GSB#2013-4247; 2018-1169

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Association)

Association

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Brian McLean

Arbitrator

FOR THE ASSOCIATION

Marisa Pollock and Daniel Sheppard Goldblatt Partners LLP Counsel

FOR THE UNION

Don Eady

Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER HEARING

George Parris

Treasury Board Secretariat Legal Services Branch

October 19, 2021 (final submission)

Decision

1These are disputes filed by AMAPCEO which assert that persons who are employed in correctional institutions as "Sergeants" ought to be (or indeed, are) covered by its collective agreement with the Crown. I note that for the purposes of this decision the term "Sergeants" includes Youth Service Managers. I also note that Sergeants were historically also referred to as Operational Managers ("OMs") and that given the fact that this decision largely deals with historical events I may refer to Sergeants as "OMs" in this decision.

2These disputes, and more generally the Sergeants' claim to be entitled to the benefits of collective bargaining, have a long history. As can be seen from the GSB file number, the first of these disputes was filed in 2013 and the issues raised by the disputes go back much further.

3The Employer opposes AMAPCEO's position and has so for many years. It asserts that to the extent that AMAPCEO ever held any bargaining rights over OMs those rights were relinquished by AMAPCEO in 2008 and/or 2009 and it no longer has bargaining rights over any employees employed at correctional institutions and youth detention centres. OPSEU was given standing to intervene in this proceeding over the objection of AMAPCEO. It agrees with the position taken by the Employer and asserts that it holds bargaining right over all employees employed at correctional institutions including the Sergeants, to the extent that such Sergeants are employees within the meaning of the CECBA.

4Furthermore, by way of introduction, the Employer has always taken the position that all of the Sergeants are excluded from the benefits of collective bargaining because they exercise "managerial functions or [are] employed in a confidential capacity in relation to labour relations" within the meaning of s. 1(3) 9 of the CECBA Therefore, underlining the positions taken by the competing unions is the allegation that there are Sergeants who do not exercise managerial or confidential labour relations functions and therefore can be represented by a union under the CECBA. The Employer's position that none of the Sergeants are employees as they all exercise managerial functions is not dealt with by this decision. In fact, I have begun the process of hearing oral evidence on that issue. Given that the circumstances of Sergeants may not be the same at all institutions and may differ from individual to individual, that hearing process is expected to take dozens of hearing days to resolve.

The 2008 Agreement

5As was noted, the issue of whether the Sergeants have the right to collectively bargain and, if so, who should represent them is a longstanding one. I need not recite the entire history. Suffice it to say that in 2007 AMAPCEO filed a dispute under its collective agreement in which it sought to have OMs recognized as covered by its collective agreement. The Employer also filed an application with the Ontario Labour Relations Board (Board File No. 2181-07-M) in which it sought to have the OLRB determine the dispute. AMAPCEO asked the Board to defer that application to the GSB process which the OLRB did by decision dated June 11. 2008. Accordingly, the parties commenced the hearing of the dispute at the Grievance Settlement Board. OPSEU intervened in that dispute.

6In the GSB matter concerning AMAPCEO's 2007 dispute, AMAPCEO's position was much the same as it is in the current matter, namely, that the Sergeants were included in its bargaining unit and covered under its collective agreement—and not under any OPSEU collective agreement-- unless they exercised managerial functions. In this regard, OPSEU's recognition clause at the time read:

The Ontario Public Service Employees Union (OPSEU) is recognized as the exclusive bargaining agent for a bargaining unit consisting of all employees employed in positions contained within the six bargaining units as described by the Lieutenant Governor in Council in OIC 243/94 dated February 3, 1994, in the Tripartite Agreement between the Crown, OPSEU and AMAPCEO dated April 21, 1995, plus those employees included in the six bargaining units by the agreement of the Crown and OPSEU from February 3, 1994 to December 31, 2004.

