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HomeMy WebLinkAbout2008-0647.Union.10-08-09 Decision Commission de Crown Employees Grievance règlement des griefs Settlement Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2008-0647 UNION#2008-0340-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Ministry of Revenue) Employer BEFOREBram Herlich Vice-Chair FOR THE UNIONRichard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYEROmar Shahab Ministry of Government Services Legal Services Branch Counsel HEARING May 1, 2009, October 9, 2009 and May 7, 2010. - 2 - Decision [1]This is a grievance asserting that the position of Administrative Coordinator located in the Office of the Assistant Deputy Minister (?ADM?) in the Tax Revenue Division of the Ministry of Revenue Oshawa office is one which ought properly to be included in the union?s bargaining unit. The position was filled in April 2007 and is currently being treated by the employer as a position which is excluded from the bargaining unit. The instant grievance was filed in February 2008. [2]Shortly before the commencement of the hearing in this matter the employer filed an application with the Ontario Labour Relations Board, pursuant to Section 114(2) of the Labour Relations Act, seeking a declaration that the person filling the position in question is not an employee within the meaning of the Crown Employees Collective Bargaining Act(?CECBA?). In a decision dated December 5, 2008 in this matter I dismissed the employer?s motion that I defer these proceedings pending that determination. [3] In the hearing on the deferral motion and when the matter reconvened on May 1, 2009 subsequent to the dismissal of the deferral request, the employer indicated it relied on section 1.1(3)(9) of CECBA which provides: This Act does not apply with respect to the following: ? 9. Employees exercising managerial functions or employed in a confidential capacity in relation to labour relations. [4] However, when the matter proceeded to final argument, the employer indicated that, in addition to the above noted section, it was also relying upon section 1.1(3)(15) of CECBA which provides: This Act does not apply with respect to the following: ? - 3 - 15. Other persons who have duties or responsibilities that, in the opinion of the Ontario Labour Relations Board, constitute a conflict of interest with their being members of a bargaining unit. [5] The parties agreed that I should determine the question of whether, having regard to either or both of the above quoted sections, CECBA applies to the incumbent in the position in question (and to do so notwithstanding the reference to ?the opinion of the Ontario Labour Relations Board? in the latter newly raised section). They understood that should I determine that CECBA does not apply, that would be the end of the matter and the grievance would be dismissed. On the other hand, they also understood that were I to determine that CECBA does apply, that would not necessarily determine whether the position in question properly falls within the union?s bargaining unit and that the hearing in this matter might need to resume to deal with that issue. [6] The only viva voce evidence before me is the testimony of Robin Wilson, the incumbent in the position of Administrative Coordinator. Ms. Wilson works in the office of the ADM, Tax Administration Policy and Partnerships, in the Tax Revenue Division. The ADM?s office out of which she works houses only 5 individuals, including the ADM. Ms. Wilson reports to the Executive Assistant to the ADM, who, in turn reports to the ADM. Despite the formal reporting structure, however, the evidence indicates that Ms. Wilson performs much of her work directly for the ADM. [7] While the office may be modest, its responsibilities are not. There are some 2500 employees in the Ministry; 1500-2000 of those work in the Tax Revenue Division. The ADM has responsibilities which include oversight of tax statistics, tax benefits programmes and tax credits. The Division is responsible for the collection of all provincial taxes and the administration of tax credits and benefits programmes. In addition, the ADM is responsible for staffing issues, including grievances, hiring and complaints as well as issues of complement reductions/increases and budget initiatives. [8] Ms. Wilson has worked in the ADM?s office since 2000. She was originally classified as an OAG 10, in the position then referred to as ?Administrative Assistant?. - 4 - Sometime in or about 2003 she was reclassified as an EO012 in a (higher rated) position described as ?Senior Administrative Assistant?. In or about 2007, Ms. Wilson was again reclassified, this time to an AM-15 in a (yet higher rated) position called ?Administrative Coordinator?. She held this latter classification/position at the time the grievance in this matter was filed. In all of these positions, Ms. Wilson was treated as excluded from the bargaining unit. However, no grievance was filed prior to the instant one challenging Ms. Wilson?s exclusion. It is common ground that, despite the changes in classification and job titles, there have been no significant changes in the duties and responsibilities