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HomeMy WebLinkAbout1976-0100.Zuibrycki.78-09-06 Decision180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G 128 -SUITE 2100 Between : before : IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLGYEES COLLECTIVE BARGAINING ACT Before TiiE grievance settlement BOARD 4nd the Ministry of industry and Tourism Professor K. P. Swan Vice-Chairman Mary Gibb Mernbe r Harry Simon Member 100/76 TELEPHONE: 416/598- 0688 For the Grievor: Mr. George Richards, Representative Ontario Public Service Empioyees Union 1901 Yonge Street Toronto, Ontario For the Employer: Mr. W. E. Rooke Director, Personnel Branch Mirlistry of Indust~y and Tourism Toronto, Ontario Hearing: July 6th, 1978 Suice 2iCG 180 Dundas St. W. Toronto, Ontario ? -2- The grievor here complains that he was improperly denied promotion on four occasions, and has referred those "complaints" (the word is used to avoid any prejudgement of an issue discussed below) to the Board for resolution. initial position that the Board has no jurisdiction to hear this matter, and has asked for a preliminary determination as to arbi trabi 1 i ty before proceeding to the merits. circumstances of the case, the Union also agreed to a separate preliminary determination of the jurisdictional issue. The Board, as presently constituted, thus has heard only the arguments as to arbi trabi 1 i ty. The Employer has taken the In the particular The Employer's position, with which the Union takes issue, is that the grievor is not entitled to have his grievance heard since, at the material times, he was not an "employee" within the meaning of the Crown Employees Collective Bargaining Act, and was therefore not a part of the bargaining unit covered by the collective agreement which he proposes to invoke. A brief historical review is necessary to understand the context in which this case must be decided. Bargaining Act was first passed, in 1972, it provided (as indeed it still does), in section 3 and section 51, for the designation by regulation of appropriate bargaining units, as follows: When the Crown Employees Collective 3. -- (1) Upon an application for representation rights, the Tribunal shall, subject to subsection 2, determine the unit of employees that is ap- propriate for collective bargaining purposes under this Act. -3- (2) The bargaining units designated in the regulations are appropriate units for collective bargaining purposes under this Act. 51. The Lieutenant Governor in Council may make regulations. (d) designating, (i) units of employees that are appropriate bargaining units for collective bar- gaining purposes under this Act, and (ii) designating the employee organization that shall have representation rights in relation to each of such bargaining units , upon the day this Act comes into force; It will be seen that, apart from the initial jurisdiction of the Lieutenant Governor in Council to establish bargaining units "upon the day this Act comes into force", the primary authority to determine the scope of bargaining units is given to the Public Service Labour Relations Tribunal "upon an application for representation rights". In addition, the Act provides for the exclusion of certain persons entirely from its operation, by a restrictive definition of the word "employee" in section 1(1)(g). That section, to the extent here at issue, provides: (g) "employee" means a Crown employee as defined in The Public Service Act but does not include, (iii) a person employed in a managerial or confidential capacity. The definition of the operative words here is found in s. 1(1) in -4- (m) "person employed in a managerial or confidential capacity" means a person who, (i) is employed in a position confidential to the Lieutenant Governor, d Minister of the Crown, a judge of a provincial court, the deputy head of a ministry of the Government of Ontario or the chief executive officer of any agency of the Crown. (ii) is involved in the formulation of organization objectives and policy in relation to the development and administration of programs of the Government or an agency of the Crown or in the formulation of budgets of the Government or an agency of the Crown, (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, (v) adjudicates or determines claims for compensation which are made pursuant to the provisions of any statute. (vi) is employed in a position confidential to any person described in subclause i, ii, iii, iv or v, (vii) is employed in a confidential capacity in matters relating to employee relations including a person employed in a clerical, stenographic or secretarial 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; The authority to determine employee status, and thus coverage under the Crown Employees Collective Bargaining Act, is vested in the Public Service Labour Relations Tribunal by s. 38: -5- 38.