PAY EQUITY HEARINGS TRIBUNAL
0074‑90 Carleton Board of Education, Applicant v. Ontario Secondary School Teachers' Federation, Respondent
0521‑94 Ontario Secondary School Teachers' Federation, Applicant v. The Carleton Board of Education, Respondent
0529‑94 The Carleton Board of Education, Applicant v. Ontario Secondary School Teachers' Federation, Respondent
Before: Heather M. MacNaughton, Vice‑Chair and Members Margaret Kvetan and Bruce Budd
Appearances: Cindy Wilkey, Eileen Konkin, Chris DiZazzo, Barb Cartier and Jennifer Palmer for Ontario Secondary School Teachers' Federation; Vince Johnston, Jack Yeo, Janice McCoy and Peigi Ross for The Carleton Board of Education.
Cite as: Carleton Board of Education (21 April, 1995) 0074‑90; 0521‑94; 0529‑94 P.E.H.T.
DECISION OF THE TRIBUNAL, APRIL 21, 1995
[1]. The Carleton Board of Education, (the "Employer"), has made Application to the Tribunal seeking to quash the Order of the Review Officer which directed the Employer to resume pay equity negotiations with The Ontario Secondary School Teachers Federation (the "Union").
[2]. The Union seeks to have the Order of the Review Officer upheld and has applied for a declaration that the pay equity plan posted by the Employer, insofar as it purports to deal with employees in the PSSP and SETA bargaining units, was posted in contravention of the Pay Equity Act, R.S.O. 1990, c. P.7 (the "Act") and is invalid. The Union further seeks to have the Employer negotiate a gender neutral comparison system and a pay equity plan with the Union.
[3]. The Union is certified as the bargaining agent for the Professional Services Student Personnel ("PSSP") and the Special Education Teaching Assistant ("SETA") bargaining units. The PSSP bargaining unit includes social work consultants, psychoeducational consultants, speech and language pathologists and aural habilitationists. The SETA bargaining unit is comprised of special education teaching assistants.
[4]. This ruling deals with the preliminary matter argued before us on March 30, 1995. We were asked to determine whether the Employer had an obligation to negotiate with the Union for the SETA and PSSP bargaining units. Our determination of this issue will affect the balance of the Union's application which will address the pay equity plan posted by the Employer and whether it meets the requirements of the Act.
[5]. Counsel for both the Union and the Employer filed an Agreed Statement of Facts and a joint document book. The facts that are relevant to our determination of the preliminary issue are based on the Agreed Statement of Facts and on the evidence of the two witnesses who appeared before us.
[6]. In or about June of 1986 the Employer decided to conduct a classification review for administrative and support positions. Included in the classification review were the positions now included in the PSSP and SETA bargaining units.
[7]. The Employer struck an internal review committee and a job evaluation committee after retaining the firm of Touche Ross as a consultant to conduct the review. Employee representation existed on both committees. On or about October 13, 1987 revised salary classifications based on the review were approved by the Employer. The first salary adjustments, for those entitled, were implemented on July 1, 1988. A subsequent adjustment was implemented on July 1, 1989 and a final adjustment was proposed for July 1, 1990. The classification review process allowed for appeals of classification and appeals were filed by a number of employees and dealt with by the job evaluation committee. The classification review process was the basis of the Employer's subsequent posting of a pay equity plan in purported compliance with the Act.
[8]. On June 16, 1989 the Union was certified as the bargaining agent for the SETA's. On November 9, 1989 the Union applied for certification to represent the PSSP's. It was the uncontroverted evidence of a representative of the PSSP's that agreement was reached with the Employer on December 7, 1989 as to the composition of the bargaining unit. On December 27, 1989 the certification was granted by the Ontario Labour Relations Board without the necessity of a hearing.
[9]. Evidence was filed before us that on December 12, 1989 the Union corresponded with the Employer, on behalf of the PSSP's, seeking information for negotiating purposes. The Union received responses on December 14 and 18th, 1989. Both the Employer and the Union were proceeding to act as if the certification had been granted.
[10]. There is no dispute between the parties that the Employer posted a document called a pay equity plan. Further, there is no dispute that the plan was not negotiated with either the PSSP or the SETA bargaining units. The parties do not, however, agree as to the posting date.
