HomeMy WebLinkAboutMartin et al 04-12-22 THE MATTER OF AN ARBITRATION
BETWEEN
GEORGE BROWN COLLEGE
(the "College")
and
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
(the "Union")
RE: Group Grievance Respecting the Support Staff Bargaining
Unit (OPSEU # 01 -C-368) Respecting Alleged Sex Discrimination
Related to Hours of Work
BOARD OF ARBITRATION:
PAMELA COOPER PICHER- CHAIR
PAMELA MUNT- MADILL- UNION NOMINEE
ROBERT J. GALLIVAN - COLLEGE NOMINEE
APPEARANCES FOR THE UNION:
Robin Gordon Grievance Officer
Marilou Martin Benoit Local Union President
Cynthia McDonagh Second Vice-President
Jay Jackson Executive Board Member- Region 2
APPEARANCES FOR THE COLLEGE:
Patricia G. MurrayCounsel
Tiereney Reid Articling Student
David Ivany Human Resources
Sally Roy Human Resources
A hearing in this matter was held in Toronto on December 5, 2001;
June 19, October 8, October 21, October 30, November 12 and 20 of
2002; and May 4, 2004. Additional written submission were received
from the parties May 12 and 19 of 2004.
AWARD
The Union filed a group grievance (approximately 120 grievors) in the
support staff bargaining unit in March of 2001. The grievance contends that
through the hours of work the College has assigned to the various positions in
the bargaining unit, the College has violated both article 2.3 (the No
Discrimination clause of the collective agreement) and article 3.1 (the
Management Rights clause) as well as the provisions of the Human Rights
Code of Ontario. The Union alleges that the College has engaged in systemic
discrimination on the basis of sex by virtue of the manner in which hours of work
have been distributed among various classifications at the College. The Union
maintains that women are disproportionately found in the job categories that are
assigned 35 paid hours per week and that men are disproportionately found in
the job categories that are paid 40 hours per week. All employees typically
attend at work eight hours a day. Those receiving payment for 40 hours per
week are given a Y~-hour paid lunch period. In contrast, those paid for 35 hours
a week do not receive remuneration for their one-hour lunch break.
Because of the history involved in the allocation of hours to the various
positions, as set out below, the Union acknowledges that it played a role in the
development of the problem whereby 40-hour per week jobs were predominately
occupied by males and 35-hour per week jobs were predominately filled by
females. Accordingly, the Union does not seek to blame the College. Nor does it
assert that there has been any malfeasance on the part of the College.
2
Moreover, the Union seeks no remedial damages. Rather, the Union is
requesting a declaration of systemic discrimination and an Order to allow the
grievors to elect, person by person, whether they want their respective positions
to become ones paid at 40 hours a week. The Union, thereby, is asking for an
Order from the Board that would permit all 35-hour jobs to become 40-hour jobs,
with individual employees being permitted to opt out if they so desire. In the
alternative, the Union asks that the Board order the College to conduct a review
of all support staff positions in the bargaining unit and use gender-neutral criteria
to set the hours of paid work. The Union stresses that it is not making a claim for
overtime.
A. THE PRE-1997 COLLECTIVE AGREEMENT:
In 1997, the parties amended article 6 of the collective agreement, Work
Schedules. Prior to the 1997 amendment, the collective agreement had
expressly assigned specific hours of work to listed occupational groups. For
example, article 6.1 stipulated, in part, the following:
6.1 Hours of Work
6.1.1 Office/Administrative/Computer/Technical/Human Services
Employees ...
The normal work week for employees in occupations groups such
as:
Office Services, including
- Clerk General
- Typist/Stenographer
- Secretary
Administrative Services, including:
- Support Services Officer
Computer Services, including
Technical Services, including:
- Technologist
Human Services, including:
- Early Childhood Education Worker
- Child/Adult Development Counsellor
- Nursing Assistant
- Nurse
will be:
- thirty-five (35) hours per week or ... (7) hours per day,
- thirty-six and one-quarter (36 ¼ ) hours per week or
seven and one-quarter (7 ¼ ) hours per day,
- thirty-seven and one-half (37 ¼) hours per week or
seven and one-half (7 ¼) hours per day,
as designated by the College, for the employees concerned
and scheduled on five (5) consecutive days except with
respect to employees engaged in continuous operations or
on special shifts.
