HomeMy WebLinkAbout1984-0519.Union.85-09-12Between:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING.ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Union Grievance)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Transportation & Communications)
Employer
Before: E. E. Palmer, Q.C. Vice-Chairman
R. Cochrane Member
E. J. Orsini Member
For the Grievor: A. Ryder
Counsel
Gowling & Hen.derson
Barristers & Solicitors
For the Employer: J. P. Zarudny
Counsel Crown Law Office, Civil .~
Ministry of the Attorney General
Hearings: March 5th, 1985
April 26, 1985
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DECISION 2.
The present arbitration arises out of a grievance
filed by the Union which stated as its nature:
That employees of the Ministry classified in manage-
ment positions are being assigned to perform the
work of bargaining unit classifications contrary to
the Collective Agreement between the parties and in
particular, but not to limit the grievance, Mr. .Clifford Ellis, Angus Yorke, Murray Mann, and Allan
Lott, have been. so assigned.
As a result of this claim, the Union requests a
declaration to the effect that such violation has occurred and
(7, '\ .: that appropriate Union dues be remitted to the Union. This
matter was not settled during the grievance procedure and so
forms the basis of the present arbitration, a hearing in rela-
tion to which took place in Toronto, Ontario, on 5 March 1985.
At that time the parties agreed the present Board had jurisdic-
tion to deal with this matter and that it should remain seized
on any questions of compensation which might arise as a result
of its award.
The central facts relating to this matter were not
( essentially in dispute and~can be stated relatively simply.
Thus, there are two general areas where the Union
sought redress, both of which occurred in the Belleville area.
Again, both of these related to the problems which faced the
employer during winter months when normal summer work was unavail-
able.
The first of these general areas related to the trans-
fer of Mr. Clifford Ellis to what was claimed to be bargaining
unit work. Thus, prior to approximat?ely 4 December 1983, Mr.
~Ellis was employed by the Ministry of Transportation and Com-
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munications as a Project Supervisor. This posi
a managerial one and outside the bargaining uni
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tion.was clearly
t. On or about the
date in question the normal work done by Mr. Ellis, due to the
onset of'winter, was no longer available. Consequently, the
employer assigned Mr. Ellis to do certain work which was called
that of a "Wing Man." In essence, this is a job involved with
snow ploughingi a "Wing Man" is a person responsible for lift-
ing the blade of the plough so it wil~l not hit obstructions at
,/-y the side of the road. Mr. Ellis continued in this work until
approximately the second week in March in 1984.
With respect to the pork of ? 'wing&n": this
had been done in the past by members of the bargaining unit whose
work had "dried up" during the winter and certain employees who
were hired, as it were, "off the street." As the Board under-
stands it, the previous practice'of the employer had been first
to examine those regular employees who would be without work
during the winter. These were assigned to this kind of work.
When these persons had been accommodated, outside persons were
: i Then hired.. Prior to this year, Union witnesses testified that
only bargaining unit employees were assigned to the job of a
Wing Man: managerial personnel had never been put in this posi-
tion.
The second group of managerial employees who were
assigned to certain work in a manner similar to that already
outlined were Messrs. A. Yorke, M. Mann and A. Lott. Prior to
the time 'in question, these men were employed as supervisors by
the Ministry of Transportation and Communications, again in
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managerial positions outside the bargaining unit. These persons,
between the period from approximately 6 December lQS3 to 6 April
1984 were assigned by the employer to'do what was called "Plan
Update Work." Essentially, this type of work is one where maps
of the area where the Belleville office carried on its work were
altered to show any changes which had occurred that would be
relevant to such work. Again, it would seem that the assign-
ments by these persons to such work was as a result of a lack
of work in their normal jobs.
Certain differences in this work, however, existed to
that mentioned in respect to Mr. Ellis. Thus, it would seem
that a certain amount of Plan Update work'was done on a con-
tinuing basis by a classification within the bargaining unit,
that of Technician 1. In this regard, it would seem the work
was a low priority and obviously did not take up the full job
of any individual. Similarly, it is clear that the work to
which these three managerial persons were assigned was one which
was essentially "make-work" for the winter time., Again, the
evidence discloses that these three men,together with a member
of the bargaining unit, Mr. W. VanNess, formed a team to do this
work. Within this group it would seem that Mr. Yorke carried
out certain supervisory wor,k with respect to this group.
