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HomeMy WebLinkAbout1990-2311.Coones.91-11-25 DecisionONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARlO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 180, RUE DUNDAS OUEST, BUREAU 2700, TORONTO (ONTARIO). M5G TELEPHONE/TELEPHONE: (4 326- 1388 : (416) 326- 1396 2311/90 IN THE MATTER OF AN ARBITRATION Under CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Coones) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE : FOR THE GRIEVOR HEARING S. Stewart M. Vorster D. Halpert L. Steinberg Counsel Koskie & Minsky Barristers & Solicitors Vice-Chairperson Member Member J. Baker Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors July 30, 1991 DECISION In a policy grievance dated November 9, 1990, the Union alleges that the Employer has violated the Collective Agreement by failing to deduct and remit dues with respect to certain employees. jurisdiction of the Grievance Settlement Board to hear and determine this grievance. On the agreement of the parties the Board dealt with this preliminary issue only. The Employer objected to the The grievance involves two groups of employees, both of whom are employed at the Durham warehouse located in Whitby. The groups of employees are senior security officers and maintenance forepersons. It was common ground that the issue between the parties with respect to the maintenance forepersons is whether they perform managerial functions. The Union characterized the issue with respect to senior security officers as whether these persons perform duties which bring them within the watchperson classification contained in the Collective Agreement. Employer contends that their positions are sufficiently distinct from the duties of watchpersons that they do not fall within this classification. It is also the position of the Employer that the senior security officers are managerial employees, and, like the maintenance forepersons, are properly excluded by virtue of the provisions of the Crown Employees Collective Bargaining The 2 Act. Ms. Baker, on behalf of the Employer, objected to the jurisdiction of the Grievance Settlement Board to hear and determine this grievance on the basis that it raises an issue of status that is within the exclusive jurisdiction of the Ontario Public Service Labour Relations Tribunal. The relevant section of the Crown Employees Collective Bargaining Act is s.40(1) which provides as follows: 40.-(1) If, in the course of bargaining for a collective agreement or during the period of operation of 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. Ms. Baker relied on the following decisions in support of he? position that the Grievance Settlement Board has no jurisdiction to deal with this matter as it is a matter that falls within the exclusive jurisdiction of the Tribunal: Ontario v Ontario Public Service Employees Union (Canning) [1986] 14 O.A.C. 223 (Divisional Court), Ministry of Community & Social Services & OPSEU (Lasani) 147/84 (Delisle) and Ministry of Industry, Trade and Technoloqy & OPSEU (Union Grievance) 1257/86 (Barrett). 3 In Canning, the Divisional Court upheld a decision of the Grievance Settlement Board in which the Board decided that certain employees were wrongly classified and ought to have been classified within a classification system for non-bargaining unit employees. At p. 234 the Court states as follows: In the Ontario Public Service there is a distinction between bargaining unit employees and non-bargaining unit employees. The distinction is sometimes referred to as a question of status. An unresolved dispute with respect to the status of a particular employee is determined by the Labour Relations Tribunal established under the Act. Status is separate and apart from classification. The Board has jurisdiction to consider classification but not status. The Court quoted from p.21 of the decision of the Board at p. 235, which in part, states as follows:' In granting an appropriate remedy, we cannot affect their status, but we can order that they be reclassified into the proper classification, whatever they can show that to be. It is therefore theoretically possible be properly classified in the AM 17 classification and that we could so award. If the employer wished to establish a new and distinct classification for bargaining unit employees equivalent to the new AM 17 classification of a management job in order to keep the MCP system free of employees, then it could do so. We could also award that the grievors be reclassified into some other classification outside of the MCP system if that were the most appropriate determination based on the facts before us. that the grievors could show that they should At p. 236, in its concluding comments, the Court stated: In the case before us, the Board determined that if it did find an appropriate job 4 classification in the Public Service of Ontario that described the function being carried out by a bargaining unit employee, it could say so. It recognized that an employer might wish to keep its MCP system free of bargaining unit employees and that it had the ability to do so by "parallel classification" Further, it would be open to the employer, if