--(1) 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, the question may be referred to the Tribunal and its decision thereon is final and binding for all purposes. To apply this statutory structure to the grievor, we return to At the time of the coming into force of the Act, the grievor's clas- 1972. sification, Financial Officer 3, was excluded from the main Public Service bargaining unit by 0. Reg. 577/72, s. 11, which provides: 11. All public servants other than, (a) the persons who are not employees within the meaning of clause g of subsection 1 of section 1 of the Act: and (b) the persons in the classifications or positions set out in column 2 of Schedule 2, are designated as a unit of employees that is an appropriate bargaining unit for collective bargaining purposes under the Act, and the Civil Service Association of Ontario (Inc.) is designated as the employee organization that shall have representation rights in relation to such bargaining unit, upon the day the Act comes into force. An examination of column 2 of Schedule 2 to O.Reg. 577/72 will reveal that Financial Officer 3 is an excluded position. There is thus no real dispute that, upon the day the Crown Employees Collective Bargaining Act came into force, the grievor was not a member of the bargaining unit. The specific collective agreement under which the grievor wished to pursue his Complaints is the Working Conditions Agreement, in effect from January 28, 1976 to January 27, 1977. The recognition clause of that agreement is Article 1: -6- ... 1.1 In accordance with the provisions of Section 11 of the Regulations under The Crown Employees Collective Bargaining Act , Ontario Public Service Employees Union is recognized as the exclusive collective bargaining agent for all public servants other than persons who are not employees within the meaning of Clause g of subsection 1 of section 1 of The Crown Employees Collective Bargaining Act, all as more particularly set out in Schedule 1 attached hereto. The grievor filed complaints, which the Union alleges were also grievances under the Collective Agreement, in September and October 1976 about four promotional opportunities which he had been denied. the Employer took the position that, by virtue of 0. Reg. 577/72, the grievor was not a member of the bargaining unit and was thus not covered by the Collective Agreement (see Exhibits 3 and 4). In reply, In due course, the Union decided to submit the matter to the Tribunal pursuant to s.38 for a determination of the grievor's status. terms (see Exhibit 9) : The submission was in the following This is to advise that the above-named parties are in dispute with respect to the employment status of Mr. N. Zuibrycki. It is the Union's position that Mr. Zuibrycki is not excluded from employee status by the definitions contained in Section l(1) (g) of The Crown Employees' Collective Bargaining Act, and for this reason also comes within the scope of The Working Conditions Collective Agreement. In accordance with the provisions of Section 1.2 of that Agreemnt, we hereby request a hearing so that our dispute regarding the application of this Agreement to this employee may be finally determined. It appears that at the hearing the Employer, having heard the Union's evidence, decided not to contest the Union's case further, and an -7- agreement was reached during the proceedings. issued its decision in the form of a consent judgment, cited as Re Ontario Public Service Employees Union and the Crown in Right of Ontario, T 14/76, April 18, 1977. The text of the decision is as follows: Consequently, the Tribunal DECISION OF THE TRIBUNAL This is an application under Section 38 of The Crown Employees Collective Bargaining Act, 1972 for the purpose of determining whether Mr. N. Zuibrycki, Financial Officer 3, with the Ontario Development Corporation, is an employee within the meaning of the Act. During the course of the proceedings the parties reached an agreement that Mr. Zuibrycki was an employee within the meaning of the Act. Accordingly the Tribunal notes the agreement of the parties and the proceedings herein are terminated. Dated at Toronto this 18th day of April, 1977. At the time of this decision, a new Working Cond Agreement was in the final stages of negotiation, and that tions Collective Agreement was implemented on June 30, 1977. nition clause in that Agreement, also Article 1, is reproduced: For the purposes of comparison, the recog- ARTICLE 1 - RECOGNITION 1.1 In accordance with The Crown Employees collective Bargaining Act, the Ontario Public Service Employees Union is recognized as the exclusive collective bargaining agent for all public servants other than persons who are not employees within the meaning of clause g of subsection 1 of