HomeMy WebLinkAbout1980-0199.Lavigne.81-10-27GRIEVANCE
SETTLEMENT
IN T!iE MATTZR OF AN ARSITRRTIOK
THE GRIEVANCE SETTLEMENT E(OAR:D
*r the Griever:
The Croxn in Z?ight 3f Onta.ri3
(Ministry of Transporta-ioR
and Communications) ?mplsj'e.r
On March 4~, 1980, Mr. Y.E. Lavigne presented the
following grievance:
I grieve that I was un,+dy denied the positicn of
prenilzn labourar, for tiich I applied through ccmcetition.
(Job opvmity bulletin No 17-80-01)
The "settlement required" was as follows:
. . . . ..
'R-at I lx declare2 a successful candidate in the
comwtition and thus be placed on Patrol SS, in C@.msford,
as a premium labxrer.
The issue raised in this case is important to the
employer, to the union; and to employees in both the class- L ~.:.'..,*).'..
ified service and the unclassified service.
The union contends that the successful candidate in
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a competition had not been eligible to compete by reason of the
fact that he was at the time an employee in the unclassified
service .
Put in another way, the union's case is that only
employees within the classified.service are eligible to compete
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for a classified position --- at least until such time'as it
becomes clear that-no person in the classified. service is a
candidate and is qualified.
In whatever form the issue be stated, the employer
disagrges with the above-stated contentions of the union. . . :
At the hearing held on June 23, 1981, the 3oard was
informed that Mr. J. Grenier, the successful candidatk,, had
been notified as thk third party that the Lavigne grievance
xould be heard at the arbitration level, but decided not to
attend.
We were also informed of an understanding between
the parties that if the Board upholds the union's case, Mr.
Lavigne will be appointed to the ,pos ition in question; on the
other hand, if the Board reaches a decision to the contrary,
there will be no further dispute about the matter and no
further hearing will be requested. In short, the parties seem
to agree that both' Mr. Grenier and Xr. Lavigne were qualified
to do the job which was the subject of the competition.-
The representatives of the parties also submitted
an agreed "Statement of Fact" as follows/
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In the matter of a grievarce '&fore the Grievance
S.ettlement~&zrd (199/60) t%twen 1%. Y. Lavigne and the
Crown in right of G-&a.rio/Mbist~ of 'h-ansmtiation and
CuMRlnications, the farties agree as follcws:
1)
2)
'I% matter is properly before t'ne Zcard and tAe Zoard
has jurisdiction to i-ear the matter.
The Cqllective .*3reemant b&t!! respect to Xorking Conditions
and htployee Senefits between .Hanaqement 2card of Cabinet
axi the Cntario Fublic Service Employes Cnicn, dated January
1, 1980, was in effect at t.he time cf this grievance.
3)
4)
5)
6)
7)
8)
9)
7% Cirievor is employed Lby the Su5b.u~ I&strict of tPe
htiistry of TranspxAation ard Ccmmunications, and has
been so emmployed since September 20, 1973.
?Zl-e CZi-ipwr, at the material time of the grievawe, %Is
classified as a'?&k 2, Supply.
'IX ffimptition
which is the subject of .Mr. Laviqne's
grievance is bb. 17-90-01 tiich was advertised cn February
4, 1980, with a closing date of February 15, 19EO. (cow
attab&)
The successtil candidate to the competition was :Kr. J.
Grtier, tie at the time was employed on t5e Lhclassified
Staff within LLe L&Crxxy Di.s+zict of the Hinisty and had
been M employd for the follcwing perids:
Nsvember 9, 1978 - April 2, 1979 Hiqhway Ei;uipnt
-rator 2
hp5t 1, 1979 - .hbve 11, 1979 -dual contract as
Ranual Worker xd Highway Fguipxnt Qerator 2
~K~v&zer 11, 1979 - Narch 2, 1980 (date of aF~int-TC+nt)
dud contract as Manual Worker ?remiu.m and Highway Equipment
*rator 2.
Fe c3mpatition attzctzd 'U'iirp;ydne applicants, of ticxn five,
including ~%ssrs. Lavigne and Grenier, ware interviewed.
722 selection of.*. Grenier for this competition is the
subject of 1%. Lavigne's grievance.