For greater clarity, this bargaining unit consists of all employees contained in the bargaining units described in OIC 243/94 attached here to as Appendix 2, and does not include the seventh bargaining unit referred to in the said Order in Council.

7Of course, AMAPCEO's arguments were all predicated on the fact that at least some of the OMs were employees within the meaning of the CECBA. As noted above, this latter point was strongly disputed by the government and would, in all likelihood, have required many days of litigation to resolve. It is undisputed that AMAPCEO has never actually represented any OMs but was, through its dispute, seeking to do so.

8In 2008 the Government attempted to resolve various bargaining unit issues with its unions through a multifaceted discussion and negotiation process called the Bargaining Unit Initiative. The Government retained a facilitator to lead discussions with its unions about restructuring the OPS bargaining unit structure. One of the ideas that the Government wished to discuss, as is set out in the facilitator's report, was the creation of a bargaining unit which covered all the employees working at corrections facilities. This concept can be referred to as a "wall to wall" bargaining unit with the "walls" being the walls of correction facilities and youth detention centres. The employees in the wall to wall bargaining unit were to be represented by OPSEU.

9The parties failed to come to an omnibus agreement. However, the Government did come to separate agreements with AMAPCEO and OPSEU on certain issues related to the scope of their bargaining rights. In this regard, on September 10, 2008, AMAPCEO entered into a Memorandum of Agreement (the "2008 MOA") with the Employer. The 2008 MOA dealt with the scope clause of AMAPCEO's collective agreement as follows:

ARTICLE 1 - RECOGNITION 1.1 The Government recognizes the Association of Management, Administrative and Professional Crown Employees of Ontario as the exclusive bargaining agent for a bargaining unit composed of all Crown employees as defined in Section 1 of CECBA, 1993 who are Public Servants in the positions and classifications set out in Schedule 2 to this collective agreement. For clarity, Schedule 2 includes all classifications and positions previously encompassed by Schedule 1 that have been assigned to a classification level as of the signing of this collective agreement, as well as any positions or classifications included in Schedule 1 that have not, as of the signing of this collective agreement, been assigned to a level in the new job evaluation/classification system, students and interns working in those classifications and positions, and all employees in any newly established classification or position that is subsequently agreed, or determined by the OLRB, to be materially similar to a classification or position in the unit, (save and except persons who exercise managerial functions or who are employed in a confidential capacity relating to labour relations, or lawyers and engineers who are employed in their professional capacity, or persons employed in the Correctional Bargaining Unit or persons employed at the Ontario Police College, the Ontario Provincial Police Academy, or under the supervision of the Commissioner of the OPP or the Chief Firearms Officer for Ontario.)

The parties agree that this agreement amending the AMAPCEO Recognition clause overrides and replaces all prior agreements and settlements between these parties concerning the recognition, treatment and scope of AMACEO as a tag- end bargaining unit as well as replacing, in respect of the seventh unit, OIC 243/94. For clarity paragraph 5 of the recognition clause settlement dated September 8, 2004, providing for parallel classifications in the AMAPCEO unit where a deleted MCP classification is reinstated, continues to apply, and nothing herein affects the revised recognition clause set out in this paragraph.

10The 2008 MOA also discussed the fact a "wall to wall" bargaining unit was to be created in corrections. However, OMs would be excluded from that unit.

11The government also entered into a separate memorandum of agreement with OPSEU in which, among other things, its scope clause was amended. In particular, OPSEU and the Employer assert that what was agreed was that OPSEU would have "wall to wall" bargaining rights over correctional facilities including youth detention centres.

12The 2008 MOA arguably did not have any immediate impact on OMs as their employee status remained undetermined.

