Association of Law Officers of the Crown v. Crown in Right of Ontario, 1995 CanLII 10037

Association of Law Officers of the Crown v. Crown in Right of Ontario

[1995] OLRB Rep. December 1424

1320-95-R; 1728-95-U; 2317-95-R Association of Law Officers of the Crown, Applicant v. Crown in Right of Ontario as represented by Management Board of Cabinet, Responding Party v. Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO), Ontario Public Service Employees Union (OPSEU), Intervenors; Lise Favreau, Applicant v. The Crown in Right of Ontario, and Ontario Public Service Employees Union, Responding Parties; Anne Touchette, Applicant v. Ontario Public Service Employees Union, Responding Party v. The Crown in Right of Ontario (as represented by Management Board of Cabinet), Intervenor

BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. A. Ronson and C. McDonald.

APPEARANCES: Harold Caley for the applicants; Donald K. Eady and Barbara Linds for OPSEU; Cathy Lace and Carol Jones for AMAPCEO; Brian Loewen and Laura Vice for the Crown in Right of Ontario as represented by Management Board of Cabinet

DECISION OF THE BOARD; December 19, 1995

1Board File No. 1320-95-R is an application for certification brought by the Association of Law Officers of the Crown ("ALOC") on behalf of articling students employed by the Crown in Right of Ontario (the "Crown" or the "employer") during the period of their articles.

2Board File No. 1728-95-U is an application under section 96 (then section 91) of the Labour Relations Act, 1995 (the "Act") alleging that the Crown and the Ontario Public Service Employees' Union ("OPSEU") have violated section 66 (then section 61) of the Act.

3Board File No. 2317-95-R is an application to terminate bargaining rights brought pursuant to section 66 of the Act (then section 61).

4All of these applications initially raise the issue of whether or not OPSEU holds bargaining rights for a bargaining unit of employees which includes the articling students. In the certification application, OPSEU has intervened claiming it already holds bargaining rights for articling students which constitute a bar to the certification application at this time. In the termination application and the unfair labour practice complaint, the applicants assert that if OPSEU holds bargaining rights, those rights arose through a voluntary recognition agreement which did not have the support of a majority of the employees affected. They ask the Board to declare any bargaining rights with respect to articling students, asserted by OPSEU, to be null and void, thus leaving open the opportunity to pursue the certification application.

5The panel agreed to hear that issue and remain seized with respect to any subsequent matter arising in the applications. The parties had agreed they would not call any evidence in any formal sense. Bill 7 (the Labour Relations Act, 1995 and amendments to the Crown Employees Collective Bargaining Act, 1993) came into effect before a final decision in these matters issued and therefore applies to these proceedings. The parties were given an opportunity to provide their views and all are agreed that the issues in dispute remain the same despite those legislative changes.

6The effect of the Crown Employees Collective Bargaining Act, 1993 (CECBA, 1993) is to apply the rules governing labour relations for private employers in the province, that is, the Labour Relations Act, 1995. to the Crown, with certain modifications and exceptions. It also provides some 7000 public employees with the right to participate in collective bargaining for the first time. The articling students are part of that group.

7Pursuant to then sub-section 23(1) of CECBA, 1993, an Order-in-Council ("O.C.") was signed on February 3, 1994, establishing seven bargaining units consisting of Crown employees. That O.C. ("O.C. 243/94") also describes the bargaining units in an Appendix to it. At issue here are the descriptions of the first and seventh units, set out as follows:

APPENDIX 1

I. ADMINISTRATIVE BARGAINING UNIT

The Administrative Bargaining Unit is composed of Crown employees who are public servants

employed in positions concerned with:

• administrative activities such as the researching, planning, designing, organizing, or co-ordinating to deliver programs or support government operations; or

• the administrative activities required, for example, to examine, inspect, investigate, audit, analyze, promote, regulate or enforce government programmes, policies, standards, statutes and regulations; or

• the application of scientific knowledge as it relates to resource planning and management;

and includes employees in positions falling under the following classes:

CLASS CODE CLASS TITLE

(There are 236 classes listed by numerical code and descriptive title.)

and under such other classes as may be established within the above description.

