FPSLREB Decisions

I. Complaint before the Board

1 On July 12, 2005, Stephen Bradley Richmond (“the complainant”) filed a complaint under paragraph 190(1)(e) of the Public Service Labour Relations Act (PSLRA) against the Correctional Service of Canada (CSC or “the respondent”).

2 The complainant is a correctional supervisor for the CSC at Bowden Institution in Alberta. His position was classified at the CX-03 group and level at the time he filed his complaint. His complaint relates to the CSC’s failure to respect chapter 4 of the Treasury Board Secretariat’s (TBS) Personnel Management Manual entitled Classification Grievances Policy (Exhibit G-1) and the Classification Grievance Procedure issued by the Canada Public Service Agency (CPSA) (Exhibit G-3, a supplement to the TBS’s policy cited above). Both documents provide that a department must respond to a classification grievance within 60 days. The complainant submitted his classification grievance on October 15, 2003, and the CSC has not yet responded. His complaint, as submitted to the Public Service Labour Relations Board (“the Board”) using its Form 16, reads as follows:

The Correctional Services [sic] of Canada has not adhered to the policy put for [sic] by the Treasury Board of Canada Secretariat, specifically, Chapter 4 – Classification Grievance Policy, i.e.:

POLICY REQUIREMENTS

The Deputy Head or Nominee must respond to the Grievance in writing within 60 working days after it is received by the immediate supervisor or local Officer-in-Charge. If the deadline is extended by mutual agreement, such agreement Must [sic] be confirmed in writing between the Deputy Head or nominee and the Employee’s representative, if applicable.

3 In that same complaint form, he gave the following statement of the acts and omissions complained of:

1. On June 13th, 2003, the Correctional Services of Canada (CSC) published the results of the classification review process which had been applied to the Correctional Supervisor position. The result was status quo would prevail.
2. On the October 15th, 2003, and well within the time frames to submit a grievance, I exercised my collective right to redress by initiating and submitting a formal Classification Grievance to my employer. See attachment #1.
3. I commenced inquiries to the status of this grievance in early January 2004, with my local Chief of Human Resources. The local Chief of Human Resources was not able to provide any firm answer and directed me to contact our Regional Headquarters division in Saskatoon, Saskatchewan. My inquiry was met with standard type response that the Correctional Supervisor grievances were being held in abeyance with no anticipated or associated time frame to offer.
4. In March of 2005, more than one full year later and still no acknowledgement or communication from my employer, I solicited the assistance of Mr. Guy Lauzon, Conservative Party of Canada Treasury Board Critic, to investigate this matter. Included as attachments is correspondence to Mr. Lauzon and his assistant, the office of the Prime Minister, the office of Governor General, and a letter from Treasury Board Minister, Reg Alcock. (See attachments #2, 3, 4, 5, 6, 7, 8)
5. As can be seen by my communications, I have requested assistance from the Federal Opposition Party, the Treasury Board President (Mr. Alcock), and my case has been directed to the Office of Ann McLellan (to no avail). Mr. Alcock’s message that the delay is ridiculous was in response to Mr. Lauzon inquiring as to why I have not been respectfully provided with a response to a Classification Grievance that falls under due process. And yet today, still goes unanswered.
6. As my issue/and or Classification Grievance remains unacknowledged as of October 15th, 2003, and as I am unable to garner said acknowledgement from my employer from other measures I have orchestrated, I am initiating a formal complainant with the Public Service Labour Relations Board. 

[Sic throughout]

4 The complainant requested the following corrective action:

1. That this submission be forwarded to the Public Service Labour Relations Board for consultation and consideration.
2. That the Public Service Labour Relations Board undertake a thorough and complete review of my Classification Grievance.
3. Should the Public Service Labour Relations Board find in my favour, they raise an order directing financial compensation equal to the requested corrective action as documented within the Classification Grievance, and,
4. As the situation documented within the Classification Grievance applied to all Correctional Supervisors of the day, the Order directing financial compensation equal to the requested corrective action as documented within the Classification Grievance is to be applied to all Correctional Supervisor’s incumbent to that position for the time frame in question.

II. Preliminary objections regarding jurisdiction

A. For the respondent

5 The respondent conceded that the complainant did not get a timely response to his classification grievance, and it has apologized in writing to the complainant for that omission which was the result of several factors. More than 300 classification grievances were filed. Employees had also filed job-content grievances. The job-content grievances had to be resolved before the classification issues could be addressed. All of the job-content grievances were resolved in January 2007. The committee that was going to address the classification grievances was convening the week of this hearing (i.e., the week of January 14, 2008).