[11]. The Union argued that it was certified to represent the PSSP and SETA units before the Employer posted its non‑union pay equity plan and, hence, the Employer could not properly include the PSSP and SETA employees in the plan. The Employer, on the other hand, argued that it had completed its evaluations, right through the appeal process and that salary adjustments had been implemented prior to the union certification. The Employer argued that there was nothing left to be done on the date of certification for both the PSSP and SETA units. The Employer urged us to look not at the form but at the substance of what had occurred in the Employer's pay equity process and submitted that, in any event, posting of the pay equity plan had occurred prior to December 27, 1989, the date the certification was issued for the PSSP unit.
[12]. As a result of that dispute it is necessary for us to make a finding as to the posting date. On December 18th, 1989 the Employer forwarded to the Superintendents, Principals, Managers and Building Superintendents a copy of the pay equity plan with a request that the recipients ensure that copies of the plan be posted, by December 31st, 1989, in a location appropriate for examination by administrative and support employees. The Tribunal heard evidence of Ms. G. Lanoue that she received the pay equity plan at Sir Robert Borden High School, on December 19, 1989 and posted the plan that day in the staff room at the school. The Employer argues that, for all purposes under the Act, posting occurred on that date, a date which preceded the PSSP certification date and hence there was no obligation to negotiate with the Union on the plan.
[13]. The Tribunal heard evidence from Ms. C. DiZazzo, a member and the then interim president of the PSSP unit, that the pay equity plan was not posted in the board office until January 8, 1990.
[14]. The Act deals with the requirement for posting in section 2 as follows:
(2) Where this Act requires that a document be posted in the workplace, the employer shall post a copy of the document in prominent places in each workplace for the establishment to which the document relates in such a manner that it may be read by all of the employees in the workplace.
[15]. The requirement for posting has two components: it must be in each workplace in the establishment to which it relates, and it must be posted in such a manner that it may be read by all of the employees in the workplace. The posting of the plan is a key event which triggers the start of many of the requirements in the Act.
[16]. Members of the SETA unit are located in the school to which they are assigned. Members of the PSSP unit have offices in the Employer's board offices in Nepean, although they spend approximately eighty percent of their working time in the various schools on a referral basis. We heard evidence that bulletin boards used by the Employer for posting general employee notices were located outside the work pods in which the PSSP employee offices were located. While it is arguable that the best and perhaps only place where the plan could be accessible to the SETA unit is in the school staff room, that is not the case for the members of the PSSP unit who may not, for extended periods of time, visit any particular school and who have a clearly identified home base i.e. the Board offices. Further it was instructive to us that when the plan was ultimately posted in the Board offices, the Employer used the bulletin boards in the Board offices for so doing.
[17]. For the employees in the PSSP bargaining unit, we are of the view that the only posting which satisfies both the wording and the intent of the Act is the posting of the plan in the Board offices. It would defeat the intent of the Act if an employer could post the plan in an obscure location, inaccessible to employees and rely on that posting to defeat the rights of employees under the Act. In the result, we find that posting did not occur until after certification of the PSSP unit and well after the certification of the SETA unit.
[18]. Counsel for the employer urged us not to make this a race to the finish, a race for posting prior to certification or vice versa. We do not agree that that is an appropriate analogy. The Employer had an obligation to negotiate pay equity with the SETA bargaining unit long before the posting date, and while the certification of the PSSP unit was only days prior to posting, we are of the view that the Employer had recognized the Union as the bargaining agent for certain labour relations purposes in advance of the certification date and in advance of the date they relied on for posting.
[19]. Upon certification of the Union it is no longer open to the Employer to unilaterally post a plan which purported to extend to employees in both the SETA and PSSP units. The relationship and obligations of both the Employer and the Union were irrevocably changed. The Act is clear and unambiguous and imposes a mandatory scheme that requires different processes for achieving pay equity for unionized as opposed to non‑union employees. The interposing of a bargaining agent changes the traditional relationship between employer and employee. This view of the effect of certification is consistent with the view expressed by the Supreme Court of Canada in Ainscough et. al. v. McGavin Toastmaster Ltd. 1975 CanLII 9 (SCC), 4 N.R. 618, and is consistent with the scheme of the Ontario Labour Relations Act R.S.O. 1990, c.L.2.
[20]. In the result, when the Employer unilaterally posted the pay equity plan in January of 1990 and purported to include the SETA and PSSP employees in it, it did so in violation of the Act.
[21]. Accordingly, the Tribunal orders the Employer to negotiate with the Union under section 14(1) and section 14(2) of the Act for a gender neutral comparison system and a pay equity plan for each of the SETA and PSSP bargaining units. The Order of the Review Officer is upheld and the application to quash is dismissed.