It was the claim of the Union, then, that when these
four supervisory personnel were doing the work mentioned they
were doing bargaining unit work,and became members of the bar-
gaining unit for whom the employer was obligated to deduct
Union dues'and forward them to the Union. It should be noted,
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i as well, that no Union personnel had been laid-off st the
time in question and so any issue of excluding these
~pers~ns from the work was not raised in this case.'
The Union Argument
For the Union the issue was whether the men
mentioned above were doing bargaining unit work. To this
end, counsel for the Union claimed that they did by virtue
of Article 1.1 of the collective agreement in effect at
; the time these actions were taken by the Employer. This
provision reads:
ARTCLE 1 - RECOGNITION -
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 1 of subsection 1 of the Cl-OWII Employees
Collective Bargaining Act.
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1n support of this approach, the Union also made
reference to the following provision of the Crown Employees
Collective Barqaininq Aci, R.S.O.1980, c.108, s.l(l)(f)(iii
1. - (1) In this Act,
. . . . .
1 :
(f) "employee" means a Crown employee as defined in
the Public Service Act but does not include, -
. . . . .
(iii) a person employed in a msnagerial or
confidential capacity... .
[Other exclusions to the above Act are irrelevant to
a resolution of this matter. Again, the' definition of
"Crown employee" in the Public Service Act, R.S.0.1980,
c.418, s.l(e), really adds little to this, reading
that such "means a person employed in the service of
the Crow” Or any agency of the Crown, but does not.
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include an employee of Ontario Hydro or the Northland
Transportation Commission".]
From the foregoing it was first noted that there
is no specific definition of what constitutes the bargaining
unit in these circumstances. To answer this question, the
Union made three general oubmissions.
The first of these was to look to the general
arbitral jurisprudence on the subject of the ~scope of the
bargaining unit. Thus, aside from secondary authority, the
/'. / Union referred the present Board to : Re Fittin=, 20
L.A.C.249 (Weatherill,l969); Re westroc Industries, 3 __-
L.A.C.(2dl 102 (Beatty, 19731; and Re Borough of Scarborough, --
10 L.A.C.(Zd) 188 (Adams, 19751. The thrust of the argument
0" this point was that one looks to past practice to
determine what constitutes the bargaining unit; i.e., if
work has been performed customarily by persons admittedly
in the bargaining unit, such work becomes bargaining unit
work and person's doing it fall within the ,bargaining unit.
In the present case, of course, it was urged that such an
Approach fits with the facts which here exist and a similar
result should follow.
The second line of argument was directed to the
scope clause itself. Here, the Union claimed the inter-
relationship of the collective agreement and the governing
legislation make it clear that non-managerial .staff are
excluded from the bargaining unit. Conversely, it would
follow that people doing non-managerial work fall within
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the bargaining unit. To this end fhe Union stressed the
evidence to show that this grievance should succqed. Thus,
they noted that such evidence disclosed the work of the
"Wing Man" was done in the past by members of the bargaining
unit and has no managerial component. Similarly, the Plan
Update Work is of the same nature. Indeed, here the relation-
ship of Yorke to the others was used to strengthen their
argument, i.e., because Yorke "supervised" the others and
the others'supervised no one, the latter's status as mem-
(5 bers of the bargaining unit was strengthened.
The third line of argument advanced by the Union
related to Article 36.1 of the collective agreement, which
reads:
ARTICLE 36 - INFORMATION TO NEW EMPLOYEES
36.1 A newly hired employee shall be informed whether
his position is within the bargaining unit, the
name and address of the bargaining agent and the
name and work location of the local union steward
which shall be provided in writing as Per sub-
section 27.7.4 of Article 27 (Grievance Procedure).
The thrust of the Union argument on 'this point
was that the above language fetters the right of the
Employer to move members of management into the bargaining
unit. It was argued that such is imperative as to do
otherwise would be to nuke the scope of the bargaining unit
meaningless; it is absolutely basic to this protection of
the rights of the Union.
