HomeMy WebLinkAboutUnion 84-08-31 Decision
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IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EHPLOYEES t
COLLECTIVE BARGAINING ACT BETWEEN:
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The Crown in Right of Ontario as represented by the
Management Board of Cabinet
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The Onta~io Public Service Employees' Union
Before:
David H. Kates. Chairman
S. Lewis. Union Nominee
P. Coupey. Employe~ Nominee
Appe arances :
For the Un1on:
A. Bekerrnan and others
For the Employer;
W.J. Gorchlnsky and others
Heard in Toronto, Ontario, on July 5, 1984.
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AWARD
This mat~er comes before this Board as a ~esult of the
parties' failu~e to re.ach a 'Wage settlement during their negcti-
atiops. On the parties' agreement this Board's ma~date is to
!':.x a wage rate for a one year period effective January 1. 1984.
The parties in both their written and oral submissions have
j oine d iSE ue on the two principal i terns separating them from a
wage settlemen~. 'Ihey t"elate to the following:
(i) The validity of the trade union's assertion that
the CorrectiCJ'lal Or1'i cer 2 (C02) rate of pay should be
pegged to the rate of' pay of art ,ontario Provincial
Police Constable. First Class (opp); and.
(11) The impact of The Pub lie' Se ctol" Pri cas and
C~ensation Review Act. 19~3 (Bill 111) on the
determInation of an appropriate wage rate. /
Before embarking on an elaboration of these two issues it
is helpful to point out from the outset that, except for the impact
of Bill IllJ the evidence and submissions put forward in these
proceed1.ngs were substantially the same as advanced before a
similarly constituted Arbitration Board that deterwined the wage
rate for COI'I'ecti.cnalofficers for the year January It 1982 through
De cember 31. 1982 (hereinafter referl"ed to as "The Kruger award").
In that award the Board g~anted a 15.$% salary increase for that
one year period.. In reviewing the Kruger award, it appeared to
be the verdict of the Board to fix its wage settlement
on the basis.of three principal factors:
i) COI'I'E\cticnal officers perform their duties f.:.;ndel" very
" trying circums tances II and deserve to "have S Drne re cogni tion
of this in their wages;
2) The acceptance of the legitimacy of a "link" between
the wages of Correctional Officers and OPP Constables and
the validity of the trade union's claim 1'or narrowing the
wage gap between the two groups; and
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3) 'The favourable "impression" given the trade union's
argumen t that wages for Corre ctional Office rs in Ont ario
have lagged ,"far behindll those paid to federal employees
perforrr~ng similar duties.
I t is 1mportan t to note wi th respe ct to item (2) that
the Board' appeared to accept the "legitimacy" of the link for
pay purposes be tween the Correctional Officer 2 and the OP? Cons tab le
but nonetheless recoiled from extending its full endorsement to
the validi ty of the trade union IS l! comparabi J..i ty II s ubrnission.
I note for the record Mr. Coupey's disSociation from this aspect
of the Board award. In this re gard the "Kruger" 30ard wr1 tes :
As to the matter of a link between the wages of
Correctional Officers and OFF Constables, We were not
given sufficient evidence to ~esolve this issue. In
particular we heard Tl ttle about the tasks of the OFP
Cons tab le. However, we note that responsib le officials
or the Ontario Government, including the current
Minister of Carre ctional Services End his pre de cess or.
have accepted the legitimacy of sllch a link and have
indicated support for narrowing the wage gap between
the t1'lO groups.
~ha.sis added
Accordingl~ in an effort to correct the evidentiary gap
that was lacking before the "KrugerTl Board the trade union's
officials have prepa~d tor our consideration a cOffiparative job
evaluation analysis for pay purposes between the Correctional officer
(2) and the OPP Constable in light of the criteria set out in
"Aiken's Scale", On the basis of the d.ata that emerged f:rom that
study the" trade unen Sou.g11t to persuade U5 to close what appears to be the e~r-
widening wage gap between the two groups. In the trade union's
brief the results of its study and the consE',:'~ent wage demand f'or
the year under consideration 1s expressed 2S follows (at p. 69):
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Our job evaluation indicates a 10.6 percent difference
1n total points 'Which f"avouI's OFF Constab le. Firs t
Class. While there is a difference of 10.6 percentage
points~ in rating there is a difference of 24.5
percentage points in salary. To come within 10
percentage points~ the union request will require an
increase of 14.6%.
