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HomeMy WebLinkAbout1977-0047.Hooper.79-03-09GRIEVANCE g;;;bERtlENT 47/J: ,ELEP”ONE: ,r1s/ssa-0688 SUPPLEMENTARY AWARD - . . . . Between: IN THE MATTER OF AN ARBBITRATION Under The CROWN EMPLOYEES COLLECTIVE EARGAIN!NG ACT Before THE GRIEVANCE SETTLEtJENT EiOARD Mr. F. R. Hooper And The Crown in Right of Ontario Ministry of Government Services Between: K. P. Swan Vice-Chairman A. Fortier P!ember .~- I. K. Levack Member For the'Grievor: Mr. W. Lokay Classification Officer Ontario Public Service Employees Union Toronto, Ontario For the Employer: Mr. W. J. Gorchinsky Senior Staff Relations Officer Civil Service Conmission Toronto, Ontario .- Hearing November Znd, 1~977 Suite 405 77 Bloor St. W. Toronto, Ontario - 2 -'~ SUPPLEMENTARY AWARD In our initial decision in this matter', a majority of this panel of the Board determined that the grievor, Mr., F. R. Hooper. had been improperly classified as a Purchasing Officer 2 (Atypical). The Union had asserted that Mr. Hooper was entitled to be classified as a Purchasing Officer 3 (Atypical), a position which the Employer says fs outside the scope of the bargaining unit represented by the Union and established pursuant to the crown employees collective Bargain- .. .1~ ing act. The Employer therefore raised initial objections going to our jurisdiction and we, in what now appears to have been a mistake in practical terms if not i,n legal terms, agreed to deal with the prelimin- ary issues of jurisdiction after the merits of the case had been decided. As proposed-in our main award, the parties agreed to exchange written argument; the final exchanges in a series of submissions were's document sent by the Employer on October 12, 1978 and a response from the Union dated October 17, 1978. We have considered each of the submissions presented, and we shall deal with the arguments set out therein in the * cdurse of our discussion of the issues remaining!to be resolved. For the record, since the documentation discloses a dispute between the parties about whether one of.the Employer's submissions.should be provided to the Union, ,we wish to clarify that all.documents received and relied on were forwarded to the other party and each party was given a full opportunity ' to respond to the arguments of the other. We might begin by observing that the Employe~r's argument proceeds on the footing that we have already directed the re-classification of the -3- grievor to P.O. 3, and that we have thereby exceeded our jurisdiction. We consider this analysis to be completely wrong, and to fgnore the careful terms in which our main award was drafted. We have made no order so far at all, ~except an order contingent upon an agreement by the Employer to our jurisdiction. The Employer's objection having been taken in a timely fashion, that order has never come into operation, ' and our disposition of this case is so far limited to a finding that the grievor is improperly classified as.a P.O. 2;'that determination is clearlyMt.hin our jurisdiction under s. 17(2)(a) of the crown employees Collective Bargaining Act. In making that conclusion we compared the job duties.of a P.O. 2,with those of a P.O. 3; the first of these posi- tions is agreed to be inside the bargaining unit over which our juris- diction extends, while the latter is said to be outside. We did so. however, only because those two positions were.the only ones advanced by the parties as appropriate. Our own views on the suitability of any P.O. classi.fication are set out on pages 6 and 7 of the main award. Nevertheless, our review of the P.O. 3 classification was esentially, given the way in which the parties presented their cases, to give us a yardstick by which we might decide whether the grievor was improperly classified. It now falls to us to determine whether or not we have juris- diction to provide the remedy requested by the'grievor, an order that he be reclassffied as a P.O. 3. The~Employer argues that if we were to do so we would usurp the authority.of the Ontario Public Service kabour Relations Tribunal, to which is granted exclusive authority to determine whether any. particular Crown employee is an "employee" for the purposes of the e Employees Collective Bargaining Act; that we would act beyond the juris- dictional limits established by that AS; and that we would in effect. be I -4- amending the Collective Agreement between the parties by changing the boundaries of the agreed bargaining unit. The Union's response basically asserts that the Employer has confused the classifi~cation system and the system of exclusion of persons employed in a managerial or confidential capacity, and that our function relating to the review of classifications does not,bear at all on the entirely separate task-of determining exclu- sions, a role assigned to the Tribuna7 by the ACL - We note, from the beginning, that both parties have expressly stated that Mr. Hooper is not excluded by the provisions, of s. l(l)(g)(iii) - by reason of being employed in a managerial nor confidential capacity, since he does riot meet the criteria set out in s. l(l)(n). We must, therefore, take this agreement as conclusive and proceed on the basis of it. Whatever else we may be doing,~therefore, we are not in any way determining.