associated with the three positions. [9] I turn now to a summary of the salient evidence regarding Ms. Wilson?s duties and responsibilities. (I have omitted references to tasks and documents which I do not believe support the claimed exclusion, such as the printing of documents relating to absences for purposes of the Attendance Support Programme, potential retirements, and PDP overdue reports ? despite perhaps being marked as confidential, these do not really contain any information ? though it may be organized in a different fashion ? not readily available to the employees concerned and, by extension, to the union.) [10] Ms. Wilson provides day to day support for the ADM?s activities. She opens, reads and logs all incoming mail and prioritizes which items require the immediate attention of the ADM or the Executive Assistant. She manages the ADM?s calendar and accepts, declines and schedules his meetings. She prepares daily binders for the ADM to support the matters he will be tending to. One notable exception to Ms. Wilson?s vetting of the ADM?s correspondence relates to grievances and WDHP complaints. Correspondence relating to such matters will typically ? though not exclusively ? be hand delivered to the ADM directly or otherwise marked as confidential and therefore unopened by Ms. Wilson. She will, however, likely need to consult these documents later in the process, at least for filing purposes. But she does, however, have standing instructions to open audit materials, which, may include information relating to disciplinary matters. - 5 - [11] Two such audit reports were referred to for illustrative purposes. One, which recommended that the employer take action against the employee, involved an investigation of irregularities in the reporting and purchasing activities of an employee in the Revenue Collections Branch; the second, which resulted in the employee?s subsequent termination, involved a Ministry Service Representative improperly engaged in outside work or business while actively employed (or on paid sick leave) by the employer and using government premises and supplies for those purposes. Ms. Wilson testified that when such reports arrive, her task is to read them, log them and determine the level of priority to be assigned to them for the ADM?s purposes. [12] Ms. Wilson was directed to print out documents relating to the introduction of ROOF (Rental Opportunity for Ontario Families) security checks. The Ministry had sought access to certain Canada Revenue Agency files and the CRA required persons accessing such files to have security checks performed as a condition of file access. These documents related to the implementation of that process and requirement. This task was performed prior to (but perhaps by only a matter of days) the documents being released to the bargaining agent. The employer reminded us that the introduction of security checks is a matter of some interest to the bargaining agent, as evidenced by a recent decision of this Board in AMAPCEO and OPSEU GSB File No. 2003-0001, an interim decision authored by the Chair of this Board and released on March 1, 2010. [13] A number of documents, related to the CTAR (Corporate Tax Administration Redesign) project were filed and relied upon. In brief, the CTAR initiative was one whereby provincial corporate taxes, formerly collected by the Ministry, were to be directed to the federal agency. This project unfolded over a period of years commencing sometime in 2005 or 2006. As one might expect, the entering into and rolling out of this project had a major impact on bargaining unit employees. The project is now largely completed. However, its impact on the Ministry continues to be felt and there still remain some unresolved issues of complement. [14] Among the issues dealt with during the course of the project were the negotiation of a memorandum of agreement between the two levels of government, determinations as - 6 - to which positions would be transferred from the province to the federal government, dealing with resulting staff dislocation, implementing training programs and the like. [15] The project required regular ongoing meetings over a protracted period of time, including strategic meetings of several management committees charged with design and implementation responsibilities as well as ongoing meetings with representatives of the bargaining agents involved. [16] One should not overstate the nature of the role performed by Ms. Wilson in relation to the project. She was not a participant in or member of any of the committees, indeed, she did not attend any of the meetings, even for the purposes of keeping minutes. And it was clearly not her function to be providing advice or policy guidance with respect to any of the issues that may have arisen. The documents and evidence make clear, however, that she played an important supporting role for the ADM in relation to a significant ongoing government initiative that had vital consequences for many employees and for their job security. Ms. Wilson set up various meetings and assisted the ADM in the preparation of documentary binders. The ADM had responsibility for HR negotiations, her (i.e. the predecessor