Notwithstanding the absence of" any disavOW21 since the
Kruger Board's award of the past statements rr.ade in support of the
comparability principle by lIresponsible" officials of the Ontario
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Gover:'lrnent. the employer before this Board has contested the
va li d1 ty of any such wage link. Indee d. the e mp layer t S represen ta-
tives appeared to be highly" critical"of the pronounced legitimacy
of the wage link between the ~wo gro.ups as expressed 'in the
"KrugerTl award and the antecedent st1.ldles~ pa:r>ticularly the
nShapiro Repo:.-'tl1 that were cited in s!;pport thereof. Accordingly~
the emp loyer' 5 position> in ligh t of Bi 11 111. was that a wage
increase to t.'1e C~ctional Officers should be limited to 3.9% and,
in any event> should not exceed the Provincial gd.deline of 5%.
At the hearir.g the Board, without questioning the integrity
at' the trade tl..'"llon's comparative job evaluation study,
indicated that we could not give that study any evidentiary weight.
Qui te c lear1y I the document can only be viewe d as an
analysis that dlvicusly could be ccnst1"'\.ed for better or for worse as satisfying
a pTed:::ter.rined purpose. We have noted that th:! tracE U1io..i. appea:red to accept
our ccncem and offere d to arrange. for> at the parties v expense.
"the preparation of an independents tudy ";'n order to res 01 ve the
"comparability" issue lIonce and for allll. We have seriously con-
sidered that . overture but have concluded that such recou:-se would be
1rr.practical in the light of our being seized of determining a wage
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dispute for a one year period expiring on Decerrber 31. 1984.
Indeed. the parties presently appear to be on the threshold of
to bargain with respect to the next year's w~ge. In sum, the
Board has concluded that it is in no better and in no worse a
position than the "Kruger Boardll was in when seized of an
i dent1 cal wage dispute. That is to S2:.Y. base d on pre vi ous pro-
nouncements we have concluded that although there appears to be
legitimacy to establishing a link b~tween the two groups for wage
purposes. 1 ts velidi ty sti 11 remains to be subs tan tia te d by
appropriate evidence.'
In dealing with the parties I ~ub1Tissions on Bill 111 ~d
mo:oe pa.rtie ularly. its impa.ct on our de al1ng wi th the parties'
wage dispute. the BO~rd prefers the statements ffi2de with respect to
an Arbitration B02.!'d!s obligations I.l.nder that enactment in Be
Brucefield Mano~ Ltd. and Christian Labour Association or Canada
(Knopf) than these made in Re Thirty Particiuating Hos~itals and
Canadian Union cf Qperating Engineers 2nd Its Participatin~ Locals
(Barton). ....That is to say. the Board views its obligation in
reaching a conclusion with respect to wages, to consider the
employe::-'s abili.ty to pay a"1o the Province's stated guideline of
11m1t.ing wage increases to 5% in a balance perspective with the
equally important criteria contained in Section 12(2) of The
Crown Emplo~ees' Collective Bargaining Act. .1980. We do not accep'
that the employer's ability to pay should be given g:reater
emphasis in the light of these other 'relevant factors in reaching
a wage award. 'The ability to pay factor in oUr opinion may only b
'L""'eated as an OVErriding ccnsideratian in relaticn to other releV2nt factors
if the evidence supports ~hat notion. To the extent the Board's
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jurisdiction is restricted in our making a wage cetermination
we continue to be, governed, by the relevant provisions of the
deriv'at1ve statute. Accordingly. if a party establishes a
legitimate claim for a substa'i.tial wage increase. irrespective of
the employer's ability to pay, the Board's obliga.tion is to
discharge the duty for which it hz.s accepted 'res-
ponsibility. Moreover, in the event the result arrived at is
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deemed offensive to an interested Governmental authority then
the appropriate Legislative ferum is available to it in order to
remedy the situation.
