P-2008-1520

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Roknic

Grievor

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE GRIEVOR

Glenn Wheeler Counsel

FOR THE EMPLOYER

Jennifer Richards Counsel Ministry of Government Services

HEARING

January 12, 2009.

Decision

1This decision deals with the employer’s preliminary objection to the complaint before me, in which Ms. Eve Roknic contests two job competitions for managerial positions in the Public Safety Division of the Ministry of Correctional Services and Community Safety. Employer counsel advised that the successful candidates had been given notice of the hearing and their right to attend, but were not in attendance due to scheduling conflicts.

2The employer’s position is that the matter is beyond the jurisdiction of this Board, as the grievor was, at all material times, a member of the bargaining unit represented by AMAPCEO (The Association of Management, Administrative and Professional Crown Employees of Ontario), governed by the Crown Employees Collective Bargaining Act (CECBA) and therefore not eligible to bring a grievance or complaint to the Public Service Grievance Board (PSGB). The grievor opposes the motion and invites the Board to hear the matter on the merits.

The Facts

3For the purpose of this motion the facts set out in the complaint are considered true and provable, although no findings of fact on any controversial facts are made at this stage. In any event, the facts necessary to the motion are not in dispute.

4The position Manager, Program Development is classified as an SMG (Senior Management Group) position. On February 22, 2008, it was posted, along with another managerial position, Manager, Policing Standards. By the time of the posting, the grievor had served for three years as Acting Manager, Program Development, with positive evaluations and merit pay increases. She applied and was interviewed for both positions, but was not awarded either position. Her complaint alleges that various aspects of the process were deficient and in contravention of Ministry policy.

5Throughout the period involved in this complaint, the grievor’s home position, Community Safety Analyst, was covered by the AMAPCEO collective agreement and she paid union dues, as required by the following portion of that agreement:

ARTICLE 11- HOME POSITION

4. When an AMAPCEO bargaining unit member is temporarily assigned to a non-bargaining unit position, he or she shall continue to pay dues to AMAPCEO and continue to be covered by the AMAPCEO agreement for the entire term of the temporary assignment except that salary and hours of work provisions shall be determined in accordance with the terms and conditions for the non-bargaining group the employee is temporarily assigned to.

It is not disputed that the grievor’s home position falls within a bargaining unit under CECBA represented by AMAPCEO as bargaining agent. At the hearing of this motion, the grievor was represented by her own counsel, rather than by AMAPCEO or its counsel.

6The following section of Regulation 378/07 under the Public Service of Ontario Act, 2006, S.O. 2006, c. 35 (referred to below sometimes as PSOA), which came into effect on August 20, 2007 are relevant to this decision:

4 (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(a) if the public servant is eligible under sections 5 and 7 to file such a grievance;

ELIGIBILITY TO FILE A COMPLAINT

Eligibility generally

5 (1) Subject to subsections (2) and (3), a public servant or other person is eligible to file a complaint if he or she was appointed by the Public Service Commission under subsection 32 (1) or (2) of the Act to employment by the Crown. O. Reg. 378/07, s. 5 (1).

(2) If any of the following circumstances existed at the material time, a public servant or other person is not eligible to file a complaint:

1. He or she was a member of a bargaining unit represented by a bargaining agent under the Crown Employees Collective Bargaining Act, 1993 or under the Ontario Provincial Police Collective Bargaining Act, 2006.

7 (1) A public servant is eligible to file a complaint about a working condition or a term of employment only if he or she had been employed continuously for at least six months before the deadline for giving notice in accordance with section 8 of his or her proposal to file the complaint. O. Reg. 378/07, s. 7 (1).

(2) Despite subsection (1), the following public servants are not eligible to file a complaint about a working condition or a term of employment:

1. A public servant employed in a position that is classified under subsection 33 (1) of the Act as a position within the Senior Management Group.

