0331-92 Thomson Newspapers Corporation, Applicant v. Southern Ontario Newspaper Guild and Oshawa Times, Respondents 0332-92 Oshawa Times, Applicant v. Southern Ontario Newspaper Guild and Thomson Newspapers Corporation, Respondents
Before : Raphael Palumbo, Vice-Chair; Janet Slone Taylor and Susan Genge, Members
Appearances:JaniceA. Bakerfor ThomsonNewspapers Corporationand the OshawaTimes;Lorne A. Richmond for the Southern Ontario Newspaper Guild
Cite As: Thomson Newspapers (1993), 4 P.E.R. 21
Employer
ThomsonNewspapers objectedtoaReviewOfficer'sOrderfindingittobetheemployerforthepurposes ofpayequityofemployeesattheOshawaTimes. The Tribunalreviewedtherelationshipbetweenthetwo entities and concluded that, while the publisher of the Oshawa Times controlled the operation of the newspaper, he did so as an employee of Thomson. As such he was obliged to carry out Thomson's corporategoalsandobjectives in the newspaper's operations and practices. His authoritywasdelegated from Thomson and the delegation could be revoked in whole or in part at Thomson's instigation. Overriding financial control rested with Thomson as did ultimate authority for compensation practices affectingthisgroupofemployees. Thomson is named as the employer in the collective agreement between it and the Union. The Tribunal found Thomson to be the employer.
Employeur
La sociétéThomsonNewspapers s' opposait à unordred'unagent de révisionquiavait concluqu'elle était, aux fins de l'équité salariale, l'employeur du personnel du Oshawa Times. Le Tribunal a examiné les rapports entre les deux entités et a conclu que même si l'éditeur du journal en dirigeait les opérations, il le faisait à titre d'employé de la société Thomson. Il se devait donc, dans le cadre de la direction générale du journal, de veiller à la réalisation des buts et objectifs de la société. Celle-ci lui avait délégué les pouvoirs qu'il détenait et elle pouvait les révoquer à son gré, en tout ou en partie. De plus, la société assumait le contrôle financier suprême du journal et gérait les pratiques de rétribution qui touchaient le groupe d'employés en question. Finalement, la convention collective intervenue entre la société et le syndicat précise bien que Thomson est l'employeur. Le Tribunal a conclu que Thomson était bel et bien l'employeur.
DECISION OF THE TRIBUNAL, JULY 28, 1993
1The issue in these proceedings is who is the employer of the members of the Southern Ontario Newspaper Guild, Local 87 (the "Guild"). Resolution of this issue will determine both the mandatory posting date for the pay equity plan referrable to the Guild's members and the date the first pay equity adjustments, if any, must be paid.
- By Order dated March 20, 1992 the Review Officer appointed pursuant to an application to the Pay Equity Commission found "that the employer for the purposes of payequity shall be defined as Thomson Newspaper Company Ltd. The mandatory posting date is January 1, 1990 with the first adjustments, if any,to commence January 1, 1991." ThomsonNewspapersCorporation("ThomsonNewspapers")and the Oshawa Times newspaper have objected to the order and contend that the Oshawa Times is the employer of this group of employees. The Guild asks that the Order be upheld.
2For the purposes of this decision, references to the "corporation", "corporate office" or "head office" are references to Thomson Newspapers.
Introduction
1 Thomson Newspapers is part of the Thomson Corporation. Thomson Newspapers publishes 40 dailies and 30 weeklies in Canada and 123 dailies and 40 weeklies in the United States, plus many other publications in each country. The corporate headquarters of Thomson NewspapersislocatedintheCity of Toronto. Thomson Newspapers owns the Oshawa Times which produces a daily newspaper in the City of Oshawa.
2 The Oshawa Times employs between 90 and 98 full and part-time employees. The Guild holds bargaining rights for editorial and circulation employees working at the newspaper. The current Guild collective agreement identifies the employer as "The Oshawa Times, a division of Thomson Newspapers Co. Limited, 44 Richmond St. West, Oshawa". Two other collective agreements exist, one between "The Oshawa Times, a division of Thomson Newspapers, and Local N-1 of the Graphic Communications International Union" and the other between "The Oshawa Times,a divisionofThomsonNewspapersand the Oshawa Typographical Union No. 969".
3The circulation of the Oshawa Times is approximately 23,000 copies. The primary market for the newspaper is the community of Oshawa. Recently, however, the newspaper has focused on four target markets: Oshawa, Whitby, Bowmanville and Port Perry. The sources of most of the newspaper's advertising revenues are advertisers in the City of Oshawa.
4The Oshawa Times determines the format of the newspaper product. The organization itself is divided into numerous departments. The circulation department is responsible for the delivery and distribution of the newspaper. The production department is responsible for the printing, including the quality of the printing of the newspaper. The advertising department is responsible for both classified and retail advertising. Thisiswherethemajorityofthenewspaper'srevenuesarerealized. The editorial department consists of a number of different editors in such departments as sports, family and lifestyles. The editors coordinate the development of the news for the day's newspaper. Finally, the finance department or business office is responsible for the billing and collection of accounts and for the financial records of the Oshawa Times.