13AMAPCEO and the Employer negotiated a new collective agreement in 2009 which included the scope clause set out in the 2008 MOA. In addition, the parties agreed to an attachment to their collective agreement titled: "Memorandum of Agreement: Outstanding Issues Related to BUI and September 10, 2008 Agreement". One of the recitals to this Memorandum of Agreement (which formed part of the collective agreement) stated:

Whereas the parties are in dispute about several issues arising out of the interpretation and implementation of the September 2008 Agreement [the 2008 MOA] and wish to resolve all outstanding matters relating to that agreement;

14Paragraph 6 of the Memorandum of Agreement was headed" Operational Managers" and stated:

6 The parties agree that the 2008 Agreement resolves all outstanding issues and disputes related to Operational Managers including the disputes filed under GSB# 2007-0897 and OLRB # 2181-07-M which are accordingly withdrawn.

15By letter dated May 29, 2009 counsel for AMAPCEO wrote a letter to the GSB stating: "The Association hereby withdraws the above dispute [GSB# 2007-0897] related to Operational Managers.". The GSB hearings were cancelled.

16In 2009 OPSEU and the Employer also entered into a renewal corrections collective agreement which included a new recognition clause. Beginning with the 2009 OPSEU Collective Agreement, the scope of the correctional bargaining unit clause became significantly more inclusive. Positions that were previously in the OPSEU Unified bargaining unit as well as the AMAPCEO bargaining unit were moved into the correctional bargaining unit. Essentially, if the employee was not otherwise excluded from collective bargaining under CECBA and worked at or in a youth custody facility or an adult correctional institution (as well as some other defined workplaces), the employee would fall within the Correctional Bargaining unit.

17In this regard, the scope clause of the OPSEU collective agreement stated:

ARTICLE 1 – RECOGNITION

(FXT, SE, ST, RPT, GO)

1.1.1 The Ontario Public Service Employees Union (OPSEU) is recognized as the exclusive bargaining agent for the Correctional Bargaining Unit consisting of all Crown Employees as defined in clause 1(1)(a) of the Crown Employees Collective Bargaining Act, 1993 as amended from time to time, save and except:

(a) all persons or employees excluded by subsection 1.1(3) of the Crown Employees Collective Bargaining Act, 1993 as amended from time to time;

(b) all persons or employees exercising managerial functions or employed in a confidential capacity in relation to labour relations;

(c) all employees in bargaining units for which any other trade union or association holds bargaining rights as of January 1, 2009;

(d) all employees in the OPSEU Unified Bargaining Unit;

(e) all employees employed in HR Ontario (as the organization's functions exist as of January 1, 2009),

(f) all employees employed at the Ontario Police College (as the organization's functions exist as of January 1, 2009).

For clarity, the Correctional Bargaining Unit is the successor unit to the former Correctional Bargaining Unit as described in subsection 22(2) of the Crown Employees Collective Bargaining Act, 1993 and which is the successor bargaining unit to the bargaining unit as described as Unit II by the Lieutenant Governor in Council in OIC 243/94 dated February 3, 1994, attached hereto as Appendix 2, in the Tripartite Agreement between the Crown, OPSEU and AMAPCEO dated April 21, 1995, plus those employees included in the Corrections bargaining unit or in the Correctional Bargaining Unit by the agreement of the Crown and OPSEU from February 3, 1994 to December 31, 2008, and as amended by agreement of the parties and such description is deemed to be incorporated in this collective agreement.

1.1.2 For greater certainty, the Correctional Bargaining Unit is composed of Crown employees who are public servants employed in positions responsible for:

(a) the security, control, supervision, care and rehabilitation of adult offenders and young offenders in provincial correctional institutions/facilities (including maximum security units at the provincial psychiatric hospitals);

(emphasis added)

18It is clear AMAPCEO was aware of the provisions of the OPSEU collective agreement and did not object to the amendments to the scope clause.

19In 2016, amendments were made to CECBA. Included among those amendments were provisions stipulating that employees in the Correctional Bargaining Unit would no longer have the right to strike but would have recourse to interest arbitration. The Employer asserts that the existence of a "wall-to-wall" Correctional Bargaining Unit was significant to this alteration of the right to strike.

