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HomeMy WebLinkAboutUnion.94-09-07 IN THE MATTER OF AN ARBITRATION BETWEEN CAMBRIAN COLLEGE OF APPLIED ARTS & TECHNOLOGY Employer - AND - ONTARIO PUBLIC SERVICE EMPLOYEES UNION Union AND IN THE MATTER OF A UNION GRIEVANCE BEFORE: Prof. C. Gordon Simmons, Chairperson Mr. David Cmneletti, Employer Nominee Mr. John McMa~us, Union Nominee APPEARANCES FOR THE EMPLOYER: Mr. Andrew Loka~, Counsel APPEARANCES FOR THE UNION: Ms. Patricia Murray, Counsel Hearings into this matter were held in Sudbury, Ontario on September 22 and 23, 1992; April 28 and 29, 1993; November 2 and 3, 1993; Executive Session of the Bom'd, February 2, 1994; and several conversations mnong Board members subsequent thereto. The Union filed its grievance (Exhibit 1) claiming: We hereby grieve that the College has failed to comply with Article 1.2 of the collective agreement and any other axticle that may apply with regaa:ds to the College Day Caa:e Centres. The redress it seeks is: That three positions (permanent full-time) be created from existing paxt-time positions. That the successful candidates be compensated for all lost wages, benefits, credits, etc., plus interest. The matter not being resolved by the parties crone forwm'd for aa:bitration. Article 1.2 reads (Exhibit 20): 1.2 Staffing Considerations Recognizing that the College reserves the right as provided in Article 3, to determine the number and position of full-time, paxt-time, and otherwise excluded positions, and to determine the work assignments that axe appropriate in each case, the College agrees to endeavour to give preference to full-time over part- time assignments, and to convert paxt-time to full-time assignments where feasible, subject to such operational requirements as may be appropriate. The college operates two day caa:e centres on its cmnpus. There is a third day caa:e centre that is under its direction but it is not paxt of this grievance. There is an English Day Caa:e Centre which is housed in the main administration building known as the Berry Down Building. There is also a French Day Caa:e Centre which is housed in a building approximately fifty feet distant from the Berry Down Building. Ms. Made Kemp is the supervisor for both day care centres. Much of the evidence relating to day caa:e centres focussed on the English Day Caa:e Centre but we axe left with the impression that both centres operate in simila]: fashions. There is a mixed group of children who attend the English Day Caa:e Centre. These include: toddlers; pre-schoolers; special needs children; schoolers; latch-key kids (children whose paa:ents axe not at home and go to the centre after school); etc. There axe four full-time "Early Childhood Education" workers (ECEs) who are qualified to work with children in day caa:e centres in Ontario. The four ECEs work staggered shifts because the centre is open from 7:30 a.m. to 5:00 p.m. (at the time of the grievance). Their hours of work axe, as we understand it, 7:30 a.m. to 4:00 p.m.; 8:00 a.m. to 4:30 p.m.; and 9:00 a.m. to 5:00 p.m. In addition, there is one paxt-time ECE who works from 2:30 to 5:00 p.m. while relieving other ECEs as they end their shifts. It is common ground between the paxties that the day caa:e centres must maintain certain minimum ratios between the number of children in the playrooms in the centre to the ECEs. This is regulated by the Ministry of Community & Social Services through the Day Nurseries Act. The Ministry subsidizes the centres through direct operating grants. The same complement of ECEs is employed in the French Day Care Centre. As well, both centres employ additional part-time staff. There is one Teacher's Aide whose primary function is to take students to the school buses and meet those children who are returning to the centre from the schools. She works mornings and during lunch hours. There is also employed in the English Day Care Centre a "Lunch Aide". Her primary function is to gather the food from the Beaver Foods cafeteria which has a contract to supply meals to the English Day Care Centre. Beaver Foods is located on the sa~ne floor as the English Day Care Centre and is located down the hall from the centre. The Lunch Aide assists the ECEs in serving meals at the meal hour and she also cleans up after meals. There are two lunch periods. Instead of contracting with Beaver Foods or any other contractor, the French Day Care Centre employs a cook on a paxt-time basis. She prepares the food for the children in the French Day Care Centre and also carries out the shopping requirements for that centre. Finally, there is a part-time "Needs Assessor" who is employed on a paxt-time basis by both day care centres. The Union takes the position that there ought to be one additional full-time ECE employed at the centres and that the Cook should be permitted to cook for both day care centres and that the Needs Assessor's position ought to be combined with some clerical position in order to make it a full-time position. We shall discuss each of these positions below. The facts surrounding the Needs Assessor positions axe as follows. A Needs Assessor is an employee who works in close liaison with the day care centres that