class of hIS former posItIon. 5 1.2 An employee who IS promoted shall receIve that rate of pay In the salary range of the new classIficatIOn whIch IS the next hIgher to hIS present rate of pay except that. - where such a change results In an Increase of less than three percent (3%), he shall receIve the next hIgher salary rate agaIn, whIch amount WIll be consIdered as a one-step Increase, - a proportIOnal mcrease shall not result In the employee's new salary rate exceedIng the maxImum of the new salary range except where permItted by salary note Mr GUItard became classIfied In January, 1992 and attended Phase IV mInIstry traInIng m Sudbury In Apnl, 1993 WhIle there, It was confirmed for hIm that the salary rate he was reCeIVIng was lower than that some of hIs colleagues, In partIcular, two, at two dIfferent mstltutlOns. Both of 7 I I these correctiOnal officers had less expenence, trammg and tIme worked than he dId. Mr GUItard eventually realIzed that the dIscrepancy was caused because, unlIke the two colleagues, he had never moved to Level 2 of the CorrectiOnal Officer 1 Salary Range, eIther when he completed hIS first year as an unclassIfied CorrectIOnal Officer, or on July 1, 1992 when the new polIcy on ment pay for unclassIfied CorrectIOnal Officers was put mto force. He also then realIzed that when he moved from the CorrectiOnal Officer 1 ClassIficatiOn to the CorrectIonal Officer 2 ClassIficatIOn, he dId so wIthm the Level 1 Salary Range, and therefore found hImself m the CorrectIOnal Officer 2 ClassIficatIOn and m Levell of the CorrectiOnal Officer 2 Salary Range As for the two colleagues m questIOn, they had moved from Levell of the CorrectIOnal Officer 1 Salary Range to Level 2 of the CorrectiOnal Officer 1 Salary Range pnor to movmg to the CorrectiOnal Officer 2 ClassIficatiOn so that at the tIme they moved to the CorrectiOnal Officer 2 ClaSSIficatIOn, they were already m Level 2 of the CorrectIonal Officer 1 Salary Range and so camed the Level 2 placement m the Salary Range WIth them. In domg so, they bypassed the Level 1 of the of the CorrectIOnal Officer 2 Salary Range [Levell of the CorrectiOnal Officer 2 Salary Range IS lower than Level 2 of the CorrectIOnal Officer 1 Salary Range] Mr GUItard testIfied that when he became claSSIfied, he was stIll pard at Level 1 of the CorrectIOnal Officer 1 ClaSSificatIOn and that when he was moved ,to the CorrectiOnal Officer 2 ClaSSificatIon m May, 1993, followmg completiOn of Phase IV of the Mmlstry's mandatory Phase Trammg Programme that he remamed at Levell To compound the dIfficulty, Mr GUItard and the other GrIevors, havmg been caught by the SOCIal Contract, remam at Level 1 of the CorrectiOnal Officer 2 ClaSSIficatIOn, He has been pard $18 72 per hour smce that tIme and contmued to be paid at that rate at the tIme of the hearmg The Umon submItted summary sheets of the two employeeS mentiOned above as examples, as well as that of Mr GUItard. The content of these was not dIsputed by Mr BenedICt. A comparIson of these Illustrates the dIfferences The first, from the Sudbury JaIl, shows the progressiOn through the claSSificatiOn and pay systems of one of the CorrectiOnal Officers mentIoned above, Colleen LaUrIn 8 - - DATE PAY RATE CLASSIFI- STEP REASON CATION [Level] APR. 29/91 $16 85 CO 1 1 st Apptd to unc1ass Serv Jan. 1/92 $17 03 CO 1 1 st 1992 ReVISion [NegotIated Increase] [MOVE TO LEVEL 2 OF THE CORRECTIONAL OFFICER 1 CLASSIFICATION] Aug 1/92 $1849 CO 1 2nd Men t mcrease max* [Ju1 92 polley] Jan. 1/93 $18 87 CO 1 2nd 1993 ReVISIOn max* [Negotiated Increase] Mar 1/93 $18 87 CO 1 2nd Apptd to max* ProbatIOnary Staff [Classified] June 1/93 $18 87 CO 1 2nd Apptd to max* Regular Staff [MOVE TO LEVEL 2 OF THE CORRECTIONAL OFFICER 2 CLASSIFICATION] June 1/93 $20.22 CO 2 2nd Removal of Trammg Underfill * MaXimum refers to the Level of the C1assIficatlOn, m thIS mstance, Level 2 of the CorrectlOnal Officer 1 ClassificatIOn. The second example submItted by the Umon was that of Dons Gramola, a CorrectIOnal Officer at the Northern Treatment Centre, who, at the tIme ofthe heanng remamed, on the unclassIfied staff 9 Her classificatIOn and pay progressed as follows DATE PAY CLASSIFI- STEP REASON RATE