to the current ADM) main focus was on labour relations. In the course of these particular duties Ms. Wilson was required to review various documents, including briefing notes, agendas, strategic documents, minutes, other reports and even the ADM?s handwritten meeting notes. [17] We also heard some evidence regarding the harmonized sales tax (HST) (at the time Ms. Wilson gave her evidence in chief, the budget speech announcing the transition to a harmonized sales tax had only very recently been delivered). Given the timing of events and the evidence, this testimony was undoubtedly somewhat speculative. Ms. Wilson did indicate, however, that the consequences and, in particular, the impact on employment and job loss resulting from the implementation of the HST would far outstrip that occasioned by CTAR. There is no reason to believe that Ms. Wilson will not provide support in relation to the implementation of the HST similar to that provided for CTAR. - 7 - [18] Two other documents provided further examples of the type of material the ADM might request Ms. Wilson to print out. One was an ?impact analysis? on the risks of applying a 5% constraint to the Ministry budget ? it postulated models which simply implemented staff reductions as well as one which contemplated staff growth to generate increased revenues as an alternative approach to achieve the contemplated 5% reduction. The other was a draft of a ?Results based Planning? overview slide deck. RbP is an annual financial and budgetary event for planning purposes, including staffing levels. [19] The final area of consideration emerging from Ms. Wilson?s evidence relates to her involvement in policing conflict of interest matters. There is no doubt that Ms. Wilson has made a significant contribution to the administration of conflict of interest issues within not just her branch, but the entire Ministry.When Ms. Wilson began working in the ADM?s office, conflict of interest issues were not subject to the more elaborate and systematic procedures currently in place. (There is presently a 30 page document outlining Ministry guidelines regarding conflict of interest.) Ms. Wilson established the system for dealing with initial applications regarding conflict of interest. Under the guidelines, when employees are uncertain whether their activities represent a real, potential or perceived conflict of interest, they are required, before engaging in the activity in question, to complete a document styled ?Confidential Request for Conflict of Interest Advice? to be filed with the Deputy Minister. All such requests (i.e. Ministry- wide) are forwarded from Deputy Minister?s office to Ms. Wilson. [20] Ms. Wilson has established a system to log, file and track such requests, which arrive, on average, two per week. But her responsibilities go far beyond that. She has consulted various sources (including Federal CRA guidelines, the Ministry guidelines, thePublic Service Act and both OPSEU and AMAPCEO collective agreements) as well as her own experience to prepare a template of responses to such requests which typically ? though not exclusively ? relate to such matters as paid or volunteer work outside of the Ministry or political activity. She has also participated in presentations both internally and to the Conflict of Interest Commissioner outlining the procedure followed to deal with conflict of interest matters. - 8 - [21] Upon receipt of each request, Ms. Wilson, drawing upon the templates and her experience, prepares a response. If she deems it necessary, she will consult with legal services to aid in formulating the response. Once prepared, the response is forwarded on to the Deputy Minister for signature and forwarding to the employee concerned. There was no evidence to suggest that Ms. Wilson?s drafts are typically subject to any significant alterations before being issued over the signature of the Deputy Minister. [22] Of course, while these letters, or advance rulings, cannot in any way be considered disciplinary sanctions, non-compliance with their terms may well result in discipline. These advance rulings clearly have and are meant to have an impact on affected employees. Ms. Wilson also testified that it would not be unusual for her to receive calls from local managers inquiring as to whether or not one of their employees had sought an advance ruling. [23] Apart from the viva voce evidence just reviewed, a reference to two documents filed on consent but not otherwise referred to in evidence is in order. Both are Position Description Reports (PDR) ? one in respect of the ?Program and Administrative Assistant? who works in the same office as Ms. Wilson; the other pertains to an otherwise unidentified ?Director?s Administrative Assistant?, the latter position located in the Ministry?s ITRP branch. Both positions are classified as ?10OAD? or ?OAG10?. They are thus rated, at least for pay purposes, at the same level as Ms. Wilson found herself upon first coming to work in the ADM?s office, some 10 years and 2 upward reclassifications ago. [24] Both of these PDRs include the following paragraph, under the heading of ?Duties/Responsibilities?: Receiving, handling and preparing documents