HomeMy WebLinkAbout1987-1143.Brown.88-06-02Between:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (M. Brown)
and
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Before: J. Forbes-Roberts Vice-Chairman
F. Taylor Member
P. Camp Member
For the Grievor: P. Cavalluzzo
Counsel
Cavalluzzo, Hayes & Lennon
Barristers and Solicitors
For the Employer: D. Costen
Legal Services Branch
Ministry of Community & Social Services
Hearing: February 5, 1988
Grievor
Employer
1
DECISION
This is a preliminary ruling in a classification
grievance. At all relevant times, the grievor was a member of
the unclassified public service with the Ministry of Community
and Social Services ("the Employer"). Following two unsuc-
cessful bids in job competitions, the grievor filed three
grievances, two alleging being improperly denied promotions,
and the third alleging discriminatory hiring pracitices by the
Employer.
By letter dated January 29, 1988, Employer counsel
notified Union counsel that he would be objecting to the
arbitrability of the grievances. The bases for the objection
were that, in the circumstances, neither under the Crown
Employees Collective Bargaining Act (C.E.C.B.A.) nor the
collective agreement did,a member of the unclassified
staff have recourse to arbitration. It was argued that this
Board lacked jurisdiction to hear these grievances.
We will deal first with section 18 (2) of C.E.C.B.A.. In
certain circumstances, this section creates an absolute right
for an individual grievor to proceed to arbitration. Failure
to be awarded a posted job(s), or an objection to the interview
process(es) are not amongst them. Therefore, for relief, the
grievor must rely upon the terms of the collective agreement.
Article 3 of the collective agreement states:
.
2
-, /--GY-ARTICLE-3--YINCLASSIFIED EMPLOYEES
3.1 The only terms of this agreement that apply
to employees who are not civil servants are
those that are set out in this Article
The Article then lists a comprehensive code of terms and
working conditions for the unclassified service. Finally,
Article 3.15 is entitled and states:
OTHER APPLICABLE ARTICLES
3.15 The following Articles shall also apply to
unclassified staff other than seasonal
employees: Articles 1, 9, 11, 12, 15, 16,
17, 21, 22, 23, 25, 27, 32, 36, and 65.
'The Article dealing with then posting and fil linq of vacancies
is Article 4.
Article 4 is not accessed through Article 3.15. How then
does the grievor gain access to arbitration under Article 4,
and how does this Board acquire jurisdiciton to deal with the.
matter?
Employer counsel argued that Article 3 in its entirety
codified the right of unclassified employees. Through
Article..3;15~,certain rights under the "master agreement" are
incorporated, others are specifically excluded. Because
Article 4 is not included, through the'neqotiation process; it
has been specifically excluded from access to the unclassified
staff. Counsel argued that for this Board to read in a right
to arbitration would be to amend the collective agreement in
contravention of Article 27.16.
Union counsel argued that Article 4 of the agreement dealt
with the Employer's obligations, not an employee's rights.
Because an Employer did not restrict applications to the
lenqes to the classified service, it cannot restrict chal
propriety of the selection system.
In the alternative, the Union argued that to uphold the
Employer's objection, would create a “position of qrea~t
unfairness" for unclassified staff members.
Dealing with the Union's first arquement, we respectfully
disagree. To grieve a failed bid in a job posting, the
'employee must have access to a specific substantive Article of
the agreement (le. Article 4). We find that Article 3 does
create a codification of rights for unclassified employees. In
the form of Article 3.15, the parties deliberately turned their
minds to the Articles of the "master agreement" which would
apply to unclassified staff members. Article 4 was not one of
t.hem. To open this door would clearly be an excess of
jurisidiciton by this Board.
With respect to the Union's second arquement, we agree
that unclassified staff find themselves in a position unequal
to their classified counterparts. This is however a matter for
the bargaining table, not this Board. The G.S.B. is charged
with interpreting the document negotiated by the parties. The
document in question (the collective agreement) does not allow
the interpretation urged by the Union.
The grievance is hereby dismissed.
Dated ate Toronto this &id. day of June, 1988
!Q3fY
D.J. Forbes - Roberts, Vice-Chairman w .
F. Taylor, Membe
&.L\p
P. Camp, Member