IN THE MATTER OF AN ARBITRATION. Under THE PUBLIC SERVICE ACT. Before THE PUBLIC SERVICE GRIEVANCE BOARD. Bradford et al. - and -

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1 Public Service Grievance Board Suite Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) Fax (416) Commission des griefs de la fonction publique Bureau , rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) Téléc. : (416) IN THE MATTER OF AN ARBITRATION P/0005/97, P/0007/97, P/0008/97 Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Bradford et al. Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE Deborah J.D. Leighton Vice-Chair FOR THE GRIEVOR FOR THE EMPLOYER INTERVENOR Mr. James McDonald, Counsel Sack Goldblatt Mitchell Barristers and Solicitors\ Melissa Nixon, Counsel Legal Services Branch Management Board Secretariat Larry Robins Labour Consultant HEARING December 6, 2000.

2 2 The Grievors allege that the Employer has violated their working conditions and terms of employment. More specifically, the grievances contend: that the Employer is practicing credentialism in that I have been discriminated against and unfairly denied the opportunity to compete for a job competition CRHO based solely on the requirement of being a member of the Professional Engineers of Ontario (formerly APEO). The Grievors, Earl Rose, Stanley Bradford and David Burke, were all working in senior engineering technologist positions in the Ministry of Transportation at the time of their grievances. They are not certified Professional Engineers. They applied for the above noted job competition and did not receive interviews. There has been a long history of litigation between the parties. The Scott et al. and the Ministry of Transportation P/OOO1/96 (Lynk) was put before me to provide a summary of the history of their disputes. The grievances before Vice-Chair Lynk alleged that the Grievors (all non engineers) should be paid the same as the senior project engineers (all certified professional engineers). Vice-Chair Lynk held that the Grievors had established that the Employer s credentialism policy was part of their working conditions and terms of employment. He held further: The Ontario government s policy of credentialism was introduced as a commitment not to unnecessarily require professional or academic credentials when recruiting and selecting candidates for vacancies in the OPS. Vice-Chair Lynk ultimately decided that the credentialism policy did not support the Grievors claim for compensation equal to the professional engineers. Counsel for the Employer, acknowledged that the credentialism policy is a working condition of the Grievors. At the time the grievances were filed the Grievors were members of the Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO). AMAPCEO and the government had not yet agreed to their first collective agreement. The parties had agreed that grievances of AMAPCEO members could be taken to the Public Service Grievance Board (PSGB) until their collective agreement was ratified.

3 3 Ms. Anna Hoad testified for the Employer that as a Corporate Staff Relations Officer she was involved with issues arising as a result of the certification of the Profession Engineers of Ontario (PEGO) and AMIAPCEO. The Government voluntarily agreed to recognise AMAPCEO as the exclusive bargaining agent for its members. Initially, AMAPCEO claimed approximately 10,000 positions, however, it limited its challenges to 3000 jobs. There were two tiers to the Union s challenge, and the first has been negotiated and settled by the parties. The Grievors positions were included in the Tier 1 negotiations. Also, AMAPCEO did not challenge the positions in question in this case, that is they did not take the position in the negotiations with the Employer that these positions should be AMAPCEO jobs rather than PEGO jobs. The union called no viva voce evidence. At the outset of the hearing before me to the Employer raised a preliminary objection to the grievances proceeding. It was the Employer's position that the board does not have the jurisdiction to proceed to hear the merits of these job competition grievances. Counsel for the Employer, Ms. Nixon, argued that the board has no jurisdiction to hear the grievance because the jobs in question are positions within PEGO. Jurisdiction to consider a dispute about a PEGO position must flow from the collective agreement between PEGO and the government. Since all grievances under that agreement are brought before the Grievance Settlement Board (GSB), the PSGB has no jurisdiction to hear these grievances, in counsel's submission. Ms. Nixon relied on Cunningham and the Ministry of Consumer Commercial Relations 279/79 (Joliffe), a decision of the GSB that held the job posting requirements of the OPSEU collective agreement did not apply to a position outside the bargaining unit, in that case a management position. The board therefore dismissed the grievance. Counsel also cited Lansey and the Ministry of Correctional Services 920/83 (Little) a PSGB case and OPSEU (Lansey) and the Ministry of Correctional Services 419/82 (Weatherill) a GSB decision for the same proposition. In sum, counsel's argument here was that the PSGB's jurisdiction flows from the Public Service Act R.S.O C. P.47, (as amended) and there's nothing in the Act which gives the board the jurisdiction to hear a case regarding another bargaining unit. In addition counsel argued that the essence of the Grievors complaint is that they can do the work of professional engineers without the credential. Ms. Nixon submitted that the matter is therefore a jurisdictional dispute between AMAPCEO and PEGO. Counsel submitted that this kind of dispute is the jurisdiction of the Ontario Labour Relations Board (OLRB) under section

4 of the Ontario Labour Relations Act 1995, S.O. 1995, Sched. A. Ms. Nixon cited Omega Marble, 22 L.A.C. 221 (Johnston) and Re Council of Printing Industries of Canada, 12 L.A.C. (3d) 1 (Brandt) in support of this argument. Finally, counsel for the Employer argued that no matter how the Grievors framed their argument, they were asking the board to remove from the job in question the required credentials to be a certified engineer. The result of such an order would be to remove the position from the PEGO bargaining unit, since a condition of being in the unit is that its members are all certified professional engineers. Mr. Robbins appeared and made a submission on behalf of PEGO. He was of the view that any challenge to a PEGO posting had to be made pursuant to Article 16 of the collective agreement between the parties and therefore be brought to the GSB. He argued that even if this was a breach of the Employer s credentialism policy, such a finding would not trump the PEGO collective agreement. He noted at the time the grievances were filed, the two bargaining units had not ratified their first collective agreements. He agreed with the Employer s submission that a dispute between the two units as to which should get the job in question is a dispute that is the jurisdiction of the OLRB. Counsel for the Grievors, Mr. McDonald, argued that the issue is whether the Employer has breached its policy on credentialism by putting the position in question in PEGO. Counsel argued further that the Employer is required to respect the Grievors terms and conditions of employment. Mr. McDonald submitted that the evidence will show that the positions that ended up in PEGO had been tech positions. It is the decision to put the positions into PEGO that is at issue. Mr. McDonald noted that the individual Grievors could not apply to the OLRB for relief - only their union could do that. In his submission, the OLRB s jurisdiction does not preclude the board s jurisdiction. If the positions have been properly put in PEGO, then Mr. McDonald conceded that the Grievors have no cause for complaint. Counsel cited Versa Care Centre and ONA (1997) unreported (Harris) and Ellis-Don Ltd. (1993) OLRB Rep Decision:

5 5 Having carefully considered the evidence and the submissions of the parties I have decided to grant the Employer s preliminary motion to dismiss the grievances. If the Grievors here simply brought a complaint that they were denied a job interview because the Employer required an unnecessary credential, then this board would have the jurisdiction to hear the case. But these Grievors are members of a union. And, in essence, their complaint is that the jobs they seek should not have been included in PEGO, rather the positions should have remained as tech positions in AMAPCEO. The evidence is clear that their Union did not choose to challenge the inclusion of these positions in PEGO. I am not persuaded that this Board has the jurisdiction to hear the Grievors individual complaints on a matter that essentially involves a jurisdictional dispute between two unions which is properly the jurisdiction of the OLRB. For these reasons the grievances are hereby dismissed. Dated at Toronto, this 5 th day of June, 2001.