HomeMy WebLinkAbout1976-0114.Nabi.77-04-25---
CROWN EMPLOYEES
GRIEVANCE SETTLEMENT
BOAR0
i$16 964-6426
114/76
suite 405
77 Bloor Street West
TORONTO, Ontario
MSS It42
Between: Mr. Richard Nabi
Before:
And
Ministry of Community & Social Services
IN THE MATTER OF AN ARBITRATION
Under The
CkOWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
:.
D. M. Beatty Chairman
A. Fortier Member
S. R. Hennessy Member
For the Grievor:
Mr. Richard Nabi
Ministry of Community & Social Services
For the Employer:
Mr. R. Rae, Employee Relations Officer
Ministry of Connaunity & Social Services
Hearing:
April ,19, 1977
Suite 405, 77 Bloor Street West
Toronto, Ontario
In the grievance he has filed with this Board Mr. R.
Nabi complains that:
. . . the employer has Violated ArticZe 25.4.3
of the CoZlective Agreement on Working
Conditions by refusing to grant me leave
of absence to represent an employee at
Step 1 of her grievance.
and requests that:
. . . the employer reimburse me for ace
days ’ Vacation Credit.
The circumstances giving rise to Mr. Nabi's grievance
are not a matter of dispute between the parties. Very
simply and as evidenced in their agreed statement of fact,
~on,or about September 8, 1975 Mr. Nabi requested that he
be allowed to take two hours off work on September 17, 1976
so that he could represent Mrs. A.: Krsnik, at a Stage I
grievance meeting with respect to a grievance which the
latter had filed with her employer. In making this request,
it was agreed that Mr. Nabi was responding soley to an
authorization which Mrs. Krsnik had made out appointing
him as her "employee representative" and not as a result
of any position or office he held in the union. Rather and
as Mr. Nabi conceded, with respect to the activities of
Local 211, of which both he and Mrs. Krsnik were members,
his status was no different, except for her authorization,
from any other member of that Local. However, it is his claim,
that the authorization of Mrs. Krsnik together with the
union's condonation of that authorization entitled him to a
leave of absence for the two hour period that he represented
her in the Stage I grievance meeting on September 17
pursuant to the terms of Article 25.4.3.
3. 1
In light of various representations made to this
Board at.the hearing, the issue between the parties may be
further circumscribed. Thus and although at earlier stages
in the processing of this grievance various representatives
of the employer may have asserted otherwise, it was, at the
hearing at least, made clear to us that nothing turns on the
fact that Mr. Nabi was employed in a different Ministry than
Mrs. Krsnik. That is to say, Mr. Rae, for the employer,
conceded that had Mr. Nabi otherwise satisfied the
particulars of Article 25.4.3, the fact he was employed in a
different Ministry from the person seeking his services, would
have been irrelevant to his rights under that provision.
Put succinctly, Mr. Rae conceded that Article 25.4.3 was in
fact compatible with "cross" or "inter" Ministry representation.
In the result, and against those representations,
the sole issue between the parties was the narrow,and particular
one of determining whether Mr. Nabi could be said to be one
of "the local employee representatives who {was> authorized
to represent <Mrs. Krsnik)", and who was accordingly entitled
to the leave provisions set out in Article 25.4.3. That
section, is part of a more general provision pertaining to
leave for union activities,,which we shall set out in its
entirety.
ARTICLE 25 - LEAVE‘- UNION ACTIVITIES
2J.l Upon at Zeast fourteen 1141 days written
notice by the Union, the Employer till,
&rant leave of absence for not more than four
(4) consecutive okays for'each employee
delegate for the purpose of attending the Annual
GeneraZ Meeting, without pay or loss of credits.
4..
25.2 The EmpZoyer shall grant leave of absence
Without 2060 of pay or credits to members
of the Union who participate in negotiation, mediation
or arbitration, provided that not more than
five (51 employees at my one (1) time shal2
be permitted such leave for any one set of negotiations.
Provided however, the &ion may at its discretion
require up to five 151 additiona members to
participate in negotiation, mediation or arbitration
who shall be granted leave of absence but without
pay or loss of credits.
