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HomeMy WebLinkAbout1983-0239.Union.83-11-29IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Union Grievance) Grievor - and.- The Crown in Right of Ontario (Ministry of Citizenship and Culture) Employer Before: M. R.‘Gorsky Vice Chairman E. J. Bounsall Member _ P. H. Coupey Member For the Grievor: G. Richards Grievance Officer Ontario Public Service Employees Union For the Employer: N. J.~ Robinson Staff Relations Officer Staff Relations Division Civil.Service Commission Hearing: July 15, 1983 ., - 2 - ! DECISION I This is a Union grievance, dated March 21, 1983, which is contained in the following letter from Sean O'Flynn, the President Of the Union,to J. W. Ramsay, the Deputy Minister, Ministry of Citizenship and Culture, which letter is as follows: The Deputy Minister bfinistry of Citizenship & culture 77 Bloor Street West, 6th floor Toronto, Ontario WA 2R9 Attention: Mr. James Ramsay Dear Mr. Ramsay, .: The Union hereby grieves the violation of Article 2 of the Collective Agreement in that the employer has refused to deduct and remit dues on behalf of three part-tine nurses employed by the Ontario Science Centre, namely, Us. Linda Davis, Ms. Gail Hamel and Us. Marjorie Quinhill. The Union requests that such dues be deducted and remitted to the Union with respect to the period dating back to September 24, 1982 when the Union first advised the employer that these nurses had been excluded from the bargaining unit contrary to the provisions of Section l(l)(f) of the Crown Employees Collective Bargaining Act. In addition to the foregoing, we also request that you direct that full compensation be paid to these nurses for the loss of all wages and benefits to whith they would have been entitled asa member of the bargaining unit, dating Krom September 24, 1982. Yours truly, Sean O’Flynn Peesident SOF/GR: lm C.C. Tony Petti, President, Local 949 Frances Chalmers Linda Davis Gail IIamcl Marjorie Quinhill Louise Rose, Staff Representative Nancy Robinson, Civil Service Commission , :l.. ,P The letter of September 24, 1982, referred to in Mr. O'Flynn's letter, Was to Dr. J. TUZO Wilson, and is as follows: Dr. J. Tuzo Wilson Director General Ontario Science Centre 770 Don Mills Road Don Mills, Ontario M3C IT3 Dear Dr. Wilson: Re: Status of Part-Time Nurses Ontario Science Centrc It has come to our attention that there are three part-time nurses employed by the Ontario Science Centre who we contend have been improperly excluded from the application of the collective agreement between OPSEU and the Crown in Right of Ont~ariob We understand that Linda Davis, Gail Hamel and Narjerie Quinhill have been regularly employed for the last 5 or 6 years to provide a nursing service to the.visitors and staff of the Science Centre in the absence of the regular full time nurse, Frances Chalmers. .These nurses regularly replace Ms. Chalmers on weekends, statutory holidays, vacation and sick days. As such, we contend that they do not come within the list of persons excluded from our bargaining unit found in section l(l)(f) of the Crown Employees, Collective Bargaining Act. We are therefore requesting that you cai&cnce forthwith the payment of all wages cind benefits~described ix article 3 of the collective agreement to these employees and further that you deduct and remit union dues on their behalf. The union understands that there is also a fourth part-time nurse, Kay Murray, whom is enploycd by the Science Centre. an a nore casual basis. While we do not have the right to demand that she be treated in accordance with the collective agreement, it would seem only fair that she also be paid the same hourly rate as her colleagues. Your early attention to this matter will be appreciated. Yours truly, Scan O'Flynn President s- - 4 - Response to Mr. O'Flynn's letter of September 24 was made in a letter of February 17, 1983, to George Richards, a Grievance Officer with the Union, from Nancy Robinson, Staff Relations Officer, with the Employer, which letter is as follows: Hr. George Richards Grievance Officer Ontario Public Service Employees Union 1901 Yonge Street Toronto. Ontario H4S 225 Deer Mr. Richards: This is to advise you that we have investigated the question of the status of the part-time nurses employed by the Ontario Science Centre and agree that these nurses are employees within the meaning of the Crown Employees Collective Bargaining Act. We understand that the Ontario Science Centre is taking the necessary steps to include these employees in the bargaining unit effective January 