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HomeMy WebLinkAboutUnion 09-05-20 BETWEEN THE CANADIAN BLOOD SERVICES (The "Employer") AND THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The "Union") Re: Exclusion of Administrative Assistant Lab Manager APPEARANCES FOR THE UNION Mr. Tim Hannigan, Counsel Mr. Tom Goddard, Local President APPEARANCES FOR THE EMPLOYER Ms. Frances Gallop, Counsel Ms. Evelyn York, Manager DATE OF HEARING April 9, 2009 DATE OF AWARD May 20, 2009 2 On November 29, 2004 the Union filed the following grievance: The Union grieves that the employer is in violation of Art. 2.01 of the collective agreement and/or any other related article. The grievance pertains to the exclusion of the Lab Administrative Assistant held by Lynette Lewis. Settlement Desired That this practice cease and desist and that the position held by the incumbent be included in the bargaining unit. That the union be provided by the employer with a sum of money equivalent to the union dues for the position retroactive to the date of certification. This grievance has been the subject of two previous awards on preliminary matters relating to jurisdiction. The hearing on the merits took place on April 9, 2009 and this award deals with the issue raised in the original grievance. The relevant provision of the collective agreement read as follows: Article 2 - Recognition 2:0 I The Employer recognizes the Union as the exclusive bargaining agent of all non-professional employees (support staff) of the Canadian Blood Services Centres, together with all employees hired to work in or out of specific locations outside the boundaries of the aforementioned Blood Services Centres as set out in the Certificate issued by the Labour Relations Board of Ontario dated the eighth day of August, 1994 employed as Phlebotomists, Clinic Assistants, Stores Accountants, Utility Persons, Donor Service Representatives and Technical Support Analysts save and except Coordinators, Supervisors, Administrative Assistants performing supervisory functions or involved in confidential matters related to labour relations and persons employed above these ranks. It was the position of the Union that the incumbent does not perform supervisory functions and does not have access to confidential labour relations matters and therefore should not be excluded fi'om the bargaining unit. The Employer disagrees. The Employer agreed to proceed first but retained its traditional rights respecting onus. 3 The only witness called was Ms. Lynette Lewis, the incumbent in the position of Lab Administrative Assistant She has been employed by CBS since 1996, first as a Clerk in Office Production, now as an Administrative Assistant in the Production and Hospital Department. She now reports to the Regional Manager, Evelyn York. As a Clerk she was supervised by Eileen Groh, who was the Secretary of the Production Department. Ms. Lewis testified that there is no material difference between the duties of the former position of Secretary and the new position of Administrative Assistant. As Secretary, Ms. Groh delegated work to clerical staff, maintained confidential files, approved annual leave for clerical staff, took disciplinary action if necessary and attended and acted as secretary at departmental meetings. Ms. Groh approved all other leaves and c09mpleted performance appraisals on clerical staff as well. In 1998, Ms. Groh went on a sixteen month leave of absence and Ms. Lewis was appointed Acting Secretary. She performed the same duties had as Ms. Groh performed in that position. In 1999, Ms. Groh returned for six months but subsequently resigned, at which time Ms. Lewis became the permanent Administrative Secretary. The name of the position was changed some time after that to Administrative Assistant, and she has remained in that position since then. She identified ajob description dated January 10,2003, entitled Administrative Assistant-Laboratory Office, as an accurate record of her responsibilities at the time. Her primary areas of responsibility were to organize the work flow for the Laboratory Manager and supervise clerical staff. When she assumed the acting position from Ms. Groh, she had two clerks reporting to her, both bargaining unit members. She could not recall whether she was a member during this assignment but did recall that during the six months Ms. Groh had returned, she was in the bargaining unit. When she became the permanent Administrative Assistant, she had three bargaining unit clerks reporting to her and she was not in the bargaining unit. Throughout this time she has been located in an office in the Production Department at 67 College Street in Toronto. 4 As Administrative Assistant she delegated work to the clerks, assigned them to special projects, ensured adequate coverage in each area of the department and approved and/or denied annual vacation and leave requests. She also completed performance appraisals. These performance appraisals are done by Ms. Lewis in consultation with Ms. York and are signed by Ms. Lewis as Supervisor. They contain areas designated as Customer Service, Compliance, Job Performance and Cost Effectiveness. Employees are rated as Above Target, On Target or Below Target. Additional comments by Ms. Lewis are included related to specific job duties or projects. The Core Performance Dimensions include commitment to CBS, client/customer focus, job knowledge, teamwork and cooperation, accountability, ability to adapt to change and accurate and timely work output. Again, the same three rates were given for each category as well as personal comments about the employee. Additional Performance Dimensions included Organization, Initiative and Supervisory Skills, which were graded in the same manner. Ms. Lewis, as the supervisor, identified needs and recommended any action plan. She completed a review list indicating the evaluation had included a review of the job