25.3. At the writtenrequest off the Union
of at least fourteen (14) days, the
EhrpLoyer &a21 grant leaves of absence tithout pay
or loss of credits to empZoyees for the purpose of
setting demands for negotiations. It is understood
that such meetings will be held on Saturdays or Sundays
and that the total time granted for each instance
shall not exceed two (2) consecutive days for each
employee.
25.4.1 An employee who is a grievor or complainant
and who makes application for a hearing
before the Grievance Settlement Board or the PubZic
Service Labour Relations Tribunal shall be aZlowed Zeave of absence without loss of pay or credits, if
required to be in attendance by the Board or !l!ribund.
25.4.2 An employee who has a grievance and is
required to attend meetings arranged at Steps
1 and 2 of the Grievance Procedure shal2 be given
time off without loss of pay or credits to attend
such meetings.
25.4.3 This section &a21 a2so apply to the 2oca2
empZoyee representatives who are authorized
to represent the grievor.
25.5.1 Upon request by the Union, confirmed in titing,
and provided that reasonable notice is given,
the Employer sha21 grant leave with pay and without
loss of credits to employees e2ected as Executive
Board members and Executive Officers of the Union, for
the purpose of conducting the internal business .~
affairs of the Union. :
25.5.2 The Union w-i12 advise the Directors of
Personnel of the affected Ministries, with copies to the Director, Staff ReZations Branch,
of the Games and Zocations of such employees,
imnediately following their election.
5.
25.5.3 The Employer will arrange to grant leave
with pay to acconunodate reasonab2e travel
time.
25.5.4 The Union will reimburse the Province for
the salary paid to members of the Executive
Board and the Executive Officers granted leave under
this Article.
25.6.1 when an employee is e2ected as the Union's
President or First Vice-President, the
Genera2 Manager wi21, inmediate2y following such
election, advise the Employer of the name and
Ministry of the employee so elected. The Employer
will arrange to grant a leave of absence with pay,
from his/her place of employement for the duration
of the current term of office.
25.6.2 During the ten of such leave of absence, the Union m-i12 reimburse the EmpZoyer for
the salary paid to the employee on such Zeave of
absence and contribute the Employer’s share of
contributions to the PubZic Service Superannuation
Fund and the Canada Pension P2an. The Union will
make the EmpZoyer’s contribution to any prevailing
Health or other plan applicable tothe elected
employee and pay the costs of attendance credits
accumulated during the leave of absence. The
Union wil2 make the Emp2oyer:‘s contribution for
Unemptoyment Insurance.
25.6.3 Gn comp2etion of his/her term of office,
the President or First Vice-President
may return to his/her previous employment and
service shalZ.be deemed to be continuous for a21
purposes. Any leave of absence extending beyond :
the initia2 term of office of the President or
First Vice-President shall be a matter to be
determined between the parties and any such additiona2
leave .&a22 be subject to the same conditions and
terms as prevailed in the initial leave of absence.
25.7 Al2 requests for leave of absence permitted
in these sections shalt be sent to the
-Directors of Personnel of the affected Ministries
with copies to the Director, Staff Relations Branch.
It is understood that the Employer may withhold leaves
requested by the Union if such leaves unduly interfere
with the operating requirements of the Employer.
25.6 The Union shall advise the Directors of
Personne2 of the affected Ministries with
copies to the Director, Staff Relations Branch, of _
the Union Stewards together with the areas ‘they
are authorized to represent, which list shal2 be
updated every two (2) months.
So described the issue between the parties falls
to be determined on our placing an interpretation on the
words of Article 25.4.3 that 1:ts language will reasonably
bear. In turn and against the representations of the parties,
this particular grievance falls to be determined on whether
the local employee.representative described in that
provision must be someone who is "authorized" by the grievor
or by the union on.an ad hoc,.informal'basis or whether it is
a person who has been so designated to act pursuant to
Article 28.5. In this regard two opposing interpretations
were advanced by the parties for our consideration. On the
one hand, it was the position of the union that an "authorized"
local employee representative must refer to anyone who, as
Mr. Nabi was, is selected to act in that capacity by a grievor
and who the union allows to act in that capacity. Conversely,
and on the other hand it was the employer's contention that
such a local employee representative must refer to one of
those persons described-in Article 25.8 who has been
-.
