HomeMy WebLinkAboutBartlett & English Group 05-05-18 IN THE MATTER OF AN ARBITRATION
BETWEEN
FANSHAWE COLLEGE OF APPLIED ARTS & TECHNOLOGY
(the "Employer")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the "Union")
- and -
IN THE MATTER OF A GROUP GRIEVANCE
[2002-0109-0013 & 2002-0109-0014]
(the "Grievors")
BEFORE:
C. Gordon Simmons,~ Chair
John Podmore, Employer Nominee
Sherril Murray, Union Nominee
APPEARANCES ON BEHALF OF THE EMPLOYER:
Robert J. Atkinson, Counsel & Others
APPEARANCES ON BEHALF OF THE UNION:
Gavin Leeb, Counsel & Others
Hearings into this matter were held in London, Ontario on October 26, 2004
and March 30, 2005.
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The grievors are employed in the classification of "Caretaker". The grievances
concern claims of missed overtime opportunities. They seek, among other things, a
written assurance that future overtime will be offered to them.
The facts are not in dispute. On November 1, 2003 the college held its annual fall
convocation. In preparation for this ceremony certain set-up arrangements had to be
made to convert a gyrrmasium in which the convocation was to be held. Very briefly, the
arrangements included coveting the gymnasium flooring with tarpa~tir~ strips following
which they were taped together. A stage was constructed where officials gathered and
reviewed the graduating students and awarded them their diplomas. In addition,
approximately 1000 chairs were delivered to the gyrrmasium which the caretakers, and
others, set up and arranged. Following the graduation ceremony the gymnasium was
converted back to its original state.
Caretakers work three shifts. There is the day shift with three Payba_r~d 2 (PB2)
caretakers. One works from 7:30 a.m. to 3:30 p.m. and two work from 8:30 a.m. to
4:30 p.m. There is also one lead hand, Dwayne Lyons, who is at PB7 and another
caretaker, Ernie Kovacks, who is at PB4.
The afternoon shift works from 2:30 p.m. to 11:00 p.m. There are three PB2s who
work this shift. Finally, there is the night crew who work from 10:30' p.m. to 7:00 a.m.
They begin their work week on Sunday night at 10:30 p.m. and finish at 7:00 a.m. on
Fridays. The day and afternoon shift caretakers, among others, were assigned to work
the afternoon of November 1, 2003 to dismantle the set-up arrangements for the
convocation. It is the night shift workers who claim they ought to have been offered the
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overtime work in dismantling the gymnasium following the convocation on Friday
afternoon of November 1, 2003.
Ms Ursula Rzeznik was a caretaker, PB2, who worked the night shift during the
week in question. She was also union secretary-treasurer at the time who was entitled
to be absent from work for union duties a day or two each week. This entitlement, in the
board's view, does not detract from her evidence that during the years she worked as
a Caretaker PB2, she has assisted in the take down of the convocation in the past while
working the night shift.
Ms Marion Dietze was Manager Ancillary Services on November 1. She was
supervisor over the day and evening shift caretaker staff workers. She also supervised
the employees who worked in Shipping & Receiving. Ms Dietze has been in charge of
the preparation and dismantling of the gymnasium for the spring and fall convocations
continuously since 1995. She has since assumed new supervisory duties and
responsibilities which include supervising the night shift caretaker staff as well as her
other supervisory duties. At the time, however, on November 1, 2003 the supervisor for
the night shift caretaker staff was Mr. Jim Bates.
Ms Dietze testified that on the day before the set-up is to take place she receives
work orders with instructions to pick up certain items across the campus. This includes,
among other things, furniture that is to be placed on the stage for visiting dignitaries,
etc.
The assembly of the stage requires the use of tools which Caretaker PB2s are not
qualified to use. Mr. Lyons, the lead hand, is qu~li~ed in the use of the.required tools as
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is Mr. Kovacks who is at PB4. In any event, Ms Dietze said she requires at least two
Maintenance employees to assist in the assembly of the stage. They too are qualified in
the use of the required tools for the stage assembly and dismantling. Maintenance
employees report to Mr. Doug Crinklaw. Their hours of work are 7:00 a.m. to 3:30 p.m.
The night crew has never participated in the setting up of the convocation
arrangements. The work commences at 8:00 a.m. the day before convocation is to take
place.
The dismantling begins after convocation has ended and the people have
dispersed from the gymnasium. This is usually around 4:00 p.m. Work commences with
the clearing of the stage by removing the employer-owned furniture; the carpeting;
curtains; and flowers, etc. Then the rental chairs are removed to the doors of the gym
where trucks are waiting to haul them away. Next, the stage is disassembled. This
involves Mr. Lyons and the Maintenance employees. As the stage is disassembled the
caretakers move the disassembled parts away. Next, the floor covering is cleaned and
removed.
