GSB#2013-2757

UNION#2013-0542-0015

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ahmed)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE UNION

Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Roslyn Baichoo Ministry of Government Services Legal Services Branch Counsel

HEARING SUBMISSIONS

July 14, 2014 August 1 & 5, 2014

Decision

1The employer has raised a preliminary objection to the Board’s jurisdiction to hear this grievance. There is no dispute as to the Board’s jurisdiction to hear and determine that question. The grievance alleges “unfair practice in screening” with respect to job competition #52077. This matter was scheduled pursuant to Article 22.16 of the collective agreement, and the matter proceeded directly to arbitration on the basis of the following agreed statement of facts:

The Union and the Employer have agreed to the following facts only for the purposes of a preliminary motion on the jurisdiction of the Vice Chair to determine issues relating to a PEGO position. This agreement shall not be applied, used or referred to for any other purposes.

1. The Grievor, Masud Ahmed, is 52 years old. He has been employed with the OPS in the position of a Senior Bituminous Materials Engineering Officer for about 11 years.

2. The Grievor is asserting that he has been a licensed Engineer with Professional Engineers Ontario (“PEO”) for all of those 11 years. Membership in PEO provides an engineering licensing designation of P.Eng.

3. The Grievor received his Engineering training in Bangladesh, and previously worked as an engineer-in-training and briefly as an engineer at a Canadian construction company. Prior to that, the Grievor worked as an engineer in Bangladesh.

4. The Grievor has received no discipline and no performance problems have been brought to his attention over the past 11 years.

5. The Grievor has applied for several competitions in the PEGO bargaining unit, unsuccessfully, despite his long service in the OPS and his long standing membership with PEO.

6. In 2013 the Grievor applied for a position as a Materials Project Engineer. This position is in the PEGO bargaining unit and was designated Job ID 52077. He did not receive an interview. The Grievor ranked 17^th in the prescreening scoring.

7. The Grievor has been interviewed for other PEGO positions. These positions include a Senior Bituminous Engineer position and Project Soils Engineer, both in 2014. In the past the Grievor has also applied to a position as a Foundation Engineer and Senior Soils and Aggregate Engineer.

8. The OPS has a program known as the EDP, or the Engineering Development Program. These positions are in the PEGO bargaining unit. Attached is a document describing the EDP program.

9. The following individuals were offered interviews

• Riyaz Sheikh

• Tiffany Gulamhussein

• Heather Nottbeck

• Heather Beattie

• Jesse Schelew

• Calvin Fong

10. Of the candidates selected for an interview, five were members of the EDP program. Two of the five were Riyaz Sheikh and Tiffany Gulamhussein, and were not in possession of a full P.Eng designation at the time of the posting.

11. The final candidate, Mr. Fong, was added after the initial candidates.

12. The job posting required a license from PEO as a mandatory qualification.

13. The Grievor filed a WDHP complaint alleging discrimination based on age and it was deemed outside the scope of the Policy in November 2013.

14. It is the Union’s position that these events show a connection between the Grievor’s status under the Human Rights Code, as an older, racialized worker with international credentials, and adverse treatment, insofar as he was not the successful applicant to this position. The Employer disputes these claims.

15. It is further the Union’s position that while this is a PEGO position, that the Grievor has a right under Article 3 of the Collective Agreement and the Ontario Human Rights Code not to be discriminated against on the basis of race, age or place of origin. The Employer disputes these claims.

2The attachment to the agreed statement of facts identifies the Engineering Development Program as a program of the Ministry of Transportation of Ontario and summarizes the program in the following bullet points:

• Four-year development program for recent civil or geotechnical university graduates

• Practical, multidisciplinary learning experiences through rotational assignments in regional and head office locations.

• Qualifying experience for PEO license and opportunity to compete for more senior positions

• Competitive salary and benefits

3There is no dispute that, at all material times, the grievor was employed in a position falling within the bargaining unit represented by OPSEU and covered by a collective agreement between the Crown in Right of Ontario (the “Crown”) and OPSEU. There is also no dispute that any position sought by the grievor is covered by a collective agreement between the Crown and the Professional Engineers Government of Ontario (“PEGO”) and that PEGO is the bargaining agent for employees employed in that position. By way of remedy, the grievor seeks to be placed in a position in the PEGO bargaining unit as an engineer.

