Loading...
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 . .2 _ , ;i, ’ 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- i munications as a Project Supervisor. This posi a managerial one and outside the bargaining uni 3 : 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 I i 4. 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, ..I r , 5. 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. ! 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. ,’ 6 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 I-. I . ,. 7. ! 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' I 8.~ 8 , . ( 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. \. 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 I! , . 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 , b. v *’ 10 .~ 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. I” 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. i, -. [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. - : :.. . . . . 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 ! 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 13. 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 le 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