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HomeMy WebLinkAbout1987-0637.McTaggart and Boggs.88-07-040637107, 0638/87 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: J. Hayes Counsel Cavalluzzo, Hayes & Lennon Barristers and Solicitors ~.- For the Employer: A.P. Tarasuk Barrister & Solicitor Central Ontario Industrial Relations Institute OPSEU (McTaggart, Boggs) and The Crown in Right of Ontario (Ministry of Health) T.H. Wilson F. Taylor M. O'Toole Vice-Chairman Member Member Employer Hearing: January 22, 1988 DECISION The grievors had filed classification grievances. The Stage One reply was signed by their group supervisor who is a bargaining unit employee. They then grieved that they had received a reply signed by a bargaining unit employee. The settlement demanded in that grievance is that group supervisors who are members of the bargaining unit cease to be involved in the processing of grievances. The Ministry takes the position that the assignment of the challenged function falls within s. 18(l) [a) of the Crown Employees Collective Bargaining Act and is therefore not within the jurisdiction of this Board. The union submitted that the Ministry is violating Article 27.3.1 which establishes Stage One in the grievance procedure. As background to this dispute, I note that a decision of this Board was ,given in 1985 on a union policy grievance in which it was claimed that management functions under Section 18(l) (a) and Section 18(l) (b) of the Act being abrogated by the employer by the assigning of responsibility for performance appraisals, discipline and grievance handling to members of the O.P.S.E.U. bargaining unit (G.S.B. No. $87184). The factual assumption upon which that case proceeded was that there had been a reorganization in the offices of OHIP, wherein some jobs were eliminated and others were changed around. Sixteen particular employees were reclassified as Clerk 5 General and management expanded the supervisory duties of these employees to include - 2 - responsibility for performance reviews, some aspects of dis- cipline and some grievance handling with respect to other bargaining unit employees. The union took the position in that case that while management's right to organise the work force was not challenged, that' right did not include the right to assign management functions to bargaining unit employees: It was argued that such a process created conflict within the bargaining unit, wherein some employees were disciplining others and responding to grievances by other members of the unit; and it was argued that, in substance, Management was removing positions from the bargaining unit without the consent of the other party to the Collective Agreement. [page 31 In that case, the union relied upon Re Standard Sanitary and Dominion Radiator Limited (1954) L.A.C. 1684 (Roach) and Re Ontario Hydro (19761, 12 L.A.C. (2d) 143 (Shime). The Board distinguished those cases apparently on two grounds: (1) that they did not involve a jurisdictional issue, as specific provisions of the Collective Agreement were relied upon and (2) both cases in substance involved the performance of bargaining unit work while the instant case involved an allegation that acknowledged bargaining unit employees wsre performing certain managerial functions. Following Vice-Chairman Swan's description of the Board's jurisdiction in Re Haladay 94178, the Board went on to say at page 7: . . . and we have not had drawn to our - 3 - attention any particular provision of the Collective Agreement that is before us that would extend that jurisdiction or indeed which is alleged to have been breached in order to create an issue for us under the jurisdiction of Section 19. Finally at page 9, the Board concluded: Prima facie the reference in Article 19 to matters dealing with the interpretation, application or administration of the Collec- tive Agreement create a relatively wide jurisdiction, but in the absence of any specific reference to any section of that Collective Agreement, apart from the provi- sions that are deemed included under Section 18, and in view of the specific limitation in Section 18, we cannot find jurisdiction to hear the merits of the grievance. We might state that we reach this conclusion with some regret, since there clearly does exist a difference between the parties, and we presume that that difference will simply return to this Board in a different context, wherein the same issues are raised in a context that can attract jurisdiction within the specific language of Section 19(l) or Section 18(Z). While pointing out that while in labour arbitration cases such as Re B.C. Railway Co. (1982), 8 L.A.C. (3d) 250 (Hope) and Re Religious Hospitalers of Hotel Dieu of St. Joseph of the Diocese of London (1983), 11 L.A.C. (3d) 151 (Saltman) boards of arbitration have taken jurisdiction in the context of rules promulgated by management challenged by the union outside the context of a disciplinary matter, in the view of Vice- Chairman Kennedy, the arbitration boards unlike the Grievance Settlement Board, were not subject to the strict statutory constraints as to jurisdiction and in particular to that of the - 4 - last two lines of. section 18(l). Accordingly, the jurisdictional objection of the employer was sustained and the grievance dismissed. Counsel for the union in the present case argued that the grievances in the present case are based on the premise that Article 27 and in particular Article 27.3.1 have been breached by the employer. I reproduce here relevant portions of Article 27: 27.1 It is the intent of this Agreement to adjust as quickly as possible any com- plaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. 