Canadian Union of Public Employees, Local 2553 v. Villa Colombo Homes for the Aged, Inc., 1997 CanLII 12230

PAY EQUITY HEARINGS TRIBUNAL

0617-96 Canadian Union of Public Employees, Local 2553, Applicant and Villa Colombo Homes for the Aged, Inc.; and Canadian Union of Public Employees, Respondents

Appearances: Worrick Russell and Angela Cutulle for the Applicant; Angela Rae, Terry McBurney and Vince Luca for the Respondent, Villa Colombo Homes for the Aged, Inc.; and Brian Sheehan and Carmen Henry for the Respondent, Canadian Union of Public Employees

Before: Mary Anne McKellar, Vice-Chair and Members, Bruce Budd and Margaret Kvetan

Cite As: Villa Colombo (23 July 1997) 0617-96 (P.E.H.T.)

DECISION OF THE TRIBUNAL, JULY 23, 1997

INTRODUCTION

1. This is an application by Local 2553 of the Canadian Union of Public Employees (“the Local”) against Villa Colombo Homes for the Aged, Inc. (“the Employer”) and the Canadian Union of Public Employees (“CUPE”), in which it states:

“1. The local union that is a party to the plan does not have access to parts of the plan.

2. The development of the plan is fundamentally flawed as the study process for the plan resulted in undervaluation of work. This is because the process followed for the development of the plan, particularly data collection was deficient as there was no accommodation of language difficulties. This caused many employees to distrust the process and either not fill out the forms correctly, or not responding.

3. The system was originally set up on the Proxy method of comparison and after one year changed to proportional value method of comparison without any agreed adjustments to accommodate the change over.

4. The change of circumstances rendered the plan inappropriate.

5. The union rights to vote for any plan was denied.

6. After requests and meetings with the Review Officer, no decision has been issued.

7. The National Rep (CUPE) acts unilaterally and does not consult with the local union.

8. The discrepancies means the process was flawed and invalid.”

THE ISSUE

2. Both the Employer and CUPE brought preliminary motions seeking to have the Local’s application dismissed outright. These motions were heard on May 20, 1997. In oral submissions, three grounds for dismissal were asserted:

a. The Tribunal is without jurisdiction to hear the application because the statutory preconditions to obtaining a hearing have not been satisfied.

b. The application discloses no prima facie case and deals with purely internal union matters.

c. The Local has no standing to make the application.

The Local also filed a motion, but we declined to hear it as it became unnecessary given our disposition of the motions by the Employer and CUPE.

THE DECISION

3. We heard submissions on the preliminary motions on May 20, 1997, and at the conclusion of

those submissions delivered our decision orally:

The application in File PE 0617-96 is dismissed. Our reasons for so ruling will follow in writing.

These are our reasons.

THE FACTS

3. The following recitation of the facts is based on our review of the pleadings and other documentation filed in support of the motions as well as the agreed-upon facts set out by Employer counsel at the commencement of her submissions.

4. The Employer operates a home for the aged. On November 30, 1981, the Ontario Labour Relations Board (“the OLRB”) certified CUPE to represent the Employer’s full-time and part-time employees. A copy of the certificate was filed with us.

5. Pursuant to the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”), a pay equity plan in respect of the Employer’s bargaining unit employees was posted on November 17, 1989. For the purposes of this plan, the job-to-job method of comparing the value of work performed by job classes was used. This was the only method of comparison contemplated in the Act at the time.

6. The Act was amended effective July 1, 1993 to provide for two new methods of comparing the value of work performed by job classes: proxy and proportional value. CUPE sought to avail itself of the proxy provisions of the Act by having a Review Officer declare the Employer to be a “seeking employer”, but the Review Officer declined to make that order. CUPE and the Employer then commenced negotiations with respect to the application of the proportional value provisions of the Act. Pursuant to the Terms of Reference they entered into in February, 1996, job questionnaires were completed, job classes evaluated, and one female job class was found to merit a pay equity increase. This dispute arose before a plan incorporating those results could be finalized.

7. In September, 1996 the Local president wrote to the Employer indicating that the membership had refused to ratify the pay equity plan, although, as noted above, there was no plan to ratify. The Local’s application to the Tribunal was made in October, 1996, and stated that the hearing sought related to Review Services File #95.09869.

