FPSLREB Decisions

Public Service Staff Relations Act BETWEEN TREASURY BOARD (Canadian Transportation Agency)

Employer and SOCIAL SCIENCE EMPLOYEES ASSOCIATION Bargaining Agent RE: Post-Certification Managerial or Confidential Designation - Economics, Sociology and Statistics Group

Before: Marguerite-Marie Galipeau, Deputy Chairperson For the Employer: Raymond Dionne For the Bargaining Agent: Catherine O'Brien

Heard at Ottawa, Ontario, November 20, 1996.

File: 172-2-957 Before the Public Service Staff Relations Board

Decision Page 1 DECISION The Social Science Employees Association objects to the exclusion from the Economics, Sociology and Statistics (ES) bargaining unit of the position RCD-003 occupied by Andrew Gemmell, Manager, Rates Costing and Efficiencies (ES-06), Directorate of Rail Rates and Cost Development, Rail and Marine Branch, Canadian Transportation Agency.

Andrew Gemmell was notified by the employer on June 14, 1996 (Exhibit E-3) that he occupied a position identified as the first level of the grievance procedure and that, consequently, he was authorized to render a decision, on behalf of the employer, on grievances presented by employees under his supervision. The Public Service Staff Relations Board and the bargaining agent were notified as required by subsection 5.2(2) of the Public Service Staff Relations Act, of the identification of Andrew Gemmell’s position under paragraph 5.1(1)(b) of the Act.

The bargaining agent objected pursuant to subsection 5.2(3) of the Act to the identification of this position.

The bargaining agent objects to the identification of Andrew Gemmell’s position on the grounds that there is only a small number of subordinate positions reporting to the Director, that he is the first step in the grievance procedure and thus that it is unwarranted that one of his subordinates also be identified as a first step in the grievance procedure for six employees out of a group of 20 employees.

The bargaining agent also objects to the identification on the ground that the applicable collective agreement specifies that the first step in the grievance procedure must be the “first level of management.” The bargaining agent is of the view that Andrew Gemmell’s position is not a “first level of management.”

The relevant provisions of the Public Service Staff Relations Act read as follows: INTERPRETATION 2.(1) In this Act, ... "employee" means a person employed in the Public Service, other than

... Public Service Staff Relations Board

Decision Page 2 (j) a person who occupies a managerial or confidential position,

... “managerial or confidential position” means a position ... (g) identified as such a position pursuant to section 5.1 or 5.2, the identification of which has not been terminated pursuant to section 5.3;

... Managerial or Confidential Positions 5.1 (1) Where, in connection with the application for the certification of an employee organization as a bargaining agent, the Board is satisfied that any position of an employee in the group of employees for which certification is sought meets any of the following criteria, it shall identify the position as a managerial or confidential position:

... (b) a position the occupant of which has substantial management duties, responsibilities and authority over employees or has duties and responsibilities dealing formally on behalf of the employer with a grievance presented in accordance with the grievance process provided for by this Act;

... 5.2 (1) Where, before or after the coming into force of this section, a bargaining agent has been certified by the Board, the employer may, in the prescribed manner, identify any position described in subsection 5.1(1) of an employee in the bargaining unit for which the bargaining agent was certified as a managerial or confidential position, and for the purpose of that identification the reference in paragraph 5.1(1)(d) to the Board shall be construed as a reference to the employer.

(2) Where the employer identifies a position pursuant to subsection (1), it shall notify the Board and the bargaining agent in writing of the identification.

(3) Within twenty days after receiving a notice under subsection (2), the bargaining agent may file an objection to the identification with the Board.

Public Service Staff Relations Board

Decision Page 3 (4) Where an objection to an identification is filed pursuant to subsection (3), the Board, after considering the objection and giving the employer and the bargaining agent an opportunity to make representations, shall confirm or reject the identification.

(5) An identification of a position pursuant to subsection (1) takes effect at the end of the period referred to in subsection (3) if no objection is filed within that period, or, if an objection is so filed and the identification is confirmed on the objection, the identification takes effect on the date of the decision confirming it.

... 100.(4) For the purposes of any provision of this Act respecting grievances, the employer shall designate the person whose decision on a grievance constitutes the final or any level in the grievance process and the employer shall, in any case of doubt, by notice in writing, advise any person wishing to present a grievance, or the Board, of the person whose decision thereon constitutes the final or any level in the process.