4Relevant provisions of the OPSEU collective agreement provide:

1.3 For greater certainty, the Central Collective Agreement shall apply to the employees employed in positions in the Bargaining Unit described in Article 1.1…

2.1 For the purpose of this Central Collective Agreement…, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees…shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement…

3.1 There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).

22.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.

22.2 If the complaint or difference is not resolved at the local level an employee may file a grievance, in writing, through the Union, with their manager….

22.6.1 If the grievor is not satisfied with the decision of the designated management representative…the grievor may apply, through the Union, to the Grievance Settlement Board (GSB) for a hearing of the grievance…

22.14.6 The GSB shall have no jurisdiction to alter, change, amend or enlarge any provisions of the Collective Agreements…

5I was also provided with a copy of the collective agreement between the Crown and PEGO, effective until December 31, 2014.

6Neither party was of the view that PEGO was entitled to notice of the hearing of the preliminary matter. The employer asserted that the Board was able to bind only the parties to the grievance and that the Board had no jurisdiction to order PEGO to accept the grievor into its bargaining unit. It relied on the Board’s decisions in OPSEU v. Crown in Right of Ontario (MOT), GSB File # 1614/97, decision of Vice-Chair Mikus dated April 28, 1998 and OPSEU (Union) v. Crown in Right of Ontario (MOHLTC), GSB File #1495/00 et al, decision of Vice-Chair Brown dated December 20, 2001. The union took the position that on the threshold issue of whether the Board had the jurisdiction to hear a claim of discrimination, PEGO had no rights that were ‘significantly affected”, referring to the decision in CUPE v. CBC, 1992 CanLII 108 (SCC), [1992] 2 S.C.R. 7. In light of my conclusion following, I need not comment on any issue of notice to PEGO.

7It was the employer’s position that, as a member of OPSEU, the grievor cannot grieve the denial of an opportunity for an interview for a position represented by another bargaining agent, in this case, PEGO. It is trite law, argued the employer, that a unionized employee can only grieve pursuant to the terms and conditions of the collective agreement that binds that employee. The OPSEU collective agreement, argued the employer, does not and cannot bind PEGO, which represents this position as part of its bargaining unit.

8The EDP program, argued the employer, is one jointly developed by the Crown and PEGO. It is alleged to be discriminatory, noted the employer, because it focuses on hiring recent engineering graduates. However, argued the employer, the union cannot rely on Article 6.1.1 of the OPSEU collective agreement. That provision was clear, argued the employer, that the posting language spoke to vacancies “in the bargaining unit”, that is, OPSEU’s bargaining unit. There is no sharing of positions as between bargaining units, argued the employer, and the grievor was not a member of PEGO. To find otherwise, argued the employer, would result in labour relations chaos should various bargaining agents seek to challenge the results of postings as though they were open across the OPS.

9The employer noted that the union was asserting that, in addition to a right to lay claim to the PEGO position, it was asserting that the grievor had been improperly discriminated against and that that allegation provided the ‘hook’ to examine circumstances for which the grievor has no substantive right. If no substantive right existed under the collective agreement, argued the employer, then the Board was without jurisdiction to examine the issue of discrimination. This was so, argued the employer, notwithstanding the Board’s right to interpret and apply the provisions of the Human Rights Code (the “Code”) and the decision in Parry Sound. To assume jurisdiction in this case, argued the employer, would require the Board to examine a job competition that was otherwise outside the Board’s jurisdiction. This is not a PEGO grievance, noted the employer, and the grievance seeks to challenge a PEGO mandated program in which OPSEU has no interest or involvement.