'E-e issue in dispite is uhetber CT not the emuloyer is
restricted ty ?.rticle 4 to c3nsiderUq only <vi1 servants ti the bargaining unit when filling vacant pc.eitions.
_ j-
As a starting point in considering this matter, it
is important to note ~the following recognition clause wh~ich
is Article 1 in the collective .agreement"made betgwen "anage-
ment Board of Cabinet and Ontario Public Service Employees
Union, effective January 1, 1980.
1.1~ In accordance with The Crow Employees bllective
53.rgaini-g tit, the Mario Fublic Service Employees
Cnion is reccqnized a5 th2 exclusive collective bargainiq
agent for all public servants other than ~rsons who are not
employees within the meantig of clause (g) ,of sukection 1
of Section 1 of !I32 Gown 5tnploye25 Collective Barga.inL?g Act.
The word.s "all public servants" in Article 1 estab-
lishes that the unibn is the bargaining agent for both employees
who are public servants in the classified service (known as
"civil servants") and employees who are in the unclassified
service, and who are not "civil seruants"~ but do fall within
the definition of "public servants." In this case, the griever
was a civil servant, being an employee .i&..the classified service
and Mr. Grenier, the successful candidate, was not a civil
servant but was a Fublic servant, being employed prior to the
competition in the unclassified service.
It now becomes necessary to clarify the statutory
distinction between a civil servant and a public servant, and
tha related distinction between the classified.service and the
unclassified service
'The following paragraphs in S2ction 1 of The ?ublic
Service Act r'efer to the "classified service" and also to the
t2rms "civil.servant" and "civil service:"
(al "civil servant" mans a c2rson appoint& to tie servic2
of the Crown by the Lieutenant Gsxznor in Council on the
certtiicate of the Csmmission or by the Ccmmissicn, 3rd
"civil service" has a correspxtig rr2anL-g:
(b) "classified service" m2an.s the part of Lhe public servic2
to which civil servants are appointed:
(c) "Cbmmission" m2a*s tie Civil Service Gmmission;
Cn the other hand the following definitions, also
appea.ring in Section 1 of The Public Service Act refer to
'8public servants" and the "unclassified service:"
(q 1 "plhlic ziervant".means a -Erson apc&nted under this .kct
to the szrvice of the Crown 'by tk2 Lieutenant Covernor in
Cxncil, by the Commission or ~$.a minister, ard '$zblic
service" has a corresponding meanirg;
(il vnclasstiied service" ream tie prt of t,he cublic service
that is ccmmpcsed of psiticn to which wxns ar2 an@nted
by a minister under this .&zt.
It is clear from th2 framewor!k set out in Section 1
of The Public Service Act that a "pub~lic servant" is one
aspointed either by the Lieutenant-Governor in Council or by
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the Commission, or-,-by a Minister. On the other hand, a "civil
servant" cannot be appointed by a Xinister but must be anointed - _
by t~he Lieutenant Governor in Council on the certificate cf the
Commiss~ion or by the Commission. The significant dizference
is to be found in paragraph (i)- of Section 1, quoted above, and
also in Section 8 of The Public Service Act, to be quoted below.
;
It is cror.th noting that both the employees in the
classified service and employees in the unclassified service
may be properly described as "public servants," but only employees
in the classified service may also be described as "civil servants."
As stated above, both groups are in the bargaining unit repre-
sented by the Cntario Public Service Employees tinion. _
Further significant references to the classified
service are in Section 4 of The Public Servicec,Act, particularly
in the following paragraphs:
4. l3-e mission shall.
(a) evaluate arci classify each position in the classified
service and determine t?e qualifications tkrefcr;
(b 1. recmed to the Lieutenant Governor in Gxncii the
salary range for each classification, except a peviocsly
established classtiication for tiich a salary range is
determined through ic-srgaini~~ pursuant to The Ctokn
Employees Collective Bargaining Act, 1972:
(c) recziit gualified persons for t,he civil .serv*ce ard
establish lists of elgibles;
It wiL'1 have been noted that the Commission's re-
sponsibility for recruitment of "civil servants" appears in
paragraph (c) above
Authority for the appointment of a "civil servant'
is provided by Section 6 of The ?cblic Service Act:
6. - (1) 'When a vacancy exists in the classified service, ,,, ,. the deputy minister of the min2t.q in which tkhe
vacancy exists shall nominate in writing from the List of
eligibles of t.he mission a person to fill the vacancy. ~
- (2) 'Ike Cknunissicn shall~ apmint the person nominated
tier subsection 1 'a a position on tne prokatiazry
staff of the classified service for.not more than one ye3z at
a time.