27.2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his, super- visor within twenty (20) days of first becoming aware of the complaint or dif- ference. 27.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion, it may be processed within an additional ten (10) days in the following manner: STAGE ONE 27.3.1 The employee may file a grievance in writing with his supervisor. The super- visor shall give the grievor his decision in writing within seven (7) days off the submis- sion of the grievance. STAGE TWO [the grievor next submits the grievance to the Deputy Minister or his designee] 27.4 [The unsatisfied grievor after STAGE TWO applies to the Grievance Settlement Board] - 5 - 27.5 The employee, at his option, may be accompanied and represented by an employee representative at each stage of the grievance procedure. Elaine McTaggart, one of the grievors, is a claims clerk in the London District OHIP office. She was for ten years the president of the Union Local 101 (1975-85) and then from 1985 to November 1987 a steward which period includes the time of the grievance. The classification grievance of McTaggart at the time was one of 3,008 classification grievances filed at that time. Her particular grievances at Stage One was answered by a letter signed by (Mrs.) S. Hern, Claims Services Supervisor, a bargain- ing unit employee, London District OHIP office. The grievance was that she had been placed in the wrong salary step for her classification. Mrs. Hem's written response was that she "had been advised by the Human Resources Branch that in accordance with the Appendix, Article 4, Salary Treatment of Employees on Implementation, specifically Article 4.2, your .salary transac- tions as a result of the OAG conversion process have been reviewed and it has been found that you are at the proper salary step for your classification". In the qrievor's view, the fact that a bargaining unit employee replied at Stage One of the grievance for the employer made the Stage One "a fallacy". Such a bargaining unit level employee would not have the authority to decide the Stage One grievance. ~11 these classification grievances were answered in the same manner: that is with a form letter response signed by a supervisor who was within the - 6 - bargaining unit. In cross-examination, McTaggart was asked whether while she was a local union president, she was involved in a represen- tative capacity. She answered yes, between 20 to 25 grievances. Of these one was settled at Stage One and the rest at Stage Two. However, none of them was handled by a claims service supervisor at Stage One. On March 26, 1986 a Memorandum was sent out from the Assistant Director of District Operations requiring that: In the intent of enhancing supervision in Claims, Customer Services and at Information Offices, it is essential that Supervisors be required to assume the following respon- sibilities: respond to level 1 grievances; assume first level disciplinary authority; counsel staff, recommend repri- mands: prepare, sign and discuss contents of performance appraisals with staff; approve vacations, time-off, appointments, etc.; act as chairperson or regular member of interview boards for new hires. . . 2. Job specifications are being reviewed to ensure that these duties are clearly defined so that specifications may be used to support conversion of these positions to Management. In the meantime, Managers are to ensure that Clerk 5 General Supervisors and Clerk 7 General Supervisors at Informa- tion Offices are aware of these duties and responsibilities. The fact that some or all of these responsibilities may be seen as - 7 - belonging to Management does not prevent the organization from assigning them to Super- visors even though the incumbents are currently in the bargaining unit. The grievor, McTaggart, testified that at the time her reaction to it was one of anger but she could not file a grie- vance over a memo. Prior to the memo she had "just lived with" the situation that the Stage One was just gone through. She felt it was morally wrong however for bargaining unit employees to have to reply for management at Stage One. At this point it is important to refer to a number of statutory provisions. "Employee" is defined in section l(f) of the Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108: l(f) a Crown' employee as defined in the Public Service Act but does not include (iii) a person employed in a managerial or confidential capacity, (1) "person employed in a managerial confidential capacity" means a person who, (iii) spends a significant portion of his time in the supervision of employees, (iv) is required by reason of his duties or responsibilities to deal formally on behalf of the employer with a grievance of an employee, (vi) is employed in a position confiden- tial to any person described in subclause (i), (ii), (iii), (iv) or (~1, (vii) is employed in a confidential capacity in matters relating to employee relations including a person employed in a clerical, stenographic or secretarial - 8 - position in the Civil Service Commission or in a personnel office in a Ministry or agency of the Government of Ontario, or (viii) is not otherwise described in subclauses (i) to (vii) but who in the opinion of the Tribunal should not be included in a bargaining unit by reason of his duties and responsibilities to the employer. 