10In support of its position, the employer referred me to the decisions in Cunningham and The Crown in Right of Ontario (MCCR), GSB File #279/79, decision of a panel chaired by Vice-Chair Jolliffe, dated October 14, 1980; Dunn and The Crown in Right of Ontario (MOH), GSB File #13/79 et al, decision of a panel chaired by Vice-Chair Teplitsky dated February 18, 1981; The Crown in Right of Ontario (MCS) and OPSEU (Lansey), GSB File #419/82, decision of a panel chaired by Vice-Chair Weatherill dated June 29, 1983; The Crown in Right of Ontario and OPSEU (Shelton et al), GSB File #520/90 et al, decision of a panel chaired by Vice-Chair Dissanayake dated October 9, 1990; DeMers and The Crown in Right of Ontario (MCCR), decision of the PSGB chaired by Willes dated September 9, 1991; The Crown in Right of Ontario (MTO) and Bradford et al, decision of the PSGB before Vice-Chair Leighton dated June 5, 2001; The Crown in Right of Ontario (MCS) and OPSEU (Tse), GSB File #0895/88, decision of a panel chaired by Vice-Chair Samuels dated February 7, 1989; and The Crown in Right of Ontario (Revenue) and OPSEU (Dias), GSB File #3479/92, decision of a panel chaired by Vice-Chair Gorsky dated March 3, 1995.

11At the outset of its submissions, the union withdrew any reliance on the posting provisions found at Article 6 of the OPSEU collective agreement. The grievance, asserted the union, rested on the allegation that the employer had discriminated against the grievor in the context of his applying for a PEGO position in violation of Article 3 of the collective agreement. Much of the employer’s caselaw was irrelevant, argued the union, as it dealt with the interpretation of posting provisions and/or pre-dated the decision in Weber. In this case, argued the union, there was a stand-alone substantive right not to be discriminated against. No ‘hook’ was required, argued the union. To the extent that cases find otherwise, argued the union, they were wrongly decided or had been displaced by the Supreme Court of Canada’s decision in Parry Sound. There was nothing in the Code, argued the union, to suggest that the right not to be discriminated against had to be tied to any other right. The Board hears and determines cases solely related to discrimination, argued the union.

12The union acknowledged that it has no standing to enforce the PEGO collective agreement and that the Board has no jurisdiction to make any determination under the PEGO collective agreement unless brought by PEGO. However, argued the union, the right not to be discriminated against, having quasi-constitutional status, cannot be read down. Even in the absence of Article 3 of the collective agreement, argued the union, the Code protections are included in the collective agreement. The question was, argued the union, do we need to have jurisdiction and then apply the Code, or do we just apply the Code.

13The Code confers jurisdiction on its own, argued the union and, in this way, the law has changed. So, for example, noted the union, in the Dias case, supra, there was no mention of section 48(12)(j) of the Labour Relations Act that provides the Board with the jurisdiction to interpret and apply the Code despite any conflict between it and the collective agreement. However, in this case, argued the union, the issue did arise from both the collective agreement and the Code, and fell squarely within the collective agreement. The alleged discrimination, argued the union, was that the employer routinely preferred candidates for engineering positions who were younger, Caucasian, and had Canadian credentials.

14The grievance alleges a violation of Article 3 of the collective agreement and a violation of the Code, argued the union. There is no inherent limit on the kind of evidence the Board may hear, argued the union. There was no particular reason, argued the union, that evidence concerning a position outside the bargaining unit would be immunized if that evidence provided context for the employer’s alleged discriminatory actions. The union was asserting that a blanket preference for EDP candidates is discriminatory. That position did not, argued the union, affect PEGO’s interests. The union is not, it asserted, seeking to have the program cancelled or changed. This is an allegation of discrimination when applying for a job, not for failure to be included in the EDP.

15By way of remedy, the union sought the placement of the grievor in a PEGO position as an engineer. The union noted that it was not seeking to displace the successful candidate to the posting, as it was not pursuing that posted vacancy. Failing an existing vacancy, the union advised that it would be asking that the employer create a vacancy.

16In support of its position, the union relied on the decisions in Parry Sound v. OPSEU 2003 SCC 42, [2003] S.C.J. No. 42; OPSEU v. Crown in Right of Ontario (MCSS) (Barillari), [2008] O.G.S.B.A. No. 54 (Carrier); The Crown in Right of Ontario (MSG) v. OPSEU (Courte/MacGregor), GSB File #1946/93 et al, decision of a panel chaired by Vice-Chair Roberts dated November 7, 1994; The Crown in Right of Ontario (MOF) and OPSEU (Cherwonogrodzky), GSB File #2002-0994 et al, decision of Vice-Chair Gray dated April 14, 2004; and Kingdom Hotels Ltd. v. United Food and Commercial Workers International Union, Local 333 (Chowdhury Grievance), [2011] O.L.A.A. No. 127 (Marcotte).

