Dobos v. The Crown in Right of Ontario (Ministry of the Solicitor General), 2024 CanLII 62861

PSGB# P-2023-02515

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Dobos

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Brian Smeenk

Chair

FOR THE COMPLAINANT

Dora Dobos

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

SUBMISSIONS

Employer: Jan. 17, March 13 and May 6, 2024 Complainant: March 6 & 28 and May 27, 2024

DECISION

1In this application under the Public Service of Ontario Act, 2006¹ (‘the Act”), the Complainant, Ms. Dobos, complains of the elimination of her position as a Sergeant employed by the Employer at the Toronto South Detention Centre. She is now a Staff Sergeant at the same facility. She alleges that the elimination of her previous position as Sergeant was improper and done in bad faith, in order to prevent her and other Sergeants from becoming members of the Ontario Public Service Union (“OPSEU”). By way of remedy, she seeks either an order that the elimination of the classification be reversed or an order that she be paid a rate equivalent to the top rate for Correctional Officers, a newly-created position under the OPSEU collective agreement.

2The Employer’s position is that this Board does not have jurisdiction to consider the application. It asserts two reasons for this. First, the Employer submits that the Board has no jurisdiction because Ontario Regulation 378/07 (the “Regulation”) provides that complaints coming before the Board cannot deal with “the assignment of the public servant to a particular class or position.” Second, the Employer submits that the essence of the complaint, alleging the bad faith motive of preventing Sergeants from unionizing, is a matter properly brought before the Ontario Labour Relations Board (“OLRB”) and is not a subject matter over which this Board has jurisdiction.

3The parties have made their submissions concerning these jurisdictional issues in writing. The Board has considered all of their written submissions, including Ms. Dobos’ late-filed reply argument (which echoes her earlier submissions).

4For the reasons that follow, I uphold the Employer’s preliminary objection on the basis of its second argument and accordingly must dismiss this application.

BACKGROUND

5The relevant facts are not in dispute. The parties have helpfully arrived at a very succinct statement of agreed facts. For the sake of clarity and completeness I will expand on their joint statement to some extent by referencing other facts set out in some of the documents admitted into evidence on consent.

6On February 24, 2022, the Grievance Settlement Board (“GSB”) issued the decision of Arbitrator Brian McLean (“McLean Decision No. 1”)², It dealt with a long and complex dispute about what if any union could legally represent Sergeants for collective bargaining purposes.

7McLean Decision No. 1 found that the Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO”) had relinquished its bargaining rights for the Sergeant and Staff Sergeant cadre. At paragraph 24, the Arbitrator stated that, “considering all of the circumstances as a whole I am satisfied that AMAPCEO relinquished any rights it might have had regarding OMs [which term includes Sergeants] who are employees within the meaning of the CECBA³ and that any such rights were assumed by OPSEU as the bargaining agent for all employees employed at correctional institutions.” At paragraph 27 he found that, “AMAPCEO has no bargaining rights over Sergeants and Youth Services Managers as they were relinquished in 2008/2009 and that any such rights are held by OPSEU as the representative of employees at those institutions.”

8The issue of whether the Sergeant position was incorrectly excluded from the OPSEU bargaining unit for being supervisory or managerial, was left for future determination. Arbitrator McLean referred the matter back to the Employer and OPSEU to jointly address.

9On May 5, 2022, the Employer announced that it had begun an organizational review of the supervisory and management functions within the correctional system, as a response to McLean Decision No. 1.

10On November 2, 2022, the Employer announced the result of the organizational review. It advised staff of a restructuring of the management level, introducing a supervisory level to the structure within the Institutional Services Division of the Employer. More particularly, the Employer stated that, “In this new structure, the current Sergeant rank will no longer be utilized, and the existing responsibilities will be shared by a new position, the Correctional Supervisor, and a strengthened Staff Sergeant complement.”

11On December 14, 2022, the allocation of Staff Sergeant and Corporal (I.e. Correctional Supervisor) positions were announced. All together there had been 620 Sergeant and Staff Sergeant positions, out of which 572 were Sergeant and 48 Staff Sergeant positions. 572 Sergeant positions were eliminated, and the Staff Sergeant positions were inflated from 48 to 438. 182 Corporal positions were created within the OPSEU bargaining unit.

12On January 30, 2023, “Option Letters” were sent out to Sergeants asking them to choose between being assigned to a Staff Sergeant or a Corporal position.

13On June 27, 2023, the GSB issued another decision of Arbitrator McLean (“McLean Decision No. 2”)⁴. It dealt with OPSEU’s contention that the Employer was in violation of its collective agreement when it purported to directly assign individuals including Sergeants into the newly-created Corporal position. Arbitrator McLean ruled that the Employer had no right to do so and upheld OPSEU’s grievance. The Employer was required to respect the job posting provision of the OPSEU collective agreement, which would enable OPSEU members to apply for the new positions along with the non-union Sergeants.

14On October 31, 2023, the Employer announced that no choice between the two options would be available to Sergeants anymore. It was no longer able to offer the Corporal position in the OPSEU bargaining unit to those who had opted for that. Sergeants were told that, while they could compete for the Corporal positions through the competitive process, if there were no such positions available to an individual, that person would be automatically reclassified as a Staff Sergeant in their home institution. This is what happened to Ms. Dobos.