are operated by the Employer. As the title denotes, a Needs Assessor meets with parems of children who have applied to the day care centre for financial assistance in supporting the costs associated with having their children attend the day care centre. These financial needs may be as a result of a parem who has a child and is hoping to have the child enter the day care centre but does not have the financial resources to pay for the child's paxticipation at the day care centre. The evidence revealed that a Needs Assessor must be an individual who has good interpersonal skills, is a good listener, can treat information received in total confidence, and must have a working knowledge of the operations of the day care centres as well as a knowledge of various statutes such as the Day Nurseries Act, etc. Moreover, the Board was informed that a Needs Assessor is a position which the college regards as existing for the benefit of parents and is desirous of accommodating the time schedules of parems according to their needs. It was pointed out that a number of the children who attend day caa:e at the college are children of students who attend the college and that the busy times for a Needs Assessor is eaa:ly morning; during the evenings; and during weekends. The Needs Assessor frequently visits paa:ents at their homes but in any event meets the parents when it is convenient for the paa:ents. The Union identified approximately 274 part-time employees who axe employed by the Employer (Exhibit 7). However, it specifically identified 20 positions in Exhibit 7 which it claimed fall within the General Clerical Grouping and which could be adapted to providing the Needs Assessor position with additional hours to make it a full-time position. The Board was toXen through the 20 positions and was informed that a person who held the Needs Assessor position could perform the duties required of such positions. In its final submissions, however, the Union identified three or four positions in the General Clerk Grouping that would be suitable for the Needs Assessor position to perform and focussed on such positions but reminded the Boaa:d that by doing so it was not moving off of the 20 positions that it had identified. It was, rather, for the purpose of expediting this heaa:ing which covered six days. One such position was that of "Prepaa:atory Progrmnming". The duties involved in this position require aaa employee to haaad out testing material to students in the evening aaad to collect stone later in the evening. A second position that was identified by the Union involved the library where students axe employed at $5.00 an hour to shelve books which allows the Libraa:iaaa Techniciaaas to meet the students' needs in the libra_ry. This again was, according to the Union, a job which the Needs Assessor could perform. That is, according to the Union, the library hours axe somewhat flexible aaad could be assigned as additional hours to the Needs Assessor job. Another position identified by the Union was that of "Photocopying Operator". We understaaad that this position involves working in the Photocopying Depaa-tment where the depaa-tment produces all photocopy needs throughout the college. It is a fairly heavy demaaading job in that there is considerable lifting of materials in boxes, but the Union was of the view that the Needs Assessor could perform these duties aaad thereby pick up additional hours to make the position full-time. The Employer takes the position that Article 1.2 was intended to curtail abuse of using two or more paxt-timers in a paxticulaa: classification thereby avoiding having the employee in the baa:gaining unit. That is to say, a paxticulaa: classification which has two employees working no more thaaa the maximum 24 hours each aaad which ought not to be allowed. This, according to the Employer, was the type of abuse Article 1.2 was intended to protect. However, in the instaaat situation, what we are dealing with is the position of "Needs Assessor" which has no specific classification in the bargaining unit that could be identified. Therefore, what the Union is attempting to do is look around at the pa~t-time situations and claim a number of hours which would propel a particular employee into the full-time bargaining unit from that of a pa~t-time employee. This, according to the Employer, was not the intent of Article 1.2. The Union submits that there are a number of clerical duties associated with the Needs Assessor such as filling application forms, etc. and, therefore, a number of the pa~t-time positions would fall within this category. There are General Clerical positions identified into A, B, C, and D categories which, if the Needs Assessor was placed into one of these positions, would probably be in the General Clerk A category. In other words, if the Needs Assessor was in the bargaining unit, that position would probably fall within one of the General Clerk categories and would conveniently fit into one of those categories. The next position the Union addressed was that of the "Cook" who is currently employed in the French Day Care Centre. While we have mentioned this position earlier, it is useful to expand on it here. That centre is located