17In reply, the employer noted that the remedy sought placement of the grievor in a different bargaining unit. This was not a stand-alone issue of discrimination, argued the employer. If this were an allegation of discrimination regarding the filling of an OPSEU position, noted the employer, the Board would have jurisdiction. The real issue, argued the employer, remained whether the employer appropriately dealt with the filling of a PEGO position. While other circumstances might present a stand-alone substantive allegation of discrimination, argued the employer, this was not that case. The allegation is tied to the awarding of the excluded position, and that issue, argued the employer, was excluded from the Board’s jurisdiction as the claim falls outside the scope of this collective agreement.

18The Board’s jurisdiction in this case, noted the employer, arose from the OPSEU collective agreement. No authority was provided by the union dealing with an issue of competing collective agreements, argued the employer. The cases stand only for the accepted proposition that the Board has the jurisdiction to interpret and apply the Code. The real complaint in Parry Sound, noted the employer, was that the grievor had been discriminated against because she took a maternity leave. In this case, the real complaint is that the grievor was denied a PEGO position. The Board was being asked to apply the OPSEU collective agreement without regard to the PEGO collective agreement, noted the employer. And yet the requested remedy was to give the employee a position outside the scope of the OPSEU collective agreement. Further, the Board had no authority to order the creation of a vacancy, argued the employer. The interest of the EDP was affected, noted the employer, as the union was seeking to change how it was administered.

19This grievance seeks to challenge the employer’s hiring practices in filling positions that fall within a bargaining unit represented by PEGO. The preliminary question is not whether those practices are discriminatory, but whether the grievor may pursue that claim in this arbitral forum.

20It is fundamental that the Board’s jurisdiction arises from the collective agreement pursuant to which the grievance was filed. In this case, the grievance was filed pursuant to Article 22 of the “central” collective agreement between the Crown and OPSEU. Article 22.1 of that collective agreement identifies that it is differences between the parties “arising from the interpretation, application, administration or alleged contravention of this Agreement” that are arbitrable. That is, a difference between the parties must relate to a provision of the OPSEU collective agreement. The grievor and/or OPSEU have no ability to complain about a breach of a provision in the PEGO collective agreement. To that extent, the parties are on common ground.

21The grievor complains that the employer has discriminated against him in the manner in which the employer has filled a vacancy for an engineering position (one or more) that falls within the bargaining unit for which PEGO holds bargaining rights. Those positions are covered by the collective agreement between PEGO and the Crown. Article 7 of that collective agreement contains provisions regarding the posting and filling of vacancies for positions in that bargaining unit.

22OPSEU argued that it is neither the posting provisions of the PEGO collective agreement or the posting provisions of the OPSEU collective agreement that are in issue. Rather, OPSEU relied on Article 3.1 of the OPSEU collective agreement. Moreover, argued OPSEU, the Board is entitled to interpret and apply the Code in accordance with sub-section 48(12)(j) of the Labour Relations Act. Such application, argued OPSEU, is in accordance with the decision in Parry Sound, and is independent of any collective agreement right that may or may not be alleged to have been violated. The Code and Article 3.1 of the collective agreement, argued OPSEU, provide ‘stand-alone’ protection from discrimination and thereby jurisdiction to this Board.

23That statement, however, begs the question of, discrimination in relation to what?