VII. SEVENTH BARGAINING UNIT

The Seventh Bargaining Unit is composed of all Crown employees who are public servants and whose positions are not included in the other six bargaining units, but does not include:

a. persons who exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations; or

b. lawyers and engineers who are employed in their professional capacity.

In accordance with the above, this bargaining unit includes:

• unclassified employees excluded from the six other bargaining units or whose duties and responsibilities are equivalent to the duties and responsibilities of positions falling under the classes mentioned hereunder; and

• employees in positions falling under the following classes:

(There are 185 classes listed.)

and other similar classes as may be established.

8Although apparently out of sequence, on January 19, 1994, another Order in Council had been approved designating OPSEU as the bargaining agent for each of the bargaining units one through six.

9In January 1995, the Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO) applied to be certified in respect of the seventh unit. OPSEU intervened in that application claiming that some almost 2000 employees fell within the descriptions of one of the six bargaining units for which OPSEU held bargaining rights by virtue of the designations. By letter dated March 17, 1995 to counsel for AMAPCEO, counsel for OPSEU forwarded a list of names of employees for whom OPSEU claimed bargaining rights. The names of approximately 96 articling students appear on that list, as well as their position and class.

10The Crown and AMAPCEO entered into a voluntary recognition agreement dated March 25, 1995 in respect of the seventh unit. That agreement was subject to ratification and was still subject to the challenges to the list raised by OPSEU. On April 21, 1995 AMAPCEO, the Crown, and OPSEU entered into an agreement (the "tripartite agreement"). In addition to dealing with the other challenges, the parties therein agreed that articling students were in bargaining unit #1.

11On April 28, 1995 OPSEU and the Crown entered into an agreement "as a full and final settlement of the transfer of employees discussed" in the tripartite agreement. That agreement sets out how conditions of employment including classification levels, wage rates, seniority, etc. will be determined. For purposes of this dispute, ALOC notes that the parties consistently used the term "transfer" to describe what was occurring in respect of the affected employees, including the articling students.

12A recommendation was made to the Civil Service Commission in May, 1995 to "establish new OPSEU classes to accommodate the transfer of former positions in the Seventh Unit in accordance with the provisions of the tripartite Memorandum of Agreement between OPSEU, AMAPCEO and the Employer". Appendix A of that recommendation is titled "NEW CLASSES IN OPSEU (May 8, 1995)" and refers to the class title of "General Administration (Articling Student)" as within bargaining unit #1.

13An Order-in-Council dated May 24, 1995 ("O.C. 1500/95") was approved establishing the classifications and corresponding salary ranges as therein listed.

14As a result of these agreements and approvals, the disputes between OPSEU, AMAPCEO, and the Crown concerning the challenges to the list and various outstanding grievances brought by OPSEU were resolved.

15It is the position of OPSEU and the Crown that articling students were placed in bargaining unit #1 by virtue of the Order in Council and that therefore OPSEU holds bargaining rights for them by virtue of the designation as bargaining agent. Further they assert, sub-section 24(4) of CECBA, 1993 as amended applies as a complete answer to these proceedings. ALOC takes the position that articling students were placed in the seventh bargaining unit by virtue of the Order in Council and that therefore OPSEU (at least) does not hold bargaining rights for them. AMAPCEO takes no position with respect to this issue.

16We have reviewed the parties' submissions and all of the documentary material filed. While that material lacks clarity we are persuaded that OPSEU holds bargaining rights for articling students.

17We start from the direction in CECBA, 1993 that the seventh bargaining unit is described, by statute, as including those public servants who are not included in the other six units. It is, in essence, a "tag end" unit. The reference in the O.C. to class codes in the seventh bargaining unit must therefore be interpreted consistently with that statutory language.

18It is also then necessary to first consider the description of, in this case, the first bargaining unit to determine whether the position of articling student falls within that description. There was no real dispute that the duties and responsibilities of an articling student can be described as falling within the first two descriptive paragraphs of bargaining unit #1.