~the status of the grievor under section lo of' the Act. There appears to-be no dispute that successiveCollective Agreements did not, at any material time, set out rates of pay for the P.O. 3 classi- fication, nor have any persons in that classification ever been members of the bargaining unit. This state of~affairs originally dates from the inauguration of the Crown mployees Collective' Bargaining nct~in.79!2. At that time, for the purpose of an orderly transfer from the previous representation structure to the new scheme, bargaining, units were described as appropria.te and employee organizations were granted representatfon rights by Regulation. O.Reg. 577/72, s.11 is relevant: 11. All publicservants other than, (a) the persons who are not employees within the meaning of clause g of sub- section 1 of section 1 of the Act; and (b) the persons in the classifications or positions set out in column 2 of Schedule 2, I Sara designated as a unit of employees that is an appropriate bargaining unit for col- lective bargaining purposes under the Act, and the Civil Service Association of Ontario (Inc.) is designated as the employee organi- zation ‘that shall have representation rights inrelation to such bargaininq unit, upon the day the Act comes into force. 0. Reg. 577/72,. s.11. A search of co7umn 2 of Schedule 2 will reveal that the classification “Purchasing Officer 3" is listed there as excluded. This Board, in a panel which included the present Vice-Chairman, has recently dealt with the impact of the initial assignment of bargaining rights on the future shape of the bargaining units. It seems to us that . the position is best put by simply quoting extensively from that decision, Re Zuibrycki and Ministry of Industry and Tourism, 100/76, pp. 8-13. We begin with an analysis of the~historical develop ment which wehave outlined above. As we have observed, the specific regulatory power confided to the Lieutenant Governor in Council by s.Sl(d) of the Act is to designate lappropriate bargaining units" and empxee 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 implementation is .distribut.ive ov** both of the regulatory powers given to the Lieutenant Govermr in Council. Thus that authority was spent as of the effective date of the Act, and no further regulatory power rennins to be exercised. Moreovei, d study of O-Rag. 57?/72,, s.11 indicates that the Lieutetit Governor in Council remained strictly within the delegated authority conferred, since that provision is s@o exbessed to apply' only "upon the.day the Act comes into force". Bg,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. The Union res!ainS, of COWSe, the unchallenged bargaining representative of the bargaining unit. The question then arises whether any alteration Can be; or has been made to the scope of that bargaining unit? As noted above, the only express statutory authority to determine the scope of a'barqaining unit is vested by s.3 of the Act in the Tribunal "upon an application.for representation rfqhts." By ~statotory~interpretation which we respectfully adopt, however, theke has been a long-standing doctrine in lsbour relations law which permits the parties to a collective agree- ment to expand or contract within certain limits, by amendments in a recognition clause, the barqain- inq unit determined as appropriate in the process fol determination of representation rights. A number of decisions, both of arbitrators and of labour relations boards, have expressed this doc- trfner see. ~. e.g. Re C.U.P.E. ~&al 1000 and Hydro- Electric Power Commission of Ontario (1?71) 23 L.A.C. 111 (Weatherill)t Re Sault Ste. Marie Board of Edu- cation and C.V.P.E. Local 216 (197"' ' ' x e f'rl' ‘, -’ Y.t&.s.. LCU‘ 119 I~Chinm,. rn"+bill number Ltd. Il9h4) 64'C.L.L.C. ,_---, _. _._._.~. rua'L L.2, *1- ,,.,.R.B.); Canadian Car Fort William Division Hawker Siddeley Canada Ltd: r'Qk0 o~r.~u-B- Rep. 7601,Gilbarco Canada Lt-' ITa 155; Ajax and Pickering Gene&- ~v=Y~cp~ r)em 477: "OrMvPt. iThe A-----'-- m--^". r’ -_“_- - .-.-..-. Y. ,J71) O.L.R.B. Rep. =-T v---s,-'; U972> O.L.R.B. ..-=. _. . _ ._----. --, -_- -A(iuAlle ~pps~~s to have been approved, in somewhat mre extreme circumstances even than the present, by the superior Courts of Ontario: mrnational Union see Canadian Industries ,Ltd, v. In of District 54, AUfed and Technical Workers Of the United States and Canada, Local No. 13328 u972) c.T..r.r- "al-a 14. 124 Iont. " " 7 ' '"^..'3 _- -+w-- -.-.-.-_ -__ .-__ -. n.c.u., L&s” Y “*‘ .M-.-* grouna~~~.~U-P72j-;L7.R';63; 27 D.L.R. (3d) 367, Re Millen lworkers Credit Union Ltd. et al. fiv. Ct.). it al. and Algonn Stee (1974) 6 0-R. (2d) 676 (ant= Whese cases indicate that the parties my alter and f. 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 repressntation hearings: see Eelsey - Hayes Ltd. (1968) O.L.R.B. Rep. 1058. The language used by Haulden J., in eipressing the unanimous view of the Court in the Algom Steelworkers Credit OhiOn case, suprais particularly interesting (at p. 679): There is nothing in'.the Labour Relations Act which provides that a voluntary GolleC- tive agreement which covers personsother than employees as defined in the I&our 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 i1972) 3 O.R. 63, 27 D.L.R. (3d) 387. Fu&hennor@. sJ(3) (b) of the -7- L&our 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 tit no person shall be deemed to be an employee for the.purpases 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 confidential capacity. What decision the Ontario I.