24, 1983. Yours truly, Nancy Robinson Staff Relations Officer Mr. Richards replied to Ms. Robinson's letter Of February 17, by a letter to Ms. Robinson, dated February 21, 1983, which letter is as follows: - 5 - Ms. Nancy Robinson Staff Relations Officer Civil Service Commission 2nd floor, Frost Building South Queen’s Park Toronto, Ontario b17A 125 Dear Ms. Robinson, Re: Part-time Nurses, Ontario Science Centre Thank you for your letter of February 17. While I am pleased to learn that you agree that the part-time nurses are in fact employees within the meaning of the Crown Employees Act, I am not satisfied by your stated intention of implementing the necessary steps effective January 24. In my opinion, the Union is entitled to receive dues, and the employees are entitled to receive the benefits of the Collective Agreement,’ retroactive to September 24, 1982, the date of Mr. O’Flynn’s letter placing management on notice of our.concerns about this matter. Unless you are willing to reconsider this matter, I shall recommend that the Union file a policy grievance claiming the dues, and that the nurses in question file individual griev- ances claiming pay and other benefits retroactive to that, date. Yours truly, George Richards Gri A-Vance Officer bee: Frances Chalmers, 75 Graydon Hall Dr. $905, Don Hills M3A 3M5 Tony Petti, President, Scarborough MlB lA7 Local 549, 76 Corsey Square, Louise Rose, Staff Representative ,i. . -6- A reply to the letter of February 21, was made by MS. Robinson to Vr. Richards on March 8, 1983, which letter is as follows: Hr. George Richards Grievance Officer Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario H&S 225 Dear Mr. Richards: Re: Part-time Nurses, Ontario Science Centre In response to your letter of February 21, 1983. please be advised that it is our view that January 24. 1983 was the date that the parties reached agreement on the status of the part-time nurses at the Ontario Science Centre. It has not been the practice of the parties to make an egree- ment retroactive, nor has the Tribunal ever directed retro- activity, when individuals mve either into or out of the bargainfng unit, and we are not prepared to make this case an exception. Yours truly, N. Robinson Staff Relations Officer ,The next correspondence in this matter was the letter of March 21, 1983, first noted above. Subsequently, the focus of the grievance was narrowed in the manner set out in a letter frc.m Mr. Richards to Ms. Robinson, dated July 7, 1983, the material portions of which are as follows: 'I understand that the employer has agreed to pay the three part- time nurses their wages retroactively to September 24. 1982. as originally requested. Therefore, the only issue remaining in dis- pute is whether or not the Union is entltled to claim dues on behalf of these nurses retroactively to the same date, unless there is sane outstanding difference between the parties concern- ing the calculation of monies pa5d to the nurses in question. ., - 7 - Confirmation of Mr. Richard's understanding is contained in a letter from G. A. Berry, Chief Personnel Services of the Employer, to Nr. Richards, dated July 12, 1983, the relevant portion of which is as follows: I trust this will settle the matter of pay for the part-time nurses as outlined in the Union's grievance and will leave only the matter of retroactive dues as the outstanding issue to tie argued before the Grievance Settlement Board. Accordingly, the issue before,this Board was restricted to matter raised in Mr. Berry's letter of July 12, 1983, as set out in the preceding paragraph. Mr. w. J. Gorchinsky, Chief Staff Relations Officer, Civil Service Commission, testified: (1) That, in the first instance, the decision as whether a person is an employee within the meaning of ss.l(l) (f) of the Crown Employees Collective Barga.ining Act, and hence included in the bargaining unit, pursuant to Article l.l.of the collective agreement,is made by the Employer. (2) That he performed this duty as delegate of the Executive Director of the Staff Relations Division, who, in turn, would be exercising this responsibility on behalf of the Management Board of Cabinet. (3) When a decision was arrived at by the Employer to treat a person, formerly excluded, as now having employee status, so that the person was a member of the bargaining unit, dues then, and only then, commenced to be deducted from .the pay of the employee pursuant to Articles 3.13.1, 3.13.2 and 3.13.3 of the collective agreement: (4) That persons "transferred in" to a bargaining unit were I; not treated as