In having regard to the parti~st dispute in this case the
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Board has 2.ttempted to balance the proven factors warranting a
1'air wage settlement for Co:-rectlcnz.l Officers as previously
expressed in the I1Krugertl award with the realities of the economic
cliruate that was- articulated in the employer's brief. It is the
objective of this award to achieve in the li~~t of these factors
a reasona.bly satisfactory wage settleMent .over a me year period i?t the
tern:inatim of which the ca::l:larabiJ.i t;y issue rrdJ be, resolved. 'That is to sey, we
continue to be impressed with the tr2de union's claim for a wage
increase based on the facto!'s !"e ci ted in the IIKrugertl award and
particularly in regard to the unpleasant and adverse working con-
di tions Co:rrecticr.al Offl cers are ::oequired to perform their duties.
On the other hand, we have allowed, as other Boards have previously
,'acknowledged, for some nloc':ration in the amount of
our award in the context of prevailing economic rea'11 ties. In
this regard had the trade union established a case for validating
the t1comparabl11 tytt of the two wage groups hereinbefore dis cussed.
different considerations may very well have applied.
upon Correctional Officers.
With respect to the trade union's claim fer wage parity ~itt
the C02s fer the Observation and Detention Horneworkers and the
finalization of this wage settlement We find no merit. These clair
are accordingly rejected. Again, for purposes of clarity. the
merit increase to which the employee.s a!'e entitled is to be ,?xtend(
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We u!'~e the pa!'ties to resolve this pressing issue of
comparability on their own during the course of their next
negotiations. Failing that. tIle parties should be on notice
that that issue ought to be dealt with "once and tor .811" at
Arbitration in an appropriate manner.
In having regard to the foregoing, it is our conclusion
tha t, e ffe ct1 ve January 1. 1984, and for the one year period
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expiring on December 31, 1984. a 7.5% wage increment should be
given to all affected employees. For purposes of clarity this
award is to be considered independent of any future ceterJ1".inetion
with respect to other terms and conqit:!.ons of er.:ployment conferred
Supervisors of Juveniles and Correctional Officers we are of the
view that such claims. should be held in abeyance until the next
round. of negotiations at which time the p:rincipa~ issue of the
wage linkage between the C02 a'"l.d OPF Constable should be finally
re sol ve d .
With respect to the trade ur:.ion's demand that merit incre-
ments should not be "costedt! in our wage awa!'d, th.e.t a prernium be
paid to bailiffs .....ho oversee federal inmates ana that an interest
penalty be imposed upon the employer for any alleged delay in the
over and above our. 7.5% general increase but is to be "costed" as
part or our award.
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As agreed to by the parties) the Board' directs that they
meet for the purp~se of costing out this award for purposes of its
sub~~ssion to the Income Restraint Board in accordance with the
requirements of' Bill 111. We shall remain seized.
Datet. this ~l ':>tday of August 1984.
I concur
I dissent
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David H. a tes
"S. Lewis" (see addendurrJ
liP. COl1peyll (see dissent)
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ADDENDUM FROM STEPHEN LEWIS
It was tempting to contemplate a dissent
to this award. My own strong inclination, based on the
evidence, was to grant the Correctional Officers an
increase of 10 per cent in order to bridge the gap
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significantly between Correctional Officers 2 and"O.P.P.
Constables. For six years now, since the days of the
Shapiro Report, judges, politicians, senior civil servants
and arbitrators have been acknowledging that a "link'; does.
exist, and that the wage disparity constitutes a continuing
injustice. There.must come a time when the injustice is
resolved: Correctional Officers cannot be expected to
wait forever.
However, this arbitral award, in the face
of very difficult circumstances, has ~hree ingredients
of sufficient strength to mute my passion for dissent.
They make of the decision a defensible and important
document.
First, the wage determination of 7.5%,
while clearly less than the union wished, is still a
quite respectable increase.
Second, the chai~an has dealt with
Bill 111 in. appropriate and straightforward terms.' He
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has said what is clearly true: the question of the
hemployer's ability to pay in the light of existing
provincial fiscal policy" is but one factor among
many. When the other factors are more persuasive,
they must surely supercede. The strictures of Bill 111
are merely a guideline, and the Provincial Treasurer
himself has said repeatedl~ that arbitrators are not
bound by the guideline; they are merely bound to
consider it.
For my own part, I regard Bill Ill' as
anathema to the arbitration process. It ?ot only
undermines arbitral independence, but it is an
attempt to apply a kind of wily statutory coercion
to the wages and benefits of public sector workers.