regarding labour relations issues including grievances, disciplinary actions, harassment, staff absenteeism, and other personnel issues. [25] Both of the positions in question are included in the union?s bargaining unit. - 9 - [26] By contrast, it is interesting to note that the same paragraph was found in both the Position Specifications/PDR of Ms. Wilson?s original position (which she occupied from 2000-2003 and which was rated at a level equivalent to the 2 positions referred above) and her subsequent position (which she occupied from 2003-2007 and was a higher rated position). But both of Ms. Wilson?s former positions, it will be recalled, were excluded from the bargaining unit. Her current PDR contains the following, under the heading of Duties/Responsibilities: Coordinates human resources activities including the preparation of appropriate forms and documents (e.g. staffing requests, grievances, disciplinary actions, harassment and absenteeism issues) and ensures adherence to all human resources policies, procedures and reporting requirements. [27] Despite the significant volume of caselaw referred to by both parties, their respective positions are actually quite straightforward and neither is the law particularly complex. [28] The employer relied upon decisions largely, but not exclusively, from the Ontario Labour Relations Board (?OLRB?) dealing with similar issues under the Labour Relations Act (?OLRA?):R.C.A. Ltd. [1980] O.L.R.B. Rep. Sept. 1316; Town of Gananoque,[1981] CanLii 1004 (ON L.R.B.); Toronto District School Board and Local 4400 Canadian Union of Public Employees, [2008] O.L.A.A. No. 137 (Albertyn); Corporation of the Town of Innisfil, [1994] O.L.R.B. Rep. Jan. 76; Peterborough County Board of Education, [1990] O.L.R.B. Rep. Sept. 940; Brant Community Care Access Centre,[1998] O.L.R.D. No. 713; Metropolitan Toronto Library Board, [1991] O.L.R.B. Rep. March 339; Canadian Newspapers Company Limited, [1993] O.L.R.D. No. 87; and (one of the few cases to have specifically considered the application of section 1.1(3)(15) of CECBA) a decision of this Board in Canadian Union of Public Employees, Local 1750 and Ontario (Workplace Safety and Insurance Board) ) GSB File No. 2006-3024, decision dated November 5, 2007. - 10 - [29] The employer relies on paragraphs 9 and 15 of section 1.1(3) of CECBA. It acknowledges that Ms. Wilson does not perform managerial functions, as that term would commonly be understood in a labour relations context. It does assert, however, that she is employed in a confidential capacity in relation to labour relations and that her duties constitute a conflict of interest with her being a member of the union?s bargaining unit. It also points to the long standing nature of Ms. Wilson?s exclusion from the bargaining unit ? some 8 years before any concern or complaint surfaced from the union ? as I factor I ought to consider. [30] The employer also concedes that (with the possible exception of her conflict of interest work) Ms. Wilson does not make any judgements or decisions that will directly impact on the working lives of bargaining unit members. But, reviewing the evidence summarized earlier, the employer points out that Ms. Wilson has access to and regularly reviews material of a highly sensitive nature. These materials can relate to labour relations matters, whether in the form of individual disciplinary issues (not necessarily restricted to grievances) or, in a perhaps larger strategic perspective, matters related to critical and sensitive planning and decision making, at the highest levels in the Ministry, which may well impact the integrity of the bargaining unit and the job security of its members. [31] The union asserts that nothing in Ms. Wilson?s duties and responsibilities is inimical to collective bargaining. To the extent that she may have access to confidential documents, they are not, generally speaking, documents which relate to labour relations and, to the extent she may have access to confidential labour relations material, that access is insufficient to warrant her exclusion from the bargaining unit or from collective bargaining. The union puts something of a different gloss on the cases relied upon by the employer and referred us to the further authorities in: Canada Labour relations Board v Transair Limited and Canadian Association of Industrial , Mechanical and Allied Workers, Local 3, 76 CLLC 14,024 (S.C.C.);Family Services of Hamilton-Wentworth Inc.,[1980] O.L.R.B. Rep. Feb. 204; J.M. Schneider Inc., [1987] O.L.R.B. Rep. Mar. 381 and (another decision of this Board which considered section 1.1(3)(15), Canadian Union - 11 - of Public Employees, Local 1750 and Ontario (Workplace Safety and Insurance Board) (2003), 120 L.A.C. (4th) 333 (Nairn). [32] Having considered the evidence, the caselaw and the submissions of the parties, I am satisfied that, to the extent there was some difference in the parties? statements of the law, the union?s description was the more accurate one. However, I am equally persuaded that the facts warrant the conclusion urged by the employer, i.e. that, by virtue of sections 1.1(3)(9) and 1.1(3)(15), CECBA does not apply to Ms. Wilson. [33] First, I