HomeMy WebLinkAbout1979-0279.Cunningham.80-10-14IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Mr. J. A. Cunningham (Grievor)
and
The Crown in Right of Ontario
Ministry of Consumer & Commercial Relations (Employer)
Before: Mr. E. B. Jolliffe, Q.C. Vice-Chairman
Mr. E. A. McLean Member
Mr. S. R. Hennessy Member
For the Grievor:
Mr. G. Richards, Co-ordinator of Grievances
Ontario Public Service Employees Union
For the Employer:
Mr. W. J. Gorchinsky, Senior Staff Relations Officer
Civil Service Commission
Hearing:
October 7th, 1980
Suite 2100, 180 Dundas St. 'West
Toronto, Ontario
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The Employer has raised an objection to jurisdiction which
must be considered and disposed of before the Board can proceed further.
1 The issue tur,ns on the agreed facts and the interpretation of
language in the crown mployees Collective ~Bargaining Act and the
applicable collective agreement between the,ontario Public Service
Employees union and the Crown in Right of'ontario..
The facts are as follows:
In July, 1979, the Employer gave notice by posting of a competi-
tion to fill's vacancy in the position of Assistant Director and Vice-
Chairman of the Board of Film Censors, the Theatres ,Branch in the
Ministry of Consumer and Commercial Relations. It is agreed that the
position is managerial and not within the bargaining unit represented J
by the Union,
The grievor, Mr. J. A. Cunningham, applied for the position on
July 11,,1979 and was interviewed in the course of the selection process.
On or about August 15 he was-notified that another person had been
chosen to fill the vacancy. On October 4 he grieved against that result,
alleging a "violation of Article 4.3" (in the Collective Agreement)
and requesting that he "be appointed as Assistant Director and Vice-
Chairman Board of Censors.” It is agreed that at~a~ll~ material times 1
the grievor was a "Censor Classifier 2" and that his position was and
is within the bargaining unit.
The Employer's objection was stated by letter (Exhibit 2) addressed
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to Mr. Cunningham at Stage Two of the grievance procedure by Deputy
Minister D. A. Crosbie and dated November 1, 1979, and it has been
argued at the hearing held by this Board on October 7, 1980.
In brief, the objection is 'that since the vacancy to be filled
was not within the bargaining unit, the provisions of Article 4
("Posting and Filling of vacancies or New Positions'> did not apply
to the competition ----notwithstanding the Griever's status within
the bargaining unit when he applied---and that therefore this Board
had and has no jurisdiction under Section 18(l) of the Act to hear
and decide the difference which arose when Mr. Cunningham challenged
the result of the competition by grieving against it.
The relevant language in the Statute and the agreement must
be examined. ~Relied upon by both Mr. Gorchinsky (for the Employer)
and Mr. Richards (for the Griever) are the following:
Section 6 of the Act, authorizes an employee organization, upon
being granted representation rights, to bargain with the employer on
terms and conditions of employment (excluding Management powers set
out in Section
reappointments..
17(l) of the Act) and including, inter alia,"promotions.... --
. ..the classification and job evaluation system...."
The principal statutory basis for this Board's power to hear and
determine matters--- "including any question as to whether a matter is
arbitrable"--- is Section 18(l) of the Act, which reads as follows:
18.-(l) Every collective agreement shall be deemed to
provide that in the'event the parties are unable to effect
a settlement of any differences between them arising from
the interpretation, application, administration or alleged
contravention of the agreement, including any question as
to whether a matter is arbitrable , such matter may be refer-
red for arbitration to khe Grievance Settlement Board and
the Board after giving full o&ertunity to the parties to
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present their evidence and to make their submissions, shall
decide the matter and its decision is final and binding upon
the parties and the employees covered by the agreement.
Turning now to the'applicable language of the Collective Agree-
ment, the parties agreed in Article 4 as follows:
ARTICLE 4-POSTING AND FILLING OF VACANCIES OR
NEW POSITIONS
4.1 When a vacancy occur.s in the classified
service for a bargaining unit position
or a new classified position is created in the bargaining
unit, it shall be advertised for at least five (5) working
days prior to the established closing date when advertised
within a Ministry, or it shall be advertised for at least
ten (10) working days prior to the established closing
,date when advertised service-wide. All applications will
be acknowledged. Where applicable, notice of vacancies
shall be posted on bulletin boards.