5ThisisthefirstTribunaldecisioninvolvingtheissueofwhoistheemployerin a private sector context. In this case, we have carefully reviewed the evidence concerning the operation of the Oshawa Times and itsrelationship withThomsonNewspapersand have concludedthatThomsonNewspapersistheemployer of the Guild's members at the newspaper. We now review the essential elements of this relationship. It should be noted that evidence repecting the relationship between Thomson Newspapers and its newspapers in general applies to the Oshawa Times and its relationship with the corporation.
Role of Publisher
1 Mac Dundas is the general manager and publisher of the Oshawa Times. Prior to his appointment as publisher he was the vice-president and chief operating officer of the Ontario Division of Thomson Newspapers. In this capacity, Mr. Dundas was responsible for ensuring that the "corporate message" was delivered to, and the objectives of the corporation were understood by, the publishers and general managers of the newspapers. He was the publishers' superior. He reviewed the newspapers' plans to ensurethattheywerecredible and achievable, and not in direct contradiction to the corporate objectives.
2 Mr. Dundas testified that the number of times he met with an individual publisher or offered assistance depended uponhowclose the publisher was to reaching the targets he or she had established. For example, if the publisher was having a difficult time in meeting the quality of reproduction, Thomson Newspapers would make consultants available if that publisher was interested.
3 Mr. Dundas met with the publishers in his division as a group on an infrequent basis. At times, however, the corporation scheduled group meetings for all publishers. For example, in February, 1991, all publishers and editors throughout North America attended a conference organized by Thomson Newspapers in Nashville, Tennessee. The participants were addressed not only by the president of Thomson Newspapers, but also by the president of ThomsonCorporation about the development of the newspaper products.
4 During Mr. Dundas' tenure as vice-president of Thomson Newspapers, the corporate objectives included concerns for the quality of the newspapers, vesting the editorial integrity of the newspaper in the publisher and his or her staff and concerns regarding the long-term development or growth of the newspaper through increased circulation and therefore profitability. Mr. Dundas indicated that Thomson had a corporate objective of achieving an 80 per cent city zone penetration figure and 51 per cent penetrationfigurein rural route communities. Penetration measures the effectiveness of the newspaper in reaching customers in the market.
5 Publishers are appointed to newspapers, and transferred between them, by the divisional chief operating officers located at the head office of Thomson Newspapers in Toronto. The evidence disclosed that only Thomson Newspapers executives have the authority to offer publishers new employment opportunities. No newspaper determines who its publisher will be, although a publisher will decide whether he or she is interested in an opportunity that is offered. A publisher's salary is not set by the newspaper, rather it is negotiated with Thomson Newspapers.
6At the Oshawa Times Mr. Dundas "wear [s] two hats", those of publisher and general manager. As the publisher, it is his responsibility to develop the vision and the strategy to encourage the growth of his staff, department heads and the newspaper. As the general manager, Mr. Dundas sees his role as trying to ensure that the newspaper operation is run cost effectively and efficiently. He must find the resources as general manager to do the things that as publisher he needs to accomplish to make the newspaper successful.
7Grant Cowsill is the publisher and general manager of the Barrie Examiner, another newspaper owned by Thomson Newspapers. He was the publisher of the Oshawa Times prior to Mr. Dundas. In Mr. Cowsill's view, the publisher is the corporation'spersonatthe newspaper,a "steward", and, as such, is there to carry out corporate objectives as they relate to the individual newspaper.
8In 1989, Thomson Newspapers decided that a new decentralized management style was required intheoperationofitsnewspapers. Thisessentiallymeantthatthepublisherenjoyedgreaterautonomythan before. According to Mr. Cowsill, under the previous management system he was a "caretaker". Matters were funnelled down to him from Thomson Newspapers. At times, he would undertake a new initiative, but basically he was supervising an operation that was tightly and centrally controlled. Today, Thomson Newspapers believes that it is in the best interests of a newspaper to leave its operation in the control of the local managers. However, the evidence disclosed a great deal of consultation between the individual newspaper and the corporation.
9The 1990 Annual Report of The Thomson Corporation outlines this new management style and recognizes the publisher as Thomson Newspapers' manager and decision-maker at the local newspaper level:
Emphasis is placed on product quality and leadership positions, and the bulk of TTC's futuregrowthwillbe organicallygenerated,supplementedwhereappropriatebyselective, high quality acquisitions. A decentralized management structure encourages day-to-day decision-making at the business unit chief executive/publisher level, and enlightened personnel policies and management development programs provide a well-experienced and motivated executive group as well as providing for succession. Management must remain the best in each sector served...
Our revised organization - expanded from 13 to 16 divisions, with fewer newspapers in each -is working well and is enabling us to exploit more fully the opportunities in our marketplaces. Our increasingly decentralized structure is placing greater responsibility at the newspaper publisher level to ensure that key marketing and planning decisions are being taken as close as possible to the customers we serve. Our executive training and development programs are being enhanced to support this philosophy.
