P/0920/83

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

E.J. Lansey

Grievor

• and -

The Crown in Right of Ontario (Ministry of Correctional Services)

Employer

BEFORE

Walter Little, Chairman E.A. Black, Member R.J.C. Pringle, Member

FOR THE GRIEVOR

E.J. Lansey

FOR THE EMPLOYER

W. J. Gorchinsky Chief Staff Relations Officer Civil Service Commission

HEARING

October 7, 1983.

Edward J. Lansey, a Correctional Officer 3 in the Ministry of Correctional Services, filed a grievance on June 29, 1982, alleging that job competition CI-0015-82 was not held in good faith, and he claims he is entitled to be assigned to the position involved, that of shift supervisor.

The grievance was originally arbitrated by the Grievance Settlement Board under The Crown Employees Collective Bargaining Act. That Board, consisting of a panel chaired by J. F. W. Weatherill, held an arbitration hearing on March 23, 1983, and rendered its decision on June 29, 1983. At that hearing, it was agreed that the position in question was one which did not come within the bargaining unit. It was accordingly submitted that the Board had no jurisdiction. Reference was made to two cases in which the same issue had arisen: the Cunningham case, 279/79 (Jolliffe) and the Dunn Case, 13/79 (Teplitsky) which followed, and adopted, the reasoning of the final decision. The Board reviewed the Cunningham case and made the following statement.

The doctrine of stare decisis does not apply with respect to the decisions of this Board. It may be thought a wise counsel for the Board to follow its own decisions, unless it clearly appears that it should not do so. However that may be, it is our view in the instant case that the reasoning and the conclusions reached in the Cunningham case were, with respect, correct, and that that case should be followed.

The Board then reached the following decision:

The matter is, we find, not one with respect to which this Board has jurisdiction. It may be noted that the grievor alleges not only that the job competition was not held in good faith, but that his rights under Section 3 of Ontario Regulation 881 were not respected. That section is as follows:

3. Where the qualifications of applicants for any position in the civil service are equal, preference shall be given to those who were honourably discharged or retired from active service in Her Majesty's forces in respect of,

(a) the War of 1939 to 1945; or

(b) the Korean War, 1950-1953.

R.R.O. 1980, Reg. 881, s.3.

The Board concluded its decision by dismissing the grievance but in doing so made the following statement.

The grievor, prior to his employment with the Ministry, retired

and was honourably discharged after some thirty years' service

with Her Majesty's forces.

If indeed the grievor's rights have been violated, there should be a remedy therefore, and there should in any event be a forum in which the grievor's claim can be heard and determined. It may well be that such a claim would come within the jurisdiction of the Public Service Grievance Board. It is not, however, within the scope of our authority to make determinations as to the jurisdiction of that Board or of any other tribunal. In the instant case, our jurisdiction is exhausted upon our determining, as we do, that this matter is not arbitrable.

The grievance was then referred to this Board for adjudication and a date for Hearing was fixed.

On receipt of Notice of the Hearing, J. F. Benedict, Manager, Staff Relations, of the Ministry, sent the following letter to the grievor dated September 21, 1983.

We are in receipt of the notice of hearing before the Public Service Grievance Board in the matter of your grievance. The date for hearing has been set for October 7, 1983, at 9.30 a.m.

During our recent discussion, you were advised that at the hearing the Ministry will take the position that the Public Service Grievance Board lacks jurisdiction to hear the merits of your grievance. Further the Ministry will be asking the Board to decide the jurisdictional issue and issue a written decision before hearing, if appropriate, the merits of your case.

It is my understanding that you understood and agreed to the aforementioned. Should my understanding not be correct please advise me at the earliest possible opportunity and preferably before September 30, 1983, (Phone No. 750-3335).

At the opening of the hearing, Lansey agreed that, as a Correctional Officer 3, he was in the bargaining unit and that the position he sought was outside the unit. He claimed that the competition had not been conducted in good faith, and there had been discrimination. The remedy which he sought was that the two highest rated candidates who had applied should be appointed to the two vacancies as OM-15. These were management positions included in the Management Compensation Plan.