CATION [Level] May 1/90 $15 93 COl 1 st Appt'd to unclass ServIce Jan. 1191 $16 85 COl 1 st 1991 Salary RevIsIOn [Negotiated] Jan. 1/92 $17 03 CO 1 1 st 1992 Salary RevIsIOn [NegotIated] [MOVE TO LEVEL 2 OF CORRECTIONAL OFFICER I CLASSIFICATION] JuI 1/92 S 1849 COl 2nd Ment Increase max * [Jul92 polIcy] Jan,1/93 $18 87 COl 2nd 1993 Salary max RevIsIon [NegotIated] * MaxInmm refers to the Level of the ClassIficatIOn, In thIS Instance, Level 2 of the CorrectIOnal Officer 1 ClasSIficatIOn. The ExhIbIt submItted to Illustrate Mr GUItard's progress through the classIficatIOn and pay system was the followmg NAME GUn ARD, PAUL LOCATION SAUL T STE. MARJE JAIL 10 APPOINTMENT TO UNCLASSIFIED APRlL 6, 1990 APPOINTMENT TO PROBATIONARY STAFF JAN 1 1992 CONTINUOUS SERVICE DATE OCT 4, 1992 [SenIonty] APPOINTMENT TO REGULAR STAFF JUL Y 1, 1992 [ReductIOn In 1 year probatIOnary term] DATE PAY CLASSI- STEP REASON RATE FICA TION [Level] , APRlL 6'90 $15 93 CO 1 1ST APPT TO UNCLASS SERVICE JAN 1'91 $16 85 CO 1 1ST SALARY REVISION JAN 1'92 $17 03 CO 1 1ST SALAR Y REV & APPT TO PROB STAFF JAN 1'93 $1872 CO 1 1ST REMOV AL OF TRAINING UNDERFILL * * RemaInS a CO 1 untIl the completIOn of traInIng Two wItnesses testIfied for the Employer Mr Jude Lake, has been SuperIntendent of the Sault Ste Mane Jarl for the past SIX years He has been an employee of the MInIStry at that locatIon SInce 1978 Ms Mary Spry has been the AssIstant RegIOnal Personnel AdmInIstrator for the Northern RegIOn for the past four and a half years and Wlth the MInIStry for sIxteen. She IS located In Sudbury and IS responsIble for the Sault Ste Mane JaIl, among others 11 Mr Lake testIfied that the average number of CorrectIOnal Officers employed "over the years" at the Sault Ste. MarIe JaIl was 45 classIfied and 15 unclassIfied. He told of a change which occurred m January 1, 1992 when, as the result of an arbItration award, there was, through a competltlOn for twelve claSSified posltlons, a hmng of twelve claSSified CorrectIonal Officers, all of whom were uncla')slfied CorrectIOnal Officers at the time of the competitIOn. At the same tIme, five of those who competed were unsuccessful m the claSSified competitIOn and did not have their contracts renewed as unclassIfied CorrectIOnal Officers. The result of thiS process was that there were no unclassIfied CorrectIOnal Officers at the Sault Ste. Mane JaIl from January, 1992 untIl approximately September, 1994 Trus meant that when the polIcy of ment mcreases for unclasSIfied CorrectIOnal Officers was put mto place m July, 1992, It was deemed to have no Impact on the wage rates of any CorrectIOnal Officers at the Sault Ste MarIe JaIl because there were no unclaSSIfied CorrectIOnal Officers. Mr Lake testIfied that It would apply to the unclasSIfied CorrectIOnal Officers hired m the fall of 1994 Mr Lake stated that pnor to January, 1992, CorrectIOnal Officers 1 S were hired "at the bottom of the CO 1 rate set out m the Collective Agreement" Accordmg to rum, It was "always that way" and he does not belIeve that there were any exceptIOns Further, he was not aware of any examples of unclassIfied CorrectIOnal Officers 1 s progressmg to the claSSified Correctional Officer 2 ClaSSificatIOn pnor to January, 1992, nor of claSSified CorrectIOnal Officer 1 S bemg hIred Mr Lake also explamed that clasSified CorrectIOnal Officers who had not completed the mandatory Mmlstry Phase Trammg were clasSified as CorrectIOnal Officer 1 S (underfill) untIl their trammg was complete at which time they were reclasSified as CorrectIOnal Officer 2s and a salary reVISion would take place mime WIth the Collective Agreement. ThiS process normally took place over a penod of one year Underfillmg IS not aVaIlable, accordmg to Mr Lake, to unclaSSified CorrectIOnal Officers He explamed that vanance m the dates of the underfill removal occurred amongst the twelve Gnevors due to the restncted avaIlabIlity oftrammg places The Employer responded to thiS SituatIOn, he explamed, by classlfymg employees retroactIVely to January 1993 He also stated that newly appomted claSSIfied CorrectIOnal Officers are subject as well to a probationary penod of up to one year when they become claSSified. Mr Lake testified that once an employee IS a CorrectIOnal Officer 2, he or she would progress through the three salary levels of the CorrectIOnal Officer 2 ClaSSification on hIS or her annIversary date but stated that thiS does not occur at the present time 12 0 because of the restnctlOns Imposed by the Social Contract. 