approximately 30-50 feet away from the main administration building known as the "Berry Down Building" and upon entering the Berry Down Building one must take an elevator down one floor where the English Day Care Centre is located. At the moment, the French Day Care Centre has a Cook who prepares the meals for approximately 51 children in that day care centre. The food for the English Day Care Centre is prepared by Beaver Foods which is located on the same floor as that day care centre and has a contract to prepare foods for the English Day Care Centre involving approximately 51 children. Currently, the Cook in the French Day Care Centre is employed on a part-time basis. She works from approximately 9:00 a.m. until 1:00 or 2:00 p.m. each day in preparing foods and cleaning the kitchen area. She also shops for groceries once a week which requires that her day be somewhat longer than the other days that she works. However, she works a maximum of 24 hours per week. The day that she is purchasing groceries, the ECE workers pick up the food in the kitchen and serve it and, we were told, attempt to wash dishes (as the dishwasher is currently broken) in order to assist the Cook in her duties. Evidence was led that the quality of food prepared for the French Day Care Centre is and has been superior to that provided to the English Day Care Centre by Beaver Foods. However, evidence was also led to show that the quality of food by Beaver has greatly improved over the past few years and complaints with respect to the food in the English Day Care Centre has diminished considerably. Evidence was also led to show that in 1987 the Beaver Foods people also provided service to the French Day Care Centre and actually were moving heated ca~ts from the main building to the French Day Care Centre which is, as stated above, located 30-50 feet away from the main building. However, Mrs. Ann Maxie Kemp in charge of the day care centres explained that that operation was nothing short of a "nightmare". The Employer raised a number of concerns with respect to having the Cook in the French Day Care Centre also perform cooking services for the English Day Care Centre. These concerns included: the Cook having to purchase food twice a week and not once a week due to constraints on the availability of cooling space in the refrigerator and the freezer; the requirement to purchase additional dishes for the English Day Care Centre (now provided by Beaver Foods); the requirement to buy a dishwasher in the English Day Care Centre when none now exists; the requirement to purchase a heated cart to keep the food hot when it moves from the French Day Care Centre to the English Day Care Centre; renovations to accommodate the dishwasher and additional dishes in the English Day Caxe Centre; the concerns of transporting a heavy heated cart through the 30-50 feet open space from the French Day Caxe Centre to the main building in inclement weather; the fact that city buses and school buses pass by the axea where the food cart would be required to travel; and the evidence of the Cook who said it would be difficult to double her production for both day caxe centres. However, in fairness, the Cook did testify that while she thought it was possible to do it, it would be difficult, but she was willing to give it a try. The Employer countered that if the Union were to be successful the Cook would not be able to perform all the duties that were required of her in an ordinary day. Instead, it would require 1½ employees to perform the required work. This is notwithstanding the fact that the Cook (Liz Cappell) testified that she could prepare 50% of the foodstuffs on the day before such as finger foods, etc. However, the Employer questioned the nutritional value that would be lost in such an operation and, further, it is acknowledged that there axe three lunch periods in each day care centre. There axe those at 1:30 a.m. for the "Toddlers", 12 o'clock for those going to school for the afternoon, and 12:30 for those who had been at school in the morning and were returning. This means, with the two day care centres, there would be six lunches each day and to accommodate moving three lunch wagons from the French Day Care Centre to the English Day Care Centre would be a "nightmare" (according to Mrs. Kemp). However, the Union pointed out that this nightmare that Ms. Kemp is concerned about assumes that there is no Lunch Aide available but such a Lunch Aide is now available in the English Day Care Centre who moves the trays from Beaver Foods to the English Day Care Centre and back. If such a Lunch Aide was available to transport the food from the French Day Care Centre to the English Day Care Centre and back, that would alleviate many of the problems. Finally, the Union identified the positions of Early Childhood Education workers who presently axe employed part-time who ought to be employed full-time. These axe the employees who axe qualified to participate in the playrooms, etc. of the day care centres. There was a lot of discussion about ratios that the Ministry of Community & Social Services requires of qualified ECE workers and it is not disputed that the ratios that are set out in the various regulations must be