1 There are practical implications arising out of this new management style. The publisher and the newspaper'smanagementteammustnowdeveloptheirownmarketingplansandinitiatives. As well, while Thomson Newspapers had previously concentrated on controlling expenses, it changed its focus to increasing revenues for the newspapers. Under the new approach Thomson Newspapers gives the publisher more authority to try and improve circulation and advertising at the newspapers but does not dictate how he or she is to do that.
- It is significant that Thomson Newspapers independently decided to implement the new management style and to focus on revenue production. Mr. Dundas acknowledged that Thomson Newspapers continues to have the authority to change to another system. As well, he acknowledged that the decentralizedsystemdoesnotgive the publisherthe authorityto decide that the systemwillremaininplace for all time. Mr. Cowsill testified that the corporation retains control over the amount of independence given to publishers and that their present autonomy could be withdrawn.
2 As the publisher, Mr. Dundas does not have the authority to close down the Oshawa Times. Mr. Dundas and Mr. Cowsill agreed that the decision to close down a newspaper is made at the corporate office. Mr. Cowsill was of the view that while he would have a great deal of input into the decision, he could not make it unilaterally. That decision would have to be made by Thomson Newspapers.
Business and Marketing Plans
1 In 1990 Thomson Newspapers developed the format for the business plan to be instituted by its newspapers. It consists of two parts - a marketing plan and a financial plan. The marketing plan reflects the publisher's strategy or future vision of the newspaper, including its markets, products, service and growth.
2 The marketing plan is submitted to the chief operating officer of the division. Mr. Dundas testified as chiefoperating officer at Thomson Newspapers he reviewed the publisher's marketing plan to see"ifit was doable". After critiquing and reviewing the plan, he would "sign it off". In effect this meant that the corporation agreed with or accepted the strategy outlined.
3 The publisher is expected to show, through the marketing plan, how he would meet the corporate goals of Thomson Newspapers. One goal outlined in the ThomsonCorporationAnnualReportfor1991 set a priority within the Thomson Newspapers group, of creating new products which would generate approximately a three per cent increase in revenues.
4 The publisher at a newspaper cannot implement the marketing plan without his or her vice-president's consent at head office. Furthermore, any changes to the plan during the year must have the vice-president's consent. The evidence disclosed that major initiatives by newspapers have been reviewed bythevice-president. For example, prior to preparing the 1992 marketing and financial plan, the Oshawa Timesundertooka market study to target its consumers. Muchofthe1992planwasbasedontheresults of the study. Although the Oshawa Times paid for the survey, Mr. Cowsill first obtained approval from corporate office for the unbudgeted $16,000 expenditure. Mr. Cowsill felt that this expense was a matter aboutwhichheshouldadvisehissuperior. If Thomson Newspapers had not agreed with the expenditure, it could have prevented Mr. Cowsill from proceeding with the project.
5 The marketing plan is used to develop a financial plan for the newspaper. It is generated at the newspaper, is an internal document for the newspaper's own use, and must reflect the initiatives identified in the marketing plan. It is a three year projection wherein expenses and revenues, as well as any new products and initiatives, are identified to determine the growth and success of the newspaper.
- A business plan financial summary is prepared by the newspaper on the basis of the financial plan. Thesummary issubmittedtothevicepresidentandchiefoperatingofficerforreview. In that capacity, Mr. Dundasrevieweditto makesurethatthe strategiesidentifiedinthe marketingplanmatchedthe information foundinthefinancialsummary. According to Mr. Dundas the financial summary was not critiqued, although it would be forwarded to Thomson's controller to check the mathematical calculations. If a mistake was identified the newspaper would be asked for clarification or amendment. Mr. Dundas testified that the summarywassimplyreviewedtoensurethatitwasrealistic. If anewspaperwaslaunchinganewproduct, he would be concerned that it had adequate staff to meet the corporate objective of producing quality publications.
6 For example, the Oshawa Times planned to launch an edition of the newspaper aimed at readers in the City of Bowmanville. Although the edition never materialized, a plan for it was developed by the Oshawa Times publisher and forwarded for approval to the vice-president as part of the newspaper's marketing plan. Approval was required because of the expense involved in launching this type of new product. In his capacity as vice-president, Mr. Dundas had the authority to question the viability of this type of project and could ultimately veto it. Until the publisher obtains approval for such a project it cannot proceed.
7 As another example, the WhitbybureauoftheOshawaTimesopenedinJune,1991. The Oshawa Times management wanted to expand by going to the Whitby marketplace and offering a zoned edition. Such a project could not be commenced without head office approval because of the planning that was involved. Additional staff were hired and office space was leased. The applicants for staff positions were interviewed and hired by the department heads of the Oshawa Times.
8 When Mr. Cowsill left the Oshawa Times the financial position of the Whitby bureau was not sound. When Mr. Dundas commenced his duties as publisher he reviewed the Whitby edition, came to the conclusion that it would not be profitable and decided to close it. He recommended to Thomson Newspapers that this be done and they agreed. He informed Thomson Newspapers of his decision because the bureau had beenapproved by head office as part of the original marketing plan and strategy of the newspaper. He could not have closed the bureau unilaterally. He did, however, undertake payment of additional severance pay to employees at the Whitby bureau without head office approval.