7. Tl-e Gxcnission shall, 3 requested i2 writing Llq
the deputy minister, recommend to the Lieutenant
Covernor in Cixncil the appointment of a .person cn tie pro-
bationary staff of the dassified service to the regular staff
of the classified service, ard the reccmmerdations shall be
accompanied by the certificate of c;ualification ard assiqrment
of the Ccmmission.
Although the proc edure may not ‘be strictly relevant
to this case, it is of interest to compare *with the above the
authority given for the appointment of a person to the unclass-
ified service. This is found in Section 8 of The Public
Service Act:
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8. - (1) X minister or any public servant hi10 is designated
in writing for the 'purpose Lby hAn may appoint fcr a
.gericd of not more than one ye.3.r on the first appointient ai-d for
any period on any subsequent apmintment a person to a position Ln
the unclassified service in any .Xinistry over which he presides.
- (2') Any appointrent made by a designee urder s§ion 1
shall be deened to have been made by his minister.
i'-' As part of the statutory framework, we have also
been asked to have due regard for the language'of Section 17(1)(2)
in the Crown Employees Collective aarqaining Act. That subsection
includes among the prerogatives expressly reserved asp part of
the ,nanagement function: "employment, appointment, complement,
organization, assignment..... and classification of positions....."
Having disentangled as best we can the relevant pro-
visions in The Public Service Act and the Crown Zmployees
Collective Eargaining Act, we turn now to the applicable collec-
tive agreement. Article 4 thereof, discussed in many previous
cases, relates.to the "Posting and Pilling of Vacancies or New
Positions." In this case,.Article 3 is also important. it
relates to "Seasonal or Part-Time Employees," and begins by
saying.. t$a.t "the onlv terins of this agreement that apply to
employees who are not civil servants are those that are set
out in this Article."
The successful candidate in the competition being
challenged in this case was Mr. J. Grenier. ij.e was .a seasonal
or part-time employee, subject to Article 3 of the Collective
agreement, a person employed within the.unclassified service
He was not aa"civil servant."
Article 3 deals with wages , overtime, repofting pay
holidays, vacation pay, attendance credits and sick leave,
O.H.I.?., bereavement leave, health and safety, and concludes
with the following provision in 3.14:
The following Articles shall also apply to seasonal
or part-tire employees: .Articles 1,3,11;12,15,16,17,
21,22,23,25,27,32,36 an2 57.
In his argument, ~Nr. ?.ichaids strongly emphasized
that Article 4 is.not one of those listed in 3.14 above as
being applicable to seasonal or part-tine employees, such as
Mr . Grenier. From that important omission he deduced that
employees in the unclassified service have no rights to com-
pete for.psitions according to the procedures set out in
Article 4. Ne are thus brought to consider exactly what is
said by Article 4. It begins with 4.1 as follows:
k.hen a vacancy occurs in &a Classified Service for a
bargaining unit position or a new classified *sition
is created in the bargaining unit, it shall be adver-
tised for at least five (5) korktig days pior to the
established dosing date when advertLsezJ .&thin a-
?iiniStII, or it shall be advertised for at least
ten (10) Wrkirg days prior to the established clcsirg
date when advertised zxrvice-.wide. All applications
kill be acknowledged. W-se practicable, notice of
vacancies shall'ba pcsted on killetin boards.
If 4.1 is examined closely it will be seen that it
refers to .a vacancy or. a new position "in the Classified-.Service"
provided of course- that they are oositions within the.'oargais-
ing unit. Such an opening is to be advertised in a certain
manner. Nothing whatever is said about who may or may not apply,
and certainly nothing as to whether applications may be enter-
tained from persons who are not air2ady within the classified
service. ~The only mention cf the classified service is in ref-
erence to the vacancy to be filled. There is no mention of
.,.._
eligibility.
Next is 4.2 as follows
Tba notic of vacancy shxll state, hhere a@icable, Lhe
nature aid title of psition, salary, quaiifications re-
quired, the hours-of--k schedule as set out i? .Article
7, kurs of 'Work, and t;?e area in .hich tie psition e.xists.