4.2 The notice of vacancy shall state, where
applicable, the nature and title of position,
salary qualifications required and the area in which the
position exists.
4.3 In filling a vacancy, the Employer shall give
primary consideration to qualifications and
ability to perform the required duties. Where qualifications
and ability are relatively equal, length of continuous service
shall be a consideration.
4.4 An applicant who is invited to attend an inter-
view within the Civil Service shall be granted
time-off with no loss of pay and with no loss of credits to
attend the interview, provided that the time-off does not
unduly interfere with operating requirements.
The argument made by Mr. Gorchinsky is that the application of
Article 4 is qualified or limited in 4.1 by the words "for a bargaining
unit position" and the words "in the bargaining unit." He contends that
the vacancies referred to in 4.2 and 4.3 are the vacancies defined in ,
4.1, and no-other. He also asserts that it would be contrary to principle
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and an unwarranted intrusion upon management perogatives for this
Board to adjudicate upon the merits of a competition held to fill a
vacancy within the ranks of management and that such could not have
been the intention of the Act.
Reference was also made to Section 17(l) of the Act, which 'is
as follows:
\
17.-(l) Every collective agreement shall be deemed to
provide that it is the exclusive function of the employer
to manage, which funtition, without limiting the generality
of the foregoing, includes the right to determine,
(a) employment, appointment, complement, organi-
zation, assignment, discipline, dismissal,
suspension, work methods and procedures, kinds
and locations of equipment and classification
of positions; and
(b) merit system, training and development, appraisal
and superannuation, the governing principles of
which are subject to review by the employer with
the bargaining agent,
and such matters will not be the subject of collective
bargaining nor come within the jurisdiction of a board.
There are two branches to the argument advanced on behalf of the
Grievor by Mr. Richards.
The first proposition is that 4.1, 4.2, 4.3 and 4.4 each stand on
its own. While 4.1 explicitly refers to vacancies within the bargain-
ing unit, the other three do not. In other words, it is argued, once
a vacancy is advertised (pursuant to 4.1) the minimum requirements for a
'!Notice of vacancy" (whether in or out of the bargaining unit) are specified
in 4.2, the criteria for selection (whether in or out of the unit) are
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stated in 4.3, and the right to time off for any.interview "within
the civil Service" is assured by-4.4.
As to principle, Mr. Richards argued, the Legislature must ,
have intended that there should be a neutral forum where the validity
of a competition and the merits of the result could be reviewed. It
would not be logical to provide such a review in respect of some
positions-but not in respect of others.
In the alternative, Mr. Richards relied on paragraph (b) of
Section 17(2) in the Act. The context being important, the whole of
Section 17(2) must be quoted:
17.(2) In addition to any other rights of grievance
under a collective agreement, an employee claiming,
(a) that his position has been improperly classified;
(b) that he has been appraised contrary to the gover-
ning principles and standards; or
(c) that he has been disciplined or dismissed or
suspended from his employment without just
cause,
may process such matter in accordance with the grievance
procedure provided in the collective agreement, and
failing final determination under such procedure, the
matter may be processed in accordance with the procedure
for final determination applicable under section 18.
1974, c. 135, s.9, part.
Mr. Richards' contention is that when a candidate appears for
an"interview" in a competition he is being "appraised" within the
meaning of paragraph (b) in Section 17(2) above. It is recognized,
with competitors in a competition; nevertheless, he must be "appraised",
and if he claims that the appraisal at the competition was "contrary
to the governing .principles and standards," he has the right to
process the matter and proceed if necessary to "final determination
applicable under Section 18."
In reply, Mr. Gorchinsky said that only the matters specified
in Section 6 are bargainable and they clearly do not include such
management functions as the conduct of competitions for management
positions, which cannot be "the subject of collective bargaining nor
come within the jurisdiction of a board," as laid down in Section 17(1
of the Act.