1v1s. Spry was asked to review and respond to questlOns on the salary hIstones of Eauillultar.cL[.Gne.YOIJ, who was hIred as unclassIfied, Apnl 6, 1990, as condItlOnal classIfied, January 1, 1992, as confirmed classIfied, January 1, 1993, IlOl1tiJIamola, who was hIred as unclassIfied 1 on May 14 1990, and remams unclassIfied, and, CoJle.enlaunn, who was hIred as unclassIfied Apnl 29, 1991, as condItlOnal classified on March 1, 1993, and as confirmed classIfied on June 1, 1993 UntIl recently they worked at the Sault Ste. Mane JaIl, the Northern Treatment Centre, and the Sudbury Jad respectIvely Ms Spry was asked to explam the dIscrepancy, that IS, how Mr GUItard could, at the tIme of the hearIng, be earnIng less, $1 50 per hour less, than Ms. Launn when he was hIred as an unclassIfied CorrectlOnal Officer more than a year earlIer, as a classIfied CorrectlOnal Officer 15 months earlIer, and had hIs underfrll removed SIX months earlIer She explamed that Ms Launn had received a ment mcrease as an unclassIfied CorrectlOnal Officer 1 m August, 1992 because of the pollcy which became effectIve July 1, 1992, and at that tIme went to Level 2 of the CorrectlOnal Officer 1 ClassIficatlOn. She stated that, once you move up a level, you do not revert from that level even though you change your claSSIficatlOn. She was also asked to explam the dIscrepancy between the pay levels of Mr Gilltard and Ms. Gramola, who were hued wIthm a month of each other, and who m July, 1992 had a pay dIfferential of $0 15 per hour She explaIned that Ms Gramola was paid at the hIgher level because she had receIved the ment Increase for unclassIfieds m July, 1992 and that Mr GUItard, bemg no longer unclassIfied, did not receIve the mcrease, as he had become claSSIfied and therefore mehglble for the ment mcrease which IS speCifically for unclaSSified CorrectlOnal Officers 13 The Board was referred to the followmg cases B~the Um ou_aIidJhe.Emplo..y:.er O.E.SElL(.WiU1amsill,arb..erl-and.Ih~CrillYru.n.R1ghtoLOntanCL(Mil11S.trJ"-of Corre.c.tillllal Servl ces), (1991), GSB 1448/90, 1449/90, 1446/90 QPSEU (HammomLand_MaIe.r.)-'Uld The Crown m RlghLQLOntano (MimstG-QLCorrectlOnaJ Semc.es, (1994) GSB 2460/90,2723/91 etc B.y.Jhe Umon OPSEU (BahLe.t.al)-'ll1d.Ihe_Cro.wn m RIght of Ontano (Mmlstry of the Attorney General), (1987) GSB 891/85 OESEJJ (Cameron) and The Crown m RIght ofOntano (MmIstry of CorrectIOnal Servlces),(1990) GSB 2174/87 OLBElLCGordon) and..Ihe Crown m RIght ofOntano (LlOruor Control Board ofOntano), (1991), GSB 0048/89 OESElL(lJmon-0neyanc.etand The.Lrown m RlghtofDntano (Mmlstry of Corre.c.tlOnal Servlce.s), (1991), GSB 311/88 OESEU_CCuthherts.on)_and_The_CIOWlUI1-R1ghLOiD.n1ano-<NIagara.J:.arks Comml SSIOn), (1994), GSB 0992/93, 3387/92 BJ'-the.Emplo_x.er o P SEU (W.ils,oll,..Robms_QlLancLGleadhillMruiIhe...Crmvn m R I ghLofDntan 0 eM m I s1r)u>i.Natural Re.s_ClllI.c.e.s.), (1981), GSB 458/80, 525/80,526/80 OESEU-CbtfielcLeLal)_and..IheS.IOMLID..R1ghtJ).fDntan 0 eM In] s:t:rJ'-OLCorre_c1ional Servl c.es), (1992), GSB 2564/91,224/92,277/92,424/92 Two Gnevance Settlement Board cases are partIcularly relevant to the mstant case. The first, filed by WIllIams on June 11, 1990, and the second, filed by Barber et al on June 29, 1990, became W.llhamsill_arher, Sllpra, The decIsIon was rendered on February 5, 1991., the Employer Issued a NotIce of ApplIcatIOn for JudIcIal ReVIew m November, 1991, and the decIsIon of the Gnevance Settlement Board was confirmed at JudIcial ReView on March 18, 1992 In thIS case the Board 14 considered the followmg sItuatiOn. The gnevors are correctiOnal officers at Camp Duffenn. They all jomed the mstItutiOn as unclassIfied staff, bemg paId through theIr vanous lImited-term contracts at the lowest level for a CO 1 (there are two levels for thIS classIficatiOn), then were appomted to the classIfied staff as CO 1 s, agam bemg paId at the