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HomeMy WebLinkAboutUnion 11-06-23 IN THE MATTER OF AN ARBITRATION BETWEEN: GEORGE BROWN COLLEGE - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 557 GRIEVANCE RE MARKETING MANAGER BOARD OF ARBITRATION: JANE H. DEVLIN CHAIR ANN E. BURKE COLLEGE NOMINEE SHERRIL MURRAY UNION NOMINEE BRENDA J. BOWLBY, FOR THE COLLEGE JOHN BREWIN, FOR THE UNION 1 The Board is seized with a number of grievances in which the Union claims that the College has improperly excluded employees occupying certain positions from the support staff bargaining unit. One of the grievances concerns Shannon Potts, who is one of three Marketing Managers at the College. During the course of the hearing, Mr. Brewin, on behalf of the Union, advised that the Union intended to call evidence regarding duties performed by a member of the bargaining unit which are alleged to be comparable to those of Ms. Potts. This evidence concerns interaction with managers and/or access to confidential material. Mr. Brewin advised that the Union also intended to call evidence relating to the development and nature of the Marketing Manager position and the context in which it functions. Ms. Bowlby, on behalf of the College, objected to the introduction of this evidence and the parties agreed to address the College's objections by way of written submissions. For purposes of the objections, reference was made to various provisions of the Colleges Collective Bargaining Act, 2008, including the following: PART 1 INTERPRETATION AND APPLICATION Definitions 1. In this Act, "bargaining unit" means a bargaining unit determined in accordance with sections 25, 25 and 27; Collective negotiations under the Act. 2 2. (1) Collective negotiations respecting terms and conditions of employment, except for superannuation of employees shall be carried out by the Council and the employee organization. Application of Act (2) This Act applies to all collective negotiations concerning terms and conditions of employment, except for superannuation, of employees. Bargaining units 25. From the day this Act receives Royal Assent until a first regulation comes into force under section 27, the bargaining unit for the purposes of this Act shall be the units described in Schedule 1. Note: On a day to be names by proclamation of the Lieutenant Governor, section 25 is repealed by the Statutes of Ontario, 2008, chapter 15, subsection 83(3) and the following substituted: Bargaining units 25. The bargaining units for the purposes of this Act are the bargaining units established under section 27. Application ra bargaining units 26. (1) The Council and the bargaining agents of one or more bargaining units may apply to the Ontario Labour Relations Board proposing, (a) changes in the description of bargaining units; (b) the establishment of bargaining units; (c) the elimination of bargaining units. SCHEDULE 1 Full time support staff bargaining unit 3. The full time support staff bargaining unit includes all persons employed by an employer in positions or classifications in the office, clerical, technical, health care, maintenance, building service, shipping, transportation, cafeteria and nursery staff, but does not include, (a) foremen or supervisors; 3 (b) persons above the rank of foremen or supervisor; (c) persons employed in a confidential capacity in matters related to employee relations or the formulation of a budget of a college or of a constituent campus of a college, including persons employed in clerical, stenographic or secretarial positions; (d) other persons employed in a managerial or confidential capacity within the meaning of section 5 of this Schedule; (e) persons who are included in the part time support staff bargaining unit; (f) students employed in a co-operative educational training program undertaken with a school, college or univerSity; (g) a graduate of a college during the period of 12 months immediately following completed of a course of study or instruction at the college by the graduate if the employment of the graduate is associated with a certification, registration or other licensing requirement; (h) a person who is a member of the architectural, dental, engineering, legal or medical profession, entitled to practice in Ontario and employed in a professional capacity; (i) a person employed outside Ontario Definition 5. In this Schedule, "Person employed in a managerial or confidential capacity" means a person who, (a) 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, (b) spends a significant portion of his or her time in the supervision of employees, (c) is required by reason of his or her duties or responsibilities to deal formally on behalf of the employer with a grievance of an employee, (d) is employed in a position confidential to any person described in clause (a), (b) or (c), 4 (e) is employed in a confidential capacity in matters relating to employee relations, (f) is not otherwise described in clauses (a) to (e) but who, in the opinion of the Ontario Labour Relations Board, should not be included in the bargaining unit by reason of his or her duties and responsibilities to the employer. It was the submission of Ms. Bowlby that the Board must decide whether Ms. Potts' duties and responsibilities in the position of Marketing Manager warrant her inclusion in the bargaining unit. Ms. Bowlby contended that evidence regarding the duties of bargaining unit members which are alleged to be similar to the duties of Ms. Potts is irrelevant because the scope of the support staff bargaining unit is defined by the Colleges Collective Bargaining Act, 2008. Accordingly, Ms. Bowlby submitted that it is the statutory definition, rather than the collective agreement, that governs the matter of inclusion or exclusion from the bargaining unit. Moreover, although the Board has some discretion with respect to the admission of evidence, Ms. Bowlby contended that in view of the number of grievances