The relevant provision of the collective agreement (Exhibit A-2) reads as follows: 28.05 There shall be a maximum of four (4) steps in the grievance procedure. These steps shall be as follows:

(a) Step 1 - first level of management; ... FACTS The Canadian Transportation Agency is a regulatory agency previously known as the National Transportation Agency.

According to the parties, it employs approximately 240 employees. Four bargaining agents are certified to represent approximately 18 bargaining units. The Social Science Employees Association represents two bargaining units (social science support group and economics, sociology and statistics group) which, at the present time, include a total of approximately 30 employees. The applicable collective agreements (extended by legislation) are the Master Agreement (Exhibit A-2) between the Treasury Board and the Public Service Alliance of Canada and the Group Specific Public Service Staff Relations Board

Decision Page 4 Agreement (Exhibit A-2) for the social science support group (Code: 412/89) and the agreement for the economics, sociology and statistics group (Code: 208/90).

The position (Manager, Rates Costing and Efficiencies) sought to be excluded by the employer is found in the Rail Rates and Cost Development Directorate. This directorate has 21 positions. The director (RM-RCD-001) of the directorate is the first step in the grievance procedure for 15 employees. It is intended that the director’s subordinate, Andrew Gemmell, Manager, Rates Costing and Efficiency Review, be the first step in the grievance procedure for the remaining six employees (classified as ES-05, ES-04, ES-03) who fall under his supervision.

According to the employer's organization chart (Exhibit E-2) and from an organizational perspective, there are four other positions (Senior Advisor: Costing Methods and Strategies, Senior Officer: Cost Determinations - CN, Senior Officer: Cost Determinations - CP, Manager: Financial Analysis) on the same footing as that of Andrew Gemmell. Yet, they have not been identified by the employer as first steps in the grievance procedure.

From a technical perspective, these other positions are directed toward the technical area of rail costs whereas Andrew Gemmell's position is directed toward the Agency's input into two efficiencies reviews.

However, from a labour relations perspective, the only notable difference between these positions and that of Mr. Gemmell is that their incumbents supervise the work of one or two employees whereas Andrew Gemmell supervises the work of six employees.

The end result is that within the Rail Rates and Cost Development Directorate, there are two first levels in the grievance procedure (Exhibit A-1, last page): the director of the directorate is the first level in the grievance procedure for 15 employees (including Andrew Gemmell's four colleagues) and Andrew Gemmell is the first level in the grievance procedure for six employees and hence, if confirmed as a first level of the grievance procedure, will be excluded from the bargaining unit.

During his testimony, Andrew Gemmell identified his job description (Exhibit E-1) and testified that 75% of his work related to the first three functions

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Decision Page 5 listed in the job description: the development, maintenance and application of a system for costing and regulated rail rate determinations, the determination of the Annual Rate Scale applicable to movements of grain and the organization of the agency's input into two efficiencies reviews. Andrew Gemmell stated that he has frequently acted as director of the directorate in the absence of the director (at least one week a month for the last six months). Andrew Gemmell also testified that it is an oversight that his job description does not refer to his powers in matters of grievances. He further stated that he was responsible for the staffing of the six positions held by the six economists working under his supervision. At the time of the existence of the previous agency, he was the first level in the grievance process and had to deal with three grievances. He was excluded from the bargaining unit for the first time in 1984-85. According to the Delegation of Personnel Authorities (Exhibit E-4), he is considered a level 4 and hence can exercise the personnel authorities intended for this level 4 including receiving and replying to staff relations grievances at the first level of the grievance procedure (Exhibit E-4, p. 2).

Andrew Gemmell also pointed out that he has been delegated approximately 50 authorities including a financial signing authority (Exhibit E-5) of up to $5,360.00.

ARGUMENT FOR THE EMPLOYER The employer proposes under paragraph 5.2(1) of the Public Service Staff Relations Act the exclusion of the position occupied by Andrew Gemmell.

This position is a position at the level of management. Its incumbent has been delegated numerous authorities and the position (Exhibits E-1, E-2) is described as that of a manager. Its incumbent has received training in human resources, staffing, classification. He holds a position which has all of the attributes of management.

The number of employees reporting to him is irrelevant. There are only two questions to be answered: has the person been appointed to deal formally with grievances as a step in the grievance procedure? has the person been vested with the necessary authority to do so?