9 The business plans submitted by newspapers to the vice- president of a division are used by the vicepresidenttodevelopabusinessplanfortheentiredivision. The business plan for each division is submitted to the senior vice-president for Canada to develop a Canada-wide business plan. The same process occurs in the United States. The business plans in turn are submitted to the chief executive officer of ThomsonCorporation. In this way the financial success of Thomson Newspapers is linked to the marketing and financial plans of each newspaper it operates.
Capital and Profits
1 The profit from the Oshawa Times is transferred to Thomson Newspapers. If a newspaper requires more money as a result of a deficit, its publisher requests it from Thomson Newspapers after accounts receivables have been exhausted. The corporation decides whether to provide the capital requested.
- Thomson Newspapers is the source of capital for new plants, new buildings, the purchase of equipment or for renovations. Thomson Newspapers decides whether to grant a publisher's request for capital based on the newspaper's marketing plan. The publisher is not authorized to obtain that capital elsewhere. The Oshawa Times is not empowered to sell its assets to raise capital. Money is not loaned to a newspaper in the usual sense. Rather, the money is paid back by the increased profitability of the newspaper which flows to Thomson Newspapers.
2 The Oshawa Times raises revenues through local and national retail advertising. The newspaper sells advertisements and develops its own advertising rates based on its market and circulation. Thomson Newspapers also assists its newspapers with their advertising efforts and directs advertising to them. It maintains a sales office for that purpose which contacts national agencies on a regular basis, especially if the individual newspaper requests that assistance.
Purchasing and Payroll
1 Between 1989 and 1992, the newspapers were informed of their newsprint sources by the corporation. Newspapers were asked to identify the volume of newsprint required, so that a contract commitment could be made with the supplier. In order to obtain the best price Thomson Newspapers negotiated with major suppliers across Canada for a price based on volume. By obtaining the best price the newspaper, and in turn Thomson Newspapers, benefitted.
2 The Oshawa Times recently received a memorandum from Thomson Newspapers which identifies three suppliers of newsprint, and outlines the corporate discounts that are available. The choice of supplier and the specifics of the purchase is left entirely to the discretion of the publisher. Thomson Newspapers indicated that a greater economy ofscale would beachievedifthe newspaperspurchased newsprint from these suppliers. It is clear, however, that the corportion advises the newspapers of the pricing structures for newsprint that is available for purchase. Furthermore, the publisher has no control over any changes Thomson Newspapers may make with respect to the purchase of newsprint. The purchase of other supplies is left to the discretion of the newspaper.
3 The Oshawa Times issues cheques for such things as payment of newsprint, tax payments to the City of Oshawa, paymentsto coverOHIPpremiums and invoicesfromthe Workers' CompensationBoard for itsassessment. To Mr. Dundas' knowledge, the newspapers owned by Thomson Newspapers do not pool their performance records forworkers'compensationpurposes. The Oshawa Times also issues cheques forpayroll,cashdisbursementchequesforexpenseaccounts,mileage chargesandotherbusinessexpenses. ThenewspaperpaystheGoodsandServicesTaxinvoice. The cheques are drawn on an account held by "The Oshawa Times, A Division of Thomson Newspapers Company Limited" at The Royal Bank of Canada in the City of Oshawa.
4 The Oshawa Times maintains employee personnel records on its premises. Thepayrollfunctionis carried out, and payroll records are maintained, by the newspaper's business office and accountant. The accounting office makes union dues check-offs. Cheques which are issued to employees either for expenses or salaries are signed by the publisher, the accountant or the advertising manager. Mr. Dundas signs his own pay cheque.
Corporate Services
- The publishers are offered a variey of services from the office of the vice-president and chief operating officer of the Ontario division, including the services of consultants in each of the editorial, advertising, circulation and production areas. The head office is a resource for the newspaper. As Mr. Dundas put it, the responsibility of his position and the corporate office was to "offer encouragement and help, suggestions and advice." He testified that he and hisstaff"weretheresimplytohelpthemifthey had a need."
2 Mr. Dundas' office would also critique material that the publisher's department heads were developing. Often, the publisher might contact Mr. Dundas' office with a view to having the newspapers' plans reviewed for flaws, omissions or suggestions. For example, Mr. Cowsill indicated that he wishes to redesign the Barrie Examiner. The newspaper will develop three or four different options for a corporate designexperttoreview. While in the past there was an administrative chargeassociatedwiththeservices provided, that is no longer the case.
3 The newspapers receive a monthly publication from Thomson Newspapers dealing with editorial material,newsroomstructures,storyideas,howtoenhanceheadlinewriting. It is a collection of good ideas from approximately 400 newspapers. Mr. Cowsill indicated that they use it to brainstorm, and the best ideas are chosen.
4 There is also a quarterly newsletter which all employees receive which is a compendium of information from the corporate office advising employees of financial plans, developments within the corporation, staff training and human resources information.
5 The decision to use a wire-service story is made by a combination of people in the editorial departmentof the Oshawa Times. TheOshawaTimessubscribestotheCanadianPresswireservice,but also uses the Thomson Newspapers wire service. Apart from the installation of the news service equipment, the newspaper does not pay for this service.