20In 2013 the Public Service Alliance of Canada ("PSAC") filed an application for certification at the OLRB to represent OMs. AMAPCEO, OPSEU and the Employer all participated in those proceedings. One of the positions taken by the Employer in those proceedings was that the OMs were not "employees" within the meaning of CECBA. Ultimately PSAC's certification application was dismissed by the OLRB on the general basis that there was no room under the legislation for the creation of another bargaining unit such that PSAC would have to file a displacement application in the open period naming whichever union had representation rights over the OMs, assuming they were employees. In addition, the OLRB found that, at least prior to the 2008 MOA, the union which represented the OMs (to the extent there were any that did not exercise managerial functions) was AMAPCEO. The first of the two disputes before me was filed when those proceedings were ongoing. The second dispute was filed essentially as an "update" because AMAPCEO had renewed its collective agreement since the first dispute was filed.

Decision

21The starting point for an analysis of this issue must be the agreement to revise AMAPCEO's scope clause. The new clause makes it clear that AMAPCEO does not have bargaining rights with respect to "persons employed in the Correctional Bargaining Unit". The agreement regarding the new scope clause occurred in the context of the Government seeking to "modernize" the bargaining units in the public service. While separate discussions (and eventually a separate agreement) were occurring between the Government and OPSEU, the 2008 MOA, followed by the 2009 collective agreement with AMAPCEO clearly excluded from AMAPCEO's bargaining unit persons employed in a correctional facility and resolved all "issues" and "disputes" relating to OMs. What followed must be viewed in that light.

22I am satisfied that the combination of the amendment to the AMAPCEO collective agreement combined with the creation of the "all corrections employee" bargaining unit represented by OPSEU reflected the understanding that there would be a "wall to wall" OPSEU bargaining unit in correctional institutions and youth detention centres. Under this concept, there was no room for another union at correctional facilities.

23That conclusion is reinforced by what occurred in 2009. I have no evidence before me about what positions AMAPCEO took regarding OMs between late 2008 when it entered into the 2008 MOA and the Spring of 2009 when it concluded the renewal agreement. However, even if, during that period of time there was some doubt as to whether AMAPCEO had given up its claim to represent OMs who were not excluded and worked in correctional facilities, that doubt was dispelled by the time AMAPCEO concluded its renewal collective agreement with the Employer and agreed that the 2008 MOA "resolved all outstanding issues and disputes related to Operational Managers including the disputes filed under GSB# 2007-0897 and OLRB # 2181-07-M". The use of the words "all outstanding issues" is broader than the disputes filed to the GSB or the OLRB. I accept that in the context of the changes made to create the OPSEU collective agreement, AMAPCEO had thereby agreed that it no longer had an issue regarding its representation of OMs or that OMs were employees within the meaning of the Act.

24Of course, the parties could have been clearer in how they dealt with these issues. However, considering all of the circumstances as a whole I am satisfied that AMAPCEO relinquished any rights it might have had regarding OMs who are employees within the meaning of the CECBA and that any such rights were assumed by OPSEU as the bargaining agent for all employees at those institutions.

25Further, I do not accept, as AMAPCEO argues, that its withdrawal of the GSB dispute was "without prejudice". Counsel's letter to the GSB does not say that and indeed the dispute was specifically withdrawn as part of the 2008 MOA which formed part of the collective agreement. In the circumstances, I cannot conclude that the withdrawal by AMAPCEO of the GSB dispute was "without prejudice".

26AMAPCEO did not file any further dispute or make any claims vis a vis the OMs until approximately four years later when PSAC filed its application for certification. The inference I draw from that is that the filing of the 2013 dispute, which is before me, was a defensive maneuver triggered by PSAC's application.

27For all the foregoing reasons I find and declare that AMAPCEO has no bargaining rights over Sergeants and Youth Services Managers as they were relinquished in 2008/2009 and that any such rights are held by OPSEU as the representative of employees at those institutions. I refer this dispute to OPSEU and the Crown so that they can consult and advise the GSB as to next steps they would like to take.