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HomeMy WebLinkAbout1980-0425.Hodgins and Turner.82-05-20425/80 426/80 IN THE MATTER OF AN ARBITRATION .._ Under THE CROWN EMPLOYEES COLLECTIVE EARGAINING ACT Befoi7e THE GRIEVANCE SETTLEMENT ABOARD . _ : Between:‘ Before: For the Grievers: For the Employer: OPSEU (C.W. Hodgins and D.E. Turner) -. Grievers -- And - The Crown in Right of Ontario (Ministry of Transportation and Communications). Employer J.F.W. Weatherill Chairman S.R. Hennessy Member G. Peckham Member . C.W. Hodgins ar.d D.E. Turner, in person W.J. Gorchinsky Chief Staff Relations Officer Civil Service Commission searing: April 29, 1982 I -2- 5 :.2- DECISION There are before the Soard two separate grievances raising similar but not identical questions on their merits, and filed by two employees. These grievances were scheduled to be heard together for the purpose of receiving the parties' representations as to this Board's jurisdiction in thesematters. The same question -. of jurisdiction arises in each case. , Mr. Hodgins' position is that of Regional Computer Services Officer, and he is now classified as a Systems Officer 3. Mr. Turner is a CorridorControl Officer, classified as a Technician 4 Road Designer. At one time, each of the grievors was considered as being employed in a managerial capacity, and each was excluded from the bargaining *unit. Shortly before these grievances were filed, however, agreement was reached ,, between the employer and the Ontario Public Service Employees Union that the grievors' positions (as well, it would seem, as a number of others) were not of a managerial nature As a result, the grievors now come within the bargaining unit represented by that bargaining agent. The grievance is, in each case, against this transfer to the bargaining unit. It should be added that in each case there would appear to have been no significant change in the duties -3- ‘. and responsibilities of the grievors at any material time. Thi.s.Board's jurisdiction to hear.and determine employee grievances is found in The Crown Employees ..I Collective Bargaining Act, and in the collective agreement betweenI4anagement Board of Cabinet and the Ontario .Public Service Employees Union, In that collective agreement, .~and~ in ~accordance;,withthe -Act, - the Union is recognized as. the. exclusive bargaining agent for"al1 public servants other than persons who are not employees" within the meaning of the Act. The grievors are public servants. The parties to the collective agreement - the employer and.the union - agree that they are not "employed in a managerial . capacity", -and that they are employees within the meaning of the Act. By section 18(2) oft the Act, an employee,claiming improper classification, appraisal contrary to governing principles and. standards. or discipline or dismissal without just cause, may process a grievance in accordance with the collective agreement and, eventually, proceed to 'arbitration before this Board. None.of those grounds of jurisdict .ion is asserted in this case. *, . \. -4- Section 18(2) provides that the rights to grievance and arbitration arising thereunder are "in addition to any other rights of grievance under. a collective agreement", and section 19(l) of the Act provides that every collective agreement be deemed to contain r a provision for the arbitration of any difference arising between "the parties" as to the interpretation, application administration or alleged contravention of the collective agreement. The "parties" are the employer and the union: see the Act, section l(1) (k). The issue raised by these grievances is not one of classification as such, but is rather one of the status of the grievors as "employees" within themeaning of The Crown Employees Collective Bargaining Act. In particular, the question would appear to be whether or not, with respect to each of the cases before us, the grievor is employed in a managerial capacity. It may well be that in the course of deciding grievances properly before it,this Board would need to make certain determinations as to whether or not certain individuals are "employees". An individual's claim to be recognized as an employee or otherwise, or to be recognized as employed in a managerial -5- capacity or:- not, is not the sort of claim for which a right of grievance is provided .under the Act orunder, the collective agreement. Determinations of questions of that sort are of course frequently made by the Ontario Public Service Labour'Relations Tribunal, but we express no opinion as to whether or not the Tribunal would have jurisdiction to entertain r. individual.applications with respect to status as an '"employee". 'The question whether or not an individual is excluded from membership in a bargaining unit by reason of his not being an "employee" may bethoughtto be one arising from the application or administration of the collective agreement binding'on the bargaining unit. Such questions'are arbitrable, however, only where there is a difference between "the parties", and where the parties are unable to effect a settlement of such difference. In the instant case, there is no difference between the parties. They,are agreed that the grievors are not employed in a managerial capacity and that they a,re "employees". There is therefore, no difference which may properly be brought before this Board for arbitration. -6- . . . .._ For the foregoing reasons, these proceedings are terminated. DATED AT TORONTO, this 20th day of Xay, 1982. J.P.H. Weatherill Chairman S5h-Y Member