before it, the Board ought to rule on the evidentiary issue at this juncture because considerable hearing time may be saved. By way of background, Ms. Bowlby submitted that collective bargaining for the Colleges of Applied Arts and Technology is governed by the Colleges Collective Bargaining Act, 2008 and that as the Colleges are Crown agencies, they are not covered by the Labour Relations Act. Ms. Bowlby also submitted that there are currently two full-time province-wide bargaining units, one being an academic unit and 5 the other, the support staff unit. For each bargaining unit, there is one collective agreement between the College Employer Council, which represents the Colleges, and the Union as bargaining agent. Ms. Bowlby contended that nothing in the Colleges Collective Bargaining Act, 2008 permits the parties or an individual college and a local union to amend the description of the bargaining unit and that any amendment is a matter within the exclusive jurisdiction of the Ontario Labour Relations Board. On this basis, Ms. Bowlby submitted that it is the statutory definition that governs and that the parties cannot agree to include an employee in the bargaining unit if that employee's position falls outside the defined unit. It was contended, therefore, that evidence regarding positions which have been included in the bargaining unit cannot assist the Board in determining whether Ms. Potts ought to be included in the unit. Ms. Bowlby further submitted that the evidence in question cannot assist the Board in interpreting the Colleges Collective Bargaining Act, 2008. Instead, she contended that the Board should adopt a textual, contextual and purposive approach to the interpretation of the statute. This approach, it was submitted, will require the Board to consider the language of the provision, the context in which it is used and the purpose of the legislation in which the language is found. Ms. Bowlby also contended that the Union has not alleged that the language of the statute is ambiguous and that even ifthere were an ambiguity, extrinsic evidence could be considered as an aid to interpretation only to the extent that it bears on the intention of the Legislature. Accordingly, it was submitted that evidence regarding the manner in which the parties have interpreted the legislation is irrelevant for this purpose. In the result, Ms. Bowlby 6 asked the Board to refuse to permit the Union to adduce evidence regarding duties of bargaining unit positions which it claims are similar to the duties performed by Ms. Potts. It was the submission of Mr. Brewin that the issue before the Soard is whether the College has breached the collective agreement by excluding Ms. Potts from the provisions of the agreement. Mr. Brewin further submitted that the College claims that Ms. Potts is properly excluded from the bargaining unit on the basis that she is above the rank of foreman or supervisor and that she is employed in a Umanagerial or confidential capacitt as that phrase is defined in a number of provisions of section 5 of Schedule 1 to the Colleges Collective Bargaining Act, 2008. In assessing this claim, Mr. Srewin submitted that the jurisprudence indicates that there are a number of factors to be considered and that some access or exposure to confidential information is not sufficient. Mr. Srewin also submitted that the title given to a particular position is not decisive. In addition, it was contended that consultants or media specialists are generally not sufficiently involved in the formulation of policy or objectives to be excluded and that the level of involvement must be "material" or "regular." As well, Mr. Srewin submitted that there is a critical difference between providing information and making final decisions and that the relationship must be suffiCiently intimate to be fairly described as a "sounding board" for a senior manager or executive. Given these factors, Mr. Srewin submitted that evidence of the involvement of a longstanding member of the bargaining unit in policy making or 7 confidential responsibilities would assist the Board in determining the issues before it. Mr. Brewin also submitted that evidence regarding the evolution of the Marketing Manager position would assist the Board in understanding the nuances of the position on the key points. It was contended, as well, that the fact that the scope of the bargaining unit is defined by the Colleges Collective Bargaining Act, 2008 does not detract from the requirement for the Board to determine the issue before it based on evidence relating to the position, Mr. Brewin submitted that such evidence could extend to comparable duties performed by members of the bargaining unit. Mr. Brewin contended, as well, that there is no authority of which the Union was aware addressing the type of evidence sought to be tendered in this case. Moreover, while it was acknowledged that evidence regarding the duties actually performed by Ms. Potts or required of her position is the most salient, Mr. Brewin submitted that the evidence that the Union seeks to introduce is worthy of consideration and that the Board can decide on the weight to be accorded that evidence. Mr. Brewin also contended that the Union is not suggesting that the parties reached an agreement to vary the language of the Colleges Collective Bargaining Act, 2008 or to include an employee who is statutorily excluded from the bargaining unit. As well, Mr. Brewin submitted that the Union is not suggesting that the evidence in question is "extrinsic" as that term is commonly understood and that the College's submissions on that issue are not pertinent. 