It deserves short shrift. This award is useful
because it places Eill 111 in context.
Third, and perhaps most important,
this decision sets the stage for the future. In quite
unequivocal terms, the chairman urges the parties to
solve the issue of comparability "once and for all".
He is, in my opinion, ~ntirely right.
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I would hope that the government would
squarely meet the issue during the course of the next.
contractual negotiations. Failing that, however, it
is up to the union to take the initiative.
I fully recognize that that's what the
union felt it was doing in the presentation of its own
comparative job evaluation study before this arbitration
board. The effort and the documentation were, in truth,
impressive; but the problem is that any such material,
prepared solely by one side, never carries sufficient
weight. If such a stucy cannot be done jointly, then
I would sugges~ that what is required is an independent
job evaluation appraisal undertaken by an authoritative
and recognized group or age~cy.
Given the history of the last several
years, any future arbitration board would be hard-
pressed not to take the results of such an evaluation
5eriously~
For the Correctional Officers there is
of course an element of risk. One cannot pre-judge
the outcome. But this award, in add~tion.to the wage
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increase for 1984, is simply saying: patience is
wearing thin; resolve the festering controversy.
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R~: O.P.S.E.U. and Cro~/Ontario(Managem~nt Board of Cabinet) Dispute Concerning
The Correctional Services Wage Ba~aining Cate~or~
The ~jot"ity of the Board haS1,lsed the three issues originally raised in the Kr1Jger
aVard to justify the 7.5% yage increase.
~ith respeCt to the first and third iS5~es, the fact that the Correctional Officers may
perform their duties under very trying circu~stances and that their wages may be less
than those paid to federal employees performing similar duties does not. in wy opinion,
constitute good reason for awarding more than the 5% inc~ease that they might otherwise
expect, In any event, sufficient recognition of these factors was accorded by Kruger
in his a....ard.
~.ith respect to the second issue, that is the legitima.cy of .a. "Link" bet;,;leen the w~ges
of Correctional Officers and C.P.P. Constables. the majority of the Board has stated in
its a.-...rard that "Its validity remains to be s\Jbstantiated by appropriate evidence". It
to. ":
is of importance to note that the previous award, uuder Kruee~, came to the same
conclusion, and further, 1 stated in my Addend1..lll:l that ''It ;,;las a.pparent throughout the
hearing that the Union's claim could not be supported on the basis of either fact. a
historical rela.tionship, or as a result of sound job eval1Jation techniq\Jes."
The ~ajority of this Board stated that there is not a legitimate link bet~een the
Correctional. Officers and O.P.P. Constables ~ages, other than that there exists a "favourab
impression'. to the Union's argument. and they failed to provide any substantiation of
this as well as the other t~o factors.
Furthermore, scant attention ;.;laS given by the majority to the prevailing economic
realities, Yhich are significantly different than at the time of the Kruger award. I
might not~ that 2nd quarter statistics reported by Labour Canada indicate that settlements
without C.O;L.A., have averaged 3.6%.
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,~~ t~:;h~ impact of the pUbl~Sector Prices and compenSatio~~Vie~ ~ct. 1983 (Bill 111),
1 might suggest thAt tbe awarded wage increase takes DO recognition ~atsoever of the
legislation wHich the majority has successfully ignored. Under the Act, Boards of
Arbitration must consider the employer's ability to pay, not in a vacuum, but "in light
of e~i$eing provincial fiscal policy", which criteria has been ~5tablished as 5X maxim~.
I would have said that it is quite apparent that the Treasurer's criteria is of overiding
importance and should only be overcame if some fundamental inequities could be established
before the Board. In the Case before us, it is the very failure of the Union to sub-
stantiate by appropriate evidence the validity of a link betweeu the Correctional Officers
and the Q,P.P. Constables that prevents us from defining such an inequity as might require
us to award more than 5%.
In conclusion, I would have preferred the approach in Re: 30 Participating Hospitals ar.d
Canadian Union of Operatin~ Engineers and Its Participating Locals (Ba.ton). Even more
50, I would have given weight to the legislation above and beyo.nd the Current economic
.ealities and 1 would have found no reaso~ for awarding more than 5% in this case.
P.R. Coupey
August 3D, 1984