The Union next asked, rhetorically, if there
existed anything in the collective agr,eement or legislation'
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( which altered the foregoing conclusions and, not unexpectedly,
concluded that there were not. 0" this point, initial
reference was made to s.lS(l) of the Crown .Employees
Collective Bargaining Act, supra, which reads:
18.(l) Every collective agreement shall be deemed
to provide that it is the exclusive function of the
employer to manage, which function, without limiting
the generality of the foregoing, includes the right
to determine,
(2) employLent,~appointment, complement, organi-
zation, assignment, discipline, dismissal,
suspension, work methods and procedures, kinds
and locations of equipment and classification
of positions; and
(2) merit system, training and devel,opment, appraisal
and superannuation, the governing principles
of which are subject to review by the employer
with the bargaining agent,
and such matters will not be the subject of collective
bargaining nor come within the jurisdiction of a
board.
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It was argued that the effect of the foregoing
legislation is to provide an appropriate management's
rights clause for the collective agreements which govern
the present type of disputes. The effect of these then,
and more particularly the one with which we now deal, is
to put such cases on the same footing as cases in the
private sector which deal with these types of cases. In
short, the power to assign persons to various kinds of
work is done under the provisions of the collective agree-
ment. It was 'urged that support for this position can be
found in a Grievance Settlement Board case, File No.207/78
(Swan, 1981) [hereinafter referred to as the "McGuire
case's].
Finally, the Union urgea that' the seasonal
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9.
nature of the work involved should not effect this case. In
this regard they referred to Article 3 of ttie collective
agreement. The Board pauses to note here that we see no
relevance of this Article to the present case. Article 3.1
states that: "The only terms of this Agreement that apply
to employees who are not civil servants are those that are
set out in this Article." There follow a number of benfits
provided to such persons. It is to be noted, however, that
the persons to whom such benefits are directed are "employees
('
who are not civil servants". In the instant case, such
term cannot cover the persons against whom the IJnion'S Claim
is directed.
In any event, on the basis of the foregoing
argument, the Union requested a declaration that the work
in question was bargaining unit work and that the Employer
be ordered to P=Y She Union the appropriate amount of
Union dues for the period these men were working as bargain-
ing unit employees.
The Employer's &pent
The thrust of the Employer's mgurru2ntwas based on
6.18(l) of the Crown Employees Collective Bargaining Act,
supra, set out above. In their view, such precludes the
present Board from entertaining this grievance. Basically,
they argue ,that the issue in this case his whether the
,Employer can assign supervisory employees to the jobs in
question on a temporary basis. They claim 'that to do so
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i would be to overrule the legislation mentioned, which they
claim we cannot do: In general, they also nbte ~that this
has been determined against the Union in the past.
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regard to the latter point, the Employer
argued that this issue had been brought up before in an
interest award between the parties in 1975, which was
chaired by Mr. H.D.Brawn [hereinafter called the "Brown"
award]. There, on p.20, the following is found:
Article 56 - Contracting Out
The Association here proposes that the work or
services presently performed by emgloyees in the
bargaining unit shall not be sub-contracted, transfer-
red, leased, consigned or conveyed to ="Y other
person. It is the Employer's position, however, with
which we agree, that this does not come within the
jurisdiction of the Board by virtue of the provisions
of Section 17(l) of the Collective Agreement. We note
that this section as amended, provides that it is the
exclusive function of the Employer to determine among
other things, employment, complement, organization,
assignment, work methods and procedures, kinds and
location of equipment. The provisions for contracting
out even in a modified form would in our opinion,
fell within the exclusions set out in this section.
Therefore, this Board does not make any award in this
area.
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[Similar type's of reasoning are found on p.4
with regard to "Employee Categories - Article 5"; et
p.20 with regard to "Article 57 - Attendance at
Courses"; and et p.22 with regard to "Article 61 -
Training end Development".1
In the same vein, the Employer referred to the
Ontario Public Service Relations Tribunal, File No. T/19/84
(Shim=, .1984), where similar types of arguments were
adopted. More to the point, the Employer stated that the
issue of contracting-out is a"alogo"s to whet was done
here by them.