having been transferred in retroactively: that is at the date of receipt of the Union request or any earlier date. (5) The date of a person's being "transferred in," was, for the purpose of deduction of dues, on the date of the decision,. reached by the representative of the Employer that the I person had employee status or the date of the decision as ' to employee status having been made by the Public Service Labour Relations Tribunal,pursuant to a hearing conducted I under the authority of s.40(1) of the Crown Employees Collective Bargaining Act, ,. (6) That the practice, as described by Mr. Gorchinsky, was never departed from. ..' The position of the Union was that: (1) The persons in respect of whom the grievance was filed are included in Article 3.13.1 and that the Employer was required to deduct union dues with respect to those employees from the date of the notification by Mr. O'Flynn to Dr. Wilson, on September 24, 1982, that the nurses mentioned had been improperly excluded from the bargaining unit. c -9- (2) The the Employer was put on notice of the ~Union's position by Mr. O'Flynn's letter to Dr. Wilson of September 24, 1982. There is nothing in the collective agreement which requires the Union to file a grievance in order to be able to claim retroactivity in cases such as this. On September 24, 1982, clear notice of the Unionposition had been given to the Employer, who then notified the Union, on February 17, 1983, (letter to Mr. Richards from Ms. .Robinson) that the matter had been investigated. To require that the Union file a grievance in order to be in a position to claim retroactivity to that date would interfere with the amicable settlement of disputes. Where matters of retroactivity were concerned, it would become necessary to quickly file a grievance in order to be able to claim retroactive compliance by the Employer. Such a requirement, it was submitted, would unnecessarily complicate relations between the parties, turning routine disagreements, which would often be settled without the necessity of a ,grievance being filed, into ones where settlement was less likely because a grievance had to be filed,. For the Employer, it was also urged that: (1) There was no evidence that the part-time nurses become members of the bargaining unit before January 24, 1983. (2) There is no authority in the Act or the collective agreement that provides for retroactivity in these circumstances. ' - 10 - c (3) The Union was never led to believe that the Employer would agree to retroactive compliance with Article 3.13.3. (4) The Union was never discouraged from filing a grievance or making an application to determine employee status. During argument in reply, Mr. Richards stated that he wished to submit evidence that the Employer had induced the Union to believe that, in the circumstances of this case, retroactive deduction of dues would be made. By agreement he was to furnish the Employer with the examples being relied upon. Thereupon the following exchange of correspondence ensued: Iris. Nancy Robinson Staff Relations Officer Civil Service Connnission Room 249, Frost Fkrilding South tieen’s Park &onto, Gntario M7A 125 July 22, 1983 Dear Ns. Robinson: Re: Part-Time h'urses Ontario Science Centre This will confirm cplr telephone conversation in which I drew your attention to three examples of cases in which the parties agreed to dues deduction from employees retroactive to a date before the date of their agreement on the status of those persons as employees within the meaning of the Crown Employees Collective Bargaining Act. Thisevidence would appear to contradict the statement of Mr. Corchinskp to the Arbitration Board on July 15th to the effect that dues deductions only commence from the point at r&rich the parties agree on the transfer of persons into the Bargaining Unit. Bill Lokay confirms that the principle as stated by Mr. Gorchinsky is correct with respect to their dealing with large groups of employees, but the principle dots not appear to have held through in cases wfiere individuals or smaller groups were involved as these cases demonstrate. Under the circumstances, the Union contends that this extrinsic evidence does not show a consistent pattern of past practice with respect to the administration of Article 2 or Article 3.13.1 tich hould justify the Board in dismissing the grievance in the instant case. -: si.: ,. ‘.