cannot ignore the longevity of the status quo. Even when Ms. Wilson performed the same duties under the rubric of lower rated classifications, the union felt no need to question or challenge her exclusion from the bargaining unit, a state of affairs which persisted for some 8 years before the instant grievance was filed. In the absence of any cogent explanation or any claim that the union was somehow unaware of this state of affairs (and none of either was forthcoming), this long standing state of affairs, while perhaps not determinative in and of itself, is an important evidentiary fact which militates in favour of the retention of an arrangement the parties have lived with for some time. [34] I do agree, however, with the union that, contrary to the suggestion made by the employer that (at least some of) the cases support the contrary conclusion, mere access to confidential labour relations documents is not sufficient to warrant an exclusion from collective bargaining. It is not open to the employer (to posit an extreme but illustrative example) to park a cabinet full of sensitive and confidential labour relations material in the middle of a work area and to thereby argue that all employees in that area should be excluded from collective bargaining because they have access to the documents. By the same token, it would be more than likely that the author of those confidential labour relations documents would be excluded from collective bargaining. But if these two points may define a conceptual continuum, the precise dividing line between employees granted and denied access to collective bargaining by virtue of their duties and responsibilities is not always one that emerges with pristine clarity. For example, some of the earlier OLRB cases suggest that the typing or other preparation of confidential labour relations documents may be sufficient to cross over into excluded territory. The - 12 - border between inclusion and exclusion may be guided by the general established principles, but it must always be assessed having regard to the facts of each case. [35] As far as the common principles which underlie the exclusions in question, this Board has frequently adopted views expressed by the OLRB (dealing with the equivalent exclusions under the OLRA). Some of these were reviewed by this Board in the (earlier) WSIB case, supra, at paragraph 28. Focussing on ?confidential ?labour relations? the Board began with a citation from United Community Fund of Greater Toronto, [1979] O.L.R.B. Rep. Dec. 1292 (and then continued with an annotated reference to other cases): ... Persons employed in a confidential capacity relating to labour relations are regularly involved with information in matters which, if disclosed, would adversely affect the collective bargaining interests of the employer. Section 1(3)(b) ensures that the employer need not be concerned that such persons will have ?divided loyalties?? Section 1(3)(b) involves three separate criteria: the disputed individual must be employed in a confidential capacity; the material with which the individual works must be confidential; and the material must be related to labour relations. ?The handling of collective bargaining information must be at the core of the disputed individual's job functions. An occasional or peripheral involvement is insufficient to justify his exclusion. An employer cannot "sprinkle" duties or tasks that may involve the exercise of a managerial function or employment in a confidential capacity in matters relating to the labour relations or other conflict of interest with being a member of a bargaining unit in order to justify an exclusion from the bargaining unit. The exclusion requires: ? a regular and material involvement with sensitive labour relations information which is confidential because its disclosure would adversely affect the collective bargaining interests of the employer?(Corporation of the Town of Dunnville, unreported, decision of the OLRB dated May 27, 1985.) - 13 - [36] Applying these principles to the facts at hand leads me to the conclusion that Ms. Wilson ought to be excluded from collective bargaining. She has a wide range of important responsibilities that she performs largely for the benefit of a high ranking civil servant in the Ministry. The ADM has responsibility for a broad range of issues which clearly include matters of labour relations and collective bargaining. Matters related to the conduct of individual employees, such as audit reports, will cross Ms. Wilson?s desk. She is then responsible for performing a kind of administrative ?triage? and making determinations about what information and which documents need to be advanced to the ADM and with what level of priority. She obviously must review the documents in order to make that determination. This is clearly more than mere access to the documents. [37] It is of course true that not every document that crosses her desk en route to the ADM qualifies as relating to a confidential labour relations matter. In that regard, I note that grievance documents, in fact, typically bypass Ms. Wilson?s desk, at least on their initial arrival. Similarly, I have not considered documents like