lowest level for thIS claSSIficatiOn, and then, after the completiOn of their tralmng, were promoted to C02, bemg paId at the lowest level for thIS new classIficatiOn. They complam they were not paId properly under the collectIve agreement. Havm~ determmed that It had jUnSdlctiOn, on the basiS that It was dealmg With a matter of 'pay admmlstratiOn', the Board asked the followmg questiOn. Has the MmIstry viOlated the collective agreement m these cases? It answered It as follows Article 3 of the collective agreement governs the treatment of unclassIfied employees. The cntlcal prOVIsiOn IS Article 3.3 I, whIch deals With the pay rates for these employees and says that "The rate of the eqUIvalent CIVIl service claSSIficatiOn shall apply" In our VIew, thiS means that the unclassIfied employee should be paId the same rate as the classIfied employee who IS domg the same work. In Wils.on~obns.o~aucLGkac:lh.I.ll-52..5L8D-'U1c:l526L8D (McLaren), the Board held that It was suffiCient If the employer placed an unclassified employee somewhere m the range of rates for the eqUIvalent CiVIl servIce clasSIficatiOn (at pages 4-5) But, as the Board SaId m Ha~s, m our VIew, Wihon IS wrong on thIS pomt. In lIke vem, m Mc.cullo_ch, 2DBJU81 (Wilson), the Board did not accept a salary rate just anywhere m the range of rates for the eqUIvalent CIVIl servIce classificatiOn. The reason for the variOUS levels of pay m each classificatiOn IS to recogmze the mcreasmg worth of an employee as the employee becomes more expenenced m the work of the classIficatiOn. If an employee has done a job for one year, thIS employee ought to be able to do the Job better, to be more productIve, than an employee who is new to the Job In recogmtiOn OfthIS, the parties negotiate a hIgher rate of pay for the more expenenced employee GIVen thIS pomt, it does not seem nght that an unclassIfied employee, hired repeatedly m an unbroken stnng of service, who IS m fact domg a full-tIme job, should contmue to receive the same level of pay no matter how expenenced the employee becomes Should the gnevors have receIved the second level CO 1 rate after one year's IS I " servIce as unclassIfied correctiOnal officers? The only hItch In the gnevors' claIm IS that, In the unclassIfied service In thIS MIniStry, there are no correctiOnal officers who are paId at the second level CO I rate. ThIS IS because, If a correctiOnal officer IS classIfied, he remams at the CO 1 rate only untll he finishes his trammg for the C02 classIficatiOn, and this occurs almost mvarlably before he begms hIS second year of service. Thus, WIthIn one year of appomtment to the classIfied servIce, a correctiOnal officer m thIS MInIStry IS promoted to CO2 Nonetheless, m our VIew, the baSIC scheme establIshed m the collectIve agreement and ItS wage rates ought to be observed. The partIes negotIated a second level CO 1 rate This demonstrates the mtention to reward greater expenence WIth greater pay Normally, unless there IS an adverse performance ratIng, an employee would move up a level In the same classIficatiOn after one year's servIce. ThIS IS possIble for the unclassIfied COl, who may remam In the classIficatiOn for a sIgnificant penod of tIme Therefore, we order that, for each of the SIX gnevors, he [SlC] ought to have been paId at the COI second level rate as of the commencement of the first contract of service whIch began after he had worked full-tIme for the eqUIvalent of one full year for the MIniStry of CorrectiOnal ServIces as a CO 1 And, thereafter, the gnevors' pay ought to have reflected the fact that they were reCeIVIng the CO I second level rate as of the date stIpulated In the precedmg sentence The gnevors should be compensated for any amounts which they ought to have been paId and were not paid, WIth Interest at 10% compounded annually on each sum, from the date It ought to have been paid to the date on WhICh It IS paId. WIth respect to the five gnevors other than WillIams, who claIm that they ought to be treated lIke hIm, we do not thInk It adVIsable to compound the anomaly created when WillIams was retroactively treated as a C02 back to a date before he had completed hIS traInmg The rarIk of C02 IS a career rank, reserved