‘. - 11 - OnbioPubllcSaviab~i~ MS. ~~~~ ~~~~~~~ July 22, 1983 Page: 2 Civil Service Connnission Even if the Union is wrong in the conclusions vrhich it draws from this evidence, we would submit that the evidence per se is irrelevant because the language of the Collective Agreement is not ambigious according to the tests set out in re: Leitch Gold Mines Ltd. et al, v. Texas Gulf Sulphur Company, 3D.L.R.(3D)161. L GR:eg cc: Prof. M.R. Gorsky Vice Chaii-man Crown Enployees Settlement Board Mr. E.J. Bounseli Member Grievance Settlement Board Mr. P.H. Coupey kmber Grievance Settlement Board . Civil Service Commission July 29, 1983 Kr. George Richards Grievance Officer Onrario Public Service Exployees Unim 1901 Vonge street Toronto, Ontario H4S 225 Ilear PZ. Richards: Re : Part-time Nurses Ontario Science Centre I acknowledge receipt of your letter dated July 22, 1963 with respect to dues deductions for p?rt-:ize nurses at the Ontario Science Cectre. I note that Mr. Lokay has agreed to t:7e principle as stated by Kr. Gorchinsky, that dues deductions ax c-rrent and not retro- active a where large groups of employees sre involved. Since that is the principle applied to larce groups, clearly that same principle shollld be applied to all trcsfers, including single mdividuals or small groups. The three exceptions to the principle are indeed exceptions, eri clearly no new "principle" shocld be established far individuals 01 small groups. Further, e?ch of t:la t:?ree exceptions are dis- tinguishable fron the Frir.cl?ie. Fcr exa?le. C.R. FAodes et. al. were in the bargainin? -7,;: and sz:i:: dues, x.'cre removed from the bargaining unit ir. error a-.6 wre placed in the bargaining unit with full retroactivitv because a.5 error had been made in removing them in the first instance. 1n all three exceptions to the rule, ir: fact, there was no dis- agreement between the parties as to the a?-;irop:riate date. Even if the t!!ree exceptions were no: tirtinqrishable. the irrinciple acreed to should continue tc qeveil. The exceptions, distinguishable or not, shoc?d nor become the rcle. ./2 t In accordaxe'with the directior. of the Board. would you indicate whether there is any disagreement that in eve-y case where a question has been referred to the Tribunal, dues have been deducted or have ceased to be deducted as.of the date of the Tsibunal decision, including the cases of Mr. Zuibrickyi and Mrs. Thonigs, raised at the hearing on July .15, 19837' Yours truly, xancv Rcbinson Staff Relations Officer CC: Prof. N.R. Gorsky e i'ice Chairman Ontario Crown Err?loyees Grievance Settlenent Board 3%. E.J. Bounsell Mazbar Grievance Settlenent 6oard ?!r. F.H. Coupey ?!embe+ Grievance Settlement Board .AGgust 26, 1983 : Ms. Xancy Robinson Staff Relations, qfficer Cii.il Service Commission 2nd floor Frost Building South Toronto, Ontario ’ Mi.4 115 Dear >ls. Robinson: , ;X+.: :-. :L!t!;;,;, i .--z*- i Re: Part-Time Rurses Ontario Science Centre Replying to your letter of July 29th, I have no reason to believe that your statement concerning the practice of the Employer with regard to the deduction of Union dues following a decision on the Employees’ status by the Tribunal is incorrect. At the same: time, I would point out that the Law on this subject, such as it is, appears to have been set out by , the Tribunal in the decision re OPSEU and the Crown in Right of Cntario regarding Mr.Ian h’elton, File No. T3/76 decided April 6th, 19?7 by Mr. Owen Shime at Page 4: . : -14.. “he are concerned with the dates and responsibilities as they exist at the date of the making of the application. This is a policy generally followed by Boards and Tribunals called upon to make similar determinations as the one we are required to make in the present case (regarding employee status). The policy is designed to discourage implementing changes in the duties and responsibilities of a person who was the subject matter of the application. There could be situations where ex post facto changes are made in an attempt to subvert the application. We hasten to add that there was no hint of that type of conduct in this case, but since this is the first case of its kind to come before this Tribunal as ‘it is presently constituted, we feel that it is appropriate to forecast our general position in order to assist the parties in future cazes .