those relating to attendance management to be particularly relevant, since they appeared to contain information already available to the employees concerned. But I do not accept the union?s submission that documents which will ultimately be produced to the union should be ignored for the purposes of our inquiry. The example of an audit regarding employee conduct potentially warranting discipline or discharge is a useful one. There can be little doubt that, were discipline imposed and grieved, the union would have a valid claim to the production of such a document. But in the absence of a grievance or, perhaps more practically, in the absence of the imposition of discipline, such a production right is less than clear. In the period leading up to its decision as to whether or not to impose discipline, the employer is entitled to keep such information as may be contained in such an audit confidential. [38] I am also impressed by Ms. Wilson?s involvement with strategic material and processes of great import to the Ministry. The CTAR project (and, in all likelihood the current transition to a single sales tax regime), budgetary constraints imposed on the Ministry, and the ?RbP? processes all involved and continue to involve strategic planning which, given its impact on complement and job security, is a matter of keen interest to the - 14 - bargaining agent. The employer and the ADM are entitled to insure that these processes and the strategic planning which they require remain confidential for so long as that suits their lawful interests. The ADM should be confident that this type of information, much (though by no means all) of which relates to labour relations issues, remains confidential. The level of exposure, involvement and responsibility reposed in Ms. Wilson for the purpose of facilitating the ADM?s work are sufficient to give rise to legitimate concerns regarding her inclusion in a bargaining unit. [39] In addition to that, there is the matter of Ms. Wilson?s actual conflict of interest work, a significant portion of her duties. While she is not the formal author of the documents in question, she is the de facto author and her compositions are typically adopted by the Deputy Minister. Thus she has, as might be described in another context, an effective power of decision-making. And although the result of this process is not direct discipline, it certainly is the foundation for such possible eventuality. In any event, the resulting response, effectively authored by Ms. Wilson, has and is designed to have an impact on the workplace lives of affected employees. While this may establish a conflict of interest for Ms. Wilson (were she in the bargaining unit) perhaps different from the classical variety encountered say by the OLRB under section 1(3)(b) of the Labour Relations Act, I am satisfied that there is all the same a conflict of interest between Ms. Wilson?s duties in this regard and her being a member of a bargaining unit. [40] I have not ignored the union?s submissions regarding the fact that a perusal of certain job descriptions discloses that these parties are not necessarily averse to enumerating certain duties and responsibilities (i.e. ones which might appear to warrant exclusion) in bargaining unit positions. While this submission seems initially to support the union?s case, the fact that the very same description of job duties is found in 2 successive positions occupied by Ms. Wilson and excludedfrom the bargaining unit (without objection by the union)throws into question the precise probative value of a paragraph included in a PDR and perhaps highlights the difficulty of relying too heavily on the contents of job descriptions in this type of case.I have made my decision on the basis of the evidence of Ms. Wilson?s actual duties. - 15 - [41] In short, I am satisfied that Ms. Wilson?s duties and responsibilities require her to have more than mere access to a full range of the ADM?s calendar, documents and materials. Many of these include matters of importance to labour relations (whether in relation to actual or potential individual employee discipline or to larger collective bargaining matters relating to essential Ministry mandates and re-organization). The materials include documents and information that the employer has a legitimate labour relations interest in keeping confidential. On top of those general ongoing everyday responsibilities, Ms. Wilson is also, at least effectively, responsible for the full administration of the initial stage of the Ministry?s conflict of interest process. Ms. Wilson performed the same duties and responsibilities for significant periods under the rubric of lower-rated classifications without complaint from the union regarding her exclusion from the bargaining unit. Indeed, Ms. Wilson has performed what all agree is, in essence, the same job for some eight years before any concern was expressed by the union. [42] In all of these circumstances and having regard to the relevant provisions of CECBA, I am satisfied that the Act does not apply to Ms. Wilson and that the instant grievance must therefore be dismissed. th day of August 2010. Dated at Toronto this 9 Bram Herlich, Vice-Chair