"authorized", in advance, pursuant to its terms.
Aftercareful consideration of this matter we are
entirely satisfied that the interpretation of Article 25.4.3
advanced by the Ministry is the only one the language can
reasonably bear. Put at its simplest, we are of the conviction
that properly read, Article 25.4.3 must be seen within the
context of Article 25 in its entirety and specifically in
6.
light of Article 25.8. Looking at the matter from a slightly
different perspective it is our opinion that Article 25.8 can
only be given effect to and have any meaning when it is taken
7.
together and read in conjunction with Article 25.4.3. That
is to say and when read against all of the other provisions
in Article 25, it is plain, to this Board at least, that
Article 25.8 could not apply or have reference to any of
the other sections in that Article. For example Article 25.1
provides for a leave of absence for delegates elected to the union's
Annual General Meeting. Clearly Article 25.8 providing for
the sending of a list of union stewards who are authorized
to represent the union's members in each area could have
no application to that provision. .Similarly and with
respect to each succeeding Section in Article 25, including:
Article 25.2 which makes provision for leaves.of absence
for members who participate in contract negotiations;
Article 25.3 pertaining to leaves of absence for employees who
help formulate the union's negotiating demands; Article 25.5
dealing with leaves of absence for those persons on the
Executive Board and in Executive positions in the Union
when they are conducting the internal business affairs of
the Union; and Article 25.6 which describes a similar benefit
for those holding the~union's senior elected positions, it can
be said that none of them have any relevance to or can take
any meaning from the terms set out in Article 25.8. Those
terms, as we have already noted.are wholly unrelated both in
la~nguage and purpose to anything that is described in any of
those sections of Article 25. In short and but for the provisions
set out in Article 25.4 and in particular 25.4.3, Article
25.8 would be wholly~divorced from and quite inconsistent with
all of the other terms of that Article. There would in short,
8.
and except for the explanation advanced by the employer, be
no logical or rational basis for its existence in that Article.
Putting the matter positively, therefore, in our opinion it may
7egitimately be said that Article 25.4.3 gives meaning to and
indeed breathes life into the terms set out in Article 25.8.
.,.
As well, to underscore.the necessary connection
that lies between those two sections of Article 25, we
would note the parties have, inboth of them, employed
the common phrase "authorized to represent". No where
else, on our reading of this agreement is there any
mention of persons who are "authorized to represent" others.
Neither in Article 30.5 or 36~1, both of which refer to
the employee orunion representative is any reference made
to such an authorization. In the result and even on the literal
language of these two sections, the dependency of and
relationship between these two sections should be obvious.
In advancing this concl'usion, necessarily we haves.
rejected the union's suggestion that Article 25.8 is in
fact specifically,designed tom give effect to and is intimately
connected with Article 36.1. That article provides:
The Emptoyer shall continue its
practice of infoming a new2y hired
employee whether his position is within the
bargaining unit, the me and address of the
bargaining agent and if knom, the me and
Zocation of the 2ocal Union representative.
.Iti the first place and as we suggested above, such a \
conclusion would deny any logical coherence in or competent
drafting of this agreement. It would assume the parties or
the arbitrator was so oblivious to'the relationship between
Article 25.8 and the rest of the agreement that they would
randomly include it in Article 25. That is and for no
apparent reason that we would conceive of, such a conclusion
would assume that the parties intended to conjoin a clause
by which the union undertook to advise the employer of its
authorized representative, w~ith a comprehensive article providing
for leaves of absence for union activity. We are simply
not prepared, in the absence of very clear language, to
adopt such a conclusion. Moreover and while we share the
union's contention that the list of authorized representatives
compiled pursuant to Article 25.5, is the source, from which the
employer can discharge its obligations under Article 36.1,
we do not think it follows that the purpose of such a list
i~sso limited in its scope. To~the contrary and as we noted
above if the list were so intended, one would have expected the
obligation described in Article 25.8 to have formed part of
Article 36 itself. Rather, in our view, and in addition
,to serving the ends described in Article 36, the lists that
are compiled pursuant to Article 25.8 are designed to permit
the employer to make such contingencies in its staffing
and personnel arrangements as it sees fit.
