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HomeMy WebLinkAbout1976-0114.Nabi.77-04-25--- CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOAR0 i$16 964-6426 114/76 suite 405 77 Bloor Street West TORONTO, Ontario MSS It42 Between: Mr. Richard Nabi Before: And Ministry of Community & Social Services IN THE MATTER OF AN ARBITRATION Under The CkOWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD :. D. M. Beatty Chairman A. Fortier Member S. R. Hennessy Member For the Grievor: Mr. Richard Nabi Ministry of Community & Social Services For the Employer: Mr. R. Rae, Employee Relations Officer Ministry of Connaunity & Social Services Hearing: April ,19, 1977 Suite 405, 77 Bloor Street West Toronto, Ontario In the grievance he has filed with this Board Mr. R. Nabi complains that: . . . the employer has Violated ArticZe 25.4.3 of the CoZlective Agreement on Working Conditions by refusing to grant me leave of absence to represent an employee at Step 1 of her grievance. and requests that: . . . the employer reimburse me for ace days ’ Vacation Credit. The circumstances giving rise to Mr. Nabi's grievance are not a matter of dispute between the parties. Very simply and as evidenced in their agreed statement of fact, ~on,or about September 8, 1975 Mr. Nabi requested that he be allowed to take two hours off work on September 17, 1976 so that he could represent Mrs. A.: Krsnik, at a Stage I grievance meeting with respect to a grievance which the latter had filed with her employer. In making this request, it was agreed that Mr. Nabi was responding soley to an authorization which Mrs. Krsnik had made out appointing him as her "employee representative" and not as a result of any position or office he held in the union. Rather and as Mr. Nabi conceded, with respect to the activities of Local 211, of which both he and Mrs. Krsnik were members, his status was no different, except for her authorization, from any other member of that Local. However, it is his claim, that the authorization of Mrs. Krsnik together with the union's condonation of that authorization entitled him to a leave of absence for the two hour period that he represented her in the Stage I grievance meeting on September 17 pursuant to the terms of Article 25.4.3. 3. 1 In light of various representations made to this Board at.the hearing, the issue between the parties may be further circumscribed. Thus and although at earlier stages in the processing of this grievance various representatives of the employer may have asserted otherwise, it was, at the hearing at least, made clear to us that nothing turns on the fact that Mr. Nabi was employed in a different Ministry than Mrs. Krsnik. That is to say, Mr. Rae, for the employer, conceded that had Mr. Nabi otherwise satisfied the particulars of Article 25.4.3, the fact he was employed in a different Ministry from the person seeking his services, would have been irrelevant to his rights under that provision. Put succinctly, Mr. Rae conceded that Article 25.4.3 was in fact compatible with "cross" or "inter" Ministry representation. In the result, and against those representations, the sole issue between the parties was the narrow,and particular one of determining whether Mr. Nabi could be said to be one of "the local employee representatives who {was> authorized to represent <Mrs. Krsnik)", and who was accordingly entitled to the leave provisions set out in Article 25.4.3. That section, is part of a more general provision pertaining to leave for union activities,,which we shall set out in its entirety. ARTICLE 25 - LEAVE‘- UNION ACTIVITIES 2J.l Upon at Zeast fourteen 1141 days written notice by the Union, the Employer till, &rant leave of absence for not more than four (4) consecutive okays for'each employee delegate for the purpose of attending the Annual GeneraZ Meeting, without pay or loss of credits. 4.. 25.2 The EmpZoyer shall grant leave of absence Without 2060 of pay or credits to members of the Union who participate in negotiation, mediation or arbitration, provided that not more than five (51 employees at my one (1) time shal2 be permitted such leave for any one set of negotiations. Provided however, the &ion may at its discretion require up to five 151 additiona members to participate in negotiation, mediation or arbitration who shall be granted leave of absence but without pay or loss of credits. 25.3. At the writtenrequest off the Union of at least fourteen (14) days, the EhrpLoyer &a21 grant leaves of absence tithout pay or loss of credits to empZoyees for the purpose of setting demands for negotiations. It is understood that such meetings will be held on Saturdays or Sundays and that the total time granted for each instance shall not exceed two (2) consecutive days for each employee. 