Compensation Practices
1 The salary for a vacant position is decided upon by the publisher on the recommendation of the department head. The collective agreement with the Guild includes a minimum salary grid. The department head could decide to pay more than what is provided for in the grid. This decision is not sent to Thomson Newspapers head office for approval.
2 Employees from the labour department at Thomson Newspapers attend collective bargaining negotiations when requested to do so by publishers. This is usually when negotiations are difficult. These consultants provide publishers with information about other settlements within the ThomsonNewspapers chain and throughout the newspaper industry generally. Consultants give publishers advice on contract interpretation, language, and on grievance procedures where necessary.
3 Mr. Jim Nemeth is an employee relations consultant with Thomson Newspapers. He has acted as an adviser to publishers during collective bargaining. His role depends on the expertise of the publisher. Sometimes he takes a passive role while at other times heismoreactiveinthediscussions. There was no evidence that he could veto the publisher's decision during the course of the negotiations.
4 There is no corporate policy requiring publishers to consult with the labour relations department or to request assistance from the department when collective bargaining is taking place. However, since March, 1992, it is Mr. Nemeth'sexperiencethatwhenmattersreachthe conciliation stage, the publishers will request assistance from corporate office.
5 As a vice-president Mr. Dundas never attended collective bargaining sessions at any of the newspapersfor whichhewasresponsible. Collective agreements between the unions and the newspapers were not submitted to him for ratification. As a publisher, Mr. Dundas has negotiated contracts with different unions. Some contracts were concluded with assistance from the labour relations department and others without.
6 During the time he was the publisher at the Oshawa Times Mr. Cowsill participated in collective bargainingwithS.O.N.G., I.T.U. and the G.C.I.U. In negotiating with the I.T.U. and G.C.I.U., he hadno reason to call in someone from the labour consultants group at Thomson Newspapers head office.
7 In the 1990 S.O.N.G. negotiations, however, Mr. Cowsill invited legal counsel from Thomson Newspapers head office to join in the negotiations. Mr. Cowsill drafted and presented proposals. The consultant was a quiet advisor who did not say very much.
8 The negotiations stalled and the matter went to conciliation. Mr. Cowsill decided to seek additional help. He asked that the Thomson Newspapers human resources department provide someone to act as a mediator between the two parties. At times he disagreed with the advice this consultant gave him. Ultimately, Mr. Cowsill decided the newspaper's position.
9 A three year agreement was finally reached which provided for a six per cent annual increase. Although Mr. Cowsill originally budgeted for a four and one-half percent increase,in1990, he agreed to the six per cent increase. He did not seek approval or authorization from Thomson Newspapers at the time, but as a matter of course he informed head office that he was increasing the financial agreement.
10In this round of collective bargaining, Lorne Slotnick was the chief spokesperson for the Guild. After the applicationfor conciliation, the Guild metwithMr.Cowsill, hismanagingeditorand JerryBrown, from Thomson Newspapers head office. According to Mr. Slotnick, when the deadline approached, many of the meetings were between himself, Mr. Brown and the mediator from the Ministry of Labour.
11The last issue to be agreed upon in the negotiations was related to vacations. The meeting to discuss the issue was between the mediator, Mr. Brown and Mr. Slotnick. There was some discussion between Mr.Brown and Mr. Slotnick. Ultimately, the issue was settled after Mr. Brown consulted with both Mr. Cowsill and someone from Thomson Newspapers.
12AtthetimeMr.CowsillstartedtobargainwiththeGuildthefull-timeandpart-time employees were not covered within the same collective agreement. He agreed to include both groups within the same collective agreement without approval from Thomson Newspapers.
- It was Mr. Cowsill's evidence that during the negotiations he was not required to seek consent about the matters being negotiated with anyone from Thomson Newspapers. It was his decision to put forward proposals, to accept proposals or to accept a compromise at bargaining. During the negotiations, he advised Thomson Newpapers' head office about the progress of the negotiations but this was strictly on an informational basis. Thomson Newspapers did not set his negotiating mandate.
13Nevertheless, the evidence did disclose the corporation's involvement in the collective bargaining process. During negotiations, Mr. Cowsill proposed what is now clause 14.13 of the collective agreement with S.O.N.G. which provides as follows:
Onthe basis ofthe ratesofcompensationestablishedinthis contract,the Employer'hasthe fullright to useand/or re-use, in any manner, form or medium that the Employerchooses, all material produced by the employees for the Employer
The language of this provision was developed by Thomson Newspapers. In fact, it is the policy of the corporation to have this provision included in every collective agreement entered into by its newspapers with the Guild. This is why Mr. Cowsill proposed that this clause be included in the agreement. The evidence did disclose, however, that some collective agreements between the Guild and the corporation's newspapers do not contain this particular provision. In fact, collective agreements throughout the Thomson Newspapers chain are not uniform.