Because the dismantling work commences around 4:00 p.m., the aftemoon
caretaker workers are assigned to perform this work as constituting para of their
normally assigned duties and responsibilities. However, as there are only three PB2
caretakers working the afternoon shift, Ms Dietze must look elsewhere for volunteers to
assist in the work. Ms Dietze testified she requires between seven and ten employees
to perform this work. She first approached the day shift caretakers for volunteers.
Naturally, this involved overtime hours for such employees.
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Ms Dietze informed the panel she normally asks the day shift caretakers to sign
up if they wish to work overtime on the dismantling of the gymnasium. They must sign
up by 4:30 p.m. on Wednesday, the week of the convocation, in order to allow her time
to seek other volunteers if insufficient numbers of the day shift volunteer to perform the
dismantling work Friday afternoon. The response she received from the day shift
workers was only one volunteer who happened to be the lead hand, Mr. Dwayne Lyons.
This meant she now had four caretakers available to perform the work. She next sought
volunteers from Shipping and Receiving where one employee volunteered. She next
turned to the Maintenance Department for volunteers. Mr. Crinklaw reported that five
from Maintenance were interested. This gave Ms Dietze a total of 10 employees. It is
acknowledged that Mr. Lyons and the Receiving crew member would be working
overtime as would the five Maintenance employees. Ms Dietze testified that tear downs
have occurred in the past with only Dwayne Lyons and caretakers and without
Maintenance employee assistance. She acknowledged she goes to caretakers first
because PB2 is at a lower pay rate than that of Maintenance employees. However, she
did not canvass for volunteers from any of the night shift caretakers.
UNION SUBMISSION
The union claims a disservice was done to the night shift caretaker crew when
they were denied the overtime opportunity. Caretakers seldom get opportunities to work
overtime. The occasions when they are offered overtime are usually associated with the
two annual events being discussed.
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The collective agreement addresses the issue in dispute. Article 6.2.5 - Overtime
Rights is relevant. It reads:
The parties to this Agreement recognize that College operations may require
the performance of overtime work and that employees will co-operate in the
performance of such work. The College will advise employees of required
overtime as far in advance as practicable and, in any event, will give notice
of scheduled overtime required prior to the conclusion of the preceding work
day except in circumstances beyond its reasonable control. The Colleges
agree to attempt to distribute available overtime work as equitably as
practicable amongst qualified employees in the work groups in which
overtime work is required. Whether or not advance notice of required
overtime has been given, the College shall take into consideration the
legitimate requests of employees to be excused where the performance of
overtime by such employees would cause undue hardship or serious
inconvenience. Employees who have been excused on this basis shall be
deemed to have worked such overtime for the purposes of considering
equitable distribution. Where an employee claims improper distribution of
overtime under these provisions and such claim is either agreed to or
determined to be valid, the College's obligation shall be limited to offering
such employee the next opportunities to perform scheduled overtime work
in his/her work group that he/she is qualified and willing to perform until
such time as the inequity has been addressed.
The phrase "work groups" in the article includes caretakers. There can be no doubt the
work involved in the set-up and tear down of the gymnasium for the convocation
festivities was caretaker work. They were the first to whom Ms Dietze offered the
overtime work. Moreover, the Position Description Form (PDF) for caretaker night shift
PB2 entered into evidence includes the following in one of its enumerated duties and
responsibilities (ex. 4):
5. Arranges furniture for special functions as determined by work
order, i.e. Boardroom, cafeteria, gym.
Therefore, art. 6.2.5 contains two basic entitlements. One is a right to be entitled to
equitable distribution of overtime and the other is the right of the employees to share the
overtime work. That distribution and sharing of available overtime work is to be made
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among the qualified employees in the work groups in which the overtime work is
required.
It is the caretakers who comprise the work groups being discussed. It is not the
employees in Shipping & Receiving nor is it the Maintenance employees. Ms Dietze
ought to have offered the overtime to the caretakers on the three shifts first, keeping in
mind the equitable distribution requirements for art. 6.2.5. Then, only if the numbers of
volunteers were insufficient to perform the required work was Ms Dietze free to look
elsewhere. The panel was referred to an excerpt from Canadian Labour Arbitration, 3rd
Edition, para. 5:3220 et seq, Brown & Beatty, Canada Law Book, Aurora, Ontario; ReAlcan
Smelters & Chemicals Ltd. and Canadian Association of Smelter & Allied Workers, Local 1
(1988), 1 L.A.C. (4th) 126 (Hope) a_nd Re United Automobile Workers and Canadian Motor
Lamp Co., Ltd. (1967), 18 L.A.C. 250 (O'Shea) in support of its position.
