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HomeMy WebLinkAboutUnion 95-11-24 IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR SUPPORT STAFF EMPLOYEES) (the "Union") DURHRi~ COLLEGE (the "College") AND IN THE MATTER OF A UNION GRIEVANCE (OPSEU FILE NO. 95B673) BOARD OF ARBITRATION Robert D. Howe, Chair Pamela Munt-Madill, Union Nominee Robert Gallivan, College Nominee APPEARANCES For the Union Margaret Keys, Grievance Officer Rick Nemisz For the College Peter J. Thorup, Counsel Helen C. Daniel Donald I. Sinclair A hearing in the above matter was held in Toronto, Ontario October 18, 1995. AWARD The grievance which has been referred to this Board of Arbitration (the "Board") for determination in these proceedings alleges that "the College is in violation of Article 1.2 of [the Support Staff] Collective Agreement with respect to Hedia Services at 1610 Champlain Ave." (i.e., at the College's Whitby campus). The relief sought is a direction that the Hedia Services Clerk General position in question at that location be declared to constitute a full-time position, and a direction that the College pay to the Union all dues that would have been paid from the time of the grievance, had the position in question been a full-time position. It is common ground between the parties that Board has been duly constituted, and that it has jurisdiction to hear and determine the grievance. The parties are also in agreement that if the grievance is allowed, the Board should remain seised in the normal course for remedial purposes. Article 1.2 of the Support Staff collective agreement (the "Collective Agreement") provides as follows: Recognizing that the College reserves the right as provided in Article 3, to determine the number and composition of full-time, part-time, and otherwise excluded positions, and to determine the work assignments that are appropriate in each case, the College agrees to endeavour to give preference to full-time over part-time assignments, and to convert part-time to full-time assignments where feasible, subject to such operational requirements as may be appropriate. .rr0 The College has three campuses. Its main campus is located in Oshawa, and has approximately 4,000 day students and between 4,000 and 5,000 evening students. There are two full- time bargaining unit positions in the Hedia Services Department ("H.S.D.") at that campus: a clerk working from 8:00 a.m. to 4:00 p.m. (with a one-hour lunch) Honday to Friday, and a technician working 8:30 a.m. to 4:30 p.m. Honday to Friday. There is also a part-time employee (not included in the bargaining unit) who works from 4:30 to 10:30 p.m. Honday to Thursday. The College's second campus is located in Simcoe and is much smaller, having only about 300 students. The M.S.D. staff at that location consists of a full-time clerk who works from 8:00 a.m. to 4:00 p.m. Honday to Friday, and a student who works on a part-time basis from 4:00 to 7:00 p.m. on Honday and from 4:00 to 8:00 p.m. on Tuesday. Seventy-five percent of that student's wages are paid by the Province under the Ontario Work Study Program (the "O.W.S.P."). The remainder comes out of the College's general budget (rather than the Hedia Services Department's budget). There is no H.S.D. staff coverage on Wednesday and Thursday evenings. However, members of the College's security staff are called upon to perform some checking in and out of H.S.D. materials on those evenings. The College's Whitby campus opened in September of 1993. It is a technical centre which houses entrepreneurial units, including joint ventures and management centres (such as General Motors' "Product Plus" Program). Both day and evening classes are offered at that campus, which generally has between 100 and 150 students. Daytime coverage in the Media Services Department at the Whitby campus is provided from Honday to Thursday by a part- time employee named Natalie Stutt, who has worked for the College in Hedia Services for eight to ten years at various locations. (Hs. Stutt received notice of these proceedings via the Union.) No coverage is provided on Friday as it is not needed. When Ms. Stutt first came to the Whitby campus, she worked from 1:00 to 7:00 p.m. from Monday to Thursday. There was no student part-time coverage at that time. Persons who needed to check in or check out M.S.D. materials in Ms. Stutt's absence received some assistance from Student Services Department staff or security staff. However, this arrangement did not provide much effective control over those materials, as a result of which a lot of them were "going missing". It also resulted in there being no morning coverage in the Department. Beginning in September of 1994, Ms. Stutt's hours were changed to 9:00 a.m. to 4:00 p.m. Honday to Thursday (with a one-hour lunch), and the coverage which she provided was supplemented by part-time student coverage from 4:00 to 8:00 p.m. on Honday, Tuesday, and Wednesday. That additional coverage was not initially provided through the O.W.S.P. However, by April of 1995, part-time student coverage was being provided under the O.W.S.P. from 4:00 to 8:00 p.m. on Monday and Wednesday, and from 4:00 p.m. to 9:00 p.m. on Tuesday. During the first part of September of 1995, Ms. Stutt continued to work 9:00 a.m. to 4:00 p.m. Honday