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HomeMy WebLinkAbout1986-1257.Union.87-08-261257186 IN ITIR NAlTRR OF AN ABBITR~TION UNDER TIE CRONN BMPLOTBES COLLECTIVE BARGAININGACC BRmRw : BEFORE TBB‘GRIBVANCB SE- BOAED OPSBU (Union Grievance) Grievor - and - TBR CRONN IN RIGBT OF ONTABIO (Ministry of Industry, Trade and Technology) Employer BEFORE: FORTrU'GRIEvOR: FOR TNE EKPLOTER: EEARING: 4. Barrett J. Anderson A. Stapleton Vice-clmirman Member Member T. Nadwen Counsel Cavalluszo, Bayes and Lennon, El. Pleishman Counsel Crown Law Office Civil Ministry of the Attorney General May 6, 1987 AWARD The,Employer raised a preliminary objection to this Board's jurisdiction to hear the within grievance, and this decision concerns itself only with that preliminary objection. The grievance states: "Ministry of Industry, Trade and Technology is. in violation of Article 4 .of the Working Conditions Collective Agreement by failing to post the following positions in accordance with the afore-mentioned article: .Economists (IT-69),.Policy Analyst (IT-741, and Senior.Economists (IT-75) The Employer takes the position that the Collective Agreement does not apply in this case because the jobs in question , are not performed by "employees" within the definition of the Crown Employees Collective Bardaining Act s.l(l) (f) (iii) because they.are "persons employed in a managerial or confidential capacity." The Employer arguesthat the assignment of work and classification of positions are the exclusive function of the Employer and.notsubjectto~ collective bargaining pursuant to Section 7 and Section 18(l) of the Crown Employees Collective Bargaining Act. However, pursuant to Section 19 of the Act, - we do have jurisdiction to determine whether a matter is arbitrdble. The Employer invites us-to find that the question of'whether a person is an employee should be decided by the Ontario Public Service Labour Relations Tribunal which is established under Section 36 of the Act and.is said in Section 39to have exclusive jurisdiction to determine all questions of fact or law that may arise in any matter before it. Section 4Q.of the Act states: - -2- "4al)' 'If, in the course of bargaining for a collective agreement, a question arises as to whether a person is an' employee, the question may be referred to the Tribunal and its decision thereon is final and binding for all purposes. (2) If, in-the fourse of bargaining for a collective agreement or during proceedings before a board of hrbitration, a question arises as to whetheramatter comes within the scope oft collective bargaining under this Act, either party or the board of arbitration may refers the question to the Tribunal and its decision thereon is final and binding for all purposes." The Employer urges us to~refer the question of whether or not the positions are held by~"employees" within the definition contained in the Act to the Tribunal who may -then', having determined -. that issue, refer, the matter back to us for final disposition' of the grievance. It is common ground that the posting requirements.of Article 4 of the Collective Agreement only apply to jobs within the bargaining unit: that the jobs in question were not posted: and that the Employer takes the view that these are managerial positions and outside of the bargaining unit. The Unioh takes the position that these jobs are within the bargaining unit and do not fall within the. "managerial" exception. TheUnionsays that pursuant to Section 19 of the Act we have juris- diction to arbitrate any differences between the parties arising from the "Interpretation, application, administration or alleged contraventionofthe agreement including any questionasto whether a matters is arbitrable". The Union.says that the first thing we must'dois "interpret" Article 1.1 of the Collective Agreement, -3- 'the recognition clause, which states that the Union is recognised as the exclusive collective bargaining agent for all public servants other than, inter alia, "managerial or confidential"employees. Therefore we should determine first of all whether these positions - are held by "public servants" and whether'or not they are "managerial!' as part of our jurisdiction to interpretArticle1.1. Having made that 'determination we must decide whether or not the jobs shoulc? havebeenposted. The Union~agreesthat:lfa,question was to whether a person is an employee is referred to the Ontario Public Service Labour Relations Tribunal, then it has the exclusive jurisdiction to determine that'issue. However, Section 40 states that the question may be referred to the Tribunal, which is not a mandatory directive. The Employer has not invoked the‘jurisdiction of ,the Tribunal, as it might have, and therefore no question of conflicting jurisdictions arises. The Union saysthat we have concurrent Jurisdiction to determine this issue if it is placed before us in the course of interpreting a Collective-Agreement. There is no doubt that Arbitration Boards have jurisdiction to construe statutes if their provisions,affect Collective Agreements. (MC~EOD et al. v. EGAN et al. 11974) 46 D.L.R. (3d) 150 (S.C.C.) For comparison purposes the Union referred us to several cases confirming the concurrent. jurisdiction of the Labour Relations Board and an arbitrator under a Collective Agreement to determine whether or not certain persons were "employees" and thus covered under Collective Agreements. In Re:. Canadian Industries Ltd. and International Unionof District 50, Allied and Technical Workers of United States and~canada, Local 13328 /Tg7T/ 3 O.R. 63, the : :. ; -4 - Ontario Court of Appeal held that the Ontario Labour Relations. I Board.,has exclusive juridiction to consider a question as to whether persons are covered by a Collective Agreement if such a question is in fact referred to the.Board under Section 95(l) oft the a Labour Relations Act R.S.O. (1970): but where neither party refers the question to,the Board, Section 95(Z) of the Act providing - that the question may be referred to the Board does not establish the jurisdiction of the Board as exclusive and therefore such jurisdiction may be exercised by