6 The respondent raised several preliminary objections regarding my jurisdiction to hear this complaint. Its first objection was that paragraph 190(1)(e) of the PSLRA, on which the complainant bases his complaint, cannot apply to this matter. The purpose of that provision is to grant the Board the authority to inquire into complaints that the employer or the employee organization failed to comply with section 117 of the PSLRA which deals with the duty of the employer and the employee organization to implement the collective agreement. The complainant’s concerns are not related to that subject. He is complaining that the CSC failed to respect the TBS’s policy that provides that a department must respond to a classification grievance within 60 days. A breach of policy is not the same as a failure to implement the collective agreement as contemplated by section 117 of the PSLRA. The Agreement between the Treasury Board and the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN expiring May 31, 2010, (“the collective agreement”) (Exhibit G-2) does not refer to that policy. There is therefore no link to the collective agreement and consequently no link to section 117 or paragraph 190(1)(e) of the PSLRA. The complaint must therefore be dismissed for lack of jurisdiction.

7 The respondent argued that the situation might have been different under the Public Service Staff Relations Act (PSSRA), the predecessor to the PSLRA. Paragraph 23(1)(d) of the PSSRA provided that the Public Service Staff Relations Board (PSSRB) could inquire into complaints relating to a failure to comply with any regulations that the PSSRB made respecting grievances. The new Act does not contain such a provision.

8 It was also the respondent’s view that the complainant cannot rely on paragraph 190(1)(e) of the PSLRA since he is not a party to the collective agreement, nor is he covered by the collective agreement. The complainant occupies a managerial position that has been excluded from the bargaining unit. He is not a party to the collective agreement, and it does not apply to him.

9 Another objection relates to timeliness. Subsection 190(2) of the PSLRA provides that the complaint must be made to the Board within 90 days after the date on which the complainant knew, or ought to have known, of the action or circumstances giving rise to the complaint. In this case, the complaint is based on the respondent not complying with the TBS policyon classification grievances that provides that the employer must respond to a classification grievance within 60 days. The 61st day after the presentation of the grievance is when the CSC failed to respect the policy. That is the date from which the complainant knew or ought to have known that the policy had been breached but he only filed his complaint on July 12, 2005, well after that 90-day period specified in the PSLRA had expired. Therefore the complaint is untimely, and the case law is clear that the Board has no discretion in this matter. On that point, the respondent referred me to Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78. In that case, the employer had mistakenly identified the employee’s position as excluded and informed him of that error six months later. The employee filed an unfair labour complaint regarding that matter almost four years later. The Board decided that the complaint was untimely since the 90-day time limit began when the complainant was apprised of the error regarding the status of his position.

10 The respondent made another preliminary objection. It was of the view that there was no redress available for the complainant since the Board has no authority over classification matters.

11 The respondent’s final preliminary objection was that the complaint is moot. The complainant’s concern relates to the classification level of his position. However, the classification grievance committee met the week of this hearing to address that very issue, and it has the authority to address classification issues, not the Board. The complainant could obtain redress from that committee. The respondent agreed that the convening of that committee did not happen soon enough, but it had to deal with the job-content grievances before dealing with hundreds and hundreds of classification grievances.

B. For the complainant

12 The complainant maintained that I have jurisdiction to hear this complaint. The complainant is an employee, since the definition of that term found in the Classification Grievances Procedure (Exhibit G-1)provides that an “employee” includes a person who occupies a managerial position.

13 Clause 20.02(a) of the collective agreement provides that:

20.02 Subject to and as provided in Section 208 of the Public Service Labour Relations Act, an employee who feels that he or she has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause 20.05 except that:

(a) where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee's specific complaint, such procedure must be followed,

…

14 The collective agreement suggests that other procedures are available to address the complainant’s concerns. The complaint procedure set out in paragraph 190(1)(e) of the PSLRA is the “administrative procedure” referred to in clause 20.02(a) of the collective agreement.

15 The respondent was wrong to assert that the complainant was not covered by the collective agreement. The provisions of that agreement apply to him even though he is in an excluded position.