8. After receiving the application, the Deputy Registrar of the Tribunal wrote to the Review Services Branch of the Pay Equity Office on November 21, 1996 and requested a copy of any order that may have been issued in File #95.09869. On November 27, 1996, the Review Services Case Manager replied, indicating that the parties to File 95.09869 were the “Canadian Union of Public Employees and Villa Colombo”. The letter continued:

Please be advised that any such information [a copy of any referral, decision or order issued] cannot be provided, as the Review Officer assigned to the case is still seized of the matter. There has been no order made, the Review Officer has not determined that a settlement cannot be reached, and the Review Officer has not made a determination under subsection 23(2) of the Pay Equity Act, as amended.

9. Counsel for the Employer and for CUPE stated that Review Services File #95.09869 related to the issue of whether the Employer could be declared a “seeking employer” for the purposes of the proxy provision of the Act, and had nothing to do with the issues raised in the Local’s application. Both counsel for the Employer and for CUPE stated that those issues had never been raised with or canvassed by the Review Officer. In an affidavit filed in support of the Local’s motion, Angela Cutulle, the Local President, stated “The matter was referred to a Review Officer . . . since 1995 but to my knowledge, as of this date, no Review Officer Order was ever issued.” At the hearing on May 20, 1997, the Local’s agent made two apparently contradictory suggestions: (1) that the allegations contained in the Local’s application had been raised with Review Services; and (2) that attempts were made to contact Review Services respecting these matters, but that no contact was made.

10. On October 2, 1996, the Local filed an unfair labour practice complaint against CUPE with the OLRB in which it alleged, among other things, that “[CUPE] [f]ailed to supply information on pay equity and not completed the requirements requested by Local 2553". By decision dated October 16, 1996, the OLRB refused to deal with the complaint on the grounds that “It concerns the internal workings of the union and the relationship between the national office and the applicant. The Board will not entertain this application as it does not concern itself ordinarily with the internal workings of a trade union.”

THE ANALYSIS

(a) Statutory Preconditions to Jurisdiction

11. The Tribunal’s jurisdiction derives exclusively from the Act. Broadly speaking, the Tribunal has jurisdiction to entertain and decide applications in two circumstances. The first occurs where a pay equity plan has not been posted in a timely fashion and one of the workplace parties is dissatisfied with the plan that results after a Review Officer’s intervention. The second occurs where a complaint that the Act has been contravened has not been resolved at Review Services to the satisfaction of the parties.

12. In either of the above circumstances, the Act envisages and confers on the Tribunal the jurisdiction to adjudicate the matter only after a Review Officer has investigated and attempted to settle it. In previous decisions the Tribunal has stated repeatedly that it will not allow parties to make an “end run” around the Review Services process by bringing directly to the Tribunal for adjudication an issue that was not raised at Review Services (see Scarborough (No.1) (1994) 5 P.E.R. 45, at para. 17). Similarly, the Tribunal has said that it will not allow parties to “short circuit” the Review Services process by bringing a matter to the Tribunal for adjudication before the Review Services process has been exhausted (See Thunder Bay Family and Children’s Services (1990), 2 P.E.R. 27, at para. 10 and 14, and Northumberland and Newcastle Board of Education (1992), 3 P.E.R. 50, at para. 9). Whether the Review Services process has been exhausted is a determination the Tribunal makes having regard to: whether an order has been issued; the length of time the matter was at Review Services; the number of meetings that have occurred with respect to it; and what the Review Officer may have indicated about his or her intention to make an order or referral (See Haldimand Norfolk (No.1) (1989), 1 P.E.R. 1, at para. 37; St. Michael’s Hospital(No.2) (1991), 2 P.E.R. 187, at para. 22 ff.; and St. Joseph’s Villa (1993), 4 P.E.R. 33, at para. 2).

13. We are not satisfied that the matters in dispute in this application were brought to the attention of Review Services. Counsel for the Employer and for CUPE have stated that they were not. Nor can we conclude, based on the somewhat contradictory statements of the Local’s agent and the vague declarations in Ms Cutulle’s affidavit, that the Review Officer was ever made aware of these issues. Even if she had been made aware of them, that could only have occurred after the Local wrote to the Employer in September indicating its displeasure with the results of the Local and Employer’s proportional value negotiations. As noted, the application to the Tribunal was filed in October, 1996. The intervening period is simply too short to permit us to conclude that the Review Services process, if it ever commenced with respect to these issues, had been exhausted.