Submissions and conclusions

7The employer argues that it is clear that employees covered by CECBA do not have the right to file a complaint which would fall within the jurisdiction of the Public Service Grievance Board, because of the wording of s. 5(2) 1. of Regulation 378/07, set out above. Employer counsel argues that the grievor is expressly excluded by that language, as she was a member of a bargaining unit represented by a bargaining agent under CECBA at all material times. The employer submits that she is thus ineligible to bring a complaint to this Board, and invites the Board to follow its own decisions on similar motions, such as Cartwright and Ministry of Community Safety and Correctional Services PSGB # P-2003-1986 (O’Neil), Ireland and Ministry of Community Safety and Correctional Services PSGB # P-2004-2316 (O’Neil) and Lafrenière and Ministry of Community Safety and Correctional Services PSGB # P-2007-1322 (O’Neil).

8On behalf of the grievor, counsel argues that, although her home position is covered by the AMAPCEO collective agreement, she should not be considered a member of AMAPCEO for the purposes of this motion. Counsel submits that the fact that she pays union dues is not enough on which to base a legal conclusion that she is a member of a bargaining unit for the purposes of this matter, and that such a conclusion would not be in keeping with the fundamentally different new Public Service of Ontario Act, 2006 or the goal of harmonious labour relations.

9Counsel referred to the passage of the PSOA as a significant event, which should lead to a substantially different reading of the exclusions set out in section 5 of Regulation 378/07 than the one given to its predecessor. Based on excerpts from the legislative debates leading up to its passage, counsel submits that the intention of the legislature was to reinforce the role of public servants and enhance the respect they deserve. In particular, it was intended to clarify their rights in several important respects, and it is submitted that it is therefore an initiative that should assist in clarifying the issues as to the grievor’s status to bring a complaint. Moreover, grievor’s counsel submits that the new Act should be given an interpretation in line with its purpose section, which reads as follows:

1. The following are the purposes of this Act:

2. To ensure that the public service of Ontario is effective in serving the public, the government and the Legislature.

3. To ensure that the public service of Ontario is non-partisan, professional, ethical and competent.

4. To set out roles and responsibilities in the administration of the public service of Ontario.

5. To provide a framework in law for the leadership and management of the public service of Ontario.

6. To set out rights and duties of public servants concerning ethical conduct.

7. To set out rights and duties of public servants concerning political activity.

8. To establish procedures for the disclosure and investigation of wrongdoing in the public service of Ontario and to protect public servants who disclose wrongdoing from reprisals. 2006, c. 35, Sched. A, s.

10Counsel observes that none of the cases relied on by the employer dealt with a position such as the grievor’s, where she was supervising AMAPCEO employees and providing job evaluations, and accordingly submits they are not of much assistance on these facts. Counsel compared the language of the AMAPCEO agreement with that of the OPSEU collective agreement which would have governed the temporary assignments in some of the authorities cited, worded as follows:

When 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 Agreements for the entire term of the temporary assignment.

He submitted that this contractual language was clearer than the language in the AMAPCEO agreement as it does not contain the language about salary and hours of work provisions.

11Counsel for the grievor also submitted that the grievor did not have multiple options as to where to bring this complaint, contrasting it with the access to the Grievance Settlement Board apparently available to the grievor in Cartwright and Ministry of Community Safety and Correctional Services PSGB # P-2003-1985, etc. (Leighton).

12Further, counsel submits that the arbitral jurisprudence supports a conclusion that a person cannot be in the bargaining unit and in an excluded position at the same time. Referring first to Ontario Public Service Employees Union Pension Trust and OPSEU, Local 568 (2001), 2001 CanLII 62122 (ON LA), 101 L.A.C. (4tH) 336 (Abramsky), counsel relies on the finding in that case that the words “employee in the Bargaining Unit” did not include employees temporarily assigned to positions outside of the unit. Further, he relies on an earlier case quoted in that decision, Re Canadian National Railway Co. and CAW-Canada (1994), 1994 CanLII 18717 (CA LA), 43 L.A.C. (4tH) 195 (M. G. Picher) pg. 198, for the following passage:

The approach taken by Canadian arbitrators has long confirmed the view that when an employee leaves the bargaining unit for reassignment elsewhere within an employer’s operations, that person is no longer viewed as a member of the bargaining unit and has no further rights under the terms of the collective agreement, save as they may be specifically protected within its terms.