so advised, to seek a change in the status of the grieving employees before the Labour Relations Tribunal. In Lasani, the employer's contention was that the position applied for that was the subject of a grievance was a managerial position. sine die pending a decision of the Tribunal with respect to that matter. The Board stated that at p. 1 that: The Board adjourned the case We decided that while one could argue that we might have the authority to decide this issue, see C.I.L. [1972] 3 O.R. 63 (C.A.), such a matter should be reserved for the Labour Relations Tribunal. The Board went on to refer to the first paragraph in the Canning decision which is reproduced above in support of the position that it adopted. In Ministry of Industry Trade and Technology (Barrett), supra, the grievance before the Board related to the posting of certain positions. that it was not obligated to post the positions because the positions were excluded as managerial positions pursuant to the Crown Employees Collective Bargaining Act. employer's position was that the matter ought properly to The employer contended The 5 be referred to the Tribunal. that the Board and the Tribunal had concurrent jurisdiction to determine the issue and that in those circumstances, where the issue was placed before the Board and where the issue had not been referred to the Tribunal for It was the union's position determination, the Board ought properly to determine the dispute pursuant to s.19(1) of the Crown Employees Collective Bargaining Act which provides that the Board has jurisdiction to determine "any differences between [the parties] arising from the interpretation, application, administration or alleged contravention" of the Collective Agreement. At p.7, the Board comments as follows: 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. It is a necessary 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 Employees Collective Bargaining Act as a whole, one has to assume that the framers of the legislation contemplated that questions of employee status would arise frequently, and accordingly a specialized Tribunal should be established to deal with that issue on an on- going basis. Because we have found that the status of these 6 jobs is really the only matter in dispute in this grievance, we believe it should be referred to the Tribunal pursuant section 40 (2) of the Act, and we do so. Mr. Steinberg argued that section 40 (1) of the Crown Employees Collective Bargaining Act is not an exclusive grant of jurisdiction to the Tribunal. In his submission, the dispute between the parties here is appropriately characterized as whether certain persons perform work within the scope of the bargaining unit and that s.19 of the Crown Employees Collective Bargaining Act contemplates the resolution of this kind of dispute by the Grievance Settlement Board. While he conceded that there was "more of an issue of status" with respect to the maintenance foreperson positions, he argued that the real issue with respect to the security guards is whether they perform the work of a classification contained in the Collective Agr e eme nt Mr. Steinberg referred to Canadian Industries Limited [1972] 3 O.R. 63 (Court of Appeal) in support of his position. In that case, the Court of Appeal concluded that a board of arbitration acted within its jurisdiction when it dealt with an issue of whether persons were employees. The arbitration award was initially quashed by the Divisional Court on the basis that the arbitration board had made a decision that was within the exclusive 7 jurisdiction of the Ontario Labour Relations Board, pursuant to what is now s. 106(2) of the Labour Relations Act. At p. 65, the Court of Appeal states: When the Legislature wanted to give the Ontario Labour Relations Board exclusive jurisdiction over a subject- matter, it did so in plain and unequivocal language. Indeed, it used those very words in s-s.(l). In s-s (2) on the other hand, the language used is that the questions there referred to "may"- and I emphasize may ''be refered to the Board." We hold that this language is permissive and not mandatory. If such a question is in fact referred to the Ontario Labour Relations Board, its jurisdiction would then be exclusive by the same application of s-s(1) that Mr. Justice Osler gave it, but it did not occur here. Neither party chose to refer the question to the Ontario Labour Relations Board. They chose to proceed by way of arbitration under the collective agreement. Mr. Steinberg also referred the Board to the decision of ,the Ontario Public Service Tribunal in Ministry of Community and Social Services & OPSEU (Lasani) T/0014/87 (Mitchnick) which followed the decision of the Grievance Settlement Board referred to above. At p.5. of its decision the Tribunal states: The Union had adequate notice prior to the Grievance Settlement Board hearing that the employer was continuing in the view that the posted position was managerial and the procedure adopted by the Grievance Settlement Board, while possibly not the only option open in law, was in light of the long standing jurisprudence between the Board and the Tribunal, not an unfair one. As well, Mr. Steinberg referred the