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File No.131/78 (Roberts,19811 [the "Debbie and Clark"
award]; File No.381/80 (Samuels,l981) Ithe "Sikand" award]; --
File No.199/80 (Jolliffe,l981) [the "Lavigne" award]; File
No.419/82 (Weatherill,l993) [the "Lansey" award]; and File
Nos.52/84 and 53/84. (Roberts,l984) [the "Petrie" award].
The thrust of these awards is exemplified by Dobbie _ and
Clark, -- where it was held that non-bargaining unit eSIp~OyeeS
could apply for jobs posted within the bargaining unit
.without first exhausting applicants from within the bargain-
ing unit. Again, reference was made to dictionary meanings
of the verb "to assign" to support the Employer's argument.
Finally, the Employer referred to the Public Service Act
(and its regulations), E, s.4cd);which reads:
4. The Commission shall,
. . . . .
(2) assign parsons to positions in the classified
service and specify the salaries payable... . I
In r'esult, it was argued that this grievance be
i:~. dismissed.
The Decision
In the view of this Board, the present grievance
should succeed. In this regard, we would first note that
_.. the Employer's argument does not respond to the claim of
The further line 'of argument to the Employer
related to a number of Grievance Settlement' Board cases:
the Union. Thus, at the risk of over-simplifying the
issue, the thrust of the Employer's a,rgument: was to the
12. 2
effect that the Union could not preclude the Employer from,
acting es it did, i.e., assigning managerial p&rsonnel to
work normally.done by persons in the bargaining unit.
That, in the,opinion of this Board, is not the issue in
this case. For the reasons advanced by the Employer, there
seems to be no basis for this Board to prohibit the Empl~oyer
from assignirig the work in the way it did. While not akin
to the re'sults which would be found in the privatisector,
it is perhaps understandable that an Employer would retain
such broad control of it's work force in the public sector.
When it took this action, the Union claims that
these employees so assigned were assigned to bargaining
unit work. There can be no doubt that such was the case
(except, of course, for Yorke). In short, clearly these
men were doing bargaining unit work; equally clearly, the
Employer can do this. When they do so, however, the Union
claims that these people thus become bargaining unit
employees covered.by the collective agreement. This Board
agrees with this point of view. The nature of the work
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done is the basis for the characterization of an employee
as being within or without the bargaining unit. TO adopt
the line of argument of the Union, there are no provisions
in the collective agreement or legislation which specific-
ally allows the Employer to both assign work it wishes and
maintain any designationof the employees so involved as
being in or out of the bargaining unit, i.e.; managerial
or supervisory or not. To refer back to 6.1(1')(f) of the
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Crown Employees Collective Bargaining Act, spra, there,
by virtue of this legislation "persons employed i? a
managerial or confidential capacity" are excluded from. the
bargaining,unit. It seems self-evident that the mere*
dixit of an emrmloyer is dispositive of the issue of whether
a person fits this description. Clearly, such refers to a
factual situation which exists in reality; once such a
situation occurs the results'contemplated by the legislation
come into effect. It is, in terms of the law relating to
administrative bodies, a jurisdictional issue, which can
be reviewed by relevant supervisory bodies. In short, the
Employer is not the sole judge of the coverage of the
relevant legislation or collective agreement. Moving from
this position, one must accept the Union's ArguTfZItS respect-
ing this case and grant the relief sought.
Thus, this Board awards that the Employer, by
assigning the named employees, except Y.orke, as they.did,
brought them within the bargaining unit and are responsib
to the Union for the Union dues which should have been
paid to the Union during the period of time that they
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were, as found here, working within the bargaining unit.
should the parties be unable to determine the monies owing
pursuant to the above awards or if any other difficulties
arise in implementing it, we retain jurisdiction to deal
with such matters. In this regard, the parties are requested
,'td implement this award et the earliest opportunity
14.
DATED at Lynden, Ontario, this twelfth (12th) Qy
of September, 198:.
A.
R.Cochrane
ldember
E.J.Orsini
bkmber