description and CBS policies respecting confidentiality, conflict of interest, acceptable use of computer and facilities and of the internet. Ms. Lewis' signature appears under the Final Comments section followed by Ms. York's signature as Reviewing Authority. She acknowledged that Ms. York could change a performance appraisal, but only after consultation with her and after an explanation for the change. As well, Ms. Lewis is responsible for completing a Probationary Review Form which canvasses the same categories as the Performance Appraisal except for the section entitled Overall Probationary Review Rating and Recommended Action (Confirm Appointment/Other). These sections are completed by Ms. Lewis and reviewed by Ms. York. Ms. Lewis testified that she monitors staff progress on an ongoing basis. She assigns duties with accompanying deadlines and monitors their progress. If it were a new project her manager would advise her to assign someone but she would determine who should do that or any other particular task. She observes the clerks regularly in the office and 5 interacts with them on a continuous basis. She handles requests for time off and is aware of the staff s personal needs as a result. The staff approach her with any concerns or questions and she provides whatever assistance is necessary. Some employees need more supervision and support than others and Ms. Lewis provides it based on her observations. She is responsible for reclUiting, orientating and training new employees. She is involved in reviewing the resumes, setting up the interviews, conducting the interviews with her manager, recommending hiring and training the successful candidates. She testified that ultimately she decides who should be hired. The training is done according to a check list of daily, weekly and monthly chores beginning with the mail room. She introduces the new employee to all the departments, explains their roles in the organization and her expectations. She invites them to approach her with any questions or problems. If an employee is going to be absent from work they are told to contact Ms. Lewis and/or her designate. She has been responsible for timekeeping duties since 1995. She approves leaves of absence and vacations and ensures adequate coverage during those absences for 95 employees, union and non-union. If there are problems with the payroll, she is responsible for correcting the problem. She was responsible for the termination of an agency employee who she believed did not have an appropriate attitude towards the work she had been assigned. She advised her manager about her unsuitability and ultimately told the employee she was being let go. Since 1999 she has assumed responsibility for staff meetings. She schedules them when necessary and sets the agenda, prepares and circulates the minutes of the meetings, including the weekly meetings of the Production Department, Regional Management Team, and the managers. All manner oftopics are discussed at these meetings including realignment of staff, proposed budgets, reorganization of departments and future plans regarding staffing. For example she was aware of the proposed plan to move Production staff from Toronto to a Brampton location before it became public knowledge and before other staff were advised about the move. 6 As Administrative Assistant she works directly with management personnel on numerous confidential matters. She takes direction from her Supervisor, Evelyn York and Susan White, the Site Manager. She works closely with Ahmed Coodabia, the Hospital Liaison for Central Ontario, who services 52 hospitals in the region and deals with inventory and supplies daily. Ms. Lewis prepares power point presentations for him and prepares and schedules meetings. She is often given information not known to others about changes to his programs and clients and other matters under discussion. She also prepares and maintains information for the Local Emergency Response Team, including private phone numbers of the management team. She is required to apply discipline, usually verbal warnings, to employees who act inappropriately in the workplace. Ifthere are internal staff problems, the employees she supervises expect her to resolve the issues creating the tension. She maintains confidential files containing information about employee medical issues, disciplinary notations, performance appraisals and employment issues. She maintains attendance records for Laboratory Assistants, Laboratory Technicians, Charge and Senior Technician and Managers. SUBMISSIONS OF THE PARTIES Ms. Gallop, counsel for the Employer, took the position that there has been no breach of Article 2.01. That provision includes all non~professional staff employed at all CBS sites and specifically lists Administrative Assistants as an included classification. However, it states clearly that Administrative Assistants who perform supervisory functions or are involved in confidential matters related to labour relations are exceptions to these named classifications. The Employer simply has to satisfy one of those conditions, not both, to defeat the Union's claim. The evidence, it was said, clearly shows that Ms. Lewis and her predecessor, Ms. Groh, had been performing supervisory duties long before this grievance was filed. Ms. Lewis' 7 uncontested evidence was that there has been no change to her duties since 1999 and that, since that time, she has assigned, delegated and overseen work to and of bargaining unit members. She has given ongoing assistance and feedback as well as formal performance appraisals. She has hired bargaining unit and agency staff and has released a contract employee who she believed was unsuitable. She has and continues to approve vacation requests, prepares schedules, ensures adequate coverage, monitors absences, schedules and organizes staff and management meetings. The parties, in drafting the recognition clause, put their