24In Ontario Lottery and Gaming Corporation and OPSEU, [2005] O.L.A.A. No. 370 (Knopf) cited in Complex Services, infra, the union complained that the employer had discriminated against members of the bargaining unit by not considering them as “internal candidates” for non-union positions in accordance with the employer’s stated policy. There was no dispute that bargaining unit members were not treated as internal candidates for positions outside the bargaining unit. Much like the instant case, the employer brought a preliminary motion, taking the position that the arbitration board had no jurisdiction to hear the grievance. While the union conceded that the employer could set policy regarding hiring decisions for positions outside the bargaining unit, it argued that the employer could not apply its policy in a discriminatory fashion. The Board found, beginning at page 11 of its award:

If the question is whether the Board of Arbitration has jurisdiction to deal with the filling of non-bargaining unit positions, the answer is clearly “no”. No aspect of this Collective Agreement deals with the Employer’s obligations to members of the bargaining unit with regard to positions outside the bargaining unit. This Board of Arbitration would have no ability to analyze the selection process or to apply criteria beyond the Collective Agreement to non-bargaining unit jobs or the selection for those jobs. The remedy the Union is seeking in this case reveals the difficulty with its own position. How can this Board of Arbitration under this Collective Agreement review the selection process for a position outside the Collective Agreement?...

However, the parties have also posed a different question for consideration at this preliminary stage. The alternative question is whether the management rights in the Collective Agreement are restricted in any way relevant to the circumstances of this case…We need only address the issue of discrimination and whether or not it acts as a restriction on management’s rights with regard to these particular positions.

…the Collective Agreement and the law prevent the exercise of management rights in a manner that is discriminatory…

This means that a board of arbitration does have jurisdiction to deal with allegations of discrimination. However, those allegations of discrimination must relate to the collective agreement or the law. There are no allegations of statutory discrimination here…There is no general authority over discrimination allegations against this Employer. For example, if it were alleged that this Employer failed to award a non-bargaining unit position to an excluded employee because of her family status, sex, or even pro-union sympathies, a board of arbitration would have no authority to adjudicate the case. This is because the board of arbitration’s jurisdiction is derived only from matters that fall within the scope of the collective agreement. Those allegations involve non-bargaining unit positions and personnel, thereby they escape the jurisdictional reach of arbitration.

…The real question is whether an allegation that bargaining unit members are being treated differently with regard to opportunities for non-bargaining unit positions is discriminatory within the meaning of this contract.

…it must be concluded that there are significant differences between bargaining unit and non-bargaining unit employees. However, these differences do not equate to discrimination in this case. These differences are the very definitional demarcations between the two groups. The divide cannot be bridged by arbitration. It can only be bridged through collective bargaining.

25In this case, Article 3.1 of the collective agreement replicates the statutory protection found in the Code. The fact of sub-section 48(12)(j) of the Labour Relations Act adds nothing to an arbitrator’s jurisdiction under this collective agreement in relation to alleged violations of the Code. The substantive rights and obligations of the Code are explicit in this collective agreement. However, does that give an arbitrator appointed under the terms of this collective agreement the jurisdiction to deal with any and all allegations of discrimination on prohibited grounds?

26The decision in Kingdom Hotels Ltd., supra, appears to conclude that it does. In that case, the employer posted for a part-time serving position. That position fell outside the scope of the full-time bargaining unit. A member of the full-time bargaining unit applied for the job, was unsuccessful, and grieved, alleging racial discrimination. As here, the employer brought a preliminary objection, arguing that the arbitration board had no jurisdiction to consider the grievance, and that an allegation of discrimination was not sufficient, of itself, to trigger such jurisdiction. That collective agreement, as here, expressly incorporated the provisions of the Code. In determining that he had jurisdiction to hear the merits of the grievance, the arbitrator stated:

49 …the grievor’s claim of unlawful discrimination…is proper subject-matter for arbitration purposes. Under art. 3.02, the parties have expressly incorporated the Human Rights Code into their collective agreement…The fact that the Company’s decision not to award the grievor a position that lies outside the scope of the bargaining unit and, hence, a position not covered by the collective agreement, is not relevant for purposes of deciding the merits of his complaint of discriminatory treatment…Rather, it is the exercise, itself, of the Company’s managerial discretion in this matter that is brought under scrutiny, and which exercise of managerial rights gives rise to a “difference” between the parties that is within arbitral jurisdiction…Further, under art. 3.02, the parties are agreed that in exercising its management rights, the Company cannot violate the Human Rights Code, thereby making such exercise subordinate to the provisions of the HRC…

27With respect, I am of the view that the arbitrator erred in this conclusion for the following reasons. As here, the parties in Kingdom Hotels agreed that there was no obligation on the employer to apply the posting provisions of the collective agreement as the position being filled fell outside the bargaining unit. What then of the allegation of discrimination?