13Counsel notes that the AMAPCEO collective agreement provides that to a large extent the terms and conditions of a temporarily assigned employee will be outside the collective agreement, and thus outside the representation provided by AMAPCEO. In general, counsel submits that the arbitral jurisprudence supports the idea that an employee is either in the bargaining unit or out, not in a “twilight zone” somewhere in between. The situation where the grievor is said by the employer to be a member of the AMAPCEO bargaining unit, but she has no assistance from AMAPCEO, is not consistent with the arbitral approach, in counsel’s submission. Further, counsel submitted that membership without representation should not be considered membership.

14As to the opening words of Article 11.3 of the AMAPCEO collective agreement, “When an AMAPCEO bargaining unit member is temporarily assigned to a non-bargaining unit position”, counsel submits that the interpretation that makes the most sense in light of the general arbitral jurisprudence is that before the grievor takes on the temporary managerial assignment, she is a member of the bargaining unit, but once she is performing managerial duties, she is not. This is consistent with the purpose section of the PSOA which was argued in the legislature to empower civil servants and includes setting out roles and responsibilities and providing a framework and law for leadership in the public service within its purposes, in counsel’s submission. Counsel argues that to allow a confused and contradictory situation where the grievor is neither represented by a bargaining agent nor in management is not consistent with the Act.

15By way of reply, employer counsel argues that the PSOA does not represent a new departure in terms of the jurisdiction of the PSGB, and that there is no relevant difference between the current statute and its predecessor for the purposes of this motion.

16The question to be answered is: Was the grievor “a member of a bargaining unit represented by a bargaining agent” under CECBA such that she is not eligible to file a complaint to be heard by the PSGB? As noted, counsel for the grievor argued that, once she took up managerial duties, albeit on an acting basis, she should no longer be considered a member of the bargaining unit. This position is different from that taken by the grievors in the cases cited by the employer, where it was agreed, or not disputed, that the grievors were members of a bargaining unit at the time they grieved. The central dispute between the parties here is whether the complainant remained a member of the AMAPCEO bargaining unit while temporarily acting in a managerial position. Neither party raised any issue as to the wording “at the material time” in s. 5(2) of Regulation 378/07. Nor did the parties address the question of whether the fact that the grievor was acting in a position classified as part of the senior management group would mean that the complaint was excluded under s. 7(2) 1. of the current regulation in any event.

17To support the grievor’s position, as noted above, counsel relied on the CN case, cited above. That decision deals with a grievance claiming that employees in temporary assignments to management positions should not be able to retain valuable secondary assignments in addition to the retention of seniority which the collective agreement expressly provided. In these circumstances, Arbitrator M. G. Picher held that the general rule was that when an employee leaves the bargaining unit for reassignment elsewhere within an employer’s operations, that person is no longer viewed as a member of the bargaining unit and has no further rights under the terms of the collective agreement, save as they may be specifically protected within its terms. In doing so, he relied on earlier case law which stands for the proposition that an employee is either in or out of the bargaining unit at any given time; either having managerial duties and responsibilities or not. See Canadian Pacific Ltd. and Railway Employees’ Department, unreported award of Arbitrator Weatherill dated August 1, 1980.

18Another case in this line of authority is the OPSEU Pension Trust decision, cited above. In that case Arbitrator Abramsky found that an employer was not obliged to deduct union dues for employees temporarily assigned to management positions outside the bargaining unit. The collective agreement provided for seniority accrual for the first twenty-four months of the temporary assignment, as well as a right to return to the home position if it still existed, and access to the layoff and recall provisions if it did not. The union argued that the words “employee in the bargaining unit” meant anyone that the union had a duty and right to represent under the Labour Relations Act. The employer viewed the matter through the lens of interpretation of the obligation to deduct dues from “each employee in the bargaining unit”, in light of the fact that the collective agreement did not have a specific contractual provision about dues deduction for those working on temporary assignment outside the bargaining unit. The decision found that the words “employee in the Bargaining unit” only applied to employees working in a bargaining unit position at the relevant time, based on the collective agreement’s own wording, and its distinction between jobs in the bargaining unit, and temporary assignment to jobs outside it, but providing for the deduction of dues only for those in the unit. Further, it notes that the question of interpretation is not the same as what the duties of representation of the union would be under the Labour Relations Act.