for those employees who are qualIfied to perform as a CO2 It does not make much sense to confer thIS rank on an employee who has not yet become qualIfied And, from the lImIted eVidence before us, It appears that WillIams may be one of the only, If no the only, correctiOnal officer who was considered to have been a C02 before he qualIfied for the classIficatiOn. Therefore, for the five gnevors other than WIllIams, they ought to be treated as havIng become C02s on the dates now recorded for them by the MInlstry We understand that these dates are the dates on which they fulfilled the qualIfications for promotiOn to the C02 classification 16 In Its dismIssal of the MmIstry's applIcatiOn the Court gave'the folloWIng reasons The Gnevance Settlement Board IS mandated under Sec 19 (I) of Ihe..cmWI1 Emplo~e_es...Collecl1Ye.-Rargammg,Act to decIde gnevances "and ItS decIsiOn IS final and bIndIng on the parties" The gnevance dealt with the InterpretatiOn of artIcle 3 3 1 of the collectIVe agreement. In our VIew the mterpretatiOn gIVen to the artIcle by the Board cannot be saId to be patently unreasonable ...-.. Two othergnevances were filed at Camp Duffenn, the first by CorrectiOnal Officer KIm Hammond, on December 20, 1990, the second by CorrectiOnal Officer Lynn Maler These dealt WIth the same Issue as WillIamsillwer Two Union gnevances followed the WillIams\Barher deCISiOn the first was filed by OPSEU on June 18, 1992, and asked that The Employer pay the appropnate ment Increase to all affected CorrectiOnal Officers as per the WillIams\Barber, GSB # 1448/90 1449/90 and 1446/90 WIth. full retroactIVity back to the date when WillIams\Barber, first became aware of the discrepancy The second was filed by OPSEU, Local 108, (London, OntariO) and alleged that the MInIstry IS not paymg the Increment payment as per the COl rate to unclaSSIfied employees of ElgIn Middlesex Detention Centre, Stratford Jail, and Bouwater Centre, Godench I \ The Local asked That Management apply the pnncIpal [SiC] of the Barber award to the above noted employees retro to start date of each employee By the hearIng date, over 800 gnevances had been filed, others were contInuIng to be filed, and It was expected that other mdIvlduals would file m future The gnevors were requestIng that the WillIams\Barber case be applIed to them, retroactIvely In the Hammond'1Ma.LeI case, Counsel agreed and requested that the Panel should have JunsdlctiOn over thiS set of gnevances as well, and the Panel agreed that thiS was the most effiCient approach and that It would be seIzed of these as well 17 ~ In thIs case, the Umon sought relIef from the twenty-day retroactivity rule and asked that the Board grant exceptiOns to the rule m those cases In which It would be meqUItable to apply It. The Board reviewed the junsprudence wIth respect to retroactIvIty and concluded as follows In arrIVIng at ItS deCISiOn, the Board consIdered the junsprudence cIted above and concluded that the "time when" or the pivotal pOInt m tIme for the commencement of retroactIve payments, should be the tIme af 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\R.arher No explanatiOn was offered by the Employer for ItS chOice of July 1, J 992 as the commencement date [for the applIcatiOh of Level 2 of the CorrectiOnal Officer 1 ClassIficatiOn] and It appears to have been selected qUIte apart from the gnevance and arbItral processes. Although most of the grievances were filed subsequent to thIs date, a number were filed pnor to It and for those Gnevors, the 20-day rule would apply, that IS, the retroactIvIty date for gnevors WIll be March 18, 1992 or 20 days pnor to the filmg of their specIfic gnevances whichever IS earlIer In selectmg thiS optiOn, the Board has rejected the concept of "full retroactIvity", a remedy provided In exceptiOnal cIrcumstances, and has also rejected the concept of employee awareness as an appropnate route In thIS particular SItuatiOn. FollOWing thiS last optiOn would result m years of heanngs to determIne the pomt In tIme of the subJective awareness of each smgle Gnevor, and there are more than 800 Gnevors. In amvIng at ItS deCISiOn the Board strove to stnke a reasonable balance wIthm the context of