28In reviewing the various court decisions in Parry Sound, the arbitrator noted that the Divisional Court had found that, absent an express provision in the collective agreement that established a difference, the provisions of the Code could not be considered at arbitration. This finding was overturned by the Supreme Court of Canada as the arbitrator noted at paragraph 34 of his award. In its decision, the Supreme Court of Canada held that:

32 The obligation of an employer to manage the enterprise and direct the work force is subject not only to express provisions of the collective agreement, but also to the statutory rights of its employees, including the right to equal treatment in employment without discrimination.

29In Parry Sound, supra, the Supreme Court of Canada also concluded:

40 …the amendments to the legislation affirm that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were a part of the collective agreement. If the right of an employer to manage and direct the work force is subject to both the express provisions of the collective agreement and the employee’s statutory rights, then it follows that a grievance arbitrator must have the power to implement and enforce those rights.

49 …the appellant’s submissions in respect of the structure of section 48 are consistent with the conclusion that the substantive rights and obligations of the Human Rights Code are implicit in each collective agreement over which an arbitrator has jurisdiction….

30The decision in Parry Sound concludes that the terms of the Code are implicit in each collective agreement and that an arbitrator has the power to implement and enforce those rights as if they were a part of the collective agreement. That conclusion however does little to advance the question here, for the parties have expressly incorporated the provisions of the Code in Article 3.1 of their collective agreement.

31Also in Parry Sound, the collective agreement pursuant to which the board of arbitration had been constituted provided that a probationary employee in that bargaining unit and covered by that collective agreement “may be discharged at the sole discretion of and for any reason satisfactory to the Employer and such action…does not constitute a difference between the parties”.

32The parties had negotiated this clause, allowing the employer to discharge a probationary employee in the bargaining unit pursuant to an exercise of the employer’s discretion, rather than requiring the employer to show just cause. The decision in Parry Sound may be seen as confirmation that, in negotiating this lower standard, it was not intended by the parties that the employer could act contrary to law in the exercise of that discretion (see also McLeod v. Egan, cited in Parry Sound).

33The employer’s impugned action in Parry Sound was based on a discretion it held under the terms of the collective agreement between the parties to the grievance, in relation to an employee holding a position within that bargaining unit and represented by the grieving union. The grievance challenged the appropriate exercise of that employer discretion, constituting a difference arising under the terms of the collective agreement. The decision in Parry Sound does not address employer action in relation to a position outside of the bargaining unit governed by the terms of a different collective agreement. Thus, notwithstanding reliance in Kingdom Hotels on the decision in Parry Sound, that latter decision does not address the question of whether an arbitrator has jurisdiction to determine an issue of discrimination with respect to the filling of a position outside the bargaining unit and outside the collective agreement under which the arbitration has been constituted.

34In finding that it did not matter that the posted position fell outside the bargaining unit, Kingdom Hotels also relied on the decision in Complex Services Inc. and OPSEU, (2006) 2006 CanLII 93298 (ON LA), 152 L.A.C. (4th) 315 (MacDowell) for the proposition that a ‘no-discrimination clause’ provided a ‘stand-alone’ contractual provision that required no other necessary reference in order to establish arbitral jurisdiction. In Complex Services, the grievor claimed that she had been denied the opportunity to work as a temporary shift supervisor as a result of alleged discrimination based on her union activity. The shift supervisor position was outside the bargaining unit. However, the grievor was one of a number of bargaining unit members who performed the role of ‘temporary shift supervisor’, a role expressly contemplated by the terms of the collective agreement and one regularly filled by bargaining unit employees. The collective agreement made provision for the continuation of bargaining unit seniority while working outside the bargaining unit in this capacity and noted the employer’s recognition that issues might arise if a temporary shift supervisor was asked to discipline other bargaining unit members. The parties agreed that ‘temporary shift supervisors’ were somewhat of an anomaly and the decision notes that neither party had pressed the issue of the ‘employee status’ of these individuals under the Labour Relations Act. The collective agreement also expressly prohibited discrimination by either the employer or the union based on union activity or lack thereof, mirroring statutory protections found in the Labour Relations Act.