19The decisions in CN and OPSEU Pension Trust are usefully contrasted with a decision of the Ontario Crown Employees Grievance Settlement Board, OPSEU (Cartwright grievance )and Ministry of Community Safety and Correctional Services GSB # 2002-1457, etc. (Abramsky) reported at 2005 CanLII 55154 (ON G.S.B.). In that case the union grieved that a correctional officer temporarily assigned to an Operational Manager position should have received the pay increases afforded to the bargaining unit, even while assigned to managerial duties and receiving the pay increases applicable to the Operational Manager positions. Looking at the provisions of the OPSEU collective agreement, Vice-Chair Abramsky found that the collective agreement provided unambiguously that the grievor was covered by the collective agreement for the entire term of the temporary assignment. Nonetheless, by operation of that collective agreement’s terms, he was to receive the wages of the position to which he was temporarily assigned, rather than those of the bargaining unit. Further, the GSB found that for certain aspects of the grievors’ work in temporary assignments, there was no jurisdiction in either the GSB or the PSGB, and that there was a “no man’s land” in this respect, a fact that appears to have been a matter of agreement by the parties in that matter, which is not the case before me.

20Both counsel argued that the complainant should be found to be either in or out of the bargaining unit, the employer’s position being that she was clearly in the bargaining unit, and the complainant’s being that she was out. When looking at the line of jurisprudence cited for the proposition that an employee is not a member of the bargaining unit while in a temporary managerial position, it is essential to note that the wording of the applicable collective agreement is central to each of the decisions, and that even the general principle cited in the CN case and elsewhere, encompasses the exceptions in the wording “save as they may be specifically protected within its terms.” This leads directly back to a consideration of the wording of the AMAPCEO collective agreement.

21Looking at the wording of Article 11.03 as a whole, it is my view that the parties have been very clear: their arrangement is that an employee who is a member of the AMAPCEO bargaining unit who receives a temporary assignment to a position outside of that unit is nonetheless covered by the collective agreement for the entire length of the temporary assignment, except for pay and hours of work. The only exceptions expressed are pay and hours of work. This complaint refers to job postings, which is not one of the enumerated exceptions to the coverage of the collective agreement. There is no dispute that the grievor was a member of the AMAPCEO bargaining unit when she accepted the acting assignment, or that it was a temporary assignment. These arrangements between AMAPCEO and the employer, much like those described between OPSEU and the employer in the GSB’s Cartwright decision, cited above, are specific, and different from the situation in CN, or the OPSEU Pension Trust case. As a matter of contractual interpretation, then, it is my finding that the parties have unambiguously agreed that, despite what other parties have done in other collective agreements, an employee temporarily working in a job outside the bargaining unit is nonetheless covered by the AMAPCEO collective agreement for the entire term of the temporary assignment.

22The exclusionary wording in Regulation 378/07 refers to a “member of a bargaining unit”, rather than a person covered by the collective agreement. The wording of the AMAPCEO agreement makes it clear that an AMAPCEO bargaining unit member may be temporarily assigned to a “non-bargaining unit position” but that such an employee will continue to be covered by the AMAPCEO collective agreement. “Member” is not a defined term in the regulation or the statute, but a common meaning of the word and one of its dictionary meanings is “one of the individuals composing a group” (see Merriam-Webster Online Dictionary, 2009). It is common ground that the grievor was a member of the bargaining unit when she accepted the temporary assignment. One way to put the question is whether the language of the collective agreement provides that a person ceases to be a member of the bargaining unit once she takes on the duties of a temporary assignment to a managerial job, as argued for the grievor. The question would be completely free from doubt if the parties had chosen wording for Article 11 such as “the employee will continue to be a member of the bargaining unit”. Nonetheless, it is my view that the phrase “continue to be covered by the AMAPCEO agreement”, which has to be given meaning, is effectively synonymous with such wording. First of all, the word “continue” communicates the idea that the status continues, not that it changes. Secondly, the idea of being covered by a collective agreement, in its ordinary sense in the labour law context, indicates that one is part of a bargaining unit, since it is the bargaining unit for which the bargaining agent has the right to bargain. Moreover, it is difficult to imagine how one could be considered not a member of (as in “one of the individuals composing”) the bargaining unit, but still be covered by the collective agreement which governs the working conditions of the bargaining unit, as well as paying dues.