Section 1 of The Crown Employees Collective Bargaining Act. Based on this statutory, regulatory and contractual framework, the Employer's argument is really quite simple: since the Tribunal care part unit s.38 -8- issued its "consent judgment" on April 18, 1977 based on an agreement reached between the parties at the hearing on November 19, 1976, the grievor ''became an employee" on that date and from that date, and not before, was a member of the bargaining unit. he could not have been an employee or a member of the bargaining unit on the prior dates on which the events occurred from which the present complaints arise. Thus, the Employer asserts, With respect, we are unable to accept this argument. First, a ul tracing of the events described above reveals that it was the es, and not the Tribunal, who placed the grievor into the bargaining Second, an assertion that a determination by the Tribunal under can create "employees" out of non-employees is a misconception of how the law works. We begin with an analysis of the historical development which we have outlined above. power confided to the Lieutenant Governor in Council by s.51(d) of the - Act is to designate "appropriate bargaining units'' and employee organizations with representation rights in respect of them "upon the day this Act comes into force". It will be clear from the phrasing of section 51(d) that the limitation to the single date of the Act's im- plementation is distributive over both of the regulatory powers given to the Lieutenant Governor in Council. Thus that authority was spent as of the effective date of the Act, and no further regulatory power remains to be exercised. Moreover, a study of O.Reg. 577/72, s.11 indicates that the Lieutenant Governor in Council remained strictly within the delegated As we have observed, the specific regulatory -9- authority conferred, since that provision is also expressed to apply only "upon the day the Act comes into force". By reason of the restrictions on applications for representation rights set out in section 2 of the Act, the effect of the designations by the Lieutenant Governor in Council has, however, persisted long past the effective date of the Act. bargaining representative of the bargaining unit. The question then arises The Union remains, of course, the unchallenged whether any al teration can be, or has been made to the scope of that bargaining unit. to determine the scope of a bargaining unit is vested by s.3 of the Act in the Tribunal "upon an application for arbitration rights.' By statutory interpretation which we respectfully adopt, however, there has been a long-standing doctrine in labour relations law which permits the parties to a collective agreement to expand or contract within certain limits, by amendments in a recognition clause, the bargaining unit determined as appropriate in the process for determination of representation rights. As noted above, the only express statutory authority A number of decisions, both of arbitrators and of labour relations boards, have expressed this doctrine: see, e.g. Re C.U.P.E. Local 1000 and Hydro-Electric Power Commission of Ontario (1971) 23 L.A.C. 111 ( Weatherill) Re Sault Ste. Marie Board of Education and C.U.P.E. Local 216 (1974) 5 L.A.C. (2d) 179 (Shime); Fonthill Lumber Ltd. (1964) 64 C.L.L.C. para 16, 305 (O.L.R.B.) ; Canadian Car Fort William Division Hawker Siddeley Canada - Ltd.{1965} O.L.R.B. Rep. 760; Gilbarco Canada Ltd. (1971) O.L.R.B. Rep. 155; Ajax and Pickering General Hospital (1972) O.L.R.B. Rep. 477. Moreover, the doctrine appears to have been approved, in somewhat more extreme - 10 - circumstances even than the present, by the superior Courts of Ontario: see Canadian Industries Ltd. v. International Union of District 50, Allied and Technical Workers of the United States and Canada, Local No. 13328 €19721 C.L.L.C. para 14, 124 (0nt. H.C.J.) (rev'd on other grounds) 1972 30.R.63; 27 D.L.R. (3d) 387; Re Millen et al. and Algoma Steelworkers Credit Union Ltd. et al. (1974) 6 O.R. (2d) 676 (Ont. Div. Ct.). These cases indicate the parties may alter and expand any bargaining unit determined by the arbitration process, and that they will be bound by the result, although there is doubt whether such agreement will bind the Labour Relations Board as to the appropriateness of the contractual unit in subsequent representation hearings: see Kelsey - Hayes Ltd. (1968) O.L.R.B. Rep. 1058. expressing the unanimous view of the Court in the Algoma Steelworkers The language used by Haulden J., in Credit union case, supra is particularly interesting (at p. 679): There is nothing in the Labour Relations Act which provides that a voluntary collective agreement which covers persons other than employees as defined in the Labour Relations Act is invalid: Canadian Industries Ltd. v. Int'l