19Even assuming that the list of class codes forms part of the bargaining unit description, it is not an exhaustive list, given the words "and includes employees in positions falling under the

following classes". This interpretation is also consistent with the inclusion of the words at the end of the listing of classes which contemplates the addition of "such other classes as may be established within the above description". Although the articling students' position is not new, a new classification for articling students was established by the Order-in-Council of May 1995 which appears to confirm they were properly included in the first bargaining unit for which OPSEU holds bargaining rights.

20We are moved to this interpretation, in part, because the class codes listed do not specify the various positions falling within each class. Even if we were to accept that the class codes formed part of the bargaining unit description, we would still be required to look elsewhere to determine what positions fell within any particular class code. It is at that point that the ambiguity arises in this case. The applicants assert that they were told they fell within AGA14, a class code listed within the seventh bargaining unit, and certainly some of the material filed supports that position.

21That material was generated by the Crown. However, other material filed supports OPSEU's position and reflects the position that the Crown also asserts. The Crown was also party to that material, which includes agreements between the Crown, OPSEU and AMAPCEO, agreements between the Crown and OPSEU, and a further Order-in Council.

22It would appear that, at best, the Crown has taken inconsistent positions with respect to the position of articling student. Before us, the Crown asserted that it had made a mistake to treat articling students as falling within the AGA14 class code as that class was referable to and included only classified staff. Articling students are part of the unclassified service under the Public Service Act due to the temporary nature of their employment. Assigning the AGA14 class to articling students was, according to the Crown, a "dummy class code", essentially for payroll purposes. Further, the duties and responsibilities of positions falling within the AGA14 class code do not reflect the duties and responsibilities of articling students.

23The Crown has agreed with OPSEU and AMAPCEO that articling students fall within bargaining unit #1 and has acted in furtherance of that agreement by having passed an O.C. creating a position class for classified staff that reflects the duties and responsibilities of articling students, which can act as a comparator for articling students in the unclassified service.

24Considered in the context of the amendments in CECBA, 1993 wherein some 7000 public employees were being granted the right to participate in collective bargaining for the first time, and the historical relationship between the Crown and OPSEU on behalf of the vast majority of the public service in the province, it is reasonable to conclude that the legislation and the O.C. were designed to provide those institutional parties with some flexibility to address problems that would invariably arise in the transitional stage to broader collective bargaining participation. The fact that OPSEU's bargaining rights are protected from challenge by the statute for an interim period is consistent with that view.

25Similarly, to conclude that positions identified within each class code were definitively described as of the date of the O.C. would suggest that the employer would be unable to modify work duties in response to changing circumstances affecting those positions and their proper placement by class code.

26We acknowledge that those employees falling within OPSEU represented bargaining units have had no say with respect to their choice of bargaining agent, because they find themselves in a bargaining unit where the bargaining agent has been designated by legislation. However, that is no different from the historical reality under "old" CECBA, and is a product of the recognition that the public service is subject to some modifications from private sector labour relations. However, under CECBA, 1993 these employees will have the opportunity to challenge OPSEU's representation after the protected period set out in the legislation passes.

27The applicants raised an issue at the hearing as to whether articling students were Crown employees given the definition of that term within the Public Service Act and the provision of section 8.1(3) of that Act. Counsel argued that his clients had not been "expressly appointed as such by the Lieutenant Governor in Council, the Commission or a minister." We are satisfied that articling students are "employed in the service of the Crown" and fall within the definition of public servant under that Act. We note that the contract signed by the applicant in Board File No. 2317-95-R requires the applicant to affirm an oath to faithfully discharge her duties as a public servant. We note too that the certification application identifies the Crown as the employer of the articling students. If one is appointed to the public service or the civil service one is, ipso facto, a Crown employee, being employed in the service of the Crown.

28We conclude therefore that OPSEU holds bargaining rights for articling students pursuant to O.C. 243/94 and that therefore the application for certification in Board File No. 1320-95-R is untimely and is therefore dismissed. Further, given the provisions of subsection 24(4) of the CECBA, 1993 as amended, section 66 of the Labour Relations Act, 1995 does not apply to the designation of OPSEU as the bargaining agent and therefore the applications in Board File Nos. 1728-95-U and 2317-95-R are hereby dismissed.