minds to the duties of the position of Administrative Assistant and agreed that if an Administrative Assistant performs supervisory functions she should be excluded from the bargaining unit. The evidence is unequivocal. Ms. Lewis has acted and continues to act in a supervisory capacity and should be excluded. In addition, it was submitted, Ms. Lewis is involved in confidential matters relating to labour relations and should be excluded from the bargaining unit on that basis. The parties have deliberately not used the identical language of the Labour Relations Act in setting out their expectations. The Act excludes employees "employed in a confidential capacity in matters relating to labour relations". In the instant case the parties have excluded persons "involved" in matters related to labour relations. That distinction should be interpreted to mean that if the incumbent is involved in these matters, she meets the test. She does not have to be employed for that purpose but if her duties include involvement with labour relations matters, that is sufficient. The evidence is clear that she satisfies that test on a daily basis. She has access to confidential information and documents, including personnel records~ performance appraisals and medical files. She is privy to confidential information regarding budgets, staff allocations and placements and future planning for the CBS. She attends staff and management meetings where discussion of matters relating to, among other things, labour relations, takes place. She records the minutes of those meetings and maintains the 8 records of those discussions. She is entrusted with sensitive information about matters that have an impact on labour relations, such as the move to the Brampton office In support of its position the Employer relied on the following cases: Re Fairhaven Home for Senior Citizens and Ontario Nurses' Association (1992), 25 L.A.C. (4th) 345 (Knopf); Re Greater Essex County District School Board and Ontario Secondary School Teachers' Federation (2002), 107 L.A.C. (4th) 1 (Jolliffe) and Re Corporation of the City of Kingston and Canadian Union of Public Employees, Local] 09 (Bargaining Unit Classification Grievance) (February 1,2005), unreported, E. Newman). Mr. Tim Hannigan, counsel for the Union, took the position that when the Union assumed responsibility for this bargaining unit from a previous staff association, it inherited the existing recognition clause and has been trying to clarify the status of this disputed position since then. They reached an agreement in 2002 which included a process to deal with several disputed positions and were successful in resolving some of them but not the one at issue in this grievance. It went to the Ontario Labour Relations Board for a resolution but the OLRB, while finding that the incumbent was an employee under the Act, made no finding about the interpretation to be given to the recognition clause. That is why, it was said, this Board is being asked the same question. Is the position of Lab Administrative Assistant excluded from the bargaining unit? The Union asserted that although the parties have used different words to describe the bargaining .unit than those used in the Act, there is no difference in their meaning. Whether the incumbent in the position at issue is employed for or involved in confidential matters relating to labour relations is not the question. That issue should be decided having regard to the rationale for the exclusion. The Act clearly is intended to encourage and facilitate the unionization of workers in Ontario. The assumption is that all employees are included unless they are specifically excluded and exclusions should be narrowly interpreted. In the instant case, the exclusions should be considered in the context of conflict of interest. If an employee's duties will put him/her in a conflict of interest with herlhis co-workers or management 9 because the duties of the position place himlher in a situations that can divide his/her loyalties, that person could be seen as an appropriate exclusion from a bargaining unit. There is no evidence, it was said, that such a conflict exists with Ms. Lewis' duties. She rep0l1s to a manager who, she acknowledged, can ovelTide her decisions. She does not have effective control over the employees she supervises. With respect to the confidential nature of her work, it was submitted that there was no evidence of any involvement in negotiations or grievance matters. She may have been told about the move to another office but there was no evidence that move involved lay- offs ot transfers under the collective agreement. She is not privy to matters related to labour relations but solely to matters arising from the business of the organization. Any employee who becomes aware of that information is bound by an expectation of privacy and would not divulge that information to others. Ms. Lewis admitted that when she is absent} she is replaced by a bargaining unit employee who has similar access to this confidential information. She does not, it was said, have regular material involvement with information that could affect the collective bargaining interests of the Employer. In support of its position the Union relied on the following cases: York University Staff Association and York University OLRB December 10, 1975945; Oakwood Park Lodge and Ontario Nurses' Association OLRB January 28, 1982 34; Reynolds-Lemmerz Industries and National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) OLRB January 31, 1995; Corporation of the Town of lnnisfll and Communication, Energy and Paper workers Union of Canada OLRB January 31, 1994; Grey Bruce Regional Health Centre and Ontario Nurses' Association OLRB July 6, 1987 and Pride of Alberta Meat Processors Co. and UFo C. W Local 280 P 169 D.L.R. (4Ih) 35 (Alberta Court of Appeal). REASONS FOR DECISION The parties have been at odds over the inclusion/exclusion