a Board of Arbitration chosen by the parties to the Collective Agreement. (See also Re: Canadian Union of Public Employees, Local 1000 and Hydro- Electric Power Commission of Ontario (1971) 23 L.A.C.) In Re: Ford Motor Co. of.Canada Ltd. and United Kant Guard Workers, Local 1958 (1981) 1 L.A.C. (3d) 141, Arbitrator MacDowell found no difficulty in assuming concurrent jurisdiction with the Ontario Labour Relations Board to determine which of two entities was' the "real employer" for collective bargaining purposes. The Union further argues that a referral by this Board to the Tribunal to determine the issue of employee status would constituteanunnecessary div~isionof the decision-making jurisdiction. If the Tribunal determinedthatthe people holding the positions in question were employees within the meaning of the Act the Tribunal - would then have to refer the matter back to this Board for determinati of whether or not the Collective Agreement was violated. Grievance, arbitration is meant to be a simple and expeditious manner of settling differences between the parties, and any defe~rral by I usto the Tribunal of part of the,decision that must be made in this case would only, slow down and encumber~a prompt and equitable settlement of the dispute. Surprisingly &ough, at the time of our hearing in this matter this issue had not been squarely determined by a reported decison of any panel of the Grievance S~ettlement Board. The question was adverted to by a Board chaired by Mr. Weatherill in the Hodgins and Turner cases 425180 and 426/80, where it was.said at page four:~ "It may well be. that in the course of deciding grievances properly before it this Board would need to make certain determination: asp to whether or not certain individuals are "employees". An individual's claim to be recognised as an employee or otherwise, or to be recognised as an employee in a managerial, capacity or not is not the sort of claim for which a right of grievance is I provided under the Act or under the collective agreement. Determinatic - of ,questions of that sort are ~of course frequently.made by the Ontario Public Service Labour Relations Tribunal, but we express no opinion as to whether or not the Tribunal would.have jurisdiction to entertain individual applications with respect to status as an "empioyee". " Subsequent to our Hearing a decision of a Grievance Settlement Boardpanel was released on May .15th, 1987 in the matter of LasaniiG.S.B. 147/84j,dealing with this very issue. We received a copy of the decision and written arguement from both counsel on it. In the Lasani case the grievor,who was,a member of the bargaining unit,claimed he had not been properly considered for a managerial position covered by the management Compensation ,Plan. _’ I .;. : ,,. : .:. ’ ‘. > '-6- The Union sotight to adduce evidence that the position~was in reality a bargaining unit position. The Board, chaired by Professor Delisle, decided that: "While one could argue that we might have the au,thority to decide this issue, see Re: C.1.L and Allied, /197FJ 3 0.R. - - 63 (C-A.), such a matter should be reserved for the Labour Relations Tribunal." The Board relied on the Divisional Court decision in OPSEU (D.W. Canning et al) and Crown/Ontario (Ministry of Government Services), (unreported) April 17th, 1986.where it was said: "The Board has jurisdiction to consider job classification butnot status." Accordingly the Board adjourned the matter sine die to. allow the parties to proceed to the~Tribuna1 to resolve the dispute. The Employer argues that in our case we should do exactly the same thing and refer this matter to the Tribunal. The.Union urges us to look more closly at the Canninq decisio relied upon by th.e Lasani panel and conclude that the status of employe, was not at issue in that case, only their classification: and according the commenrrs quoted above aboit the Grievance Settlement Board juris- diction to determine status were obit~er. The Union concedes, that the Grievance Settlement Board does not have the jurisdiction to,determine status when that is the only issue before it. Where status is the only issue the Tribunal has the exclusive jurisdiction. However, says the Union, unlike the Canning decision this case deals with a grievance within which the issue of status properly arises. In this case the Grievance Settle- ment Board has concurrent jurisdiction to make the status determinatio as part of its larger ruling on the grievance. The Union says the I I”, “.j i . . . . . I:: ~Lasani panel misconstrued the CIL case as being authority for the - c .proposition that the Grievance Settlement Board might have authority to decide the issue of status; whereas the case actually decides that, an arbitration board definitely has authority: to-decide such an issue if it arises in the course of a grievance. We agree that the Grievance Settlement Board does have concurrent jurisdiction with the Tribunal to determine the issue of status if it arises within the framework of a grievance properly before it.. However, the only real issue before us is,the status of the jobs in question. The resolution of this grievance depends entirely on that finding. Itisanecessary corollary of that finding that if the jobs are properly within this bargaining unit they should have been posted. By grieving the absence of posting the Union is doing no more than raising the issue of status of those jobs. There is no individual grievance here, -just a complaint that the jobs are really bargaining unit positions and therefore should have been posted When looking at the Crown Emuloyees Collective Baraaininc Act as a whole one h~as to assume that the framers of the legislation - contemplated that questions of employee status would ,arise frequently-, and accordingly a specialized Tribunal should be estabiished to deal with that issue on an on-going basis. Because we have found that.the status of these jobs is really the only issue in dispute in this grievance, we believe it should be referred to.the Tribunal pursua,nt to section 40(2) of the Act, and we do so. t . (I ._ ,. -8- DATED at Toronto-this .26th day of August, 1987.