[1998] OLRB REP. MAY/JUNE 400
3215-94-M Ontario Public Service Employees Union, Applicant v. The Crown in Right of Ontario, Responding Party
BEFORE: Mary Ellen Cummings, Vice-Chair.
DECISION OF THE BOARD; June 4, 1998
This is an application that was originally made pursuant to section 108(2) mow 114(2)] of the Labour Relations Act. At the outset, a large number of positions were in dispute, but most were resolved through negotiation, leaving only one group of positions/persons in dispute; coloquially called 'judges' secretaries" by the parties.
By decision dated January 29, 1998, the Board ordered the parties to provide submissions in support of their positions, with the view that it was likely the Board could determine the matter without the need of an oral hearing. The parties provided detailed and thoughtful submissions, and the Board is able to determine the issues on the basis of the submissions.
STATUTORY PROVISIONS
- This application was made on December 7, 1994. The parties are agreed that at the time, the Crown Employees Collective Bargaining Act, 1993 (CECBA) defined a number of groups who were excluded from its coverage, and therefore excluded from access to collective bargaining. Among the exclusions was a person:
who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.
- In 1995, CECBA was amended, and the test for exclusion was changed. It now reads:
Other persons who have duties and responsibilities that, in the opinion of the Ontario Labour Relations Board, constitute a conflict of interest with their being members of a bargaining unit.
- Although the application was filed in 1994, the parties want a resolution that will be relevant today, and so have asked the Board to look at the issue within the context of each statutory exemption definition.
BACKGROUND
The parties set out the backdrop of this dispute in some detail, largely in aid of each of their positions about who bears the onus of proof; the applicant, who wants the positions included, or the responding party who wants them to be excluded. There is a significant dispute about which party is seeking to alter the status quo. I have concluded that my decision will not turn on onus, and therefore, it is unnecessary to recount the history of the dispute.
The positions and persons at issue do not constitute all the positions of secretaries to the judges in the Province. In fact, a large number of secretaries to judges are in the applicant's bargaining unit. And the parties have also agreed that a few of the judges' secretaries should be excluded. Again, the parties debated the significance of those facts; the applicant argues that the positions at issue are no different than those in the bargaining unit already, and so should be added. The responding party suggested that the judges' secretaries in the bargaining unit are there in error. Of course, at this late date (many secretaries have been in the unit for years) it is unlikely that anyone could decide which of those opposing views is correct. In any event, since the Board has concluded that the status of the judges' secretaries in this application can be determined without reference to those positions in the bargaining unit, again, it is unnecessary for the Board to try to resolve the differing views of history.
THE ISSUE
- The positions and persons in issue are as follows:
Court of Appeal
Secretary to the Justices (6 incumbents, 1 of whom is bilingual)
Ontario Court of Justice
Ontario Court (General Division)- Toronto
Judgements Secretary (now abolished)
Secretary to Justices (12 incumbents, 1 of whom is bilingual)
Office of the Chief Justice, Ontario Court (General Division)
Secretary to the Chief Justice (1 incumbent)
Secretary to the Regional Senior Justice (8 incumbents, 1 for each region and 2
bilingual)
Office of the Chief Judge, Ontario Court(Provincial Division)
Secretary to the Associate Chief Judge
Secretary to the Regional Senior Judge (5 incumbents, 1 of whom is bilingual)
Counsel for the responding party provided a helpful description of the constitutional backdrop which should, the responding party argues, play a role in the Board's considerations. The Constitution Act, divides the responsibilities for the appointment of judges and the operation of the court system between the federal government and the provinces. The federal government appoints the justices to the Court of Appeal to the Ontario Court (General Division), except the Small Claims Court judges. The Province Of Ontario appoints the Small Claims Court judges, and the judges of the Ontario Court (Provincial Division). Significantly, the Province of Ontario is responsible for the operation of all the courts in the Province, including those whose judges are appointed by the Federal Government. Hence, a number of the positions at issue, although employees of the Province, work for judges appointed by the Federal Government.
Counsel for the responding party pointed out that the Chief Justices and Senior Regional Judges have general supervision and direction of the court sittings they are mandated to manage. These powers include assigning judges to sittings; assigning cases and other duties to individual judges; determining the workloads of judges and preparing trial lists and controlling courtrooms.
Counsel for the responding party conceded that the duties of the positions in issue are not seriously in dispute. He characterized them in brief as " .. .not just the traditional skills of a secretary but also the qualities of an executive assistant to assist the respective judges in the carrying out of their functions and responsibilities". It is this link between the judges and the secretaries on which the respondent party most heavily relies in support of its view that the judges' secretaries should be excluded from the bargaining unit. Counsel noted that although the secretaries are employees of the Ministry of the Attorney General, they take direction from the judge to whom they are assigned. The judges are constitutionally and functionally independent from the Crown and the Ministry of the Attorney General and because of the close relationship between the judge and his or her secretary "...the relationship between them becomes one of a position of quasi or de facto employer-employee
Counsel for the responding party emphasized the highly confidential nature of the secretaries' work, because they have access to and prepare draft judgments and "..are also directly involved in the administration of the office of the judge and effectively become an extension of the judge to members of the judiciary, the bar, the government, the public and the press." The secretaries to the Chief Justices, Associate Chief Justices and Regional Chief Justices are said to be privy to even more highly confidential information because they have access to information about the operation and administration of the court system, including information relating to other bargaining unit positions, as a result of discussions about court reform.