Mr. Richards said, that there are differences between an annual
appraisal of an employee's performance and his appraisal as compared
Mr. Gorchinsky conceded that there are different kinds of appraisals
but said 17(2)(b) does not refer to competitions. Even if it did, such
an interpretation would require the Board to "step outside" its own
jurisdiction and enter into the area of procedures within management itself.
He contended that argument for the grievor relied heavily on theories
about the "intent" of the Legislature, something which must be ascertained
from the language of the statute.
'We were assured by the representatives of the parties that the
point at issue here has not been previously determined by this Board.
In effect we are being asked to decide in this case-whether or not the Board
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has jurisdiction to review the result of a competition for a
management position when the applicant-grievor is within the bargain-
ing unit.
In the private sector there is. a paucity of precedent on the
issue. Judge Little's decision in I.E.E.W. Lax1 869 and Abitibi paper,
18 L.A.C. 212 (not fully reported) appears t0 SUggeSt that an employer
is not ordinarily bound by posting requirements while filling temporarily
a vacancy as "superintendent." Another distinguishable case is United
Glass workers Local 235 and Dominion ~Glass, (Reville C.C.J.) 17 L.A.C.
413, where the agreement said "promotions to supervisory positions shall
not, however, be subject to the provisions of this agreement."
Reference was also made to the observations of Vice-Chairman
Swan in Halliday, 94/78 at page 4, where he pointed out that the Board
has “no inherent jurisdiction to do justice," that "the Board is a
creature of the statute" and that beyond its circumscribed jurisdiction
"the Board's legal authority is non-existent...." NO one could dispute
those remarks.
In deciding this issue, it appears to the Board that there are
some significant omissions from the statute and from the agreement.
What was at issue here in respect of the grievor was a "promotion",
and not merely a promotion but one from within the bargaining unit to
a management position beyond the bargaining unit.
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The word "promotions" does appear in Section 6 of the Act,
quoted above. Clearly promotions are bargainable, i.e. the parties
could have agreed on the rules governing‘promotions. In the private
sector, it may be noted, some agreements expressly provide that
promotions are exclusively a management prerogative and not subject
to the grievance procedure; 'some provide otherwise.
In this case;the parties have established rules as to the fill-
ing of vacancies within the bargaining unit, but Article 4 is silent
about "promotions". Obviously; an employee may be interested in
filling a vacancy at the same level, or a higher level within the
bargaining unit (which would be a promotion) or at a level beyond the
bargaining unit, which would also of course be a promotion. Clearly,
however, the real subject-matter of Article 4 is the filling qf vacancies.
The question therrarisesr~ what vacancies? What meaning is to be given
that word when it appears in 4.1, 4.2 and 4.3?
In 4.1 it is clear that the only vacancies referred to are those
within the bargaining unit. This is the opening paragraph in the
article and it is the logical place to look when seeking,to learn the
subject-matter and scope of the article.
In 4.2 there is reference to the "Notide of vacancy". Notice
of what vacancy? In logic, the vacancy referred to must be a vacancy
just defined in the opening paragraph: 4.1. It requires a leap of
the imagination to infer that some other and different type of vacancy is
contemplated.
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In 4.3 the same applies to the meaning of the words "in filling
a vacancy" *
In logic, it seems to the Board “vacancy” here must have
the same meaning as in 4.1 and 4.2 and not some new and different or
extended meaning.
If it had been intended that "vacancy" should include a vacancy
outside the bargaining unit, it would have been simple to omit (from 4.1)
the limiting words "for a bargaining unit position" and "in the bargain-
ing unit." If that had been done, it would have become necessary of
course to give the same meaning to “vacancy” in 4.2 and 4.3.
Further, if it were the intention to give "vacancies" in 4.2
or 4.3 a different meaning from that of the word used in 4.1, it would
have been a simple matter to say so in 4.2 or 4.3.
On these grounds, the Board is obliged to find that the provisions
of Article 4 have no application to the filling of a vacancy which is
not within the bargaining unit.
Turning next to the alternative advanced on behalf of the Grievor,
it is necessary to decide whether or not an employee,~claiming to have
been "appraised contrary to the governing principles and standards" when
competing to fill a vacancy in management, has the right under Section
17(2) to file a grievance and carry it to "final determination" by this
Board.