THE UNFAIR LABOUR PRACTICE ARGUMENT

15Ms. Dobos alleges in her application that the Employer, “decided to eliminate the position [of Sergeant] all together [sic] to prevent Sergeants from becoming union members.” She alleges that, “the employer’s actions to prevent Sergeants from joining the union are deeply dishonest and corrupt…” She cites section 70 of the Labour Relations Act 1995⁵ (“the LRA”), which she notes prohibits an employer from interfering with the representation of employees by a union. She argues that, once McLean Decision No. 1 was issued, Sergeants were protected by the LRA. In her most recent submissions, Ms. Dobos again argues that, “the Employer eliminated the Sergeant position in order to squash any attempts by the Sergeant group to unionize” and further that, “I am grieving that my position was eliminated in bad faith.” She argues that there was no legitimate business purpose for its elimination. She emphasizes that it is this bad faith elimination of the classification, rather than her assignment to her new role, that is the focus of her complaint.

16The Employer, while denying any bad faith motivation, responds that this Board has no jurisdiction to deal with such allegations of unfair labour practices. It submits that any such allegation must be brought before the OLRB, which has decided a series of prior cases that are antecedents to the most recent disputes involving the Sergeant classification⁶.

17I agree with the Employer’s submission in this regard. This Board does not generally have jurisdiction to deal with allegations of anti-union conduct. This includes allegations that management decisions are designed to interfere with employees’ rights to support, join or be represented by a union, unless the circumstances fall within the categories of complaints that the Regulation permits a public servant to bring before the Board.

18The Regulation permits public servants who are not unionized to bring before the Board complaints about dismissals for cause (section 2 of the Regulation), other disciplinary measures (section 3 of the Regulation) or “a working condition or… a term of … employment” (section 4 of the Regulation).

19Ms. Dobos’ complaint does not fall within any of these categories. There is no issue of dismissal or other discipline. Regarding working conditions, she is not so much complaining about her working conditions as she is challenging the bona fides of the decision to eliminate her previous classification. She states, “I am not grieving my former or my current classification; I am grieving the fact that my position was eliminated in bad faith.”

20That kind of complaint is properly brought before the OLRB. It has the jurisdiction to interpret and apply the LRA, including the provisions it contains that protect employees’ representational rights. It regularly hears complaints of unfair labour practices that allegedly violate the LRA. These include allegations of interference with the representation of employees by unions, in violation of section 70, which Ms. Dobos has expressly made here. They also include allegations of violations of section 72, which protects other representational rights of employees against bad faith, anti-union employer conduct. Nor has this Board been given a statutory mandate like that given to labour arbitrators under the LRA to “interpret and apply” employment-related statutes.⁷ Given that Ms. Dobos’ complaint is in essence about a management decision that allegedly seeks to “squash any attempts by the Sergeant group to unionize”, she has brought the complaint before the wrong tribunal.

THE ARGUMENT BASED ON SECTION 4(2) OF THE REGULATION

21The Employer submits that the Board has no jurisdiction to hear this case because the transfer of functions between classifications and the resulting elimination of the Sergeant position is, by definition, a reclassification. It relies on Section 4(2) of the Regulation. That section provides as follows:

4. (2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment:

5. The assignment of the public servant to a particular class of position.

22The Employer submits that Section 4(2) of the Regulation precludes a complaint about reclassification. This is so even where bad faith is alleged, citing the Board’s decision in Bowmaster.⁸

23Ms. Dobos, replies that her complaint is not about her former or current classification, nor is it about her assignment to a particular class or position. Rather it is about the elimination of her former classification for an improper purpose. That subject matter is not precluded by Section 4(2) of the Regulation, she submits.

24Having regard for the above conclusion that this is in essence an unfair labour practice complaint that is not properly before this Board, it is unnecessary to determine this issue. The question as to whether an allegedly improper decision to eliminate a classification can be challenged before this Board must await future consideration.

25In conclusion, Ms. Dobos’ complaint that the decision to eliminate the classification of Sergeant was based on a bad faith, anti-union motivation is not a subject matter over which this Board has jurisdiction. Therefore, this application must be and is hereby dismissed.

Footnotes

1. 1S.O. 2006, c.35, Sched. A
2. 2Association of Management, Administrative and Professional Crown Employees of Ontario (Association) v Ontario (Solicitor General) 2023 CanLII 72160 (ON PSGB), 2022 CanLII 31316 (ON GSB).
3. 3Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38.
4. 4Ontario Public Service Employees’ Union v Ontario (Ministry of Children, Community and Social Services and the Solicitor General), 2023 CanLII 61433 (ON GSB)
5. 5S.O. 1995, c.1 Sched. A, as amended.
6. 6The history of this litigation is succinctly summarized in McLean Decision No. 1, at para. 5 – 20.
7. 7See section 48(12) of the Labour Relations Act, cited at footnote 5
8. 8PSGB 2019-1829 Bowmaster v Ontario (Solicitor General), 2020 CanLII 105698 (ON PSGB)