40 -(l) If, in the course of bargaining or during the period of operation of a collec- tive agreement, a. question arises as to whether a person is an employee, the question may be referred to the Tribunal and its decision thereon is final and binding for all purposes. Mr. Hayes, counsel for the union, argued s. 1 1 (iv) excludes from the bargaining unit persons who are required by their duties or responsibilities to deal formally on behalf of the employer with a grievance of an employee. Management therefore cannot give management functions to bargaining unit employees if he is not management in a bona fide way. He argued --- that in this particular case, the supervisor in question is just a conduit pipe. This bargaining unit employee is just a mes- senger. Counsel cited a decision of X. Burkett Canada Post Corporation and C.U.P.W. No. 1000-N-14 (June 16, 1987) in which Arbitrator Burkett sustained a preliminary objection that the . . grievance was not properly before the board of arbitration because there was no second step grievance meeting. In fact in .that case it appears that the union in light of the alleged intransigent position of the Corporation was in essence boycot- ting second step grievance meetings. Article 9.20 of the - 9 - Collective Agreement speaks to "desirability of holding regular grievance meetings with a view to resolving outstanding grie- vances without delay". Grievance steps, Arbitrator Burkett point out are not just to provide disclosure but to provide face-to- face dialogue. He directed the parties to convene a second level grievance hearing prior to the next day of arbitration. Certainly the procedure adopted by the parties in the Collective Agreement should not be ignored by the parties. Even at the Stage One grievance level, although few actual settlements may be achieved as the evidence here indicated, it should not be considered futile. Clearly it should be properly utilized. Evidence that one of the parties was systematically treating one of the grievance stages as a farce would call for remedy. But the evidence fell short of that. In the instant situation the formal response given by management at Stage One - given the large number of grievances involved - does not cause me concern. Experienced persons in the labour relations field would expect such large numbers of similar grievances to be decided at a higher level of resolution than the first stage. If the person handling the Stage One grievance had been outside the bargaining unit, I would not have expected any different treatment of the grievance. On this evidence, Icannot conclude that the delega- tion to a bargaining unit employee of this function represents a decision by management to treat the first stage of the grievance procedure as a farce or a mere nuisance. If the evidence did establish that one of the parties was systematically frustrating - 10 - Article 27.3.1 of the Collective Agreement, this Board could provide a remedy. What that remedy would be would depend on what the precise evil or violation was as established by the evidence. Whether that situation is created by the delegation of that authority to a bargaining unit employee was not shown on this evidence. The opinion of the grievor was that it was inconsis- tent or morally wrong; but there was no evidence adduced through the employee(s) (i.e. the bargaining unit supervisors) directly concerned that would show that the effect of the delegation was to frustrate the proper operation of the first stage. In the absence of such evidence I cannot rule that the grievance provision has been frustrated by the delegation to these super- visors of Stage One grievance duties. It might be true but it was not demonstrated on this evidence. There also might be an actual violation of the Act, specifically section 1 (1) (iv), on the theory that such duties may not be given to bargaining unit employees; or alternatively employees given such powers may cease to be bargaining unit employees. But those issues would appear to fall more clearly under the jurisdiction of the Ontario Public Service Labour Relations Tribunal. I cannot find on $his material that such events lead to a violation of Article 27.3.1 upon which union counsel relied. Whether the representation rights of the union or of employees are violated by the thrusting upon bargaining unit employees of allegedly managerial functions is also an intriguing issue. Again the Tribunal might be a more appropriate - 11 - forum for that issue. As Vice-Chairman Kennedy stated in the 1985 decision there clearly is a dispute and no doubt in my mind it will have to be resolved one way or the other. Unfortunately it has not been placed before this Board in a form in which I can give a final determination on the merits of the issue. As presented, the grievance does not show a violation of the Collective Agreement and of course as Vice-Chairman Kennedy stated, this Board cannot specifically review management rights under s. 18 except for those specifically provided for therein. Counsel for the employer raised an issue of estoppel but in light of the fact that the grievance fails on the merits, I need not canvass that argument. The grievance is dismissed. DATED AT TORONTO, Ontario this 4th day of July, , 1988. XI& (j&&iii*; THOMAS H. WILSON, Vice-Chairman "1 dissent" (without written reason) F. TAYLOR, Member . O'TOOLE, Member . .