35Complex Services finds, at page 327, that the ‘no-discrimination’ clause is:

…a “stand-alone” contractual prohibition, that is not dependent upon the substantive right spelled out elsewhere in the agreement or in any governing legislation…the clause clearly supplements those other rights. It is neither derivative nor redundant; but rather provides an independent standard to which the parties must adhere in their dealings with each other…

Superficially, then, there is no obvious reason why Article 3 should not constrain the exercise of management rights under Article 4 or the exercise of discretion mentioned in Article 2.02(a)…

36And at page 330:

…it does not matter that the discriminatory policy or behaviour involved something that is not a negotiated “right” under the collective agreement. It is sufficient if it is [an] established privilege which bargaining unit employees enjoy – and which in the instant case, of course, is specifically contemplated by Article 2.

It is important to recognize that the distinction that the employer seeks to make in this case is not a general one, between bargaining unit employees and individuals excluded from the bargaining unit (which was the situation...in the Ontario Lottery and Gaming Corporation case), but rather between bargaining unit members…

However, to the extent that paragraphs 18 and 22 of the Ontario Lottery Corporation decision might be read as limiting the reach of Article 3, to positions within the bargaining unit, we simply do not agree…

It may be that the employer need not treat bargaining unit employees in the same way as non-bargaining unit employees, in respect of positions outside the bargaining unit (the complaint before Knopf); however, we do not think that the employer is entitled to distinguish between bargaining unit employees, on the basis of their trade union sympathies.

(emphasis added)

37Much of the decision goes beyond what was necessary to reach its conclusion. The decision could well have been determined on the basis that the collective agreement expressly acknowledged that the employer could ask bargaining unit members to act as temporary shift supervisors. Further, that in the exercise of that discretion under the collective agreement regarding the selection as between bargaining unit members, the employer was prohibited by the collective agreement from discriminating between those bargaining unit members based on their union activity. The fact that the position was outside the bargaining unit was secondary, if not irrelevant in that case, as the collective agreement was found to have created a privilege whereby bargaining unit employees would be considered for this work. The issue was with respect to the nature of the selection process as among persons in the bargaining unit, not as between bargaining unit members and persons outside the bargaining unit. Like Parry Sound, it was a question of how an employer was to exercise a discretion contemplated by the terms of the collective agreement in the face of a no-discrimination clause.

38The result in Complex Services prohibited the employer from discriminating among bargaining unit members on the basis of their union activity when exercising its discretion in selecting temporary shift supervisors from among those employees in the bargaining unit. However, contrary to what is stated in the decision, the no-discrimination provision in the collective agreement did not act in a ‘stand-alone’ capacity. The collective agreement also expressly contemplated the use of bargaining unit employees as temporary shift supervisors and the arbitrator relied on those provisions as well in concluding that he had jurisdiction to entertain the grievance. So similarly, I am not persuaded that the decision in Complex Services addresses the question of whether an arbitrator has jurisdiction to determine an issue of discrimination with respect to the filling of a position outside the bargaining unit and thus outside the collective agreement under which the arbitration has been constituted. There is nothing in the OPSEU collective agreement that speaks to the filling of a position falling within the PEGO bargaining unit and covered by the terms of the PEGO collective agreement.

39The decision in Kingdom Hotels relies on the statement in Complex Services that a no-discrimination clause may be viewed as a stand-alone provision from which an arbitrator may take jurisdiction. It also notes the arbitral view that an exercise of management discretion is subject to a requirement that it not be exercised in a manner that is arbitrary, discriminatory, or in bad faith. The decision concludes:

49 …The fact that the Company’s decision not to award the grievor a position that lies outside the scope of the bargaining unit and, hence, a position not covered by the collective agreement, is not relevant for purposes of deciding the merits of his complaint of discriminatory treatment…Rather, it is the exercise, itself, of the Company’s managerial discretion in this matter that is brought under scrutiny, and which exercise of managerial rights gives rise to a “difference” between the parties that is within arbitral jurisdiction…Further, under art. 3.02, the parties are agreed that in exercising management rights, the Company cannot violate the Human Rights Code, thereby making such exercise subordinate to the provisions of the HRC.