Mr. Gorchinsky referred to the Weatherill decision and said it was the Ministry's position that neither the Grievance Settlement Board nor the Public Service Grievance Board had jurisdiction. In view of this submission, it was agreed that this Board should only now hear argument on jurisdiction and render a decision thereon before hearing the merits. Of course, if it was held that this Board had no jurisdiction, that would conclude proceedings.

In submitting that this Board had no jurisdiction, Mr. Gorchinsky reviewed the background of collective bargaining in the public service of Ontario. The Crown Employees Collective Bargaining Act, now R.S.O. 1980 c.108, was first enacted in 1972. Prior thereto, there was no Collective Bargaining Agreement between the Government and its employees. At that time, bargaining took place under the provisions of the Public Service Act between government representatives and the Civil Service Association of Ontario (C.S.A.O.) predecessor of the Ontario Public Service Employees Union (O.P.S.E.U.). The procedure and bargainable matters were incorporated in the regulations under the Public Service Act. Included therein was a Grievance Procedure applicable to most civil servants--those represented by the C.S.A.O. and some in management. They had the right to grieve those matters specified to be grievable.

In 1967, a Special Adviser was appointed by Order-in-Council "to review and report upon Collective Bargaining in the Public Service of Ontario ....” In particular, the special adviser was required to report on

“1. the determination of appropriate bargaining units.

2. the recognition and employee support of bargaining agents.

3. the scope of bargaining.

4. the form that agreements may take and

5. the methods and procedures negotiation within the bargaining system in which compulsory arbitration is the final means of resolving disputes.”

The Special Adviser reported in 1969 and in 1972 The Crown Employees Collective Bargaining Act was enacted based on the Report's recommendations. S.3(2) enacted that the bargaining units designated in the regulations are appropriate units for collective bargaining purposes under the Act. S.2(5) says that "every employee organization designated by the regulations shall be deemed to have been granted representation rights--in relation to such bargaining unit or units as are designated by the regulations." Provision is made for certification and arbitration.

S.18 deals with the subject of Management Rights while S.19 provides for arbitration before the Grievance Settlement Board. S.19 states that any differences between the parties as to the interpretation, application, administration or alleged contravention of the collective agreement may be referred to the Grievance Settlement Board whose decision is final and binding on the parties. There is no provision, in this section or any other in the statute for a duplicate Board to grant relief to an employee claiming to be aggrieved. Thus, the only recourse the grievor now has since the Grievance Settlement Board has found it has no jurisdiction is to challenge that decision by judicial review. If he declines to do so, or if he does, and fails, no other Tribunal is available to him.

The Grievance Procedure established by the Collective Agreement is a creature of The Crown Employees Collective Bargaining Act and covers all employees in the bargaining unit of which the grievor is a member.

The Grievance Procedure established by regulations under the Public Service Act is open to most non-bargaining unit employees and grievances filed thereunder lead to the Public Service Grievance Board for final and binding arbitration.

In summary, Mr. Gorchinsky stated there is a clear conflict between the two grievance procedures. To permit bargaining unit employees to have access to the Public Service Grievance Board would render redundant and superfluous the procedure under the collective agreement. In particular, Article 27(4) of the agreement specifically states unsatisfied grievors may apply to the Grievance Settlement Board only: Expressio unius est exclusio alterius (the expression of the one thing imports the exclusion of the other). The Grievance Settlement Board alone has jurisdiction in such cases.

Finally, the possibility of conflict is recognized by S.30(3) of the Public Service Act which reads: “Any provision in a collective agreement that is in conflict with a provision of a regulation as it affects the employees of a bargaining unit covered by the collective agreement prevails over the provision of the regulation.”

The provisions of the collective agreement herein and particularly its Grievance Procedure clearly apply to this grievor (see Grievance Settlement Board decision 35/76 by Professor Beatty re Ferguson grievance).