16 The complainant maintained that his complaint was timely. He did not agree that the 90-day time limit set out in subsection 190(2) of the PSLRA began on the 61st day after he filed his classification grievance, as the respondent contended. The complainant tried repeatedly through the years to get information regarding his classification grievance, but he never received clear answers. He received non-specific responses, which led him to believe that things were moving along. He gave the CSC the benefit of the doubt because it had to process 302 grievances. He finally realized that things were not progressing, so he decided to file a complaint. The period for filing the complaint should have begun when he finally realized that the CSC was not processing his classification grievance.

17 With respect to redress, the complainant argued that he knows that the Board does not have jurisdiction over classification matters. He is not asking the Board to hear the classification grievance. The redress measures that he has asked for in his complaint touch on different matters.

18 The complainant also disagreed with the respondent’s contention that the complaint was moot because the classification grievance committee was meeting on the same week as this hearing. There should be a consequence to the CSC’s breach of policy. There are still matters to debate. He added that it was a strange coincidence that after waiting four years, the CSC finally decided to hold a classification committee meeting on the same week as the hearing into this complaint.

19 The complainant also argued that the CSC is precluded from contending that I do not have jurisdiction to hear this matter, because it agreed to mediate the complaint in January 2007.

C. Respondent’s reply

20 The respondent argued that that there is no nexus between the complaint and paragraph 190(1)(e) of the PSLRA.

21 The respondent was of the view that clause 20.02(a) of the collective agreement is not relevant to this case. It deals with grievances and how those grievances should be dealt with if there is another administrative procedure provided by another Act of Parliament to deal with the employee’s concerns. Article 20.02 specifies that it does not apply to classification grievances.

22 As for the definition of “employee,” paragraph (i) of that definition, in section 2 of the PSLRA, specifies that that term does not include a person who occupies a managerial position with respect to the Part of the PSLRA that applies to complaints.

23 The respondent contented that it did not waive its right to contest my jurisdiction by attempting to mediate this complaint in 2007. The mediation was made on a without-prejudice basis.

24 I indicated to the parties that I would take the preliminary objection under consideration and would render a ruling on that objection when I rendered my decision on the merits of the complaint. I then asked the parties to proceed with the evidence on the merits of the complaint.

III. Summary of the evidence

25 The complainant gave testimony and filed four exhibits. The employer also filed four exhibits.

26 In his testimony, the complainant gave a brief account of his classification grievance. In June 2003, the CSC published the results of a classification review regarding the correctional supervisor position. The complainant did not agree with the results of that review so on October 15, 2003, he submitted a classification grievance to the CSC. After he presented the grievance, he contacted the department on many occasions to inquire on the status of his grievance but never got any response.

27 The complainant also contacted Mr. Guy Lauzon, Member of Parliament and official critic for the Conservative Party of Canada for Treasury Board matters. Mr. Lauzon relayed the complainant’s concerns to the President of the Treasury Board, the Honourable Reg Alcock.

28 The complainant explained that his complaint relates to the CSC’s lack of response to his classification grievance. More specifically, the CSC neglected to respect the time frames set out in the collective agreement and the policies issued by the TBS and the CPSA on classification grievances.

29 The complainant testified that in May 2005, he contacted Carol Richards, who worked at the CSC. She told him that she had just received the classification portfolio. She apologized and informed him that nothing had been done to that date. That is when he decided to submit his complaint.

30 The complainant stated that a hearing for this complaint under paragraph 190(1)(e) of the PSLRA was scheduled for January 10, 2007, in Calgary. The hearing did not proceed since both parties agreed to hold a mediation session. An agreement was reached and he and the CSC signed a Memorandum of Agreement (MOA) (Exhibit G-4) on January 10, 2007. The respondent did not object to the complainant tabling the MOA but asked that in my decision I refer only to the parts that are necessary to understand this complaint and my decision. Suffice it to say that the CSC apologized to the complainant for the delays in responding to his classification grievance. The MOA also provided that the complaint was adjourned until June 30, 2007, and that the complainant could reactivate the complaint after that date. Since the complainant was of the view that the CSC had not respected all of the terms of the MOA, he reactivated the complaint.

31 The complainant testified that the CSC identified two persons who could provide information about his job-content and classification grievances: Marc Seguin, Team Leader, Labour Relations, at National Headquarters, and Bonnie Wellman, Director, Organizational Design and Classification, also at National Headquarters. The complainant contacted Mr. Seguin, but the latter could not provide any information on the status of the complainant’s classification grievance. The complainant also contacted Ms. Wellman, but she never responded. He received a phone call from Lucie Patrick, Acting Director, Organization Design and Classification, CSC, who said that she was not at liberty to speak about the grievance because of the MOA.

