An arbitrator has ruled that a long-serving educator and administrator can proceed with his grievance against the New Brunswick Department of Education and Early Childhood Development (EECD) despite his union membership.
The decision, delivered by arbitrator George Filliter, K.C., dismissed the employer’s preliminary objection that F.B. was barred from grieving under section 100.1 of the Public Service Labour Relations Act due to his union status.
F.B., who has held various roles within the Anglophone West School District (AWSD) and EECD since 1998, filed the grievance on Feb. 28, 2024, alleging wrongful termination without cause or reasonable notice from his position as Director of Applied Research and Strategic Partnerships. The core of the employer’s argument hinged on his status as a dues-paying member of the New Brunswick Teachers’ Federation (NBTF), which they argued placed him firmly within a collective bargaining unit, thereby making the grievance procedures outlined in the collective agreement his only recourse.
However, the arbitrator found that F.B., while a union member, was employed in a managerial role outside the scope of the NBTF’s bargaining unit during the relevant period, granting him the right to grieve under section 100.1 of the Act.
“The purpose of section 100.1 of the Act is to provide an employee who is ‘not included in a bargaining unit’ a mechanism to present a grievance,” Filliter wrote, emphasizing that this mechanism exists to ensure employees in managerial or confidential capacities have a means of addressing disputes without resorting to legal action in court.
Origins of dispute
The dispute originated in early 2023 when F.B. applied for the permanent position of Director of Change Leadership for Strategic Partnerships and Applied Research at the EECD, a role categorized as a Part I position, distinct from his prior roles covered by the collective agreement with the NBTF.
Despite being offered the position in March 2023, he did not sign the offer due to concerns over the salary and probationary period. This led to a series of negotiations and the eventual signing of a Secondment Agreement in October 2023, which extended his employment in the new role under specific terms.
The employer maintained that, despite the new role, F.B. remained within the NBTF’s bargaining unit due to his union dues and that any grievances should be processed through the existing collective agreement. However, the arbitrator noted that the Secondment Agreement was silent on the applicability of the collective agreement’s grievance process and instead referenced the “Management and Non-Union Human Resource Policies.”
“There is no doubt these terms and conditions are outside of the scope of the collective agreement negotiated with the NBTF, except where specifically included,” Filliter stated. He further added that the Secondment Agreement did not include F.B.’s access to the grievance process outlined in the collective agreement, thereby supporting his claim to file a grievance under section 100.1 of the Act.
Union membership insufficient
Filliter also addressed the employer’s reliance on F.B.’s union membership, dismissing it as insufficient to override the provisions of the Secondment Agreement. “The fact the grievor was a dues-paying member of the NBTF does not automatically include him in the ‘bargaining unit,’” he clarified, distinguishing between union membership and bargaining unit inclusion.
The ruling paves the way for F.B. to pursue his grievance on its merits, a process that could potentially include claims of constructive dismissal and the application of legal principles surrounding mitigation. While the arbitrator did not make any determinations on the ultimate outcome of the grievance, he urged both parties to engage in discussions to resolve the matter, given the complexity of the issues involved.
In his conclusion, Filliter dismissed the employer’s preliminary objection and ordered the parties to notify him by Sept. 6, 2024, if a hearing on the merits would be required. Should the parties fail to reach a resolution, a pre-hearing conference will be scheduled.
For more information, see Bennett v New Brunswick (Treasury Board), 2024 CanLII 77574 (NB LA).