1 Mr. Dundas testified that he is not aware whether he, as publisher, has theauthoritytolockout his employees. He would probably contact the Director of Human Resources at Thomson Newspapers about a lock-out situation. Mr. Cowsill believes that he has the unilateral authority to take a strike at his newspaperbecauseaspublisherhehas been put in charge oftheoperation. If a publisher is facing a strike or possible strike,and wishesmoremoneytoavoiditbymeetingthe union'sdemands,Mr. Cowsillbelieves that the publisher would involve the chief operating officer from Thomson Newspapers in the decision-making process. Such a decision would affect the operation of the newspaper, and the publisher is accountable for its management. Therefore, if a decision would adversely impact on the operation, it would be prudent to let Thomson Newspapers head office know that that was the case.
- Mr. Nemeth indicated that the decision to take a strike is something that he would expect a publisher to discuss with his chief operating officer at head office. He testified:
Q: What I am specifically talking about is a strike, or a lock-out, or a closure, or a purchase, is something he cannot do without consultation with his chief operating officer at head office.
A:Iwould saythathe could -- if he wanted to make the decision to strike orlock-out,he would have the authority to do that, but a prudent and responsible manager would obviously make sure that other people who would be impacted by it, namely the corporation, would be involved in the decision.
2 Since he started as publisher at the Oshawa Times, there have been grievances which Mr. Dundas has handled and resolved. He does not require the approval of the Thomson Newspapers corporate office.
3 Mr. Nemeth has also been involvedingrievances. Publishers have asked him for an interpretation of the collective agreement, or for his opinion as to themeritsofgrievances. He does not get involved on site in a grievance procedure.
- There is no requirement for publishers to consult the Thomson Newspapers corporate office about upcoming arbitrations. The newspaper involved in the arbitration pays both its legal fees and its costs of the arbitration. Arbitrations have proceeded without head office participation, although someone from Thomson Newspapers was present at the three arbitrations Mr. Slotnick has been involved in since becoming responsible for the Guild at the Oshawa Times. As well, Mr. Cowsill testified that the degree of control he has held in arbitrations cases where he has requested Thomson's participation depended on the circumstances of each case. In discussing one arbitration he stated:
A: It could be that Toronto, once I drop it in their lap, would take total control of the situation. It could be that I would have final say in the situation. It would depend on the circumstances... I would argue that I had a very great say in it, depending on the circumstances, I might have 55 to 60 to 75 per cent say in the situation.
Q: And depending on the circumstances, you may have no percentage?
A: That's true.
4 Thomson Newspapers developed a health and welfare plan for its employees. They have also upgraded medical and dental programs and made them available to the newspapers for their employees. ThomsonNewspapers negotiatedthe planwithLondonLifeInsuranceCompanyusingitseconomyofscale to secure an optimum rate. At any of the newspapers where Mr. Dundas has worked the corporate plan was available. Not all newspapers owned by Thomson Newspapers participate in the London Life package, although the Oshawa Times does. Some newspapers have plans of their own. If an employee movesfroma newspaperthatsubscribesto the corporate plan toanothernewspaperthatalsosubscribes, that employee would continue to be a member of the plan. Changes to the health and welfare plan are announced by Thomson Newspapers head office.
5 Thomson Newspapers offers a corporate pension plan. Management or non-union staff are all eligibletoparticipateinthecorporateplanbutarenotrequired to do so. Trade unions may negotiate entry into these plans. None of the bargaining unit members at the Oshawa Times are members of the pension plan. Each unit has its own pension plan.
6 Management employees at the Oshawa Times belong to the corporate pension plan. Mr. Dundas andMr.Cowsillbelong to the corporate plan. As they moved fromonenewspapertoanother,theyhave carried their service credits for purposes of the pension plan with them.
7 Mr. Cowsill also carried his service credits for purposes of seniority and vacation entitlement with himfromnewspapertonewspaper. Mr. Dundastestifiedthathecarriedhiscreditsforvacationandhealth and welfare benefits, although the benefit level changed at different locations throughout his career.
8 When Mr. Dundas moved from the vice-president's position to the publisher of the Oshawa Times, he was not given a separation certificate. Mr. Cowsill testified that as he moved from newspaper to newspaper he received a transfer certificate. This is an internal Thomson Newspapers document dealing with internal transfers. The certificate lists information such as the newspaper the publisher operated, the publisher's pension benefits and the unemployment insurance contributions made.
9 The evidence did not disclose Thomson Newspapers corporate policies relating to employee relationsmatters,includingmaternityleaveandvacations,whichbinditsnewspapers. Nevertheless, certain humanresourcesinitiativesdevelopedby the corporation were adopted by its newspapers. Forexample, all newspapers, including the Oshawa Times, adopted a sexual harassment policy originating at the corporateoffice. As well, after 1989, Thomson Newspapers was attempting to develop files for employee progression within the company, or successionplanningasMr. Cowsill described it. Therefore, a formal performance audit document was generated by the human resources department of the corporation and adopted and usedbytheOshawaTimes. An audit was completed for management employees only once a year prior to setting annual salary increments. Although copies of the audits were forwarded to the corporateofficeforpurposes of succession planning, the audit process wascompletelyinthe handsofthe publisher. It was used by the publisher to determine what salary increases, if any, would be given. Although Thomson Newspapers made suggestions respecting managerial salary increases, the ultimate decision rested with the publisher.