Board to the decision of the Divisional Court in General Concrete Canada Ltd. [1987] 22 0.R (2d) 65. In that case the union 8 filed a grievance alleging that certain persons were covered by a collective agreement following a decision of the Ontario Labour Relations Board that these persons were not employees for the purposes of the Labour Relations Act. The decision of the arbitrator was quashed on the basis that the arbitrator merely relied on the decision of the Ontario Labour Relations Board rather than making the necessary determination with respect to the provisions of the Collective Agreement. Mr. Steinberg also referred the Board to Ministry of Transportation & Communications, 519/84, (Palmer) in which the Grievance Settlement Board undertook a determination of whether or not the work performed by persons in managerial positions was bargaining unit work. that certain work they performed was bargaining unit work, notwithstanding the fact that these employees were in manage-rial positions. The Board concluded We agree with Mr. Steinberg that the Grievance Settlement Board has concurrent jurisdiction with the Tribunal in connection with the matter raised in this grievance. It is our view that the decision in Canadian Industries Limited, dealing with similar statutory language in a similar context, supports this conclusion. The particular issue of the jurisdiction of the Tribunal in 9 relation to the jurisdiction of the Grievance Settlement Board to determine an issue of status as it arises in this case was not directly before the Divisional Court for determination in the Canning case, Limited decision was not addressed in Canning. We do not view the comments of the Court, reproduced above, dealing with the determination of the issue of status, as determinative of the issue of jurisdiction to deal with The Canadian Industries issues of status arising under the Crown Employees Collective Bargaining Act as the issue arises before us in this instance. However, notwithstanding our conclusion that the Grievance Settlement Board has jurisdiction to determine the issue of status in the context of this grievance, it is our view that it is appropriate that the matter be referred to the Tribunal for a determination of the issue of status. While there may be other issues in connection with this grievance, it appears that a determination of whether the maintenance foreperson positions are managerial positions will resolve the dispute between the parties with respect to this aspect of the grievance. not resolve the entire dispute between the parties with respect to the senior security officers, however it will clearly narrow that dispute. Such a determination may 10 The referral of such matters to the Tribunal is in accordance with the practice of the Grievance Settlement Board, as indicated in the decisions referred to above. There are sound policy reasons for maintaining a consistent approach to such matters. As this Board has stated on many occasions, an established approach ought to be departed from only for the most compelling reasons. Mr. Steinberg referred to the delay in the resolution of the dispute that would result from the referral of this matter to the Tribunal by the Board. While any delay is unfortunate in labour relations matters, it is our view that there would be a greater undesirable effect arising from the uncertainty that would be created if the Board departed from its established practice in this instance. The issue before us was canvassed at some length by this Board by Vice-Chairperson Barrett in Ministry of Industry Trade and Technology, supra. Mr. Steinberg argued that this decision does not specifically address the decision of the Court of Appeal in the C.I.L. case. We cannot agree with this submission. At p.6 of the Barrett decision the C.I.L decision is referred to and it is apparent that it is relied upon in support of the conclusion on p.7 that the Grievance Settlement Board has jurisdiction to determine the issue of status if it arises in a grievance properly before it. In that case, however, after concluding that the essence of the issue in dispute was one of status, the 11 Board decided that the matter ought to be referred to the Tribunal. That decision suggests that section 40(1) reflects the view of the Legislature that the Tribunal is a specialized body to deal with issues of status and accordingly, it is preferable that matters of status be decided by the Tribunal. Notwithstanding Mr. Steinberg's submission to the contrary, it is our view that this is a reasonable inference. For the foregoing reasons it is our view that the result in the decision of this Board in the Ministry of Industry Trade and Technoloqy, supra, is the appropriate result in this instance. Accordingly, the hearing in this matter is adjourned sine die in order that the matter of status can be dealt with by the Tribunal. This panel has not heard any evidence and, accordingly, we are not seized -- with the grievance in the event that the decision of the Triburial is not dispositive of the dispute between the parties. 12 Dated at Toronto 25th this day of November, 1991 S. L. Stewart Vice-Chairperson D. Halpert Member ' M. Vorster Member I