the Gnevance Settlement Board JUrIsprudence ThiS decIsiOn was confirmed at jUdICIal review In March, 1995 A1:gument Mr Wnght submItted that the Issue IS whether or not the Employer ViOlated the Collective Agreement by not paymg these 12 Gnevors at Level 2 of the CorrectiOnal Officer 1 ClaSSIficatiOn after they had completed 1 year of unclassIfied service WIth the Employer If the Board finds that there has been a ViOlatiOn, then there should be an adJ ustment of the Gnevors' pay as they move through the progressiOn and because of theIr becomIng classIfied They should, he argued, be paid retroactively to theIr 1 st annIversary date The case IS, he maIntaInS on all fours WIth }.Yjll1amsill.arb.eI, s.upra, and there IS no reason not to apply the deCISion set out m that case, nor IS there any reason to allow the dIscrepancy which flies m the face of the baSIC purpose of a classificatiOn pay band system to contmue To find for the Employer would be to valIdate the 18 ./ sItuatiOn m whIch employees of the MmIstry who have served longer, anq have had more trammg, receIve less money than those who have served less tIme, and receIved less trammg when they are domg the same work. ThIS IS, he mamtamed, both unreasonable and Improper and should not be gIVen credence by the Board. Mr Wnght submIts that the Employer's response to the Issuance of Wlllramsill,arher was one of delay and aVOIdance To deny the Gnevors a remedy would, Mr Wnght submItted, perpetuate a gross InjUstIce. Mr BenedIct for the Employer, argued that Wilhams1Barher was an mdIVIdual gnevance, not a polIcy gnevance, and that It was contrary to the decIsiOn rendered m Wilson, Rohmson and Gle.adhill m whIch these partIcular Gnevors [felt] that theIr servIce over the years [had] not been properly recognized by havmg theIr wage rates moved up to steps beyond step 1 of the eqUIvalent CIVIl servIce clasSIficatiOn. In other words, they claImed] entItlement to the ment mcreases of the eqUIvalent CIVIl service claSSIficatiOn. The maJonty of the Board found that The contract entered mto wIth the mdIvIdualIs to be on the baSIS that they wlll receive a rate of pay eqUIvalent to a civIl service claSSification. That SImply means that the particular Group II Job must be examined and an eqUIvalent CIVIl service claSSIficatiOn Identified. Once that has been done then the Employer IS oblIgated to pay a rate equivalent to the scale of rate equivalent to the scale of rates for that clasSIficatiOn found m the cIvIl service agreement. There IS no restrIctiOn on the Employer such as the recognitiOn of previOUS servIce to determIne a particular rate at which an employee IS to be hIred It IS entuely WIthm the Employer's discretIOn to determme whether the first step or any subsequent step IS to be the rate at which the employee, when hIred wIll be pard. The only constramt on the Employer IS that a partIcular rate ill the range of rates for the eqUIvalent CIVIl servIce claSSificatIOn the employee beIng hued for the seasonal contract would have to be paid at one of the rates of the five steps No new rate could be establIshed between the Employer and the mdIVIdual bemg SIgned to the contract. While he was not, Mr Benedict stated, trymg to argue agamst the correctness of WjllIamsill.arheI, he submitted that other cases have come along "whIch have fluctuated a bit" Mr Wnght submItted that the conclUSIOn m Wils.on, supra, has been rejected not only 111 :WlllIamsillarher, but also m both HayJls and MC_Cllllo,ugh [referred to m Wllhamsillarher] 19 Mr BenedIct submItted that the polIcy of the MmIstry has not been as arbitrary and msensItIve as the Union mamtams WillIams}Harher and Its judiCIal reVIew made It clear that the MInistry's polIcy of not grantmg ment mcreases to unclassified CorrectiOnal Officers was mappropnate, even though It was consIstent WIth the Gnevance Settlement Board's Junsprudence The polIcy whIch was put mto effect on July 1, 1992 was mtended to fix the problem IdentIfied by Wilhamsill.arbcr Mr BenedIct submItted that, m the case of Hammoru:l'1Ma.Ler and the consolIdated I gnevances, that there was a gnevance filed by the Union and that the parties have agreed to resolve , a large number of the cases He