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I t is first necessary'to examine Section '17 as a whole, the
context in which paragraph (b) of 17(2) is found.
Section 17 divides naturally into two parts. Sub-section'(l)
provides that the employer has the exclusive function %b manage",
including a number of specific examples, one of which is mappraisal",
although, this is said to be "subject to review by the employer with
the bargaining agent". All this, it is provided, "will not be the
subject of collective bargaining, nor come within the jurisdiction
of a board". And subsection (1) is incorporated by reference into
section 6, quoted above, defining what is or is-not bargainable. Thus, it is
clear there are certain subjects which cannot fall within the juris-
diction of this Board, one of them being "appraisal" in the general sense.
However, the latter part of Section 17, i.e. subsection (21,
recognizes three exceptions to the general rule, They are specific
and quite precisely defined, unlike the generalities set out in sub-
section (1).
The exception in (a) legitimizes a grievance by an employee
"claiming that his position has been improperly classified?.
The third exception, which is in paragraph (c), legitimizes a
grievance by an employee claiming "that be has been disciplined or
dismissed 01 suspended from his employment without just ca~.se.~ There
can be no ambiguity about that exception.
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Is there any ambiguity in the second exception? Paragraph
(b) legitimizes a grievance by an employee claiming "that he has
been appraised contrary to the governing principles and standards."
An attempt has been made to bring Mr. Cunningham's grievance within
that exception.
Here a distinction must be recognized between the general and
the particular, between the impersonal and the personal.
The nature of a grievance is that it is ,essentially particular
and personal. If a contest arises, it relates to a management decision
(or failure to make a decision) affecting the employee, and whether
what was done to him or her (or not done) was in accordance with the
law, as established by statute and the applicable collective agreement.
On the other‘ hand, the nature of management rights as defined by
the Act and the Collective Agreement, is essentially general and impersonal.
For example, we do not think the right to complain that an employee
has been "improperly classified" opens the door to a review of or adjudi-
cation upon general classification standards, which are impersonal and
which are specifically reserved to management in Section 17(l). What the
exception does is to enable an employee to grieve that classification was
improperly done in respect of him, i.e. contrary to the general rules
applicable in his case, a very particular and highly personal matter.
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Similarly, under paragraph (b) an employee may grieve in
respect of an appraisal made of him. He does so by claiming that
"&has been appraised contrary to the governing principles and
standards." He and no other employee is involved in such a case.
Again, it is a very particular and highly personal matter. This is
not the same thing as a contest (which might occur in another milieu)
about the validity of "the governing principles and standards", which
would be general and impersonal. Nor do we think that paragraph (b)
can be stretched to encompass the assessment or scoring of two or more
candidates in a competition, measured against each other. To use.an
analogy from the sports world, a physician's appraisal of an athlete's
physical condition and performance in training is not the same thing
as the report of the judges following a contest in which the athlete
competes with other athletes, perhaps scoring first or second. In
the-context of Section 17(2) it does not seem logical to this Board
that the word 8rappr~i~aln includes the comparative rating or scoring
given in a competition. If such a rating is grievable, as indeed it
may be, that right would arise under Article 4.3 of the agreement
rather than Section 17(2) of the Act.
It is significant that the contestation of the result of a
competition, pursuant to Article 4.3 of the agreement, normally
involves a third party----the successful candidate----which is not
so of the case where an employee grieves that he has been wrongly
appraised in his most recent annual appraisal.
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Altogether apart from the above analysis, it would seem a strange
result if interpretation of the statute and/or the Agreement enabled
this Board to assume the jurisdiction to pass judgment on an appoint-
ment within management ranks at the instance of any candidate from within
the bargaining unit ----but not at the instance of any other candidate.
It would require very clear language in the Statute to make such a
conclusion possible, and no such clear language can be found.
In sum, the Board is of the opinion that it lacks jurisdiction,
Mr. Cunningham's grievance, whatever its merits may be, is not
arbitrable and must therefore be dismissed.
Dated at Toronto this 14th day of October 1980. .- - &iii!.) _ ~~~~
Edward B. Jolliffe, Q.C. Vice-Chairman
I concur
E. A. McLean Member
/ET
I concur
S. R. Hennessy Member