Union of District 50, Allied & Technical Workers of United States and Canada, Local No. 13328, 72 C.L.L.C. 14,612; reversed on other grounds €19721 3 O.R. 63, 27 D.L.R. (3d) 387. Furthermore, s.1(3) (b) of the Labour Relations Act does not say that no person shall be deemed to be an employee under a collective agreement who exercises managerial functions or is employed in a confidential capacity; rather, it provides that no person shall be deemed to be an employee for the purposes of the Act who in the opinion of the Board (i.e., the Ontario Labour Relations Board) exercises managerial functions or is employed in a con- fidential capacity. What decision the Ontario Labour Relations Board might, or might not, have arrived at concerning the position of assistant manager is an un- known factor and is irrelevant in interpreting art. 2.01 of the agreement. In my opinion, it was quite improper - 11 - for the board of arbitration in the application before it to have entered into a consideration of that question; this was a matter within the exclusive jurisdiction of the Ontario Labour Relations Board. The question for the ar- bitration board was whether or not the assis- tant manager was covered by the collective agreement; this was properly a matter for arbitration and was quite separate from the question that might arise before the Ontario Labour Relations Board under s.l(3) (b) of the Labour Relations Act: Re C.U.P.E., Local 1000, and Hydro-Electric Power Com'n of Ontario 1971 23 L.A.C. 111; Office Employees Int'l Union Local #81 (Applicant) v. Canadian Car Fort William Division Hawker Siddeley Canada Ltd. (Respondent) (Labour Relations Board File No. 10386-65-M) . This statement draws a clear distinction between status under legislation and status under an agreement; we shall return to this discussion later. Two questions thus arise in relation to the facts before us. Does the doctrine of contractual units apply to parties engaged in coll ecti ve bargaining under the Crown Employees Collective Bargaining - Act? If so, have the parties in the present case made an agreed alteration to the bargaining unit which would include the present grievor? As to the first question, we are satisfied that the doctrine does apply, and that the parties can alter the bargaining unit as they see fit. We do not need to decide here whether the parties could alter a unit determined by the Tribunal under authority of s.3, and we expressly refrain from so deciding. But we note that the cases under the Ontario Labour Relations Act, which we have cited above, do deal with such an alteration by agreement to a determination of an appropriateness unit by a tribunal having - 12 - the exclusive jurisdiction to strong, we think, since what authority exercised by regul so determine. The present case is not as s being altered is a delegated legislative tion which is limited both by the authorizing statute and by the terms of the Regulation itself to a single initial description of the bargaining unit. since the statute provides jurisdiction to the Tribunal to fix an It is unreasonable to suppose that, appropriate bargaining unit only "upon an application for representation rights" and since the Lieutenant Governor in Council's authority is now spent, the legislative intention was to freeze the bargaining unit forever. Moreover, the functions of legislative structures for collective bargaining are surely permissive and expeditive, and not stultifying. The reality of collective bargaining is that classification systems, work assignment and job descriptions will constantly change, and that bargaining units must adapt to these changes or become useless. Who can better effect the necessary changes than the parties themselves? Moreover, we paraphrase the words of Houlden j. quoted above in observing that nothing in the Crown Employees Collective Bargaining Act prohibits the parties from taking such reasonable and mutually satisfactory steps in this regard as are necessary to shape their bargaining unit to fit changing ci rcumstances . We are also not called upon to decide, nor do we do so, whether a person who is not an "employee" under the Crown Employees Collective Bargaining Act may be included in a bargaining unit by agreement. Once again, however, both the Canadian Industries case and the Algoma Steelworkers Credit union case do treat with this issue, and thus go - 13 - farther than we are required to go to create a doctrine of free amendment of the scope of bargaining units by the parties. Having thus determined that the parties may amend the bargaining unit to include people like the grievor, we turn to the actual words used by the parties in the collective agreement applicable at the relevant time. The recognition clause Article 1.1 describes a unit of "all public servants other