submitted that thIS gnevance IS sImply a varIatiOn of Hammondlli1al.eI He makes the pomt that the conclusIOns arrived at m both Hammond\Maler and WjllIams\Barher concern unclasSIfied employees and he does not see how the Gnevors m the Instant case "could extncate themselves from this", given that at the tIme offilmg the gnevance they were classIfied and thIs may be the SItuation of many others As classIfied CorrectiOnal Officers, they are rot elIgible for the benefits flOWing from thIS deCISIOn. They are, he mamtamed, trymg to use their former unclassIfied status to progress through the salary gnd of Correctional Officer 1 retroactIvely He submItted that, based on pnncIples of eqUIty, the 12 Gnevors m the Instant case should receIve 110 remedy Mr Benedict charactenzed the Gnevors as IndIViduals "caught m an Issue whIch IS bigger than themselves", m a lIne-drawmg exerCIse He reasoned that when, m response to the Board's junsprudence, lmes are draWTl by the Employer to fix salary admIillstratlOn problems, some employees wIll benefit more, some wIll benefit less and others not at all Such "unevenness" cannot be avoided. The MInIStry drew a lIne m order to fix the problem and the Board superseded that lIne. The Mimstry should not assume any lIabIlIty for thIs matter pnor to March 18, 1992 [the date of the JudicIal review dIsmIssal] It IS Important that the Employer be permItted to correct pay admmlstratlOn matters WIthout the spectre of unlImIted lIabIlIty In reply, Mr Wnght submItted that the Issue of the Gnevors' claSSified status at the time of the gnevance IS a "red-herrIng" and noted that WIllIams, of WJllIamsillarher, became claSSified m 1988 and filed hIS gnevance m 1990 Further, he stated that out of those gnevances consolIdated With Hanlll1ond'1MaIer a number of the gnevors were claSSified at the tIme offilmg theIr gnevances In thiS partIcular case, he noted, the appomtments to the claSSified servIce were made, not as a result 20 ~ ofmdependent actiOn on the part of the Employer, but m complIance wIth an arbitral award of the Gnevance Settlement Board. It was emphasIzed by Mr Wnght that the gnevances of thIS group of 12 Gnevors have, at the mSlstence of the UnIon, remamed separate and apart from HammondlMalcr and the Employer dId not, as It could have done, requested a consolIdatIOn order from the Gnevance Settlement Board. The Umon IS not, Mr Wnght mamtaIned, tryIng to reargue Ham.mond\MaJ.eI, but It must be looked at. He submItted that the ratiOnale for the award m Hammond\Maler was based on the partIcular circumstances of the case, that IS, on the SIze of the group, and as a result, IS not a rulmg whIch establIshes a general pnncIple The draWing of a lIne whIch Mr Benedict referred to was dIstmgUIshed by Mr Wnght. He made the pomt that there IS a dIfference m employees beIng caught by a lIne draWTl through negotiatiOn and subsequent agreement of the parties such as m the negotIatiOn of the CollectIve Agreement, (htfield) and a Ime draWTl by the Employer wIthout the Involvement or agreement of the Umon. D.e.clslon The Umon takes the posItIOn that thIs case should be declded m favour of the twelve Gnevors and that each, havmg come WithIn the twenty-day rule, should receIve retroactIvIty to the date of the breach, that IS, to hIs or her 1 st annIversary date The Employer's posItIOn IS that there IS no breach, that the Gnevors are simply the unlucky ones m the ImplementatiOn of a responSIve and reasonably applIed polIcy The Board has conSidered the eVidence and makes the foHowmg findmgs There has been a two-tiered pay system for Correctional Officer 1 s and a three-tIered system for CorrectiOnal Officer 2s and 3s, for some tIme although their actual mcorporatiOn as a pnnted Schedule mto the Collective Agreement appears to date only from March 5, 1992 m the January 1, 1992 to December 31, 1993 CollectIve Agreement. 