32 The complainant testified that some of the undertakings of the MOA had been met. He did receive an apology from the CSC (Exhibit G-4). The job-content grievances have now been reviewed but the CSC did not respect its promise to keep him informed of the development of his classification grievance. It did not communicate with him regarding that matter and ignored his requests for information.

33 The complainant stated that he was aware that a classification grievance committee was holding meetings the same week as this hearing. That committee dealt with a different matter. The issue before that committee was his job classification, while the issue before me was the CSC’s breach of the policies regarding the time frames for responding to classification grievances.

34 Turning to another issue, he stated that he was an excluded employee but that the CSC elected to apply the collective agreement to excluded correctional supervisors who held managerial positions.

35 In cross-examination, the complainant restated that he was part of the bargaining unit. The respondent’s counsel then presented the complainant with a letter addressed to him and signed by Lynne Brown, Manager, Employee Relations, CSC (Exhibit E-1). He recognized the letter. She pointed out to him that the letter, written sometime in 1997 (the exact date is unreadable), stated that the PSSRB had confirmed the exclusion of his position from his bargaining unit and that his union dues deductions would cease on May 1, 1997. The complainant answered that he believed that he paid union dues until 1998, but not after that. However, in his view, the union still accepted him as a member. His understanding was that the provisions of the collective agreement applied to him.

36 In answer to another question put to him by the respondent’s counsel, the complainant stated that his responsibilities included managing and supervising officers at the CX-01 and CX-02 groups and levels. He was responsible for providing the first-level response to officers’ grievances of those groups and levels under his direction and was involved in any disciplinary action directed against them.

37 The respondent’s counsel then presented the complainant with an email he sent to Mr. Lauzon on March 21, 2005 regarding his classification grievance (Exhibit E-2). The complainant recognized the email and agreed with the respondent’s counsel that at that time, he had been frustrated about the lack of response to his grievance.

38 The respondent’s counsel asked the complainant to indicate the provision of the collective agreement that addresses the issue of time frames for responding to a grievance. The complainant could not direct her to any specific provision.

39 The respondent’s counsel submitted as evidence an email that Allan Briere, his current representative, sent to Ms. Wellman on February 22, 2007 (Exhibit E-3). The complainant was copied on the email. The complainant acknowledged that on seeing the email, he understood that the job-content grievances had to be decided before the classification grievances could be processed.

40 The respondent’s counsel asked the complainant if Mr. Briere had been his representative during the discussions that led to the MOA. The complainant answered affirmatively. The respondent’s counsel then tabled an email from Mr. Briere to Ms. Patrick sent on August 31, 2007 (Exhibit E-4) regarding the outstanding classification grievances.

41 The complainant stated that he had spoken to Ms. Patrick twice andhad discussed his classification grievance three times in 2007 with Kenneth A. Graham, Employer Representation Advisor, Labour Relations Operations, TBS.

42 The complainant also said during cross-examination that he had been invited to make submissions to the classification grievance committee that was meeting that week to examine his classification grievance.

43 In redirect, the complainant’s representative was about to ask a question about the last contract negotiations and about the issue of whether the complainant was covered by the collective agreement. The respondent’s counsel objected to that question on the ground that it did not arise out of her cross-examination and that the complainant was splitting his case. I allowed the question, because it could be relevant to the issue of whether the collective agreement applied to the complainant, on the condition that the respondent’s counsel had the opportunity to cross-examine the complainant on his answer.

44 The complainant’s representative asked the complainant whether it was widely believed in the last contract negotiations that officers at the CX-02 group and level were paid more than correctional supervisors at the CX-03 group and level. The complainant answered that officers at the CX-02 group and level were paid more than their supervisors and that the collective agreement applied to supervisors working at the CX-03 and CX-04 groups and levels.

IV. Summary of the arguments

A. For the complainant

45 The complainant argued that this was a clear case of abuse of authority through irresponsible and unprofessional disregard for policy and the law. The complainant does not contest the employer’s right to make policy; what he contests is the fact that the CSC selectively failed to apply parts of the employer’s policy on classification grievances.

