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HomeMy WebLinkAboutP-2003-1985.Cartwright et al.05-05-25 Decision Public Service Commission des ~~ Grievance Board griefs de la fonction publique Bureau 600 ~-,... Suite 600 Ontario 180 Dundas SI. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 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 Cartwnght et al Grievor - and - The Crown In RIght of Ontano (Mimstry of Commumty Safety and CorrectIOnal ServIces) Employer BEFORE Deborah lD LeIghton Vice-Chair FOR THE GRIEVOR Robert Cartwnght, Richard Camman, KevIn D' Andrea FOR THE EMPLOYER Sean Kearney Semor Counsel Management Board Secretanat HEARING March 23 2005 2 DeCISIon The gnevors, actIng OperatIOnal Managers at Maplehurst and CECC filed gnevances under the OPSEU collectIve agreement allegIng that they had not receIved proper pay Increases At Step 2 In the gnevance procedure the employer advIsed them that the GSB had no JunsdIctIOn to entertaIn theIr gnevances, as they were actIng In management posItIOns The gnevors then filed the same complaInts wIth the PSGB Counsel for the employer Mr Kearney Informed the gnevors by letter on March 11 2005 that he Intended to bnng a motIOn to dIsmIss theIr gnevances on the ground that the Board had no JunsdIctIOn to hear them. Counsel argued In support of thIS motIOn that the board had no JunsdIctIOn to hear these complaInts because the gnevors 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 gnevance under thIS Part 1 A person wIthIn a umt 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 temporanly In posItIOns outsIde the bargaInIng umt. ArtIcle 8 5 2 provIdes as follows Where an employee IS temporanly assIgned to a non-bargaInIng umt 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 andMinistlY of Community Safety and Correctional Services (2005) P-2003- 1986 (O'NeIl) 3 Mr Kearney also Informed the board that he was counsel on the gnevors' case at the GSB and the employer was not takIng the posItIOn that the GSB had no JunsdIctIOn to hear the case The gnevances at the GSB were gOIng forward on the ments The gnevors asked for an adJ ournment at the outset of the heanng. The chIef reason for the request was that they wanted theIr gnevances held In abeyance untIl theIr gnevances at the GSB were heard or resolved. Counsel for the employer argued that nothIng that happened at the GSB affected the PSGB' s JunsdIctIOn and therefore the adJ ournment should not be granted. I decIded at the heanng 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 JunsdIctIOn In thIS case The gnevors made a further request for an adJournment on the grounds that they had not had an opportumty to read the Cartwright decIsIOn released Just a few days before the heanng Into thIS matter I offered the gnevors a bnef adJournment In order to read the case and make submIssIOns and then, upon resumIng, I also gave them the opportumty to make further wntten submIssIOns, If they wIshed, by Apnl 6 2005 They made no submIssIOn on the ments of the employer's motIOn to dIsmIss the gnevances for lack of JunsdIctIOn, and no submIssIOns on the Cartwright case were receIved by the board. 4 DECISION HavIng carefully consIdered the submIssIOn of the employer I am of the VIew that the board has no JunsdIctIOn to hear the gnevors' complaInts whIch are currently beIng heard on the ments at the GSB SectIOn 31 of RegulatIOn 977 to the PublIc ServIce Act excludes OPSEU members from gneVIng 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 gnevances are hereby dIsmIssed. Dated at Toronto thIS 25th day of May 2005