&our Relations Board might, or mfght not, have arrived at concerning the position of assis- tant manager is an unknown factor and is irrelevant in interpreting art. 2.01 of the agreement. In my opinion, it was quite improper for the board cf arbitration in the application before it to have entered into a consideration of that question; this was a matter witbin the exclusive juris- diction of the Ontario L&our Relations Board. The question for the arbitration board was whether or not the assistant mana- ger was covered by the collective agreement; this was properly a matter for arbitration and was quite separate fro~m the question that might arise before the Ontario Labour Relations Board under s.113lIbl of the Labour Relations , Act: Re C.U.P.E.;~L&al 1000, and Hydra-Electric Power Corn''' of Ontario (19711, 23 L.A.C. 111: Office Employees Int'l Union Local 181 (Applicant) v. Canadian Car Fort William Division Hawker Sid- deley Canada Ltd. (Respondent) (L&our Relations Board File No. 10386-65-M). This statemezit draws a clear distinction between status under legislation and status under an agreement: we shell return tothis dis- cussion later. Two questions thus arise in relation to the facts before us. Does the doctrine of contractual units apply to parties engaged in collective 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 griever? 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 L-about Relations Act, which we have cited above, do deal with such an alteration by agreement to a detezmination of an appropriate unit by a tribunal having the exclusive jurisdiction to so determine. The present'case is not as strong, we think, since what is being altered is a delegated -8- legislative authority exercised by regulatiqn which is limited both by the authorizing statute and by tbe terms of the Regulation itself to a single initial description of the bargaining unit. It is unreasonable to suppose that, since the statute provides jurisdiction to the Tribunal to fix an 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 lioulden 3. quoted above in observing that nothing in the Crown Employees Collective Bargaining Act prohibits the parties from t&k- ing such reasonable and mutually satisfactory steps in this regard as are necessqry to shape their bargaining unit to fit changing circumstances. 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 my be'included in~a~bargaining unity by agreement. Once again, however, both the Canadian Industries case and the Algoma Steel- workers Credit Union case do treat with this issue, and thus TO farther than wa are required to gc to create's doctrine of free amendment of the scope of bargaining units by the parties. We observe..that, in the present case, we are also not required to decide whether or not a person who is not an "employee" can be included In the bargaining unit. Both parties agreed that Mr. Hooper is an "employee"; either of them might have purshed.an application t0 the Tribunal under s.38 of the Act (indeed an application was at one .time made by the Union), but neither has chosen to do so. In our view,,the Board's decision in Zuibrycki, which we consider to have been correctly decided, is *'final answer to the Employer's objections to our jurisdiction. Zuibrucki makes it clear that inCluSiOn or exclusion in the bargaining unit is not a function of classification except under the initial determinations by O.Reg. 577/72, which are now spent. Rather, the sole tests of inclusion ,or exclusion are to beg found i,n S.l(l)(g) and l(l)(n) of.the Act. It is therefore incorrect to refer to a? classification as excluded; only persons may be excluded, and then only by virtue of the responsibilities they perform. Needless to say, I - -g- / there is certain to be considerable correlation between classification and bargaining unit membership, and cases' of individuals being,included where most other persons in the same classifications are excluded (or vice versa) will probably be rare. -- Mr. Hooper is in an atypical classi- 'fication, however, and a variation from.the norm is not therefore unexpected, In our view, as'we have already decided, Mr. Hooper is improperly classified as a P.O. 2 (Atypical). As between the only choices offered us by.the,parties, he would be more properly classified as a P.O. 3 ,(Atypical). To order~him reclassified does not take him out of the bargaining unit, .nor does it alter his status as an employee. It does put him in the ambiguous position of a person for whom the Union has bargaining rights but for whom no pay rates have been bargained at hfs proper classification level, but we have noojurisdiction to deal with that matter. We might,. however, express the hope that the parties might reach a satisfactory conclusion on this point. Mr. Hooper's case has been one of intense interest as a legal episode in the relationship between the parties, but he personally has had a long wait for the final outcome. : We might also point out that in making our order, we are not in any way amending the Collective Agreement, nor are we purporting to interpet it. Our function in respect of classification under s.l7(2)(a) is a stat"- tory one, and is expressed to be' in addition to rights under a collective agreement. In the result, we shall issue an order consonant with our decision on the merits of this case. Mr. Hooper is to be reclassified, effective September 1, 1975. to the level of Purchasing Officer 3 (Atypical) or equivalent. Equivalent classification is permissible to permit the Employer to continuer. if it wishes,'parallel classification, for included and excluded ----*... ,+ CL c3mD h-.1. ourder wguld not, however, permit any alteration in the substance of the classification. Mr. Hooper is, of course, entitled to compensation to make him whole, and we reserve jurls- diction to determine the~amount of that compensation, within the limits of our statutory authority, should the'parties be unabl,e t0 agree. Dated at Toronto.this 9th day of March, 1979. :_ , - 10 - K. P. Swan Vice -'Chairman (I concur in this supplementary award only) Andre:Fortier Member (I concur) I. K. Levack i, Member _.