40(The decision in Air Canada referred to in Kingdom Hotels appears to be somewhat similar to that of Complex Services. The grievor was asserting that the employer had discriminated against her on the basis of marital status in relation to her ability to access benefits under the employer’s “Free and Reduce Rate Transportation Plan”, available to employees. Although the Plan was not expressly incorporated into the collective agreement it was found to be an aspect of the working conditions between the employer and employees in the bargaining unit and subject to the no-discrimination clause, and therefore arbitrable.)

41The decisions in Parry Sound, Complex Services, and Air Canada all deal with circumstances that were found to fall within the ambit of the collective agreement pursuant to which the arbitration had been constituted. The decision in Kingdom Hotels, in my view, incorrectly deviates from that foundation.

42In Dias, supra, the union relied on a no-discrimination clause in the collective agreement to seek to challenge the employer’s decision to deny the grievor an interview and a position in a managerial role. At page 20 of its decision the Board stated:

…It is significant that the decision of management which was the subject of the grievance [in Merson] was one within the four corners of the collective agreement. There is nothing in the decisions in Merson or Pitirri to indicate that an allegation of discrimination contrary to art. A [a no-discrimination clause] would permit the Board to assume jurisdiction where the alleged discrimination was with respect to a competition for a management position, being outside the ambit of the collective agreement.

43And at page 23:

Our conclusion in no way deprives a grievor who has applied for a management position of the protection of the Code. It merely finds that art. A was not introduced with the purpose of bringing certain management decisions with respect to positions outside of the collective agreement within it.

…the preliminary objection is allowed and the grievance is declared to be inarbitrable…we have no jurisdiction to adjudicate a grievance based on an alleged violation of art A.1.1 by the Employer in the course of administering a competition for a management position…

44Notwithstanding that the decision in Diaz was taken prior to the decision in Parry Sound (and Weber), this aspect of the legal landscape has not shifted. I return to the question posed at paragraph 23 above; discrimination in relation to what? The action complained of in the instant case does not reflect an exercise of employer discretion accorded or recognized by the OPSEU collective agreement. The grievance complains of employer action taken pursuant to the employer’s negotiated obligations with a different union under the provisions of a different collective agreement. The grievance complains that the employer discriminated against the grievor in selecting other candidates for positions not covered by the terms of the OPSEU collective agreement. That collective agreement provides no right or privilege to the grievor to apply for or be considered for those positions. That collective agreement is silent with respect to those positions, which fall outside the bargaining unit. The real complaint is that the employer allegedly conducted itself under the terms of the PEGO collective agreement in a manner that was discriminatory in relation to the grievor. The issue is not whether the grievor was discriminated against contrary to the terms of Article 3.1 of the OPSEU collective agreement. This Board has no ability under the terms of the grievance filed to review and analyze the selection process undertaken pursuant to the terms of the PEGO collective agreement, or to consider the criteria applicable under that collective agreement.

45As noted in Ontario Lottery and Gaming Corporation, supra, at page 13 “...the real question… is not whether management rights can be administered without regard to prohibitions against discrimination. Obviously, they cannot”. In this case, the grievor stands in the same position as any external candidate when applying and being considered for a position within the PEGO bargaining unit. While he similarly may have access to a human rights forum with broad and general jurisdiction to consider allegations of discrimination in employment, an arbitrator constituted pursuant to the terms of the OPSEU collective agreement does not enjoy that same jurisdictional scope. The circumstances complained of do not constitute a difference between the parties concerning the proper interpretation, application or administration of the OPSEU collective agreement. The real issue raised concerns the proper interpretation, application or administration of the PEGO collective agreement. While issues at arbitration have expanded, the circumstances complained of remain beyond the scope of the OPSEU collective agreement and thus beyond the jurisdiction of an arbitrator constituted thereunder.

46Therefore, having regard to all of the above, the preliminary objection is upheld. I find that I do not have jurisdiction to entertain the grievance, and thus, this grievance is not arbitrable. It is therefore dismissed.