8 By way of reply, Ms. Bowlby submitted that evidence regarding the duties of bargaining unit positions is irrelevant to the issue of Ms. Potts' inclusion or exclusion from the bargaining unit because the parties cannot alter or vary the scope of the unit, which is defined by statute. Accordingly, Ms. Bowlby contended that the Board must interpret the term uconfidential" in the context of the Colleges Collective Bargaining Act, 2008 and apply that interpretation to the duties performed by Ms. Potts. Ms. Bowlby further contended that the Union failed to demonstrate or explain the relevance of evidence relating to the history or evolution of the Marketing Manager position and that the only real issue is whether the duties performed by Ms. Potts as of the date of the grievance were such as to warrant her inclusion or exclusion from the bargaining unit. It was contended, as well, that the factors referred to by the Union relate to the merits of the grievance, rather than the evidentiary issue and that none of those factors require the introduction of evidence of the type that the Union seeks to adduce in this case. Ruling As noted at the outset, the grievance in this case alleges that Ms. Potts, who occupies the position of Marketing Manager, has been improperly excluded from the bargaining unit. The issue to be decided at this juncture is whether it is open to the Union to call evidence of certain duties performed by a longstanding bargaining unit member which are alleged to be comparable to the duties performed by Ms. Potts. The Union also seeks to introduce evidence relating to the development and nature of the Marketing Manager position and the context in which it functions. 9 Schedule 1 of the Colleges Collective Bargaining Act, 2008 provides that the full-time support staff bargaining unit includes all persons employed by an employer in positions or classifications in the office, clerical, technical, health care, maintenance, building service, shipping, transportation, cafeteria and nursery staff but does not include persons listed in subparagraph (a) to (t). The College relies on subparagraphs (b) and (d) to support the exclusion of Ms. Potts from the bargaining unit. Subparagraph (b) refers to persons above the rank of foreman or supervisor and subparagraph (d) refers to other persons employed in a managerial or confidential capacity within the meaning of section 5 and the College relies on a number of subparagraphs of that section in support of its position. Given the provisions of the Colleges Collective Bargaining Act, 2008, there appeared to be no dispute that the scope of the support staff bargaining unit is defined by statute. In these circumstances, the parties cannot agree to the inclusion or exclusion of an employee from the bargaining unit which does not accord with the statutory definition. In Waito v. La Cite Collegiale and Ontario Public Service Employees Union [1998] OLRB Rep July/August 636, the applicant complained that the union and the college had breached the Colleges Collective Bargaining Act by treating her as a contract employee rather than a member of the bargaining unit. In upholding the complaint, the Labour Relations Board found that the parties were not .free to determine the scope of the bargaining unit because the unit was prescribed by statute. Accordingly, it was held that the statute and not the agreement of the parties governed 10 the matter of inclusion or exclusion from the bargaining unit. In this regard, the Board commented as follows: Employer counsel argued, as will be set out in more detail below, that the parties were free to treat positions as not in the bargaining unit, and did so out of bona fide operational concerns in the start-up phase of the College. That proposition may be valid in a situation where the parties are free to determine the scope of the bargaining unit between them. However, I am not persuaded that it has any validity where the statute prescribes the bargaining unit. It is trite law that the parties cannot contract out of a statute. The statute, not the parties' consent, gives rights to individual employees to be in the bargaining unit and to be represented by a bargaining agent, as well as to the union to represent those employees. In this case, the Union alleges that Ms. Potts has been improperly excluded from the bargaining unit and the determination of this issue turns on the duties and responsibilities of Ms. Potts, having regard to scope of the support staff bargaining unit described in the Colleges Collective Bargaining Act, 2008. As noted in the Waito decision, the parties are bound by the description set out in the statute and cannot agree to amend or vary the scope of the bargaining unit. Accordingly, it is the statute, rather than the practice of the parties, that governs the issue of Ms. Potts' inclusion or exclusion from the unit and, on this basis, we find that the evidence of duties performed by bargaining unit members cannot assist the Board. Moreover, even if it could be said that the language of the Colleges Collective Bargaining Act, 2008 is ambiguous, in our view, evidence of the parties' practice or the manner in which they have interpreted the statute cannot properly be considered as an aid to interpretation. In the result, the Union's request to call evidence regarding the duties performed by a bargaining unit 11 member, which are alleged to be comparable to certain duties performed by Ms. Potts, is denied. As to the Union's request to call evidence relating to the development of the Marketing Manager position and the context in which it functions, this evidence appears to relate directly to the position in issue. Nevertheless, the Board is not clear on the exact nature of the evidence that the Union intends to call. Accordingly, the Union is directed to provide the College and the Board with an outline of that evidence and following receipt of the outline, the Board will rule on the admissibility of the evidence in the event that there continues to be a dispute about the matter. The Board will remain seized pending final disposition of the grievance. DATED AT TORONTO, this 23rd day of June, 2011. ~lA~L Chair "Ann E. Burke" College Nominee "I dissent in part Sherril Murray" Union Nominee