46 The CSC classified the correctional supervisor position and subsequently denied the persons affected by that decision their avenue of redress. The CSC failed to process the classification grievances within the time frames mandated by the TBS in the Classification Grievances Policy (Exhibit G-1) and mandated by the CPSA in the Classification Grievance Procedure (Exhibit G-3). Both documents mandate a 60-day period in which the CSC is to acknowledge receipt of classification grievances. In the case of the complainant, more than four years have passed. Clearly, that period of time exceeds the 60-day period prescribed by those policies. Simply put, the CSC did not do what it was mandated to do by law.

47 The complainant added that the CSC has been regularly reminded throughout that four year-period of their lapse in judgment and their inaction regarding the processing of 302 classification grievances.

48 Given the complainant’s reminders of its outstanding obligation during that four year-period, the CSC’s disregard for policy can only be intentional and cannot be considered an error or omission. CSC disregarded the employees’ avenue of redress for classification processes. The CSC’s apology showed that it was wrong to act in that manner.  

49 The complainant argued that being copied on the emails sent to his representative (Exhibits E-3 and E-4) is not significant and does not amount to keeping him informed of the progress of his classification grievance.

B. For the respondent

50 The respondent pointed out that the CSC apologized for the delays in answering the complainant’s classification grievance. The apology resulted from the MOA.

51 The respondent contended that the complainant was wrong in stating that he was left out of the loop. Ms. Wellman and Mr. Seguin were identified as contact persons. As indicated in the email submitted as evidence (Exhibit E-3), Ms. Wellman also identified Ms. Patrick as a contact person. The complainant was copied on the emails that his representative sent regarding the classification grievances (Exhibits E-3 and E-4). The complainant testified that he spoke with Ms. Patrick regarding his grievance. The information may not have been as complete as the complainant wanted, but it is not true that he was completely shut out of the process.

52 The respondent’s counsel took the position that paragraph 190(1)(e) of the PSLRA cannot apply to the complainant’s complaint since he is an excluded employee; therefore, he is excluded from membership in the union and from application of the collective agreement. In his testimony, he admitted that he ceased paying union dues in 1998. She asked me to take judicial notice that bargaining agents require members to pay union dues. The complainant is excluded because he holds a managerial position; he is the person identified by management to provide the first-level response to grievances presented by CX-01 and CX-02 officers under his direction, and he has the authority to discipline them. Since he is not covered by the collective agreement, his complaint is inadmissible. The respondent’s counsel referred me to Brown and Beatty, Canadian Labour Arbitration, 3rd ed., paragraph 2:3110, where the authors state that generally speaking, only the parties to a collective agreement may take a grievance to arbitration.

53 The respondent argued that the remedies that the complainant had asked for at   mediation have all been granted. The first was that the department apologized for the delay in responding to his classification grievance. The department has offered that apology. Another area of concern was the job-content grievances. The CSC has now processed those grievances. The CSC has also kept the complainant informed of the status of his classification grievance, although not to his satisfaction. The delays are regrettable, but things are finally moving along. The classification grievance committee met the week of the hearing and the complainant’s grievance was to be addressed at that meeting. Some CX-03 positions have already been reclassified. The respondent referred me to Buchanan v. Correctional Service of Canada and Dianne Bird, 2002 PSSRB 35, where the PSSRB Chairperson decided that no further remedy was necessary in that case because the department had corrected an error it had committed in the grievance process.

54 The respondent was of the view that the remedies that the complainant requested in his complaint were moot. His first request was that his submission be forwarded to the Board. That has been done through this hearing. The complainant’s second request was that the Board undertake a review of his classification grievance, but the Board has no jurisdiction over classification grievances. The proper forum for review if an employee is not satisfied with the response to his or her classification grievance is judicial review. The third corrective action that the complainant sought was that he be provided with financial compensation if the Board ruled in his favour. Since the Board has no jurisdiction over the classification grievance, it cannot grant that remedy.

V. Reasons

55 This complaint relates to the CSC’s failure to comply withthe Classification Grievances Policy (Exhibit G-1) issued by the TBS and the Classification Grievance Procedure (Exhibit G-3) issued by the CPSA. Both require that the department respond to a classification grievance within 60 days. The complainant submitted his classification grievance on October 15, 2003, and the CSC has not yet responded, although a classification grievance committee was convened to examine his grievance on the same week as this hearing.

