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HomeMy WebLinkAbout1976-0041.Best.76-11-0241/76 CROWN EMPLOYEES GRIEVANCE SETTLE~~ENT BOARD 416/965/1410 Omen’s Park Taronta, Ontario M?A 125 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEE;e;IkkECTIVE BARGAINING. ACT THE GRIEVANCE SETTLEMENT BOARD Between: Mr. J. Best And The Ministry of Health (Hamilton Psychiatric Hospital) Before: D. M. Beatty Chairman J. W. Henley Member Ms. P. A. Sigurdson Member For the Grievor: (Grievor) (Employer) George Richards-Ontario Public Service Employees Union For the Employer: I Mr. I. Freedman-Counsel, Ministry of Health Hearing: Connaught Hotel, Hamilton, Ontario, September 13, 1976 i < I -2- Mr. J. Best grieves that on certain specified days in April and May 1976 the employer violated Article 25.5.1 of The Collective Agreement by denying his requests for a leave of absence on those days. Article 25.5.1 provides: Upon request by the Union, confirmed in writing, and provided that reasonable notice is given, the Employer shall grant leave with pay and without loss of credits to employees elected as Executive Board members and Executive Officers of the Union, for the purpose of conducting the internal business affairs of the Union. The circumstances giving rise to this grievance are not in dispute. Very simply, and as evidenced in the agreed statement of facts submitted by the parties and in the grievor's own uncontroverted testimony, Mr. Best requested that he be given a leave of absence for certain specified days in April and May 1976 so that he could, as a member of the Union's Executive Board, oversee, monitor and report on the Union's five person bargaining team which was negotiating with the employer of the C.A.A.T. academic division, In that capacity, it was the grievor's evidence that he did not in any way or at any time participate in the actual bargaining sessions and negotiations between the Union and the employer. To the contrary it was his evidence, that his function was restricted to supervising the selection of the negotiating team from the members of the C.A.A.T. academic division, to monitoring and overseeing the activities of the negotiating team as they might affect the Executive Board's and the Union's general policies, to interpreting those policies to the negotiating team, and to reporting on their activities and progress i i -3- ~to the President and other members of the Executive of the Union. So described, the issue that divides the parties and confronts this Board is whether, in performing those duties and functions, Mr. Best was entitled to insist that the employer grant him the leave that is provided in Article 25.5.1. More specifically, the issue on which Mr. Best's grievance falls to be determined is whether those duties and responsibilities described above can properly be characterized as being part of the "internal business affairs of the Union". In plumbing for the proper meaning to be given to that phrase, we must, at the outset, reject the employer's contention that because Mr. Best's duties and functions were carried out with respect to persons who were employed in a different bargaining unit, and by a different employer than his own, and under a different piece of legislation than the Crown Employees Collective Bargaining Act, he was engaged in the 'external' rather than 'internal' affairs of the Union. Very simply, the fact that Mr. Best's activities were 'external' to his own and indeed his employer's situation, is completely irrelevant to the question of whether those activities were part of the Union's internal business affairs. Succinctly, what is determinative, under the language of Article 25.5.1, is whether Mr. Best was conducting business affairs which were internal to the Union and not whether those activities were internal to the employer's or his own situation. That is, and although the rule might well be otherwise if one of the signatories to the agreement which is presently before us were a local Union, where, as here, the bargaining agent is a provincial wide organization, matters of "internal" business must of necessity transcend the perimeters of individual bargaining units, I : i -4- employees and indeed legislative schemes. (For a similar analyses in the American arbitral jurisprudence see Hurd~MiUwork cm-p. 58 L.A. 253 (Hazelwood); Home Furniture Co.50 L.A. 1140 (Porter); Farrell Corp. 43 L.A. 670 (Fallon)). Rather than differentiating matters which are internal to this bargaining relationship, we believe that the phrase "internal business affairs of the Union" is susceptible of a more reasonable and coaunonly held interpretation. Specifically, it is our view that in employing the phrase "internal business affairs of the Union" the parties sought to distinguish those activities and functions which relate primarily to the relationship between the Union , its members and the constituent units in its organization from those activities which relate primarily to the relationship between the Union (and its members) on the one hand and the employer on the other. Put somewhat differently, we are of the view that in employing the phrase."the internal business affairs of a Union" the parties were referring to the Union's "domestic" affairs., So characterized, and without attempting to be exhaustive, such domestic, matters would at the very least, comprise