14. The statutory preconditions to the Tribunal’s hearing this matter have not been satisfied and the Tribunal is without jurisdiction.

(b) Prima facie Case

15. To state that an application raises no prima facie case is to assert that the allegations contained therein do not describe a situation for which the Tribunal can grant relief. The grounds of this application, set out in the introduction to this decision, suggest that the underlying dispute here relates to local union democracy. That interpretation is suggested as well by para. 5 of Ms. Cutulle’s affidavit: “the action involves CUPE National in their respective position as bargaining representatives to ensure that the worker is represented in good faith”, and certainly that is the way CUPE counsel characterized it, although he maintained that there had been no impropriety in CUPE’s treatment of the Local’s membership. The Tribunal has no explicit jurisdiction to remedy failures of internal union democracy or good faith representation.

16. The Local’s agent characterized this case as raising human rights issues. On this point, we note Ms. Cutulle’s statement in paragraph 4 of her affidavit: “The action involves Villa Colombo Homes for the Aged Inc. In their capacity as the employer to ensure that they take into consideration the nature of collective bargaining process and their responsibility to adopt their obligations and ensure reasonable accommodation under the Human Rights Code take place in the workplace.” The agent for the Local pointed to several Tribunal decisions that referred to the human rights aspects of the Act in support of the proposition that we had jurisdiction to deal with the subject matter of the complaint. Those Tribunal decisions that characterize the Act as having human rights aspects do so only to emphasize the Act’s remedial nature and support the notion that it should be given a fair, large and liberal interpretation, an interpretive approach that would be in any event dictated by the provisions of the Interpretation Act, R.S.O. 1990, c. I.11. Nowhere in the Tribunal’s jurisprudence is there any suggestion that either the Tribunal or the Pay Equity Office possesses the jurisdiction to deal with alleged violations of the Human Rights Code.

17. A prima facie case before the Tribunal must allege facts which, if proven, constitute a contravention of the Act. Here there is no properly grounded pay equity complaint. There are allegations which CUPE categorically denies, but which, if proven, might persuade one to conclude that CUPE behaved in a less than democratic fashion vis-a-vis the Local’s membership, and that CUPE was not as sensitive as it might have been to language issues during the pay equity process. None of those allegations, however, are tied to a contravention of the Act. It is simply not enough for the Local to say some members may not have understood the questionnaire because their English skills were not sufficient, and that this flaw in the process may have affected the “correctness” of the evaluations or comparisons. What would constitute a prima facie case would be an allegation that certain job content was not captured and consequently the relevant job class was not properly evaluated. The appropriate request for relief in such a case would indicate what job content was missing, and how the job ought properly to have been evaluated had it been considered. The reason why the job content may have been overlooked does not on its own amount to a contravention of the Act.

18. The applicant has failed to state a prima facie case.

(c) Standing

19. CUPE is the certified bargaining agent for the Employer’s employees. The Local’s standing to assert a complaint under the Act cannot be grounded on its status as bargaining agent. The Local’s application could, however, be construed as an application by a group of individual bargaining unit employees. Employer counsel argued, on the strength of the decision in York Region Board of Education (1993), 4 P.E.R. 51 (“YRBE”), that those individual employees would still not have standing to make this application. We reject this argument. YRBE involved a situation in which individual teachers were denied status to participate in a proceeding in which their bargaining agent and employer were already involved on the basis that no interest of theirs was affected by the outcome of the proceeding. It does not stand for the proposition that individual bargaining unit employees never possess the standing to participate in a proceeding before the Tribunal in which their bargaining agent is also a party. The Act clearly contemplates in both s. 7(2) and 9(2) that there may be situations in which employees in a bargaining unit may be complaining about the actions of their bargaining agent.

20. Whether or not standing to complain exists in any particular case depends on the nature of the right being asserted. In other words, it requires a consideration of the grounds of the complaint. Here we have already determined that no prima facie case has been alleged. The application is ungrounded and it would be impossible and irresponsible in the absence of that context to make any determination with respect to the Local’s standing.

Dated at Toronto this 23rd day of July, 1997.

Mary Anne McKellar

Vice-Chair

Margaret Kvetan

Member

Bruce Budd

Member