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HomeMy WebLinkAboutUnion 90-12-14 IN THE MATTER OF AN ARBITRATION B E T W E E N : 90B135 Caat A Local 350 ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY (GEORGIAN COLLEGE) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION BOARD: Martin Teplitsky, Q.C., Chairman George H. Metcalfe Nominee for the College Donald Thomas Traves Nominee for the Union APPEARANCES: On behalf of the College: Robert J. Atkinson, Counsel Norm Hannon On behalf of the Union: Mary Hart, Counsel Peter Pass, Regis Yaworski Hearing held in Barrie on October 25, 1990. 2 AWARD The Union seeks a declaration that Jean Cornett, the "Supervisor, Orillia, L.R.C." should be in the bargaining unit rather than classified as a "person employed in a managerial or confidential capacity". Mr. Atkinson sought an adjournment on the basis that an application was pending before the Ontario Labour Relations Board to determine the same issue pursuant to Sec. 81 of the College's Collective Bargaining Act, R.S.O. 1980, Chapter 74. It provides: "81. If, in the course of bargaining for an agreement or during the period of operation of an agreement, a question arises as to whether a person is an employee, including a question as to whether a person employed as a chairman, department head, director, foreman or supervisor is employed in a managerial or confidential capacity pursuant to clause 1(1) and the Schedules, the question may be referred to the Ontario Labour Relations Board and its decision thereon is final and binding for all purposes." He argued that once a referral was made to the Ontario Labour Relations Board that this Board lacked jurisdiction to decide the issue. Reference was made to Re Canadian Industries Ltd. and International Union of District 50, 27 DLR 3d 387, which held that in the absence of a reference to the Ontario Labour Relations Board pursuant to Sec. 95(2) of the Labour Relations Act, a board of arbitration had jurisdiction to decide whether a person was employed in a managerial or confidential capacity. The 3 court noted, however, that had there been a referral, the Ontario Labour Relations Board's jurisdiction would have been exclusive. Sections 95(1) and (2) of the Ontario Labour Relations Act now Sections 106(1) and (2) provide: "106 - (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling. (2) If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes." The Court of Appeal's reasoning depended on the language of 95(1) [106 (1)] of the Ontario Labour Relations Act. There is no similar language in the Colleges Collective Bargaining Act. In my opinion, a board of arbitration has jurisdiction to decide whether a person is within the bargaining unit whether or not the matter has also been referred to the Ontario Labour Relations Board. I express no final opinion on whether a ruling by the Ontario Labour Relations Board would bind an arbitrator. However, the concluding phrase of Sec. 81 together with the common sense of the matter suggests that it would. It still remains to consider whether an adjournment should be granted. The balance of convenience favours our proceeding. First, we are convened in Barrie and it would be expensive to waste the day because the case can be heard in one day. Second, the employer delayed in referring the matter to the Ontario Labour Relations Board until a few weeks before this arbitration was scheduled to proceed. Third, Mr. Atkinson argued that only the Ontario Labour Relations Board can apply Section 1(1) (vi) and it is unfair to deprive the employer of resort to this provision. Section 1(1) provides: "1(1) "person employed in a managerial or confidential capacity" means a person who, (i) is involved in the formulation of organization objectives and policy in relation to the development and administration of programs of the employer or in the formulation of budgets of the employer, (ii) spends a significant portion of his time in the supervision of employees, (iii) is required by reason of his duties or responsibilities to deal formally on behalf of the employer with a grievance of an employee, (iv) is employed in a position confidential to any person described in subclause (i), (ii) or (iii), (v) is employed in a confidential capacity in matters relating to employee relations, (vi) is not otherwise described in subclauses (i) to (v) but who, in the opinion of the ontario Labour Relations Board should not be included in a bargaining unit by reason of his duties and responsibilities to the employer;" I do not accept this argument. In my opinion, the Collective Agreement incorporates by reference the statutory definition. Accordingly, the arbitrator must apply the entire section. For our purposes, the specific reference in subsection (vi) to the Ontario Labour Relations Board was unnecessary. It is only the Ontario Labour Relations Board who can apply each provision of that section. The arbitrator only applies the Collective Agreement. I turn to the merits. The employer submits that the position in question falls at least within (i), (ii), (iii) and (iv) of subsection (1). It is conceded that Jean Co~nett spends 30% of her time in supervision. Moreover, by the terms of the Support Staff Collective Agreement, she would be required to respond to any grievance. To date there have been no grievances and Miss Hart relies on several decisions of the Ontario Labour Relations Board to submit that consideration should not be given to the requirement that she respond to grievances. The cases relied upon are clearly distinguishable. In this case, Jean Cornett works in a free standing building, separate from the rest of the campus and clearly is the supervisor of the 6 other staff. The terms of the Staff Support Collective Agreement Sec. 18.6.1.1 require that a signed grievance be presented to his/her immediate supervisor. It is clear that only Jean Cornett qualifies. There may be cases where the defacto operation of a grievance/arbitration procedure renders an employer designation of a person as having grievance responsibility ineffective, but this is not such a case. The fact that there have been no grievances to date is irrelevant. Her managerial status cannot be eroded by the good fortune and/or skill which has resulted in no grievances. What would be relevant is evidence that there were grievances but some person other than the grievor responded to those. In conclusion, this position clearly is management. For these brief reasons, the grievance must be dismissed. DATED at Toronto this 14th day of December, 1990. ISSUED the 16th day °f January' li9~' ~~ ~, MARTIN TEPLITSK~/~ . C. DONALD THOleS TRAVR$ Nominee for the Union Georgian College and OPSEU Union Policy Grieveance Dissent With respect, I must dissent from the finding of the majority that Ms. Jean Cornett's position be classified as "managerial". I appreciate the argument that Ms. Cornett spends approximately thirty per cent of her time in supervisory duties and that some of these appear to fall under the headings of Section 1 (1) (i-vi). However, I am persuaded that these duties reflect the assignment of responsibilities to a Librarian 1 under the Class Definition of the collective agreement's Classification Plans (pp.17-18). Such personnel are expected to "generally assist in the administration of their area, carrying out various professional assignments as directdd and assisting in the training of junior staff". In other instances, such personnel are expected to "provide guidance to sub-professional support staff assigned to their areas of responsibility". In my view, Ms. Cornett's duties are covered by this designation and she is properly assigned to this classification within the bargaining unit. Tom Traves, Union Nominee