than persons who are not employees within the meaning of Clause g of subsection 1 of section 1 of the Crown Employees Collective Bargaining Act". grievor, who is a public servant and who has been expressly found by the Tribunal not to be excluded by s.l(l)(g), would be included in that description. Looking at those words above, we are satisfied that the Two other clauses require discussion, however. Article 1.1 begins "In accordance with the provisions of Section 11 of the Regulations under The Crown Employees Collective Bargaining Act", and the Employer argues that such an expression precludes any unit except the one described in O.Reg. 577/72, s. 11. With respect, we do not agree. It is a difficult case to make that such a clause incorporates by reference s.11, but even if that case is made, there is no need to interpret the incorporated provision as altering the express words used in the definition. The provisions of s.11 are deliberately stated to apply upon the date the Act came into force, and so a reference to the state of affairs at that time need not be an implicit restriction of the express words now used. We note that the new collective agreement uses the formula "In accordance with The Crown Employees Collective Bargaining Act", yet there has been no suggestion that this was expected to wreak a dramatic change. In - 14 - effect, these statements are the usual verbiage added to an otherwise complete definition, and do not constitute impl ici t amendments to express statements unless such an intention is made much clearer. The other reference to be discussed is "all as more particularly set out in Schedule 1 attached hereto". been attached, and so the definition must be construed without the promised particularity to assist us. It appears that no such schedule has even Finally, then, we come to the issue of the effective date of the grievor's membership in the bargaining unit. The Tribunal made its determination that he was an employee on April 18, 1977. We make our determination that he is a person included in the bargaining unit on the date of this award. determinations (and probably the second as well) has force only from the date on which it is made. the grievor employee status only from the date of the Tribunal decision and bargaining unit membership only from the date of our award. With respect, this over-estimates the respective jurisdictions of the Tribunal and this Board. it can only apply the statutory definition already imposed by the legislature and determine whether an individual fits within that definition. Similarly, we cannot expand the agreed bargaining unit to include any employee; we can only construe the collective agreement to see whether the parties have already done so. is merely declaratory of a pre-existing status, created by the statute or by the collective agreement. The Employer's argument is that the first of these Followed strictly, this approach would give The Tribunal cannot create employees out of mere citizens; In both cases, therefore, the decision of either body In short, the regime we describe is one - 15 - of rule of law, and not of tribunals, a distinction of importance that far transcends the issues at stake here, however critical they may be to the present parties. It follows that the grievor's employee status dates from the implementation of the Act, and his bargaining unit membership from the effective date of the first Working Conditions Collective Agreement, January 28, 1976. Both of these pre-date the grievor's complaints, and so those complaints are properly grievances under the collective agreement and thus arbitrable before the Grievance Settlement Board. The grievor is thus entitled to have his grievances heard on the merits, and that hearing will take place at a time to be notified by the Registrar. At the commencement of the hearing in this matter, Mrs. Gibb brought to the attention of other membe s of the Board and the parties the fact that her late husband had been emp oyed in a management capacity by the Ontario Development Corporation, wherein these grievances arose. Although the parties and the Board were agreed that there was no real or apprehended bias to be found in these circumstances, we were also all agreed that the grievor might be inhibited in his presentation of his grievances before the Board as presently constituted. parties put the preliminary issue only before this panel of the Board, and it was agreed that we would not be seized of the merits of the grievances. As a result, the Consequently, the grievances will be heard on their merits - 16 before another panel of the Board, and the Registrar will make arrangements accordingly. Dated at Toronto, Ontario, this 6th day of September, 1978. K. P. Swan, Vice-chairman I concur Mary Gibb, Member I concur Harry Simon, Member