of the position of Administrative Assistant - Lab for a significant period oftime. They have sought a 10 ruling from the OLRB about the status of the position which did not resolve the issue. The OLRB determined that the incumbent in the position, Ms. Lewis~ was an employee under the Act but made no ruling on her status under the collective agreement. Following the issuance of a certificate, the OLRB has no jurisdiction over whether an employee is covered by the collective agreement. After certification only the parties can agree to alter the scope of the bargaining unit and only a Board of Arbitration constituted under a collective agreement can determine who is covered by the negotiated scope clause. Once a collective agreement is executed by the parties, it is that document that determines the composition of the bargaining unit. The parties are free to amend the OLRB description to include or exclude existing and/or future positions as necessary. In considering the scope of the bargaining unit a Board of Arbitration is not to be governed by questions of whether in incumbent is an employee under the Act but rather should examine the intent ~fthe parties and determine whether the duties of the position dictate that the incumbent should be excluded under the Recognition clause, However, the OLRB has developed over the years an expertise in these matters that can be of assistance in assessing the nature of the work done by the incumbent vis-a-vis the bargaining unit members. For example, in the Oakwood Park case (supra), the OLRE said, at paragraph 8, the following: ... In the case of so-called Hfirst-line" managerial employees~ an important question is the extent to which they make decisions which affect the economic lives of their fellow employees thereby raising a potential conflict of interest with them. Thus, the right to hire~ fire, promote, demote, grant wage increases or discipline employees are all manifestations of managerial authority, and the exercise of such authority is clearly incompatible with patiicipation in trade union activities as an ordinary member of the bargaining unit.,. It went on in paragraph 9 to state: .. . Indeed, in Ontario~ the Board has extended the ambit of section 1 (J)(b) beyond the actual or ultimate decision-maker, to those who make what the Board has caned "effective recommendations" which materially affect the conditions of 11 employment of those supervised.. ..In framing the test in this way, the Board has not ignored the real distinction between a person recommending or influencing a decision and one ultimately making it. Supplying information or "input" is not the same as deciding~ and a person who does only the former has a much weaker claim when it is suggested that he is exercising "managerial functions". In the Reynols-Lemmerz case (supra) the Board explained those terms, at paragraph 5, as requiring "at a minimum, a power of effective recommendation over matters with more direct and immediate effects". It stated that Heffective recommendations are ones so consistently and frequently followed that it could be said that through recommendations, the individuals in question are effectively controlling or determining the decisions". Applying a similar test to the question before me and based on the evidence before me about the actual duties of the incwnbent, I have come to the conclusion that the position of Administrative Assistant - Lab should be excluded from the bargaining unit. Ms. Lewis is bound by external factors affecting the terms and conditions of work at CBS, most obviously the collective agreement under which these proceedings are being conducted as well as policies and procedures of the organization, To some extent those factors limit her independent authority to grant a wage increase and promote or demote employees. Nevertheless, she exercises a direct ,and immediate effect on the working conditions of the people she supervises. She is involved in all aspects of hiring, including effectively recommending who should be hired. Her evidence was that her recommendations have been accepted without question. She has had direct influence over the decision not to renew a contract employee's employment and was the person designated to advise the employee of her termination. She testified, without challenge~ that her recommendations are followed consistently and any override would require consultation and explanation. She oversees the work of the clerks she supervises and is directly responsible for the delegation oftasks within her department. She not only supervises the daily work in her office, she also completes performance appraisals on a regular basis. The format of the appraisals is preset but it is Ms. Lewis who evaluates the performance of the employees and who makes recommendation on the basis of her appraisals. Although she admitted 12 that Ms, York could alter her comments, it was her evidence that has never happened and that~ if it did~ it would only be after an explanation. I am satisfied that Ms. Lewis performs supervisory functions within the CBS. Her description of her actual duties shows there is a potential conflict of interest with the bargaining unit members she supervises. She has the authority to effectively recommend hiring and can discipline and assesses their performance on an informal daily basis as well as a formal regular basis. She meets the test set out in the Oakwood and Reynolds- Lemmerz cases (supra). She effectively makes recommendations on matters that immediately and directly affect other employees and her recommendations are so consistently and completely followed that she effectively controls the decision. "Having determined she performs supervisory functions there is no need for me to comment on the confidential nature of her duties. DECISION For the reasons mentioned above, the grievance is dismissed. Signed this 20 say ofMay~ 2009 /~~ Loretta Mikus, Sole Arbitrator