The soundness of this latter conclusion can be tested
from one final perspective. In assessing the consequences
that would flow from adopting either interpretation we would
note that if the union's position were to prevail the employer
would not, with any reasonable accuracy, be able to forecast
10.
which persons might, because of their selection and
"authorization", be required to absent themselves from
work from time to time to attend to the grievances of their
members. That is to say, on the union's interpretation
of Article 25, anyone in this bargaining unit who was
employed in the local vicinity, who was selected by the
grievor and who was unopposed by the union could be authorized'
to represent the grievor and claim the benefit of Article 25.4.3.
In such a~ situation it is clear that the employer would be
precluded from ever knowing in advance who might be called
upon from time to time to act in such matters and could not
therefore make whatever arrangements that were required to
anticipate such an event. And yet, manifestly that is one of
the motivating rationales underlying each of the provisions
of Article 25. That is to say and while Article 25 is,
plainly, designed to assist the union in the performance
of its functions and the discharge of its duties by
providing periods of paid leave for such diverse activities
as attending at annual meetings, negotiating collective
agreements and conducting the internal affairs of the union, it
is also correlatively intended to provide the employer with
reasonable notice of those persons who are to engage in
such activities so that it can arrange its affairs accordingly.
Thus and in a manner that is closely paralleled in the other
sections of Article 25, we view section 25.8 as the means
by which the union will identify those persons who are authorized
to represent persons in the grievance procedure meetings
described in Article 25.4.2. So described, the employer
Il.
.would be, as he is in each of the other leave situations
contemplated in Article 25, apprised in advance of
those persons who might be obliged to exercise their rights
under Article 25.4.3 from time to time. In short by
recognizing the application of Article 25.8 to the
circumstances contemplated by Article 25.4.3 one is able to
give effect to a clear and persistent theme that is integral
to the operation of Article 25. Put somewhat differently,
to hold that Article 25.8 was limited in its purpose to
the circumstances described in Article 36 would be to create a
hiatus in the uniform scheme described in Article 25 in
.-which correlative to their right to seek leaves of absence
for certain persons in the specific instances described
therein, the union has undertaken to apprise the employer,
in advance,of the persons who are the intended beneficiaries
of those provisions.
Finally, we would note, what necessarily must follow
from the interpretation we have placed on Article 25, that we
have not made any reference to the definition of an l'employee
representative'that is found in s.46 of the Regulations
(O/Reg. 749) promulgated under the Public Service Act. In
our view the meaning of that phrase, as it is used in the.
collective agreement is clear and admits of no ambiguity.
Moreover and more critically, by its express terms, the
definition that'is set out in those Regulations is expressly
made subject to -the terms of the agreement. In our view
and for the treasons given, the meaning of that term, as it
was used by the parties, does not accord with that set out in
12.
the Regulations. In such circumstances, as s.46 itself
contemplates, the definition that is implicit in the agreement
must prevail. Indeed and against the union's own conclusion
that ultimately, at least for the purposes of Article 25.4.3,
it must authorize a local representative to act for a grievor,
the.definition of an employee representative that is found in
the Regulations can, by its plain terms, have no application
to this agreement.
In the result it must follow~that the grievor,
not being a person who was authorized pursuant to Article 25:8
to represent the union in these matters, was not entitled
to the leave that is provided by Article 25.4.3. In so
concluding we wish to make it abundantly clear that there
is nothing which we have said in this award which would
affect the individual's right to select an employee
representative under Article.30.5 nor the union's right to
select or designate those persons whom it desires~to have
represent its members. That is to say and however an
employee may choose to have someone assist him or her in the
filing, processing or presentation of a grievance or regardless
of hoti the union seeks to deploy its staff or elected personnel
in such matters, all that we have determined in this award
is that if that representative is to secure the paid leave
that is contemplated by Article 25.4.3 then he or she
must be "authorized" and in the manner that is described
ins Article 25.8. The grievor not being one of those
persons, he his not entitled to the leave provided therein
13.
and his grievance is accordingly denied.
Dated at Toronto this 25th day of April 1977.
b M Beatty
Chaikn
I concur
A. Fortier
Member
I concur
3 R Hennessy
Mkmbk