10 In February, 1992, Mr. Cowsill, along with his management teamdecidedtoimplement employee evaluations. This decision was not a result of a directive or suggestion from the corporate office. The newspaperwantedtoencouragebetterperformancesfromstaff. Mr. Cowsill started from the Bell Canada employee evaluation form. Eventually, he requested and received from the director of human resources of Thomson Newspapers a performance appraisal document. He was not obligated to implement the system using the corporate document. The form was given to the union for discussion. There was no further progress on developing a performance appraisal system.
11 The publisher has the ultimate authority to fill a vacancy or to promote employees. The publisher may create a new position at the newspaper so long as this accords with the newspaper's busines plans. Ifadepartment headpositionisvacantthenthe publisherwould fillthe position. ThomsonNewspapers has a policy requiring that vice-presidents, chief operating officers and the human resources department be notified of all new employees hired into department head positions. A department head will interview candidates and fill a position within his or her department. Employees are hired without approval from Thomson Newspapers. Nor is anyone from the head office involved in the interview process.
12 To fill a vacancy, the Oshawa Times can review its resumes on file, advertise within its own newspaper or others or place an advertisement through the job bulletin process at the human resources department at Thomson Newspapers. The latter is a corporate-wide posting service advertising job vacancies at individual newspapers.
13 The department heads determine particular assignments or functions to be carried out by employees at the Oshawa Times. The department head also determines work schedules, break times, vacation schedules and authorizes overtime. The duties of the department head are determined by the publisher.
14Matters of discipline are the responsibility of department heads at the Oshawa Times. Discipline or termination of a department head is the responsibility of the publisher. Approval from head office is not required. Records of disciplinary action are maintained by the Oshawa Times; these records are not forwarded to the corporate office.
15The publisher makes decisions in relation to lay-offs in accordance with the terms of the collective agreement. He or she does not require the approval of head office. When Mr. Cowsill announced lay-offs at the Oshawa Times in February 1992, he discussed this with the Guild and notified his chief operating officer of this development. However, the decision was his.
16Thomson Newspapers established and later cancelled a profit-sharing plan for employees at all levels of the newspapers. There is, however, a newspaper bonus plan which is payable to the department heads andpublishersonly,basedontheperformanceofthe newspaper. Howmuchispaidoutisbasedonagrid developedbythedivisionalchiefoperatingofficerin conjunction with his controller. The publisher, based onperformance,decideswhetherthe publisherand the department headsare goingtobe paid a bonus and what they will receive.
Pay Equity
1 Mr. Cowsill commenced pay equity negotiations withthe Guild in early 1990. Negotiations of the collective agreement intervenedand onagreement the parties did not resume pay equity negotiations until April, 1991.
2 The Oshawa Times adopted the evaluation system provided by Thomson Newspapers corporate office. Mr. Cowsill took the system because it was convenient, but testified that he could have hired his own consultants and developed his own evaluation system.
3 The material received from Thomson Newspapers consisted of the questionnaire, the evaluation system and a covering letter on how to use it. Eventually the union and the newspaper agreed to use the system after theunionsoughtandobtainedseveralmodifications. Mr. Cowsill did not seek approval from ThomsonNewspaperstomakethesechanges. Mr. Nemeth indicated that the newspapers are not required to use the Thomson Newspapers job evaluation system.
4 In the budgeting process, Mr. Cowsill budgeted for pay equity increases. He based the increases on a two per cent assumption right across the board. Mr. Cowsill testified that he has absolute authority to decide on how much to spend on salaries, and any shortfall must be dealt with somehow by the newspaper. His evidence was that he would not consultheadofficeforapprovalofpay equity increases. However, on the basis of the evidence in its totality, we are satisfied that if salary increases as a result of pay equity amounted to more than had been budgeted for, the publisher would advise Thomson Newspapers.
5 Since arriving at the Oshawa Times, Mr. Dundas has attended one meeting regarding pay equity. Jobevaluationshave been carried out bycommittee. To date the job evaluations are essentially complete, although some jobs may have to be re-evaluated.
Conclusion
1 The publisher of the Oshawa Times has control of the operation of the newspaper. However, in Mr. Cowsill's words, the publisher is a "steward". We find this characterization to be descriptive of the role playedbythepublisher. The Seventh Edition of the Concise Oxford Dictionary defines the word "steward" as "a person entrusted with management of another's property." This aptly describes the position of publisher at the Oshawa Times. The publisher is hired by Thomson Newspapers to manage the Oshawa Timesbycarryingout corporate goals and objectivesas theyrelateto the newspaper,and earningas much revenue as possible for the corporation. The publisher is an employee of Thomson Newspapers and the manager of the newspaper to which he or she is appointed. The significant control that Mr. Dundas exercises over the newspaper's operations and practices is conducted within the framework of his role as a steward or manager. The publisher consults with the corporation over a variety of matters which are essential to the newspaper's operations.
2 While the publisher oftheOshawaTimeshasagreatdealofauthoritytomakedecisionsconcerning the financial position of the newspaper, it is Thomson Newspapers which has given him this authority through its emphasis on a decentralized management system. The evidence established that the corporation could decide to revert back to a more centralized management system, effectively controlling the operation ofthe newspaperon a day-to-day basis from its head office.Therefore,Thomsonultimatelycontrols how much authority the publisher has in dealing with the financial aspects of the operation.