21 0' Mr BIshop became aware of the pay dIscrepancy m January 1992 and filed the gnevance on behalf of th9se affected at the Sault Ste Mane Jad wIthm the twenty workmg-day penod stIpulated m the CollectIve Agreement. The twelve Gnevors were unaware of the two-tiered pay scale for CorrectIOnal Officer 1 s WhICh IS understandable gIVen that It was not the practIce of the partIes to pnnt the schedule as part of the dIstnbuted copIes of the CollectIve Agreement untIl after March 5, 1992 Further, they were not aware of the dIscrepancy With other InstItutiOns In the RegiOn untIl Apnl, 1992 They filed therr gnevances WIthIn the twenty workIng-day penod stIpulated m the CollectIve Agreement on learrung of the SItuatIOn. An unusual pay dIscrepancy resulted from the applIcatIOn of the polIcy regardmg ment mcreases for unclaSSIfied employees These grIevances have remaIned mdependent of the Hammond\Maler group of gnevances SInce the tIme they were filed and the Employer, when unable to negotIate.a consolIdatIon dId not apply for an order to do so The Employer's development and ImplementatIOn of the ment pay polIcy for unclaSSIfied employees responded appropnately to the :will1ams..\B.arher deCISion, however, It did so m the Employer's own tIme and It did not consider mdIvldual SItuatiOns There was no eVidence that the Employer mtended the pay discrepancIes CIted above to be a result of the ImplementatiOn of the ment pay polIcy but rather, It viewed the dIscrepancies as one of the possible expected outcomes The Gnevors did nothIng to attract the dISC[epancy and had no mput Into the process WhICh resulted m the outcome The Board has considered ItS findmgs and the argun1ents of the parties and, haVIng consulted the arbItral JUrIsprudence put forward by them has come to the followmg conclUSIOns The Board agrees WIth the reasonmg m :~,^lJllIams\B,arher that The reason for the varIOUS levels of pay In each classification IS to recognIze the mcreaSIng worth of an employee as the employee becomes more expenenced m the work of the claSSificatIon. If an employee has done a Job for one year, thiS employee ought to be able to do the Job better, to be more productive, than an employee who IS new to the Job 22 n V .. ~ It accepts the rulmg m W1.ll1ams~Harber as the standard to be applIed wIth respect to the applIcatiOn . of Level 2 of the CorrectiOnal Officer 1 ClassIficatiOn. It agrees with the Umon:s_ar.g.ument that-{ Ha1IlIlJ.Q.llif1MleI responded to a partIcular set of cIrcumstances_and that the-IulmgJl1Jhat a:w~ ~ does not establIsh pnncIples of retroactIvIty The Board rejects the argument of the Employer that ~. -) I the fact the Gnevors were classIfied at the tIme they gneved, renders them melIgIble to receIve '-.. r remedy WhiCh would affect theIr pay dunng the penod when they were unclassIfied and whlcJi'---.., contmues to affect theIr compensatI~n. The Board also reJects the Uruon's argument that a balancmg ,.- of the mterests between Employee and Employer IS mappropnate m the case at hand and thai \ retroactIvIty should, as m Wilhamslli.arbe.r, date from the date of the begInnIng of the breach, that IS the first annIversary date of each Gnevor The twenty-day rule. applIed to retroactIvIty IS one of ~ the means by whIch the mterests of both parties are balanced and IS based on the tIme lImIt set out In the Collective Agreement for the filIng of gnevances It relates to the oblIgatiOn of a Gnevor to bnng a gnevance to the attentiOn of the Employer WIthm thIS agreed-upon tIme frame rather than wIthholdIng the mformatiOn thereby placmg the Employer at a dIsadvantage In the case at hand, the Employer was put on notice on January 18, 1992, when Mr BIshop filed the grIevance on behalf of the twelve Gnevors T~ Board has concluded that It IS appropnate for the Gnevors to recnv~ r,elroactIvlty m relatiOn to that date In other wor~, they are to be moved to Level 2 of the~ Cgr:ectlOnal Officer 1 ClaSSificatiOn 20 days pnor to January 18, 1992, and the Board so ord~ \ The result of this IS that they wIll be m Level 2 at the tIme they moved mto the CorrectlOnal Officer ~ .. ~ - 2 ClaSSificatIOn and thIS IS to be reflected m the adjustment to theIr Ray'. The Gnevors are to receive - - _.~~:~:.~.!3LL%-compounEiecl-annl:laH-y '\ \ 23 .. The Board Will remam seIzed of thIS matter to assIst the parties wIth the ImplementatiOn of Its award, should Its assIstance be reqUIred. Dated at Kingston, Ontario this 5th day of fl H.S Fmley V Ice-ChaIr A(1 ~ ~ . D.M. Clark Member 2 ~-n-t~.J I M. Thomson Member ~ 24