Article 4 of the Collective Agreement specifies the route management must follow in the posting and filling of vacancies or new positions. It refers only to “a bargaining unit position or a new classified position ... in the bargaining unit." The rights of management to select employees to fill vacancies outside the bargaining unit (management positions) are not set forth herein. Nor are they specified in the Regulation 881 under the Public Service Act. These rights are not circumscribed in any way so management clearly has the right to select those individuals it considers best qualified to fill vacancies and its decision cannot be challenged by a grievance under the collective agreement or the regulation.

The Grievance Settlement Board cannot change the provisions of the collective agreement. Its statement in hearing Lansey's grievance that “It may well be that such a claim would come within the jurisdiction of the Public Service Grievance Board" has no valid basis. If this Board assumed jurisdiction by allowing bargaining unit employees such as Lansey to grieve, that would add a right to the collective agreement which is not there and such an addition is clearly not in this Board's jurisdiction.

The parties--Management Board of Cabinet and O.P.S.E.U.-- have negotiated the collective agreement. This includes a Grievance Procedure including as the arbitration board the Grievance Settlement Board. The agreement's provisions clearly parallel those in Regulation 881 (e.g. compare Article 5 of the collective agreement and s.16 of the Regulation.). If access to the Public Service Grievance Board were not intended to be replaced by the grievance procedure in the collective agreement, the inclusion of those parallel rights in the collective agreement would be entirely redundant.

Finally, Mr. Gorchinsky added that Part 1 of Regulation 881 deals with Appointments and Assignments. S.2 and s.3 thereof deal only with New Appointments. As already quoted from the Weatherill decision, s.3 gives a preference to those honourably discharged or retired from active service in Her Majesty's forces but this only applies to New Appointments (the underlining is ours). Lansey is not a person who qualifies as "new". He received the benefit of the service qualification when accepted into the civil service. Assignments, other than new appointments, are provided for in s.4 and s.5 but the provisions of s.3 do not apply to such assignments. Management’s rights to assign under s.4 and 5 are clearly superseded by Article 4 of the Collective Agreement by s.30(3) supra of the Public Service Act (see McGuire decision 207/78 (Swan) and Broadley decision 41/78 Saltman).

In reply to the Ministry's argument, Lansey took the position that The Crown Employees Collective Bargaining Act was “a child of the Public Service Act" and the provisions of the latter should apply in all situations not specifically covered in either the collective agreement or the regulation. It would be disastrous if management could completely ignore Rules and Regulations, and in particular, s.3 of Regulation 881. It was his contention that by using the word "new" to modify "appointments", the war service preference was to apply in all cases rather than "initial" appointments only.

With respect to the Collective Agreement being in conflict with Regulation 881 he could see none. It provided in Article 33 for leave-of-absence for military service. As it was silent on the question of preference in the filling of vacancies, s.3 of Regulation 881 should apply.

The grievor further submitted that under s50(1) of the Regulation he could grieve with respect to working conditions and terms of employment. In this connection, he relied on a statement in Decision No. 912/82 Colacci. There the Board ruled the grievance not arbitrable for the reasons therein stated. On p. 6 thereof the Board said “inasmuch as the Board has ruled that Mrs. Colacci's grievance is not arbitrable, the question of whether the Board has jurisdiction to hear grievances arising from position competitions and brought forward under Section 50(1) of the Regulation under the Public Service Act becomes academic. However, in a general sense it is felt that this would be a difficult objection to sustain given a situation where rights in law have been violated or improper actions have injured individual employees (The underlining is ours and is the sentence relied on by the grievor in contending that the Ministry was in violation of s.3 of the Regulation in not applying the service preference).

Finally, Lansey complained about the restrictive nature of the Opportunity Bulletin inviting applications for the position of Shift Supervisor. Article 4.3 of the Collective Agreement states that in filling a vacancy the primary considerations were qualifications and ability to perform the required duties, and where these were equal seniority should apply.

