P-2003-1985, P-2003-1987, P-2003-2253

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Cartwright et al.

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE GRIEVOR

Robert Cartwright, Richard Camman, Kevin D’Andrea

FOR THE EMPLOYER

Sean Kearney Senior Counsel Management Board Secretariat

HEARING

March 23, 2005.

Decision

The grievors, acting Operational Managers at Maplehurst and CECC, filed grievances under the OPSEU collective agreement alleging that they had not received proper pay increases. At Step 2 in the grievance procedure the employer advised them that the GSB had no jurisdiction to entertain their grievances, as they were acting in management positions. The grievors then filed the same complaints with the PSGB. Counsel for the employer, Mr. Kearney, informed the grievors by letter on March 11, 2005, that he intended to bring a motion to dismiss their grievances on the ground that the Board had no jurisdiction to hear them. Counsel argued in support of this motion that the board had no jurisdiction to hear these complaints because the grievors are still members of OPSEU. Counsel cited Section 31 of Regulation 977 to the Public Service Act which provides in part:

31.(1) The following persons are not eligible to file a grievance under this Part:

1. A person within a unit of employees established for collective bargaining under the Crown Employees Collective Bargaining Act, 1993.

Mr. Kearney also argued that the OPSEU collective agreement protects members who work temporarily in positions outside the bargaining unit. Article 8.5.2. provides as follows:

Where an employee is temporarily assigned to a non-bargaining unit position, he or she shall continue to pay dues to OPSEU and continue to be covered by the Collective Agreement for the entire term of the temporary assignment.

Counsel for the employer relied on a number of cases including a very recent decision of the board: Cartwright and Ministry of Community Safety and Correctional Services (2005) P-2003-1986 (O’Neil).

Mr. Kearney also informed the board that he was counsel on the grievors’ case at the GSB and the employer was not taking the position that the GSB had no jurisdiction to hear the case. The grievances at the GSB were going forward on the merits.

The grievors asked for an adjournment at the outset of the hearing. The chief reason for the request was that they wanted their grievances held in abeyance until their grievances at the GSB were heard or resolved. Counsel for the employer argued that nothing that happened at the GSB affected the PSGB’s jurisdiction and therefore the adjournment should not be granted. I decided at the hearing not to allow an adjournment. The case had already been adjourned previously and another adjournment, without good reason, would be a waste of the board’s resources. More importantly, nothing that happened at the GSB affects whether or not the PSGB has jurisdiction in this case.

The grievors made a further request for an adjournment on the grounds that they had not had an opportunity to read the Cartwright decision released just a few days before the hearing into this matter. I offered the grievors a brief adjournment in order to read the case and make submissions and then, upon resuming, I also gave them the opportunity to make further written submissions, if they wished, by April 6, 2005. They made no submission on the merits of the employer’s motion to dismiss the grievances for lack of jurisdiction, and no submissions on the Cartwright case were received by the board.

DECISION

Having carefully considered the submission of the employer, I am of the view that the board has no jurisdiction to hear the grievors’ complaints which are currently being heard on the merits at the GSB. Section 31 of Regulation 977 to the Public Service Act excludes OPSEU members from grieving at the PSGB, and their collective agreement continues to protect them, even when they are in acting management positions.

For the reasons noted above, these grievances are hereby dismissed.

Dated at Toronto this 24 day of May, 2005.