the union's financial structure, including its dues, fees, budgets, and expenditures etc; its membership base, including its admission criteria, suspension and expulsion policies and procedures etc; and its organizational and operational framework, including the election and removal of officers, its relationship with its own staff and the rights and responsibilities of the variious constituent divisions and units whi.ch make up its organization. In short -5- the "internal" affairs of a Union are commonly understood to embrace: Those activities which involve the relationship of the union to its members and the local union to its international organization. The relationships are generally set forth in the constitution and bylaws which deal with the procedures for elections, holding meetings, appantments of committees, and appeal procedures in case of claims of discrimination. Roberts Dictionary of Industrial Relations H. S. Roberts, B.N.A. 1966. Against that general description of the "internal business affairs" of a union, which broadly have been perceived by the Courts and Labour Boards as differentiating domestic affairs from collective bargaining iSSUeS, (See for example Bimson V. Johnston 10 D.L.R. .?d ll(Ont. H.C.); Roberts V. Operative Plasterers . . . (1974) O.L.R.B. rep. 169)< we believe that when members of the Union's Executive Board; pursuant to their constitutional mandate, are engaged in the monitoring of a bargaining team of one of its constituent units in order to ensure that the Union's general policies and interests are not undermined or subverted, those members are engaged in conducting the "internal" business affairs of the Union. Very simply, in performing the functions described by Mr. Best, the member of the Executive Board would be concerned not with the relationship between the Union and some employer but rather in the domestic supervision and co-ordination of internal union policies and interests. Conversely, and by way of contrast, had Mr. Best been participating on or leading the Union's bargaining team in the C.A.A.T. negotiations, it could not be said he would have been engaged in the internal business affairs of the Union. To the contrary, in the context -6- of bilateral bargaining between the Union and an employer the efforts and duties of the negotiator are not related to and do not affect the relationship of the Union to its members or to one of its constituent units. However, on his own uncontroverted testimony, Mr. Best's activities were not in any way associated with the bilateral negotiations between the Union's bargaining team and the C.A.A.T. To the contrary, as described at the outset, his activities were confined, exclusively, to advising and monitoring the Union's bargaining team to ensure that the Union's and Executive Board's interests and policies were safeguarded. As noted above we believe such duties and responsibilities do concern the domestic affaiirs of this Union and are therefore properly regarded .as being part of its internal business affairs. Having determined that the activities and functions performed by Mr. Best with respect to the Union's C.A.A.T. (academic) negotiating team were directed at and subsumed under the "internal business affairs of the Union", it necessarily follows, from the mandatory language of Article 25.5.1, that the employer was obliged to grant him leave with pay. From the plain language of that article, once it is established that the member of the Executive Board was conducting the "internal business affairs of the Union".it is simply of no consequence that the employer may question the need for or practicability of the activities performed by that member. To the contrary, how the Union determines to supervise and control its members and bargaining teams is a matter within its complete discretion and wholly irrelevant to the provisions in Article 25. Rather, it is only where the employer -7- challenges, as it may, whether the duties performed by the Executive Board member are related to the Union's "internal business affairs", or where pursuant to Article 25.7 it is established that granting leave would unduly interfere with its operating requirements, that a request for leave.may properly be denied. In the instant case, having satisfied ourselves that Mr. Best was in fact conducting the internal affairs of the Union and there being no suggestion that such leave unduly interfered with his employer's operating requirements, it must follow that he was entitled to the leave prescribed in article 25.5.1 In the result Mr. Best's grievance must succeed. Accordingly we would order, as Mr. Best requested in his grievance,that his vacation credits, which were used by him to cover his absences during,the period he was conducting the internal business affairs of the Union,be restored to him. As well, it follows from this resolution of the grievance that the Union must reimburse the Province for the salary paid to Mr. Best for the duration of the leave that he will now receive as a result of this award. In the unlikely event that the parties are unable to implement the terms of this award, we will remain seised of that issue for thirty days following upon the release of this award. Dated at Toronto this 2nd day of November, 1976. 4-.J -my 4-z D. M. Beatty Chairman I dissent - to follow J. W. Henley I concur P. A. Sigurdson