Counsel for the responding party submitted that the relevant statutory language to be considered is the present language of CECBA:
Other persons who have duties and responsibilities that, in the opinion of the Ontario Labour Relations Board, constitute a conflict of interest with their being members of the bargaining unit.
Counsel for the responding party submitted that this is a broader test than the Board's traditional test (as replicated in the earlier CECBA) of "employed in a confidential capacity in matters relating to labour relations". Counsel argued that the conflict of interest to be considered must extend beyond labour relations. He went on to say that the kinds of conflict the Board is mandated to look at are those where it would be inappropriate for there to be a divided loyalty for the person in the position ..."between the interests of a bargaining agent and the interests of another body". In this case, it is submitted that to permit the secretaries to be in the bargaining unit would subject them to being in conflict between the loyalty owed to the bargaining agent and the loyalty owed to the judge as their de facto employer. This conflict could arise, it is pointed out, if the judges' secretaries had to prepare decisions in cases where one of the litigants was the bargaining agent. Counsel argued that concerns about an appearance of bias extended to the judges' secretaries as an extension of the judge's office.
The second conflict outlined is that judges' secretaries, like judges and the courts, in general, must be and be seen to be independent, and "...any question of the loyalty of the individuals directly involved in these matters is simply unacceptable".
The responding party is also concerned about the implications of including the judges' secretaries in the large Office Administration Bargaining Unit of the applicant. The responding party submits that the terms and conditions of the collective agreement may not be appropriate for the administration of the courts. Some of the concerns raised are the possibility that in a downsizing, a senior employee could bump the Chief Justice's secretary "despite the long relationship with that judge"; that the essential services agreement between the responding party and the applicant may not provide for continued secretarial services to the Chief Justice during a strike; and "an agreement between the Crown and the bargaining agent may require mandatory unpaid leave by all bargaining unit staff to the detriment of the operation of the courts".
Counsel summarized his arguments as follows:
It is acknowledged that it is the constitutional responsibility of the Crown to provide for the administration of justice within the province in a manner that complies with the requirements of administrative independence for the judiciary. It is submitted that this constitutional obligation is difficult enough to achieve without the additional complications imposed by the restrictions of a collective agreement. The imposition of the membership in a bargaining unit, particularly one the such a size and general nature as OPSEU, does not allow for the sufficient certainty regarding the terms and conditions of employment of the judges' secretaries to ensure that the Offices of the Chief Justice and the Regional Senior Justices are able to operate in an appropriate manner. Consequently, it is submitted that it is not appropriate for these judges' secretaries to be members of a bargaining unit.
The applicant submitted that the judges' secretaries performed traditional secretarial duties, with no involvement in labour relations, in part because the judges they serve are independent of the Crown, and do not participate in is labour relations. The applicant pointed out that access to confidential information, or the requirement to work with confidential information is not a reason to exclude, where the confidential information does not relate to labour relations. Counsel for the applicant cited the Board's decision in York University [1994] OLRB Rep. Jan. 96.
Turning to the issue of whether there is a conflict of interest in the judges' secretaries being members of a bargaining unit, the applicant indicated that it could envision no conflict that met that test in this case. It pointed out that while it is true that the applicant is a party before the courts, from time to time, the responding party is a party before the court just as often, so it is inappropriate only to focus on the applicant.
The applicant pointed out that the fundamental flaw in the responding party's argument is its characterization of the relationship between the judge and his or her secretary as de facto employer! employee, when there can be no question that the secretaries are employed by the Crown, not the judge. Therefore any alleged conflicts of interest between the judge and his secretary are immaterial, because they are not conflicts between the employer and employee; the only type of conflict that is relevant.
DECISION
As a starting point, it is important to remember that the decision to exclude a person from a bargaining unit denies that person the opportunity to collectively bargain for his or her wages and working conditions, and to participate in the lawful activities of the trade union. Over the years the Legislature has, in some way, recognized that exclusion from the bargaining unit denies important rights, because the categories of persons excluded has consistently been fairly narrow. The Board, similarly, has recognized that the loss of the right to collectively bargain is a real loss, and has appropriately narrowly construed the exceptions.
I have reviewed the job description for the positions and persons in questions, which both parties agree accurately reflect the content of the positions. While there is some variation among them, they generally describe traditional secretarial duties of preparing and receiving correspondence; typing draft decisions; managing the judges' correspondence; maintaining the judges' appointment diaries; scheduling meetings and other events; greeting visitors; answering and screening calls; filing materials; ensuring office, equipment and supplies are up to date; gathering and preparing background materials for the judges; reminding the justices of matters of priority; taking minutes at meetings; and assisting the Chief Justices and Regional Justices in their responsibilities for directing the workload of the other judges. It is also evident from the job descriptions that the secretaries are required to perform at a high level of competence, and act with the utmost discretion, and with due regard to the confidentiality of the materials with which they work, particularly draft decisions.