Accordingly, for these reasons, the union claims the grievances ought to be
allowed and the remedy set out in art. 6.2.5 be complied with when overtime is again
offered for the convocation ceremonies. The union asks the panel to remain seized of its
jurisdiction to assist in the implementation of this decision should it become necessary.
EMPLOYER SUBMISSION
The union's claim that night shift caretakers ought to have been offered an
opportunity to work overtime at the end of the day shift on November 1, 2003 must
establish a violation of art. 6.2.5. The employer maintains the union fails to establish any
violation both with the language of art. 6.2.5 and on the facts.
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The umon has assumed that an employee in a payband or classification has a
property right in the job. This type of claim has been rejected by arbitrators for a
considerable period of time (see/(¢[s¢3~-Hayes C~rn~d~ Ltd. (1971), 23 L.A.C. I (Simmons)
and Wcst¢¢l-Ros¢o £td. (1970), 21 L.A.C. 124 (Johnston)).
Further, the language in this collective agreement dJ~ers from the usual collective
agreements in that it contains a strong management rights clause. It grants the
employer the right to assign work. The third sentence in art. 6.2.5 does not give any
particular group of employees the right to any assigned work. The employer has first to
decide if overtime work is required and to whom it is to be offered. Once that decision
is made then the employer is to attempt to equally assign that overtime work within that
work group.
The union is attempting to give art. 6.2.5 a meaning that it does not have. The
employer decides which work group is to get the overtime. Once that decision is made
then, and only then, is the employer obligated to distribute it within that group as
equitably as possible.
In the instant case the employer decided to assign overtime work to a certain
work group which did not include the grievors' work group. The grievors work a different
shift and report to a different supervisor. The article does not say classification
(caretaker) but a work group. The employees are in a work group that works night shifts.
No one work group has a claim over another work group for overtime.
The employer asserts the words "work groups" mean a group of employees who
may make up several classifications or paybands who work together in the same unit
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and on the same shift. There is no obligation to offer the overtime work to the night shift
as they were not in the same work group as the day shift workers. Only if Ms Dietze had
offered overtime to the night shift then art. 6.2.5 would have become applicable to the
extent that the overtime would have been equitably distributed as practically as possible
amongst the qualified workers in the night shift crew.
Thus, the employer had the right to make the assignment it made and nothing in
the collective agreement restricts or requires it to offer this work to one group over
another. Therefore, the grievance ought to be dismissed.
DECISION
The parties informed the panel that this is the first occasion they are aware of that
art. 6.2.5 has been raised at arbitration. It is a question of what constitutes "work
groups". The employer asserts it is comprised of employees who work together as a
group on any particular shift. It may comprise a number of paybands and classifications.
To reach out to workers on other shifts who report to another supervisor cannot be
considered to be within the "work groups" contemplated by art. 6.2.5. To so find would
require a decision that vested certain property rights in the employees over the work to
be performed. That particular assertion has been rejected by arbitrators since at least
the early 1970s.
The decision in Kelsey-Hayes dealt with a situation that is distinguishable from the
instant one. In Kelsey-tiayes the employees were working their regular hours and
performing their normal duties as set-up men in the set-up department. None of the
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employees who normally worked in the set-up department were on layoff. The company
received an additional order(s) and put up additional set-up lines to meet this order.
Since all the set-up men were working the company brought in employees from
production to work the set-up lines for a short period. Job postings were published
within a reasonable time. The grievors claimed the company violated the collective
agreement by bringing in production employees and because they had all been working
they were entitled to be compensated at overtime rates. At p.5 of the decision, the
following appears:
Article 29.01 was also stressed by the union in its argument. This
article stipulates that overtime is to be equally distributed among the
employees normally performing the work (in so far as reasonably
practicable). Nowhere in the collective agreement is it compulsory upon the
company to provide overtime work. However, in the instant case the union
would have me adop~ the argument that the company must provide overtime
to the employees in the set-up depamment instead of granting work to
employees who do not normally work in such department. Certainly art.
29.01 does not insist upon such a requirement and I am therefore unable to
find that there has been a violation of the collective agreement based upon
this amicle.
The facts in Kelsey-Hayes are not applicable to the instant situation. In our case there was
overtime work required. The dismantling of the gym had to be performed without delay.
The employer decided overtime work was required. The gfievors were not insisting the
employer created an overtime situation like the situation that existed in Kelsey-Hayes. In
addition, all the workers, except the afternoon shift caretakers, who worked the
afternoon of November 1, 2003 worked overtime. Therefore, unlike Kelsey-ttayes where
the union was demanding the grievors be paid at overtime rates for work they performed
during regular hours, here the employer assigned overtime work to workers in Shipping
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& Receiving and in the Maintenance Department instead of assigning that available
overtime work to the night shift caretakers. In ou~ view, therefore, the decision in/~¢]s~-
/-/~)~¢s is distinguishable from the facts in the instant situation.