56 The complainant’s frustration is understandable. He has been waiting more than four years for a response to his classification grievance, and that matter is not yet resolved. He is right in saying that the CSC should make every effort to abide by the policies and procedures set by the TBS and the CPSA for classification grievances. However, I have no jurisdiction over the issue of the time frames for processing classification grievances set out in those two instruments, for the reasons that follow.

57 One of the respondent’s objections related to the subject matter of the complaint. Its view is that the failure to abide by the time frames for responding to classification grievances set out in the two policies (Exhibit G-1 and G-3) cannot form the basis of a complaint under paragraph 190(1)(e) of the PSLRA. I agree with that submission. That paragraph reads as follows:

190. (1) The Board must examine and inquire into any complaint made to it that

…

(e) the employer or an employee organization has failed to comply with section 117 (duty to implement provisions of the collective agreement) or 157 (duty to implement provisions of the arbitral award);

58 Sections 117 and 157 of the PSLRA read as follows:

117. Subject to the appropriation by or under the authority of Parliament of money that may be required by the employer, the parties must implement the provisions of a collective agreement

(a) within the period specified in the collective agreement for that purpose; or

(b) if no such period is specified in the collective agreement, within 90 days after the date it is signed or any longer period that the parties may agree to or that the Board, on application by either party, may set.

…

157. Subject to the appropriation by or under the authority of Parliament of any money that may be required by the employer, the parties must implement the provisions of the arbitral award within 90 days after the day on which the award becomes binding on them or within any longer period that the parties may agree to or that the Board, on application by either party, may set.

59 A complaint made under paragraph 190(1)(e) of the PSLRA must relate either to the duty to implement the provisions of a collective agreement (section 117 of the PSLRA) or to the duty to implement provisions of an arbitral award (section 157 of the PSLRA). It is uncontested that no arbitral award was issued in this case. As for the duty to implement the provisions of the collective agreement, I was not referred to any provision of that document that would indicate that it governs classification grievances. I was, however, referred to provisions that indicate the contrary. Clause 20.02 of the collective agreement provides specifically that the grievance procedure referred to in that document does not apply to classification grievances:

20.02 Subject to and as provided in Section 208 of the Public Service Labour Relations Act, an employee who feels that he or she has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause 20.05 except that:

…

60 Clause 20.02(a) of the collective agreement does not have the effect that the complainant gives it. It indicates that for grievances other than those relating to classification, where there is another administrative procedure provided in any Act of Parliament to deal with the employee’s concerns, the employee must follow the procedure set out in that Act instead of the one found in the collective agreement.

61 The procedure for classification grievances, and specifically the time frames for responding to those grievances, is not set out in the collective agreement but in the Classification Grievances Policy (Exhibit G-1) issued by the TBS and the Classification Grievance Procedure (Exhibit G-3) issued by the CPSA. Paragraph 190(1)(e) of the PSLRA does not deal with the implementation of that policy or procedure but with the implementation of the collective agreement. So the complainant’s concern, which deals with the breach of those policy instruments, cannot be the subject of a complaint under paragraph 190(1)(e) of the PSLRA.

62 I also agree with the respondent’s submission that the complainant cannot present a complaint under paragraph 190(1)(e) of the PSLRA since he is not a party to the collective agreement, nor is he covered by the collective agreement. In my view, the purpose of this provision was to give the parties to the collective agreement (i.e., the employer and the bargaining agent) a mechanism to force each other to implement the collective agreement if one party failed to do so. It is unclear whether an employee covered by the collective agreement can prevail himself of the provision but I need not decide that matter since the complainant is not covered by the collective agreement because he occupies a position which is excluded from the bargaining unit. The letter from Ms. Brown in 1997 (Exhibit E-1) indicates that the PSSRB confirmed that the complainant’s position was excluded from the bargaining unit. The complainant simply has no connection to the collective agreement or the bargaining unit.

63 Since I have decided that I do not have jurisdiction to hear this complaint because the complainant’s concern cannot be the subject of a complaint under paragraph 190(1)(e) of the PSLRA and because the complainant cannot avail himself of that provision since he is not covered by the collective agreement, there is  no need to address the other preliminary objections relating to timeliness, redress and whether the complaint is moot.

64 For all of the above reasons, the Board makes the following order:

VI. Order

65 The complaint is dismissed.

March 31, 2008

John A. Mooney,
Board Member