Obviously 4.2 fixes the requirements for prooer notice
and what particulars must be included therein. It ref*iS t0
"qualifications requir2d" --- the only reference toeligibility.
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Very frequently quoted is 4.3:
In filling a vacancy, the Zmployer shall give primary
consideration to qualifications ard ability to ptiom
tie required duties. hhere qualifications ard ability
are relatively equal, leng'ih of continuous serxice
shall be a consideration.
It will have been seen that 4.3 specifies certain
criteria which are to be used in filling a vacancy,.and of
course, these relate to the applicants. It says nothing, how- >,:
ever, as to whether applicants must come from within the
classified service or from within the bargainings unit or else-
where. On those crucial points it is silent.
5 ince it relates entirely to an applicant's right to attend
The last paragraph in Article 4 need not be quoted
.:
a competition interview with no loss of 'pay.
It appears to the aoard that although Article 4 is
not among those provisions said to be applicable to seasonal
or part-time employees (in 3.14) the provisions of Article 4 do
not make any difference one way or the other in respect of tSe
issue in this case, i.e. whether eligibility is restricted to
employees within the classified service. If, as the union con-
tends it was the intention of the parties to restrict eligibility
to those bargaining unit employe+s who happen to be within the
classified service, the question may iiell be asked: why did
the parties not say so when spelling out in such dietail the re-
quirements for posting and filling vacancies or new positions?
-Notwithstanding the silence of Article 4 on the
question of~eligibility, there is on2 feature of the competition
which received little notice in argument, perhaps because it
lacks real significance. No objection was taken to the form of
notIc given when the -employer
advertised a vacancy in the
position of premium ~labourer at the Chelmsford Patrol Zeadquarters.
At the ver~y.beginning of that notice, the following iJords appear-d :
The words quot~ed above are consistent with the sub-
mission of Ms. Nagel for the employer that under Section 17(l)(a)
of the Crown Employees Collective Sargaining Act, the employer is
free to determine --- without any restriction whatever --- all
the matters set out in garagraph (a) of subsection 1 in Section 17.
Exactly what th2 word "preference" means in the context of the
notice is not very clear. Eviden~ce is lacking whether the so-
called "preference" was taken into account when choosing ?Ir.
.;:..
Ed
Crenier rather than another.
^ . On the other hand, Mr. Richards went so far as to con-
tend that competitions for positions in the classified service
should be open only to persot& employed within the classified
service to the exclusion of both the general public and persons
employed in the unclassified service from time to time.
In the circumstances of this case we are merely called
upon to decide whether it was open to the employer to recognize
the ,eligibility of an employee in the unclassified service.
'We are not required to decide whether the competition was
properly open to the "public." That is a matter w'nich would have
to be,determined in another and different case, presumably one
where the successful candidate is a person not previously em-
ployed in either the classified or the unclassified service.
To be more precise, Mr. Richards contended that before . -
considering "outsiders," the employer should "lock first within
the service." Re said also that there was a distinction between
a "high-level vacancy" and a "low-level vacancy." 'N‘2 find no
authority for recognizing that distinction in either the statutes
or the collect,ive agreement, although there is undoubtedly a
distinction betweenFsitiors in the bargaining unit and those
which are excluded from the bargaining unit and therefore not
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subjkct to the Collective agreement.
~r..~?.i.chards submitted that if there is only one
competition held, all "outsiders" should be excluded from con-
sideration. If, however, no one could qualify as a result of
that competition,' there must 'be a. second competition o--n y-.'
to others. iie conceded 'that he could not point to any words in
Article 4 prohibiting an "open" competition. He said that if the
employer has an unrestricted right to hold competitions, that
right should be enshrined in the agreement. On this point, the
aoard's view is (having regard to Article 1 in the agreemen; and
also Sections.6 and 17 of the Crown Employees Collective Zargain-
ing Act) that.if the employer may not hold open competitions that
restriction is the one which should appear in the agreement. It
does not so appear.