Management's rights were controlled in his view, and he should be permitted to have his grievance heard under the provisions of Regulation 881.

In concluding the argument, Gorchinsky replied by saying that the Colacci decision was distinguishable on the facts as working conditions and benefits were specifically dealt with in the Collective Agreement. In essence, the situation was this. There were "no cracks between the boards." Those in the bargaining unit must rely on the provisions of the collective agreement while those outside it--the management group--were governed by the Public Service Act and Regulation 881.

The Result

The authority of this Board is derived from the provisions of Regulation 881 enacted under the powers created by s.30(1) of the Public Service Act. Part V of the Regulation entitled Grievance Procedure says in s.36(a) that “Board” under Part V means the Public Service Grievance Board. S.37(1) then states "The Public Service Grievance Board is continued..." Our only jurisdiction therefore is to hear grievances arising under that statute and regulation.

The grievor herein is a member of the bargaining unit and as such has all the rights and benefits conferred on its members by the Collective Agreement between Management Board of Cabinet and O.P.S.E.U. That Agreement by the provisions of Article 4 specifies the procedure which must be followed by management in Posting and Filling of Vacancies or new positions. Article 27, entitled Grievance Procedure, provides the method by which management's actions under Article 4, or any other provision of the agreement, may be challenged by a grieving employee within the unit. In particular, Article 27.4 says "the grievor may apply to the Grievance Settlement Board ..." As established by the submissions, this grievance was submitted to the Grievance Settlement Board which found it had no jurisdiction. The essence of that decision was that as Article 4(1) referred only to a vacancy occurring in “a bargaining unit position" or where “a new classified position is created in the bargaining unit" had to be filled, the Board could not deal with the grievance because the position of shift supervisor sought by the grievor was one not coming within the bargaining unit.

In essence, this Board is in a similar position. It has no jurisdiction under the Collective Agreement to arbitrate any grievance filed thereunder. If any jurisdiction exists, it is in the Grievance Settlement Board and it has decided none exists because of the clear provisions of Article 4(1). This Board's jurisdiction is, as stated, derived from Regulation 881 under the Public Service Act. That Act and Regulation clearly establishes the procedure for those employees outside the bargaining unit wishing to grieve. It provides no procedure for employees in the bargaining unit filing a grievance under the Regulation. Their rights and benefits arise from the collective agreement entered into under the provisions of The Crown Employees Collective Bargaining Act. In our view, civil servants are divided into two groups--those whose rights and benefits are determined by a collective agreement and those who are protected only by the Public Service Act.

The only real issue raised by the grievor is that he considers that any civil servant, in or out of the bargaining unit, may at any time in the course of his employment apply for any vacancy or any new position and get a preference because he qualifies according to the provisions of Regulation 881, s.3. In our view the language of Part 1 of the Regulation cannot be so construed. It is clear s.3 refers only to new appointments while s.4 and s.5 dealing with assignments from one position to another make no reference whatsoever to preference for those with war service. Therefore, even if we were considering only these provisions we would find that the grievance had no merit.

In summary, we must conclude that the grievor, being a member of the bargaining unit, can only challenge a decision of management in filling a vacancy or a newly created position if it has failed to observe the provisions of Article 4 and he has been adversely affected. In such a case his only remedy is to grieve, and if necessary, to have his grievance arbitrated by the Grievance Settlement Board. The only persons who can grieve, and if necessary have a grievance arbitrated by this Board, are non-bargaining unit employees who claim a violation of the Public Service Act and/or Regulation 881. Finally, there is no provision either in The Crown Employees Collective Bargaining Act or the collective agreement executed thereunder or in the Public Service Act or Regulation 881 whereby a member of the bargaining unit seeking to fill a vacancy outside the bargaining unit, and who has not been selected, to grieve and have the issue arbitrated by this Board.

For all the above reasons, we find we have no jurisdiction, and the grievance is dismissed.

Dated at Kingston, Ontario this 28th day of November, 1983.