25.4.1 An employee who is a grievor or complainant and who makes application for a hearing before the Grievance Settlement Board or the PubZic Service Labour Relations Tribunal shall be aZlowed Zeave of absence without loss of pay or credits, if required to be in attendance by the Board or !l!ribund. 25.4.2 An employee who has a grievance and is required to attend meetings arranged at Steps 1 and 2 of the Grievance Procedure shal2 be given time off without loss of pay or credits to attend such meetings. 25.4.3 This section &a21 a2so apply to the 2oca2 empZoyee representatives who are authorized to represent the grievor. 25.5.1 Upon request by the Union, confirmed in titing, and provided that reasonable notice is given, the Employer sha21 grant leave with pay and without loss of credits to employees e2ected as Executive Board members and Executive Officers of the Union, for the purpose of conducting the internal business .~ affairs of the Union. : 25.5.2 The Union w-i12 advise the Directors of Personnel of the affected Ministries, with copies to the Director, Staff ReZations Branch, of the Games and Zocations of such employees, imnediately following their election. 5. 25.5.3 The Employer will arrange to grant leave with pay to acconunodate reasonab2e travel time. 25.5.4 The Union will reimburse the Province for the salary paid to members of the Executive Board and the Executive Officers granted leave under this Article. 25.6.1 when an employee is e2ected as the Union's President or First Vice-President, the Genera2 Manager wi21, inmediate2y following such election, advise the Employer of the name and Ministry of the employee so elected. The Employer will arrange to grant a leave of absence with pay, from his/her place of employement for the duration of the current term of office. 25.6.2 During the ten of such leave of absence, the Union m-i12 reimburse the EmpZoyer for the salary paid to the employee on such Zeave of absence and contribute the Employer’s share of contributions to the PubZic Service Superannuation Fund and the Canada Pension P2an. The Union will make the EmpZoyer’s contribution to any prevailing Health or other plan applicable tothe elected employee and pay the costs of attendance credits accumulated during the leave of absence. The Union wil2 make the Emp2oyer:‘s contribution for Unemptoyment Insurance. 25.6.3 Gn comp2etion of his/her term of office, the President or First Vice-President may return to his/her previous employment and service shalZ.be deemed to be continuous for a21 purposes. Any leave of absence extending beyond : the initia2 term of office of the President or First Vice-President shall be a matter to be determined between the parties and any such additiona2 leave .&a22 be subject to the same conditions and terms as prevailed in the initial leave of absence. 25.7 Al2 requests for leave of absence permitted in these sections shalt be sent to the -Directors of Personnel of the affected Ministries with copies to the Director, Staff Relations Branch. It is understood that the Employer may withhold leaves requested by the Union if such leaves unduly interfere with the operating requirements of the Employer. 25.6 The Union shall advise the Directors of Personne2 of the affected Ministries with copies to the Director, Staff Relations Branch, of _ the Union Stewards together with the areas ‘they are authorized to represent, which list shal2 be updated every two (2) months. So described the issue between the parties falls to be determined on our placing an interpretation on the words of Article 25.4.3 that 1:ts language will reasonably bear. In turn and against the representations of the parties, this particular grievance falls to be determined on whether the local employee.representative described in that provision must be someone who is "authorized" by the grievor or by the union on.an ad hoc,.informal'basis or whether it is a person who has been so designated to act pursuant to Article 28.5. In this regard two opposing interpretations were advanced by the parties for our consideration. On the one hand, it was the position of the union that an "authorized" local employee representative must refer to anyone who, as Mr. Nabi was, is selected to act in that capacity by a grievor and who the union allows to act in that capacity. Conversely, and on the other hand it was the employer's contention that such a local employee representative must refer to one of those persons described-in Article 25.8 who has been -. "authorized", in advance, pursuant to its terms. Aftercareful consideration of this matter we are entirely satisfied that the interpretation of Article 25.4.3 advanced by the Ministry is the only one the language can reasonably bear. Put at its simplest, we are of the conviction that properly read, Article 25.4.3 must be seen within the context of Article 25 in its entirety and specifically in 6. light of Article 25.8. Looking at the matter from a slightly different perspective it is our opinion that Article 25.8 can only be