Nevertheless, does the wording in art. 6.2.5 require the employer assign the
available overtime work in the circumstances that transpired during the afternoon of
November 1, 2003 to the night shift caretakers? To determine the answer we turn to the
third sentence of art. 6.2.5 which reads:
The Colleges agree to attempt to distribute available overtime work as
equitably as practicable amongst qualified employees in the work groups in
which overtime work is required.
As we have indicated above, this is the first occasion art. 6.2.5 has been
considered at arbitration. The meaning of the words "work groups" ought to be narrowly
interpreted according to the employer. The employer would have this panel adopt a
definition of work groups to mean any "work groups" the employer decided to select for
the available overtime work. Once chosen then the only restrictions on the assigning of
overtime within each pocket of work groups chosen would be the equitable distribution
of overtime within each of the chosen work groups.
The union would have the panel interpret work groups more broadly. That is, if
the work was normally performed by caretakers in the past then the "work groups"
would encompass the caretakers from all three shifts and the equitable assignment of
overtime would be among all of the caretakers.
After carefully considering this issue the panel has determined it ought to
approach this issue in the following way.
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Counsel for the employer would have the panel interpret work groups to include
any group of employees who worked the same shift but conceivably in different
classifications and paybands. Further, as we understand the submission, the "work
groups" would fall under the supervision of one supervisor. Thus, as long as these
criteria were met any work groups throughout the college could be assigned the
available overtime work. Of course, the employees in the work groups would have to be
qualified to perform the work.
The union on the other hand would have the panel restrict the meaning of the
"work groups" to include only those employees who normally perform the work required
to be performed.
Before deciding the issue the panel is of the view it will require more exhaustive
submissions from the parties. This is due in part to the added view the panel believes
it can determine the issue that is before it based on the particular facts presented
without attempting to set any binding parameters on the meaning of the words "work
groups".
Ms Dietze acknowledged in her evidence the work involved is assigned to
caretakers. The afternoon shift caretakers were assigned to perform the work associated
with the dismantling of the gymnasium. They were insufficient in numbers so it was
necessary to go seeking volunteers elsewhere. She first asked the day shift caretakers
if they were interested in working overtime to dismantle the set-up for the "special
function" of convocation in the gym. This query still left her short of the required number
of employees. Ms Rzeznik's uncontested evidence that she has performed dismantling
of the gym work on overtime while assigned night shift in the past lends credence to
Ms Dietze's testimony that the work involved is assigned to caretakers. It was no doubt
convenient to ask Shipping & Receiving employees who were on-site during the day
shift hours and needed only remain at the workplace to perform the work. Furthermore,
they were supervised by Ms Dietze. So too, it was understandable to seek Maintenance
employees because they are qualified to use the required tools particularly in the set-up
but also in the dismantling of the stage. However, when it was learned that Mr. Lyons,
PB7, was qualified in the use of the tools, as was Mr. Kovacks at PB4, and Mr. Lyons had
volunteered to perform the overtime work, there was really no need to go to Maintenance
for assistance. As Ms Dietze testified, she has dismantled the gym in the past without
the use of the Maintenance employees by using Mr. Lyons' services. There could always
conceivably be the need for one or two Maintenance employees who could perhaps
shorten the requirement for overtime work but this would be a judgement call for
business efficiency with which we need not be concemed.
Accordingly, when it is established that the caretakers' PDF entered in evidence
contain duties and responsibilities covering the work performed; and, having regard to
the fact that Ms Dietze acknowledged the work is assigned to caretakers and that she
first approached the caretakers who worked the day shift to perform the overtime work;
and, the fact the afternoon shift caretakers were assigned to carry out the dismantling
work; and, the fact that Ms Rzeznik's uncontested evidence that she has performed the
dismantling work in the past while working as a night shift caretaker, then it follows
that it was incumbent upon her to also enquire of the caretakers on the night shift, in
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addition to the day shift caretakers, if any wished to volunteer to work the required
overtime. Once having obtained the responses it would then be incumbent on her to
apply arc. 6.2.5 with regard to distributing the available overtime equitably as
contemplated in the article. This approach, unlike the situation that existed in K¢lsey-
//ayes, would not create any proprietary rights to the jobs to the exclusion of others, as
was determined would have happened had the grievors been successful in
Accordingly, the grievance succeeds. The grievors claim of improper distribution
of overtime is successful. The college must apply art. 6.2.5 to the night shift caretakers
as addressed in this award.
The panel retains jurisdiction to assist the parties in the implementation of this
decision should it become necessary.
Dated at Kingston, Ontario, this 18th day of May, 2005.
C. Gordon Simmons
Chairperson
John Podmore
I concur/dissent
John Podmore
Employer Nominee
Sherril Murray
concur/dissent
Sherril Murray
Union Nominee