met. Currently, there is a schedule whereby the Employer has ECEs covering throughout the day in the English and French Day Care Centres which meets the required ratios. The Union proposed two different scenarios that could be adapted to accommodate a further full-time ECE. Presently, there are four full-time ECEs employed at each of the centres, there is also a pa~t- time ECE employed at each centre. There are varied starting hours for the ECEs. The Union takes the position that the Employer could employ a fifth full-time ECE and have that fifth one start later in the morning, take an hour or an hour and a half lunch break, and work throughout the day. For exa~nple, have that person begin at 9:00 or 9:30 and work until 5:00 and then take an hour and a half break, and one would not have a problem with respect to that. One problem, however, that was raised by the Employer is that the collective agreement has certain requirements and restrictions on hours for lunch and hours of work. It was the Employer's position that if it were to adopt the Union's suggestion it would be violating the collective agreement. Turning first to the Cook's position, we are persuaded by the Employer's submissions that it would not be proper for this Board to order the position of Cook in the French Day Care Centre to become a full-time position and to prepare meals for the English Day Care Centre. The Board is persuaded that the Employer would have to undergo a number of additional costs to have the French Day Care Centre provide meals for the English Day Care Centre. It would be necessary for the Employer to purchase certain equipment and dishes for the English Day Care Centre as well as being required to purchase heated ca~ts in which the food could be transported from one centre to the other. There is the additional problem of moving the food from the French Day Care Centre to the English Day Care Centre in what has been referred to as inclement weather conditions. The Employer's submissions that it would not be feasible to make the necessary costs and adjustments to have the Cook in the French Day Care Centre prepare the food for the English Day Care Centre is to be preferred over the submissions of the Union. This Board is unable to order the Employer to carry out the required changes that would be necessary to accommodate the wishes of the Union. Accordingly, this aspect of the grievance fails and is dimissed. The ECE workers likewise present a problem for the Union. The Employer is obligated to maintain ratios that have been set by the Ministry of Community & Social Services. In its evidence, witnesses for the Employer explained how it carries out this requirement through employing four full-time ECEs in each centre which is augmented by a pa~t-time ECE in each centre. While the Union presented some ingenious scenarios as to how it would be possible to employ an additional ECE, we agree with the position advanced by the Employer that it would not be possible to maintain its ratios if it were to adopt the suggestions as advanced by the Union. Accordingly, it must be our position that this aspect of the grievance must likewise fail axed is dismissed. We have detailed the requirements of the Needs Assessor position. When one looks caa:efully at Article 1.2 it would appea]: that the intent of the axticle is as the Employer has outlined to the Boaa:d. The Employer agrees to endeavour to give preference to full-time over paxt-time assignments and to convert paxt- time to full-time assignments where feasible. In our view, the assignments contemplated in Article 1.2 axe assignments within a paxticular classification as submitted by the Employer. That is to say, if the Employer was found to be employing two paxt-time employees in a paxticula]: classification for 20 hours a week each, then it would seem that Article 1.2 would be the appropriate vehicle for the Union to demand that the two paxt- time positions be merged into one. But what we have before us is a paxt-time Needs Assessor whose function is to determine and assess the financial needs of parents of children who plan to attend the day caa:e centres. We agree with the position of the Employer that to combine the position of Needs Assessor with some clerical position in the baa:gaining unit could not have been the intent of the paxties when drafting Article 1.2. Had the situation existed wherein there were two paxt-time Needs Assessors each working less than 24 hours a week, then in those circumstances the Union would have a much stronger case to insist that they be combined into one full-time Needs Assessor position. However, in the instant situation, the Union has seaa:ched out several clerical positions which it views as being compatible to that of the Needs Assessor. This would still leave it open to the Employer to pick and choose a certain clerical position which might not be satisfactory to either the incumbent or to the Union. Accordingly, for all of the foregoing reasons, it must be our conclusion that the grievance be dismissed. Dated at Kingston, Ontario, this 7th day of September, 1994. C. Gordon Simmons Chairperson I concur/d!zzcnt David Cameletti Employer Nominee I concur/dissent John McManus Union Nominee