given effect to and have any meaning when it is taken 7. together and read in conjunction with Article 25.4.3. That is to say and when read against all of the other provisions in Article 25, it is plain, to this Board at least, that Article 25.8 could not apply or have reference to any of the other sections in that Article. For example Article 25.1 provides for a leave of absence for delegates elected to the union's Annual General Meeting. Clearly Article 25.8 providing for the sending of a list of union stewards who are authorized to represent the union's members in each area could have no application to that provision. .Similarly and with respect to each succeeding Section in Article 25, including: Article 25.2 which makes provision for leaves.of absence for members who participate in contract negotiations; Article 25.3 pertaining to leaves of absence for employees who help formulate the union's negotiating demands; Article 25.5 dealing with leaves of absence for those persons on the Executive Board and in Executive positions in the Union when they are conducting the internal business affairs of the Union; and Article 25.6 which describes a similar benefit for those holding the~union's senior elected positions, it can be said that none of them have any relevance to or can take any meaning from the terms set out in Article 25.8. Those terms, as we have already noted.are wholly unrelated both in la~nguage and purpose to anything that is described in any of those sections of Article 25. In short and but for the provisions set out in Article 25.4 and in particular 25.4.3, Article 25.8 would be wholly~divorced from and quite inconsistent with all of the other terms of that Article. There would in short, 8. and except for the explanation advanced by the employer, be no logical or rational basis for its existence in that Article. Putting the matter positively, therefore, in our opinion it may 7egitimately be said that Article 25.4.3 gives meaning to and indeed breathes life into the terms set out in Article 25.8. .,. As well, to underscore.the necessary connection that lies between those two sections of Article 25, we would note the parties have, inboth of them, employed the common phrase "authorized to represent". No where else, on our reading of this agreement is there any mention of persons who are "authorized to represent" others. Neither in Article 30.5 or 36~1, both of which refer to the employee orunion representative is any reference made to such an authorization. In the result and even on the literal language of these two sections, the dependency of and relationship between these two sections should be obvious. In advancing this concl'usion, necessarily we haves. rejected the union's suggestion that Article 25.8 is in fact specifically,designed tom give effect to and is intimately connected with Article 36.1. That article provides: The Emptoyer shall continue its practice of infoming a new2y hired employee whether his position is within the bargaining unit, the me and address of the bargaining agent and if knom, the me and Zocation of the 2ocal Union representative. .Iti the first place and as we suggested above, such a \ conclusion would deny any logical coherence in or competent drafting of this agreement. It would assume the parties or the arbitrator was so oblivious to'the relationship between Article 25.8 and the rest of the agreement that they would randomly include it in Article 25. That is and for no apparent reason that we would conceive of, such a conclusion would assume that the parties intended to conjoin a clause by which the union undertook to advise the employer of its authorized representative, w~ith a comprehensive article providing for leaves of absence for union activity. We are simply not prepared, in the absence of very clear language, to adopt such a conclusion. Moreover and while we share the union's contention that the list of authorized representatives compiled pursuant to Article 25.5, is the source, from which the employer can discharge its obligations under Article 36.1, we do not think it follows that the purpose of such a list i~sso limited in its scope. To~the contrary and as we noted above if the list were so intended, one would have expected the obligation described in Article 25.8 to have formed part of Article 36 itself. Rather, in our view, and in addition ,to serving the ends described in Article 36, the lists that are compiled pursuant to Article 25.8 are designed to permit the employer to make such contingencies in its staffing and personnel arrangements as it sees fit. The soundness of this latter conclusion can be tested from one final perspective. In assessing the consequences that would flow from adopting either interpretation we would note that if the union's position were to prevail the employer would not, with any reasonable accuracy, be able to forecast 10. which persons