No one is alleging that any of the judges' secretaries exercise managerial functions, so under the pre-1994 CECRA language, the only possible grounds for exclusion is because the judges' secretaries are "employed in a confidential capacity in matters relating to labour relations." There is, though, nothing in the job descriptions (or submissions of counsel for the responding party) that even remotely suggests the judges' secretaries "are employed in a confidential capacity in matters relating to labour relations". The judges' secretaries have nothing to do with labour relations. Therefore, under the test enunciated in CECBA at the time this application was made, there is no doubt that all of the persons in the secretarial positions were persons to whom CECRA applied and entitled to participate in collective bargaining.
The more interesting question is whether the duties and responsibilities of the judges' secretaries "...constitute a conflict of interest with their being members of the bargaining unit", as the relevant CECBA exclusion is now worded.
I agree that the new language is broader than its predecessor and allows the Board to look at conflict of interest in a wider context. However, the Board may not consider any and all conflict of interest, but only those relating to being "a member of the bargaining unit".
Let me begin with those alleged conflicts that I have concluded are inappropriate for the Board to consider. The responding party suggests that the terms of its collective agreement with the applicant are inappropriate for the judges' secretaries because they could result in bumping; entitlements to leaves of absence; and disruption of work during a strike. However, the responding party is one of the parties to that agreement, and presumably, can seek to negotiate terms that would address those concerns. But more fundamentally, I am not satisfied that the Legislature intended the Board to consider allegedly onerous collective agreement provisions as a potential conflict of interest. To go down that road is to conclude that only when the terms of the agreement are advantageous to the employer, is there no conflict of interest. Furthermore, I am not convinced that concerns about the appropriateness of the collective agreement is encompassed in the statutory definition which relates conflict of interest "to being members of a bargaining unit".
I reject the responding party's assertion that the close relationship between judges and their secretaries makes the judges the de facto employer, and that membership in a bargaining unit threatens the integrity of that relationship. First, I note that the job description of all the secretaries indicate that they do not report to the judge they serve: the secretaries report to a Regional Coordinator; Finance and Administration Manager; Executive Legal Officer; Manager/Office and Administration support; or an Administrative Assistant to Regional Senior Judge, suggesting that the "de facto employer" concept may not be factually (much less legally) sustainable. Second, the concerns the responding party has outlined, that is that the loyalty of the secretaries to the judges would be compromised if the secretaries were included in a bargaining unit, has not been substantiated. The responding party has essentially asserted that in the administration of justice, secretaries to judges are extensions of the judge, and so must have and be seen to have the same independence and freedom from an appearance of bias as the judge who hears and decides the case. The responding party's submissions seek to extend the cloak of justice very widely.
Counsel for the responding party relied in part on the decision of Supreme Court of Canada in Valente v. the Queen, 1985 CanLII 25 (SCC), 1985, 24 D.L.R. (4th) 161. The Court held that judicial control over the assignment of judges, sittings of the court and court lists, as well as the related matters of allocations of court rooms "...and direction of the administrative staff engaged in carrying out these functions, has generally been considered the essential or minimum requirement for institutional or 'collective' independence". But even if the Board were to accept that the judges' secretaries carry out some of these functions, the independence at issue is Valente is independence from Government, which is not the issue before me. Put another way, even if the judges' secretaries were employees of an independent judiciary rather than the Crown, it does not follow that the secretaries' membership in a bargaining unit would create a conflict with the independence of the judiciary.
There is no doubt that secretaries to judges must work with the utmost discretion and appreciation of the confidentially of the materials with which they work. But that requirement is no different from the obligations placed on any employee who works for or with a senior member of government or a private corporation, or an adjudicator at an administrative tribunal. The requirement to act with discretion does not, however, place the judges' secretaries on a level where they must enjoy an independence and absence of an appearance of bias approaching that of the justices they serve. Litigants are concerned about the independence of the person who hears and decides their case, not the union activities of the person who types the decision.
I also agree with the submission of counsel for the applicant that the conflicts the responding party has identified all relate to the relationship between the judge and his or her secretary. The responding party has not identified any conflicts between the secretaries and their actual employer, the Crown. Those are the kinds of conflicts that the CECBA exclusion is concerned with; conflicts that may divide the loyalty of an person between her employer and the bargaining agent. It is true that judges' secretaries may occasionally prepare a decision in which the applicant is the litigant. I am not convinced that this is a significant challenge to the loyalty of the secretaries to their employer. Nor would it be a regular part of their employment. I expect that the secretaries more often deal with litigation in which their employer, the Crown, is a party.
In summary, I do not accept the assertion that the judges' secretaries are de facto employees of the judges they serve. More important, I do not accept the argument that judges' secretaries are extension of the judges, and must reflect the same degree of independence. I have also concluded that the responding party's concerns about the appropriateness of the terms of the collective agreement which would presumably cover these employees is an inappropriate consideration, where the statutory language requires the Board to consider only conflicts of interest in being a member of a bargaining unit.
In conclusion, the judges' secretaries I have considered are employees under CECRA, and thus entitled to participate in collective bargaining.