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Home My WebLink About1977-0004.Union.77-06-134/77 -- CROWN EMPLOYEES ..~ ‘416 964-6426 suite 405 P".r.rr.,rr C"~LE.,E,.,T 77 Bloor Street West JARD TORONTO, Ohrio M5S lM2 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Ontario Housing Corporation Ministry of Housing And Canadian Union of Public Employees, Local 767 Before: K: .P. Swan - Vice-Chairman G. Peckham - Member D. Anderson - Member For the Grievor: A: P. Tarasuk, Central Ontario Industrial Relations Institute For the Union: P. J. O'Keefe, Assistant Regional Director Canadian Union of Public Employees Hearing: May 10, 1977 Suite 405, 77 Bloor Street West Toronto, Ontario -1 ‘-a, 2. The Board, as presently constituted, was set up on short notice following the withdrawal of Mr. William Walsh, who had originally been appointed to the panel assigned to hear this grievance. The parties are agreed that the Board, as presently constituted, has jurisdiction to hear and determine this issue. This matter, which is a grievance brought by the Employer against the Union, arises by reason of a telegram sent by the Union to the Employer on October 7, 1976 (Exhibit 1) advising of the proposed composition of the Union's negotiating committee for the current round of contract negotiations. It is common ground that the proposed negotiating committee was composed of the following persons (Exhibit 3): 1. J. West, employed at the Hamilton Housing Authority; 2. S. Sullens, employed at the Windsor Housing Authority; 3. J. Houle, employed at the Ottawa Housing Authority; 4. G. MacDonald, employed at the Sault Ste. Marie Housing Authority; 5. J. Salzer, First Vice-President, Local 767, employed by the Ontario Housing Corporation in Metropolitan Toronto; 6. S. Convery, Recording-Secretary, Local 767, employed by the Ontario Housing Corporation in Metropolitan Toronto; 7. D. West, Second Vice-President, Local 767, employed by the Ontario Housing Corporation in Metropolitan Toronto; 8. D. Roach, President, Local 767; 9. G. McPhee, Representative, Canadian Union of Public Employees. 3. There was some dispute as to whether Mr. G. McPhee ought to be considered as a member of the committee or as its representative, but that question is not really before us. Rather, the issue arises from the following provisions of the collective agreement between the present parties, which was in effect at the material time: ARTICLE.1 - ‘DEFINITIONS 1.01 (al Tmployee” means one wF7 is employed in accordance with Section l(l)(g) of the Crokm krployees Collective Bargaining Act, 1972. (bl ‘Probationary h?nployee” means one who is employed in the bargain&z unit and has not acquired seniority. Cc) “Permanent Employee” means one who is employed in the’bargaining tmit and has acquired seniority. ARTICLE 2 - EWGAINING UNIT 2.01 The Employer recognizes the Union as’the sole and exclusive bargaining agent for al2 the. smpZoyees of the Ontario IIousing Corporation ard of all Aousing Authorities in the Province of Ontario employed outside of the Municipality of Metropolitan Toronto, except for persons who are not empZoyees within the meaning of clause (gl of subsection 1 of section 1 of the Crown Employees Collective Bargaining Act, 1972. ARTICLE 6 - LABOUR/MANAGEMENT RELATIONS 6.01 The Union shall provide the Einployer with the names of its Negotiating Cotittee, and the Enployer shall prov-ide the Union with the names of the Employer’s Negotiating Cononittee prior to commetiement of negotiations. 6.02 The Union will recognize a Negotiating Conmrittee of the Ehrployer comprising of nine 191 members in total. The Bnployer till recognize a Negotiating Cotittee of the Union comprising nine (91 members in total of which seven 171 till be permanent employees who have acquired seniority. i-L-- .-. A . Briefly, the Employer's argument is that the bargaining unit is restricted by Article 2.01 so as to exclude employees of the Employer who are employed inside the Municipality of Metropolitan Toronto; that the definition of "permanent employee" in Article 1.01(c) is restricted to persons who are employed in the bargaining unit; and that therefore the proposed Union negotiating coannittee does not satisfy the provisions of Article 6.02 in that three of the named persons are employed outside of the bargaining unit and cannot therefore be "permanent employees". The Union's response to this position was twofold. First, Mr. O'Keefe proposed that the additional words "who have acquired seniority" are redundant if the expression "permanent employee" is to be given its defined meaning. From this redundancy he asked us to infer that the parties intended "permanent employee" in Article 6.02 to be wider than the defined term. Second, he asked that we recognize the purpose of the article, namely to provide for orderly and effective bargaining to conclude a new collective agreement. We should therefore, in his submission, give the article such a fair, large and reasonable interpretation as is conducive to this purpose. Our function is to interpret and apply the express terms of the collective agreement and, although a purposive interpretation is sometimes appropriate to that function, the purpose argued for can hardly contradict the express language which the parties have chosen to state that purpose. Here, in our view, the language is clear and unambiguous. The Union negotiating committee which the Employer has agreed to "recognize" shali, for the purpose of Article 6.02, be composed in a certain way. in our view, either of the two competing interpretations advanced by the parties could properly be said to advance the general purpose of orderly re-negotiation of the collective agreement. The Union's second argument, therefore, does not carry us very far. As to the first argument, we are prepared to accept that a definition does not always necessarily limit the meaning of the defined term when used in the agreement. The exception is set out in Re United Electrical Workers; Local 512 and Tung-Sol'of'Camu?aLtd. 119641, 15 L.A.C. 161 (Reville) at p.163: The parties have, of course, agreed to the application of the definitiom set forth on pages 40 to 42 inclusive of this colZective agreement, as they have to all of the operative sections of the collective agreement which precede and follow it. Nevertheless, it is trite law to state that where defGGtions contained in a collective agreement conflict with or contradict the operative previsions thereof, the operative provisions must prevail. We notice, however, that here there is no conflict or contradiction of the definition (Article 1.01(c)) by the operative provision (Article 6.02); rather, the redundant words "who have acquired seniority" merely reinforce the definition by repeating one of its elements. HOW that repetition can be said to eliminate the other element of the definition ("employed in -. the bargaining unit") we are unable to understand. 6. In our view, the words used by the parties in the agreement are clear and susceptible of only one meaning, and that meaning requires that "permanent employees" in Article 6.02 have the meaning assigned in Article 1.01(c). This may be an awkward result for the Union, since virtually its entire Local executive will be outside the definition of "permanent employee" for the purposes of the present collective agreement. It may also, in practical terms, greatly impede the progress of negotiations and significantly reduce the possibility of agreement without resorting to arbitration. It is, however, the only result which, on the language before us, we are permitted to reach. We therefore declare that, for the purposes of the present agreement, J. Salzer, S. Convery and D. West are not "permanent employees" as that term is used in Article 6.02. Precisely what is a proper composition of the Union committee is not within the issue before us,,and we therefore consider that we should not extend our declaration beyond this point. The parties indicated that they expected the decision of this Board to resolve this dispute so as to clear the way for collective bargaining. We have no illusions that our award can have such an effect all by itself. We therefore venture to express the hope that the parties themselves will determine to set aside further technicality and begin at last to conduct the meaningful negotiations which the disputed clause was intended to facilitate and which are expressly required Dated at Toronto this 13th day of June 1977. K. P. Swan Vice-Chairman I concur G. Peckham Member I concur 0. Anderson Member