might, because of their selection and "authorization", be required to absent themselves from work from time to time to attend to the grievances of their members. That is to say, on the union's interpretation of Article 25, anyone in this bargaining unit who was employed in the local vicinity, who was selected by the grievor and who was unopposed by the union could be authorized' to represent the grievor and claim the benefit of Article 25.4.3. In such a~ situation it is clear that the employer would be precluded from ever knowing in advance who might be called upon from time to time to act in such matters and could not therefore make whatever arrangements that were required to anticipate such an event. And yet, manifestly that is one of the motivating rationales underlying each of the provisions of Article 25. That is to say and while Article 25 is, plainly, designed to assist the union in the performance of its functions and the discharge of its duties by providing periods of paid leave for such diverse activities as attending at annual meetings, negotiating collective agreements and conducting the internal affairs of the union, it is also correlatively intended to provide the employer with reasonable notice of those persons who are to engage in such activities so that it can arrange its affairs accordingly. Thus and in a manner that is closely paralleled in the other sections of Article 25, we view section 25.8 as the means by which the union will identify those persons who are authorized to represent persons in the grievance procedure meetings described in Article 25.4.2. So described, the employer Il. .would be, as he is in each of the other leave situations contemplated in Article 25, apprised in advance of those persons who might be obliged to exercise their rights under Article 25.4.3 from time to time. In short by recognizing the application of Article 25.8 to the circumstances contemplated by Article 25.4.3 one is able to give effect to a clear and persistent theme that is integral to the operation of Article 25. Put somewhat differently, to hold that Article 25.8 was limited in its purpose to the circumstances described in Article 36 would be to create a hiatus in the uniform scheme described in Article 25 in .-which correlative to their right to seek leaves of absence for certain persons in the specific instances described therein, the union has undertaken to apprise the employer, in advance,of the persons who are the intended beneficiaries of those provisions. Finally, we would note, what necessarily must follow from the interpretation we have placed on Article 25, that we have not made any reference to the definition of an l'employee representative'that is found in s.46 of the Regulations (O/Reg. 749) promulgated under the Public Service Act. In our view the meaning of that phrase, as it is used in the. collective agreement is clear and admits of no ambiguity. Moreover and more critically, by its express terms, the definition that'is set out in those Regulations is expressly made subject to -the terms of the agreement. In our view and for the treasons given, the meaning of that term, as it was used by the parties, does not accord with that set out in 12. the Regulations. In such circumstances, as s.46 itself contemplates, the definition that is implicit in the agreement must prevail. Indeed and against the union's own conclusion that ultimately, at least for the purposes of Article 25.4.3, it must authorize a local representative to act for a grievor, the.definition of an employee representative that is found in the Regulations can, by its plain terms, have no application to this agreement. In the result it must follow~that the grievor, not being a person who was authorized pursuant to Article 25:8 to represent the union in these matters, was not entitled to the leave that is provided by Article 25.4.3. In so concluding we wish to make it abundantly clear that there is nothing which we have said in this award which would affect the individual's right to select an employee representative under Article.30.5 nor the union's right to select or designate those persons whom it desires~to have represent its members. That is to say and however an employee may choose to have someone assist him or her in the filing, processing or presentation of a grievance or regardless of hoti the union seeks to deploy its staff or elected personnel in such matters, all that we have determined in this award is that if that representative is to secure the paid leave that is contemplated by Article 25.4.3 then he or she must be "authorized" and in the manner that is described ins Article 25.8. The grievor not being one of those persons, he his not entitled to the leave provided therein 13. and his grievance is accordingly denied. Dated at Toronto this 25th day of April 1977. b M Beatty Chaikn I concur A. Fortier Member I concur 3 R Hennessy Mkmbk