In support of his position, Fir. Richards cited
Scarborough Centennary Hosuital Association and C.U.P.E. Local
1320, 20 L.A.C.(2d) 417, particularly at page 415, where it was
said: "Absent all else in a ;larticular collective agreement,
posting provisions contemplate application only by persons xho
are members of the unit at the time." Even if that rather
sweeping statement be accepted, this particular case is not one iz
which the successful candidate was outside the bargaining unit;
in ract, as already noted, he was a member 05 the bargaining unit
represented by O.?.S.S;U. ._~
An earlier award, also authored by Arbitrator Schiff,
5ias cited by Mr. Richards: Reynolds Aluminum Co. Canada Ltd., and
International Moulders and Allied Workers Union, Local 28. 5 L.A.C.
(2nd) 251., however, the grievance in that case failed and both
the facts and the language of the applicable agreement were very
different from what we find here.
For the employer, Ms.'Nagei pointed out that the
standards established by the employer for the job in question
were not being challenged as unreasonable. '.In her submission,
the real objective of the union. was to give "seniority,' a larger
role in the conduct of competitions. She said the union was
also concerned about the possibility of competi'tions being
"manipulated" for the purpose of ensuring the choice of a favoured
candidate. Her principal objection to the union's approach in
this case was that it would exclude from consideration, contrary
to the merit principle, an important part of the bargaining unit,
all excluded empl'oyees under Section 1 of The Public Service Act,
and all others.
MS . Nagel expressed surprise that the union would wish
to exclude many members 'of its own bargaining unit from eligibil-
ity to compete for jobs in the classified service. She gave two
reasons for holding the union's apprdach to be wronq. 'irst, it
was contrary, tot-the law as expressed in the. ?ublic Sery1ice Act
and the Crown Employees Collective 3argaining Act and it was
inconsistent with the ~language of Article 4 in the collective
agreement. Secondly, it ~was manifestly irreconcilable with the ,._
clear language of subsection 1 in Section 17 in the Crown Z;;lploy-
ees Collective Bargaining Act. There were non words anywhere in
the statutes or in the agreement to support the union's approach.
If there were any s&stance i? its submissions, only very clear
language in the applicable statutes and agreements could justify
~-,-it . Finally,~ she said, the onus was on the union to ?rove its
case in an arbitration OF this kind, and that onus had not been
met.
In this decision an attempt has been made to review
all the applicable language in the statutes and in the collective
agreement. The Board has riot discovered any word'or words to
support the 'theory advanced by the union. It would be of course
wholly improper to read into Article 4 of the.agreement siord.5
importing the exclusion of certain members of the bargaining unit
from eligibility to compete for jobs in the clas.sified service,
and to do so would be contrary to Article 27.12.in the collective
agreement, wh~rch merely recognizes the well-established rule
that arbitrators must interpret and apply the langcage of an
agreement without adding or subtracting anything.
~ i - 13 -
Ne think.it fundamental in considering thiscase
that both'members of the classified service and employees in
the unclassified service are members of the bargaining unit. .~~
We have serious doubts that the argument advanced on behalf of
the union and the, griever is consistent with the principle of
.fair representation, an obligationdue to all members of t:le
bargaining unit represented by the O.P.S.E.U. Indeed, it was
implied by the employer's counsel that the case put forward is
tainted by.conflict of, interest. We need not go that far, but
we recognize that in the normal course of events, policies of a
bargaining agent are usually governed by the interests of the
dominant majority. That, however, does not relieve the hargain-
ing agent. of its responsibility to represent and promote the
interests of a minority group as well as those of the majority.
,It would be a strange and inequitable result if the minority were
denied a footing of "equal opportunity" with members of the
majority.
The question here is not one of giving a preference to
employees in the unclassified service. In the ordinary course, ~.
employees in the classified service are likely to have the
advantages~ of more experience-or greater seniority, which would
doubtless be taken into account by any selection board. However,
we are of the opinion that if all questions of ability; seniority,
experience and other relevant qualif' lcations are duly considered,
,-~.-.
d. “’ - 19 -
and if it happens that an employee in the unclassified ser./ice
proves to be better qualieied than other applicants for the
position advertised, the result cannot be impugned. In this case,
it seems to us ,~no wrong was done whewthe qualified candidate,
although an employee in the unclassified service at the time,
was selected to fill a position in the classified service.
The grievance therefore fails and must be dismissed.
DATED at liockwood, Ontario this 27th dav of October, !93!. -
._
EBJ:jce
3. 3. Jolliffe, Qx. Vice-Chairman