3 We accept the evidence of Mr. Cowsill that the business plans of the newspaper are forwarded to the vice-president and chief operating officer at Thomson Newspapers for review, and that the plan must outline how the publisher intends to meet the corporate goals and objectives of increased circulation and revenues. The marketing plan cannot be implemented without the vice-president's consent. Furthermore, substantial unbudgeted expenses, such as the market survey commissioned by Mr. Cowsill, require approval by Thomson Newspapers. Because thelaunchofnewproducts and the opening and closing of bureau offices outside Oshawa has cost implications for the newspaper, these decisions also require approval by the publisher's superiors at Thomson Newspapers. Finally, a publisher cannot unilaterally decide to close a newspaper if it were not profitable. Ultimately that decision rests with Thomson Newspapers.
4 Thomson Newspapers owns the Oshawa Times and its profit is transferred to the corporation. If the newspaper is in a deficit position and accounts receivables are exhausted, the publisher can look to Thomson Newspapers for additional funds.
5 While the Oshawa Times raises operating revenues from its advertising sales, the source of capital for plant and equipment is Thomson Newspapers. The newspaper cannot independently borrow money for capital expenditures.
6 Thomson Newspapers negotiates on behalf of its newspapers, including the Oshawa Times, for the supplyofnewsprint. The corporation identifies the three suppliers the newspapers are to deal with and the pricing structure, although the newspaper can decide which supplier it will use and the quantities to be purchased.
7 The Oshawa Times retains its own bank account from which it pays for business related expenses such as salaries and benefit premiums, as well as supply costs. The newspaper also maintains its own payroll records and carries out payroll functions without the assistance of Thomson Newspapers.
8 In summary, While the Oshawa Times has a great deal of authority in the day-to-day financial management of the newspaper, overriding financial control rests with Thomson Newspapers.
9 The collective agreement referrable to the Guild's members governs the salaries and benefits paid to those employees, although the evidence disclosed that the department heads may pay above the salary grid. The publisher's salary is negotiated with Thomson Newspapers. The publisher sets the salaries of department heads.
10 The collective agreement is negotiated by the Guild and the publisher. While the evidence disclosed thatthepublisherofthe newspapermay, and does attimes,requestassistancefromThomsonNewspapers in bargaining with the Guild, and keeps the corporation informed of the progress of the negotiations, the publisherneverthelesshastheauthoritytomakeproposalsandacceptasettlement. However, we find that inrealitythe publisherofthe OshawaTimesisappointedbyThomsonNewspapersto manageand operate the newspaper,and canonlybeviewedastheThomsonNewspapersrepresentative atthe bargainingtable. Furthermore,ThomsonNewspapers, beingthe onlylegalentity, iseffectively namedas the employerinthe collective agreement.
11 Finally, while there was evidence that a publisher has the authority to lock out employees or take a strike at his or her newspaper, we accept the evidence of Mr. Nemeth that a prudent and responsible manager and publisher would ensure that ThomsonNewspapers wasinvolvedinthesetypesofdecisions.
12 For these reasons, we find that Thomson Newspapers has ultimate authority and responsibility for the compensation practices covering the Guild's members at the Oshawa Times.
13 The evidence discloses that the Oshawa Times is in control of the daily activities of both its employees and the newspaper product itself. The day-to-day functions of operating the business are entrusted to the staff, and the newspaper controls the format, layout and content of the publication.
14 The publisher has the authority tofillvacanciesandtopromoteanddemoteemployees.Clearly,the OshawaTimesdeterminesjobcontentofthepositionsatthenewspaper. The department heads determine assignments, work schedules, vacations and authorize overtime for the employees. The assignment of duties to the department heads is the responsibility of the publisher.
15 The decision to lay off employees is the responsibility of the publisher, although he notifies Thomson Newspapers of his decision. The publisher can terminate, suspend or otherwise discipline employees. Records of discipline are maintained by the newspaper. Grievances and arbitrations are handled by the publisher,althoughadvicefromthe labour consultantsatThomsonNewspapers may be requested if he or she so desires.
- Despite its control over the daily activities of the newspaper, and its ability to raise operating revenues,itisclearthat without the financialsupportfromThomsonNewspapersthe OshawaTimescould not operate. Similarly, if the Oshawa Times were severed from Thomson Newspapers, the corporation could continue to function through its many other publications. However, it would lose its presence in the Oshawa market. In that sense, therefore, the Oshawa Times is an integral part of Thomson Corporation.
16 In conclusion, we find that the degree of financial control by Thomson Newspapers over the Oshawa Times,one ofitsdivisions,togetherwithitsauthorityoverthenewspaper'scompensationpractices,through the publisher,itsmanageratthe OshawaTimes,canonlyleadto the conclusionthatThomsonNewspapers is the employer of the Guild's members at the Oshawa Times.
Order
- For the reasons outlined, we affirm the order of the Review Officer and find that Thomson Newspapers is the employer of the Guild's members for the purposes of pay equity.