‘I c I/ In my opinion, it follows from this decision as a matter of Law that all deductions or cessations of deductions of IJnion dues should stem from the date of an application to the Tribunal pursuant to Section 40 of the Crown Employees Collective Bargaining Act, rather than from the date of the Tribunal’s decision. In the instant case, the Union refrained from making an application to the Tribunal, because we were given every indication that the Employer was seriously considering our ! position as set out in the letter of September 24, 1982. Under the circumstances, the Union submits that the Employer should be estopped from asserting the position ’ that it has taken before the Grievance Settlement Board because its conduct caused the Union to act to its , detriment by failing to assert its claim concerning the status of the part-time Kurscs in the Ontario Science Centre before the Tribunal in .a more timely fashion. liith regard to your arguments concerning the three reported exceptions to the principle or rule regarding dues deductions, I have no further comment beyond that set out in my letter : of July 22nd to the effect that the language of the Collective Agreement concerning the deduction of Union dues : is not ambiguous, and hence extrinsic evidence concerning the past practice of the parties is inadmissable as an ; aid to deciding the correct interpretation and application of the clause in dispute. . Yours truly, _. --~~ .__.,_ ,,/.- : 7 -J-.,, -----__.. “‘\ ,-ls;L.., . -.----. / ,I,’ ‘-.’ George A. Richards Grievance Officer Crown Employees Grievance Settlement Board Mr. E.J. Bounsell Member, Grievance Settlement Board Mr. P.tl. Coupey Member, Grievance Settlement Board \\'.A. Lokay Grievance Classification Officer GR:dl I am satisfied that the cases relied on by the Union in its letter of July 22, 1982, do not disclose a practice which was intended to indicate to the Union that dues retroactivity would become the norm in dealings between the parties. Tie cases referred to by Mr. Richards were dealt with on the basis of special factorsiheing those present which explain each action. Mr. Richards referred to the Welton case in his letter of August 26, 1983. Mr. Shime, in that case, did not say dues deductions would be retroactive to some date. Rather, he said , that duties for determining employee status would be those existing on the date the application was made. It does not follow, nor was it demonstrated, that deductions would be ordered to be made from the date of the application. - 16 - The Employer's conduct in indicating that the matter was being investigated did not amount to a representation upon which an estoppel could be founded. There was no evidence of an Employer invitation or request to cause the Union to delay filing a grievance or to make an application to the Tribunal. I agree with Mr. Richards that the relevant agreement provisions are not ambiguous. Under Article 3.13.1, dues deductions can only be made from an employee covered by that Article. Mr. Richards referred to the case of Zuibrycki and the Ministry of Industry and Tourism (Swan), unreported. There, it was held that a decision that a person was an employee, whether of the Tribunal or of the parties, "is merely declaratory of a pre-existing status, created by the statute or by the collective : agreement. " (Zubrycki case at p.14). I would find that a decision reached by the Employer that a person is not "a person il ,, not ordinarily required to work more than one-third of the normal period for persons performing similar work . .." and hence is an employee under the Crown Employees Collective Bargaining Act, is also "declaratory of a pre-existing status." Does the Employer's decision to recognize the persons in question as employees, effective January 24, 1983, impose an obligation on it to deduct dues from those employees retroactively because the decision has \ a retrospective effect? That is: because it "is . . . declaratory of d a pre-existing status .,..I( If that were the case, the duty to 'I deduct dues would be retroactive to the date when the person actually becomes an employee and not to the date when the Union first notified, :~,?. .: ..(, :: .‘. ,.: ; .: - 17 - the Employer that the person had been excluded from the bargaining unit contrary to the provisions of the Act. The issue, here, requires a determination of whether Article 3.13.1 of the collective agreement has a retrospective operation and not only whether a person's employee status has a retrospective operation. That is, once it is ascertained that a person is an employee under the Act, and governed by Article 3.13.1, must deductions be made for the period from.when employment status WdS, in fact, first achieved, even though the existance of that status only came to light at a later time through agreement of the parties, a decision of the Tribunal or a decision of the Employer following investigation? If Article 3.13.1.has a retro-' spective operation, then the Employer would now have