Public Service Staff Relations Board

Decision Page 6 The answer in regard to Andrew Gemmell is in the affirmative. In summary, Andrew Gemmell has been delegated authorities in matters of grievances, programs and finances and hence has all the attributes of a manager.

If the Board concludes that Andrew Gemmell has clearly been assigned to be a step in the grievance procedure, it has to confirm his exclusion from the bargaining unit. The employer has under subsection 100(4) of the Public Service Staff Relations Act the sole authority to designate the person who will be a level in the grievance process.

Unless there is evidence of bad faith, abuse of power or an improper motive to exclude an employee from the bargaining unit, thus making the proposal for exclusion illegal, it is the employer's right to identify the individuals who will answer grievances at the different levels of the grievance procedure.

Andrew Gemmell occupies a position which is the first level of management and thus his exclusion satisfies the terms of the collective agreement as well as those of the Public Service Staff Relations Act and is in conformity with the Public Service Staff Relations Board's jurisprudence.

The following cases were relied upon: The Queen in Right of Canada v. Public Service Alliance of Canada and Public Service Staff Relations Board [1984] 2 F.C., 998;

Public Service Alliance of Canada v. Treasury Board 131 N.R., 72; The Professional Institute of the Public Service of Canada and Treasury Board (Board file 174-2-220);

The Public Service Alliance of Canada and Treasury Board (Board file 174-2-250);

The International Brotherhood of Electrical Workers, Local 2228 and Treasury Board (Board file 173-2-258);

The Economists’, Sociologists’ and Statisticians’ Association and Treasury Board (Board file 172-2-356);

The Public Service Alliance of Canada and Treasury Board (Board file 173-2-500);

The Public Service Alliance of Canada and Treasury Board (Board file 174-2-553);

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Decision Page 7 The Economists’, Sociologists’ and Statisticians’ Association and Treasury Board (Board file 172-2-284);

The Public Service Alliance of Canada and Treasury Board (Board file 172-2-831);

Public Service Alliance of Canada v. Canada (Treasury Board) (1996), 194 N.R. 33 (F.C.A.)

ARGUMENT FOR THE BARGAINING AGENT The employer seeks to exclude Andrew Gemmell's position and yet does not seek to exclude the four other positions held at the same level by the three senior advisors and the Manager, Financial Analyses.

The title given to a position should not be the overriding factor in deciding if a position is excluded from the bargaining unit. The number of persons reporting to a given position is not a relevant factor. However, in the instant case, it is relevant that there are two positions identified by the employer as being a level 1 of the grievance procedure (Exhibit A-1, last page), i.e. that of the director and that of Andrew Gemmell.

It should be noted that the collective agreement provides that the first step in the grievance procedure should be the first level of management. Andrew Gemmell's position (ES-06) is subordinate to that of the director's (EX-01) and is not the first level of management. It is the director's position which is the first level of management.

The Agency has erroneously identified two persons as constituting the level 1 of the grievance procedure. This contravenes subsection 100(4) of the Public Service Staff Relations Act as well as the collective agreement. Once the director was identified as being the first step in the grievance procedure, the employer could not add another person to also be a first step in the grievance process. The identification of the director's position as the level 1 of the grievance procedure was proper because he is the first level of management but that is not true of Andrew Gemmell's position.

In reply, counsel for the employer added that there are no impediments to there being two persons as being level 1 in the grievance process.

Public Service Staff Relations Board

Decision Page 8 REASONS The documentary evidence (Exhibits E-3, E-4 and A-1) produced by the employer supports the conclusion that the employer has effectively assigned to the position occupied by Andrew Gemmell responsibility as the first level of the grievance procedure. This is completed by Andrew Gemmell's own testimony. Hence, I am satisfied that as the occupant of that position he is authorized to render a decision, on behalf of the employer, at the first level of the grievance procedure, on grievances presented by employees under his supervision.

The bargaining agent did not produce any witnesses. There is neither direct nor circumstantial evidence of bad faith.

In addition, the employer's evidence supports the conclusion that Andrew Gemmell occupies a position that has the attributes of the first level of management. Thus, it would appear that the employer has respected the terms of the collective agreement (Exhibit A-2) according to which the first level of the grievance procedure shall be the first level of management.

In view of these facts, I confirm the identification by the employer of the position occupied at the present time by Andrew Gemmell as a managerial or confidential position.

Marguerite-Marie Galipeau, Deputy Chairperson

OTTAWA, February 17, 1997.

Public Service Staff Relations Board