to Thursday, but no student coverage was provided. However, commencing on September 18, 1995 (when the College's evening classes resumed), the coverage provided by Ms. Stutt was supplemented by O.W.S.P. student part-time coverage on Honday from 4:00 to 7:00 p.m., and on Tuesday from 5:30 to 7:30 p.m. Commencing on October 12, 1995 (and continuing as of the date of the hearing of this matter) Hs. Stutt provided M.S.D. coverage at the Whitby campus from 8:00 a.m. to 3:00 p.m. from Honday to Thursday (with a one-hour lunch), with W.S.P student part-time coverage being provided on Honday from 4:00 p.m. to 7:00 p.m. and on Tuesday from 5:30 p.m. to 7:30 p.m. by Darren Tanner, and on Wednesday and Thursday from 4:00 p.m. to 7:00 p.m. by Laurel Kimbell. (The College accommodates some of the students' class schedules, as exemplified by the variation in Hr. Tanner's hours of work.) The College continues to rely upon security staff to allow students and faculty to gain access to the Whitby Hedia Services Department in order to check materials in or out at times when no M.S.D. staff or Student Services Department staff are available. In her capacity as the regular part-time employee in the Media Services Department at the College's Whitby campus, Hs. Stutt fulfills a number of ongoing responsibilities, including booking audio-visual materials for faculty, arranging inter-campus loans of audio-visual materials, preparing circulation reports, cataloging software, performing a reference or resource function for persons making inquiries about software, carrying out minor maintenance on equipment (with anything more extensive being performed by a service technician), supervising the previewing room, checking H.S.D. materials in and out, answering questions about where to find things, and performing some minor record keeping. When she is not busy with those tasks, she provides assistance to the Student Services staff, who work six or seven feet away from her, along the same counter that she uses to perform her job. The Student Services Department remains open until 4:30 p.m. Providing assistance to Student Services staff occupies approximately 35% of Hs. Stutt's working time. Checking H.S.D. materials in and out occupies about another 10%, with the remaining 55% of her working time being devoted to the other functions described above. The work performed by student part-time employees Darren Tanner and Laurel Kimbell consists essentially of checking M.S.D. materials in and out. If they receive a call from a faculty member regarding H.S.D. materials, they take down the particulars (including the name of the faculty member, the software title, and the day(s) it will be needed) and leave that information to be dealt with by Hs. Stutt. The checking in and checking out of M.S.D. materials at the Whitby campus is performed by Student Services staff between 3:00 and 4:00 p.m. on Honday to Thursday, and throughout the day on Friday, as no H.S.D. staff member is available to perform it during those periods of time. When neither H.S.D. nor Student Services staff are available to perform that function, it is performed by security staff. However, it is problematic for students to arrange for security staff to perform this function, as the security staff are not stationed at the Media Services Centre. Thus, students have to locate a member of the security staff and have that person accompany them to the Centre in order to check materials in or out in the absence of M.S.D. or Student Services staff. The College has students working part-time in many of its departments. Many of them work under the O.W.S.P. Terry Capar, who is the College's Manager of Media and Graphic Services, told the Board that if financing were not available under the O.W.S.P., he would not be able to have M.S.D. student coverage at the Whitby campus during this budget year and, accordingly, would only be able to have coverage by H.S.D. staff from 8:00 a.m. to 3:00 p.m. Monday to Thursday. He also indicated that if this occurred, he would probably send out a memo to faculty advising them that the H.S.D. would be closed during the evening, and that evening requests for materials would be made through the Security Department. In her submissions on behalf of the Union, Ms. Keys contended that Article 1.2 of the Collective Agreement requires the College to convert the aforementioned Whitby campus M.S.D. part-time positions into a full-time position. She submitted that the College clearly wishes to keep the M.S.D. staffed in Whitby from 8:00 a.m. to 7:00 p.m., and that it requires that staff coverage in order to keep control of M.S.D. materials. It was also her submission that although the students do not perform all aspects of Hs. Stutt's job, the fact that both Hs. Stutt and the students check H.S.D. materials in and out is sufficient to warrant converting their part-time positions into a single full-time position. In this regard, she suggested that all three of them do essentially the same job, and merely have different hours. She further suggested that the College could have someone working in a full-time position from 8:00 a.m. to 7:00 p.m. Honday to Thursday (with two one-hour meal breaks) without incurring any overtime, by utilizing the following provision contained in the Collective