to deduct all dues that were payable by the employees affected by this grievance from future wage payments for the period from when they first actually become employees. In this case, there is evidence that the subject persons'were 'employees within the meaning of the,Act, at least from September 24, 1982. There was no other evidence on the point. I do not believe that,the Employer was urging that the nurses were not employees under the Act as at September 24, 1982. What was being put forward as the position of the Employer, was that the nurses could not be treated as such for the purpose of dues deduction until the day they were declared to be employees by the Tribunal, by agreement of the parties or unilaterally by the Employer. Because I agree with the reasoning and conclusion of Mr. Swan in the . .-.. _... --. ._ - 18 - Zuibrycki case, I cannot accept the Employer's argument. Recog- nition of the nurses' status for pay purposes, from September 24, 1982, as set out in Mr. Berry's letter to Mr. Richards of July 12, : 1983, discloses that the nurses should have been treated as employees as at the former date. What the Employer objected to ,was treating Article 3.13.1 as having an operation retroactive to that date: when the facts disclose they were employees. The Employer maintained, throughout,that the article operated only to bind it to make deductions from the date when the employee status of the nurses was recognized by it (January 24, 1983). My reading of Article 3.13.1 satisfies me that its language does not envisage retrospective operation of the duty to deduct dues on the part of the Employer. I interpret Article 3.13.1 as being intended to bind the Employer to deduct dues from the pay of employees for a current dues period and not with respect to dues owing for a previous period. Articles 3.13.1, 3.13.2 and 3.13.3, deal with dues deductions from seasonal or part time employees. Article 2 deals with the "Check- off of Union Dues" from the "regular staff," and is as follows: : C - 19 - That article is couched in language indicating deductions for current dues from "the regular weekly pay." The language of Article 2.1 does not lend itself to the deduction of dues accruing retroactively. Article 3.13.1, being worded.less precisely, might be capable of being read so as to include dues owing from a previous pay period. It is unlikely that the parties would have intended‘ dues deductions to have a retrospective operation for part-time staff and a prospective operation for regular staff. In order to furnish business efficacy to the agreement, the two articles should be dealt with on the basis of their having a prospective operation unless the language of Article 3.13-l is clear in supporting the conclusion suggested by the Union. It is not, while Article 2 is~ clear in suggesting a prospective operation. There is no reason for failing to,endeavor to harmonize both articles, which purport to achieve the same purpose. Appendix 1 of the agreement, which is referred to in Article 2, is as follows: ' STAFF RELATIONS DIVISION 2nd Floor, Frort’Sulldlng Soulh 965-2002 February 13. 1978 Mr. J. Poitras Negotiator Ontario Public Service Employees Vnion 1901 Yonge SIreel. 71h Floor TORONTO. Oniario (M4S rye) Dear Mr. Poiffas: This letter will confirm the understanding reached during the 1978 Working Conditions Negotiations with reference lo Article 2 of the Agreement. 1. By June 30. 1978, the Employer shall provide the Union with a monthly reconciliation tape on Union dues. The tape shall contain the fallowing information: Employee Name. SIN.. Sex, Ministry, Category and Group. Clessificalion Code. Classificadan Tide. Geographic Location Code. Schedule (Hours), D.C.S.. Duss Indicator, Dues Deducted, “Dropped” Indicator, “Added” In. dictum. Reasons (“Dropped” and “Added”). I,4 “eskimels SENIOR STMF RELATIONS OFFICER This Appendix is worded in a manner which makes its operation consistant with current deduction of union dues payable : C ;I on a bi-weeklybasisand not with payment of dues owing from previous dues periods. If the parties had intended retrospective operation OF th;? ., dues deduction provisions of Article 3, they might have done so ~ through the use of appropriate language. Cf. Re The Queen in Right - 21 - of New Brunswick and New Brunswick Nurses' Union et al. (1983) 146 D.L.R. (3d) 523 (N.B.c.A.) at 526. Accordingly,and for the reasons ,given, the grievance is denied. DATED AT London, Ontario this 29thday of November I983. M. R. Gorsky Vice Chairman "I dissent" E. J. Bounsall Member eJ+r P. H. Coupey Member I