23Further, if the parties had wished to communicate that it was the grievor’s home position, rather than the person, who remained covered by the collective agreement, they chose odd wording to express that. The way they have framed the wording, it is the member, the person, rather than the position, which continues to be covered by the collective agreement for the entire time of the temporary assignment, with the sole exception of hours of work and salary.

24I have also considered the argument made on behalf of the grievor that membership without representation should not be considered membership. There was no suggestion that AMAPCEO did not represent the bargaining unit under CECBA, or had not represented the grievor or her home position in collective bargaining; rather the indication was that AMAPCEO was not interested in representing the grievor in these proceedings. Whether or not a bargaining agent chooses to represent a member in any specific grievance is not determinative of whether the agent represents the bargaining unit in the sense used in the regulation. In these circumstances, AMAPCEO’s choices in respect of these or any other proceeding cannot affect the interpretation of the regulation here in question.

25Although some may see it as awkward or counter-intuitive to have a person who is performing duties of a job classified as managerial agreed to be in a bargaining unit, it does occur, as the Cartwright cases cited by the employer demonstrate. More importantly, the decision of the court in Re Miller et al. and Algoma Steelworkers Credit Union Ltd. (1974), 1974 CanLII 860 (ON HCJDC), 53 D.L.R. (3d) 699, 6 O.R. (2d) 676, 75 C.L.L.C. 636, para.14,289, and the jurisprudence flowing from it, stands for the proposition that it is not unlawful, and that an arbitral decision must respect the wording and choices made by the parties as to exclusions from the bargaining unit. See, for instance, Re Horton CBI Ltd. And United Steelworkers, Local 8473, (1982) 1982 CanLII 5000 (ON LA), 4 L.A.C. (3d) 97 (Adell).

26The next question is whether that contractual arrangement, clear though it appears, is nonetheless incompatible with the new PSOA, as grievor’s counsel argues. It is indisputable that the new Act represents a new departure, and contains a number of significant changes from its predecessor, The Public Service Act. And it is clear that one of its purposes is to provide clarity for the leadership of the public service. Nonetheless, the review of the statute which took place prior to the passage of the new Act would have been an ideal opportunity to change the nature of the exclusions as interpreted by this Board, to provide clarity to everyone to the effect that the Legislature did not intend to exclude people covered by a collective agreement while on temporary assignment from accessing the Public Service Grievance Board to determine their complaints. But the legislature did not take the opportunity to do that. For instance, if the exclusion had been changed to specify that only those working in a bargaining unit position, or not exercising managerial functions, were excluded, a significant change in direction would have been signalled. Instead, the substance of the exclusions remained in tact. The language of the similar exclusion in s. 31(1) of Regulation 977 under the Public Service Act replaced by Regulation 378/07 under The Public Service of Ontario Act was as follows:

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.

27The change in the description of the person excluded from “within the bargaining unit” to “member of a bargaining unit” in the new regulation, is not, in my view, supportive of the grievor’s argument. If anything, the change can be seen as supporting the employer’s interpretation, given that it uses the same wording as in the AMAPCEO collective agreement, and in light of the interpretations of the language “in the bargaining unit” in cases such as OPSEU Pension Trust, cited above, as related to what job duties were being performed at the time in question. In any event, it was not argued that the change of wording in the description of the persons excluded or the addition of the wording “at the material time” were the significant differences under the new Act. Rather, it was suggested that the purpose and intent of the legislation was sufficiently different that the Board should change its approach to the interpretation of the exclusions. It is not my view that the general purpose sections, in the absence of more substantive change in the exclusionary language itself, provide the clear direction that would be necessary to find that the Legislature had broadened the jurisdiction of the PSGB to include employees in acting assignments whom the parties have agreed are coved by the collective agreement throughout the temporary assignment. Moreover, there is no basis before me to find that the government as legislator was unaware of the contractual provisions agreed to by government as employer. Rather, it is my view that the legislature chose language consistent with the Board’s previous interpretations. In the result, I find that the grievor was a member of the AMAPCEO bargaining unit when temporarily acting in a position classified as managerial.

28For the above reasons, the complaint is dismissed as the Board lacks jurisdiction to hear it given the grievor’s status as a member of the AMAPCEO bargaining unit at all times material to this complaint.