Agreement: 6.1.4 Flexible Hours of Work Where a College and the Local Union agree and where affected employees approve, the College may implement more flexible hours of work and scheduling arrangements than those provided in Article 6, such as compressed work weeks and job sharing arrangements, except that Article 6.3.1 cannot be varied. Any such variation of any section of Article 6 will be specified in the local agreement. Each agreement shall contain the position/classification, campus location, shift and names of the employees affected. Such agreements shall not provide a monetary advantage or disadvantage to the College or to affected employees relative to employees working regular hours. Either party may terminate the local agreement and return to regular schedules or hours of work with two (2) weeks' notice. Such local agreement shall be signed by the College, the Local Union President and the President of OPSEU and shall apply for the specific terms agreed upon, but in any event, shall not continue beyond the term of this Agreement. In his submissions on behalf of the College, Hr. Thorup contended that the grievance should be dismissed because the students' assignments are not the same as Ms. Stutt's assignment, and because it is not feasible for the College to combine those three part-time assignments into a full-time assignment. In responding to Hs. Keys' submissions regarding Article 6.1.4, he noted that this provision requires not only the Local Union's agreement but also the approval of the affected employee(s). He further submitted that the hours of work suggested by Hs. Keys do not fall within the purview of Article 6.1.4 because they would involve the creation of a split shift, proscribed by Article 6.3.1, which provides: Article 6.3.1 Split Shifts There shall be no split shifts during the term of this Agreement. In support of his contention that the grievance should be dismissed, Hr. Thorup also submitted that Article 1.2 does not contain a guarantee or other mandatory language, but merely requires the College "to endeavour to ... convert part-time to full-time assignments where feasible, subject to such operational requirements as may be appropriate." In her reply submissions, Ms. Keys acknowledged that Hs. Stutt's job is not exactly the same as the students' jobs, but maintained that the students' function of checking in and out materials is an essential part of Hs. Stutt's job. She also acknowledged that the Board cannot tell the College how to schedule the work, but submitted that it can tell the College whether or not there is a full-time position. During the course of argument, both Ms. Keys and Mr. Thorup referred the Board to Cambrian College of Applied Arts & Technology and Ontario Public Service Employees Union, September 7, 1994 (Simmons), which is apparently the only previous decision dealing with the interpretation of Article 1.2. In the majority award in that matter, arbitrator Simmons wrote, in part, as follows: The Employer takes the position that Article 1.2 was intended to curtail abuse of using two or more part-timers in a particular classification thereby avoiding having the employee in the bargaining unit. That is to say, a particular classification which has two employees working no more than the maximum 24 hours each and which ought not to be allowed. This, according to the Employer, was the type of abuse Article 1.2 was intended to protect .... We respectfully agree with and adopt that award's interpretation of Article 1.2. While it may be that the work assignments need not be absolutely identical in order to fall within the ambit of that provision, they must at least be substantially similar. As noted above, in the instant case the checking in and out of H.S.D. materials is a duty and responsibility of all three of the part-time positions in question. However, that function occupies only 10% of Hs. Stutt's working time. The remaining 90% of her working time is devoted to performing a variety of other functions, including booking audio-visual materials for faculty, arranging inter- campus loans of audio-visual materials, preparing circulation reports, cataloging software, performing a reference or resource function for persons making inquiries about software, carrying out minor maintenance on equipment, supervising the previewing room, answering questions about where to find things, performing some minor record keeping, and providing assistance to the Student Services staff. Those important functions, which constitute 90% of Hs. Stutt's assignment, are not part of the students' assignments. Thus, the facts do not support the Union's contention that Hs. Stutt and the two students do essentially the same job, nor are we persuaded that the fact that all three of them check M.S.D. materials in and out is sufficient to render Article 1.2 applicable. In view of the foregoing, we find it unnecessary to determine whether that Article's conditional phrase "where feasible" would also preclude the grievance from succeeding in the circumstances of this case. Accordingly, for the reasons set forth above, the grievance is dismissed. DATED at Toronto, Ontario this 24th day of November, 1995. Robert D. Howe Chair I concur. "Pamela Munt-Madill" Union Nominee I concur. "Robert Gallivan" College Nominee