6.1.2 Plant Services Employees
The normal work week for Plant Services Employees, including:
- Stationary Engineer
- Caretaker
- Food Service Worker
- Clerk Supply
- General Maintenance Worker
- Skilled Trades Worker
- Driver
- Bus Driver
- Security Guard
will be forty (40) hours per week or eight (8) hours per day for the
employees concerned as scheduled by the College on five (5)
consecutive days, ...
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It is undisputed that pursuant to article 6.1 in the pre-1997 collective
agreement, as set out above, the job classifications which were assigned 40 paid
hours a week were dominated by male incumbents and those job classifications
assigned less than 40 paid hours a week, typically 35 hours, were dominated by
female incumbents.
B. THE 1997 REVISION TO THE COLLECTIVE AGREEMENT:
The revised language of article 6, which took effect as of September of
1997, stipulated that the normal work week would be defined as either "(35)
hours per week or ... (7) hours per day, ... (36 ¼ ) hours per week or ... (7 ¼)
hours per day, ... (37 ½) hours per week or ... (7 ½) hours per day, ... (40)
hours per week or... (8) hours per day, ... as designated by the College ...". No
longer were specific hours of work assigned to specific jobs classifications. At
the initiative of the Union, a "grandfather" clause was inserted to protect the
status quo. Accordingly, the 1997 revisions in the collective agreement
stipulated in article 6.1.2 that employees hired prior to 1997 who had had a
normal work week of less than 40 hours per week would not be scheduled to a
normal work week of 40 hours per week unless agreed to by the employee.
Additionally, an employee hired prior to September 1, 1997 who had had a
normal work week of 40 hours per week would not have that work week reduced
below 40 hours as long as he or she remained in one of the listed job categories
that had previously been designated as 40 hours per week.
This grievance has arisen because the Union asserts that since the time
of the change in the collective agreement in 1997, the discriminatory situation
has not improved. In fact, the Union maintains that the alleged discrimination
has actually become further entrenched under the terms of the current collective
agreement whereby the hours of work are determined at management's
discretion.
C. EXHIBIT # 4- 2001 SNAPSHOT OF GENDER
DISTRIBUTION AMONG 35-HOUR JOBS, 37.5-HOUR
JOBS AND 40-HOUR JOBS:
The primary document submitted by the Union to support its grievance is a
listing of the gender of the incumbents in all job categories as of the time of the
grievance in March of 2001 (Exhibit # 4). Exhibit # 4 establishes the following:
that of the 88 employees in 40-hour a week jobs in March of 2001, 75% were
men; that of the 23 employees in job categories with 37.5 hours a week, 74%
were men; that of the 213 employees in job categories with 35 hours per week,
83.5 % were women. Consistent with these figures, the Union noted that most
people fall into either 40-hour per week jobs or 35-hour jobs and that the group in
the middle in 37.5-hour jobs is relatively small. The Union maintains that this
listing is the most complete and accurate snapshot of the gender distribution of
the workforce at the time of the grievance. The Union claims that this picture
reflects clear, ongoing systemic discrimination in breach of the collective
agreement.
The College strongly denies the allegation of ongoing discrimination in the
assignment of hours of work. Respecting Exhibit # 4, the College states that the
1997 hours of work retention clauses in article 6.1.2 of the collective agreement,
otherwise known as the grandfather clauses, created a tendency to preserve the
status quo between 1997 and 2001, the year reflected in Exhibit # 4. On this
basis, the College contends that Exhibit # 4 is an unreliable document for
assessing gender discrimination because it does not clearly reflect the steps that
have been taken by the College to remove discrimination. Exhibit # 4 is
discussed in more detail in Section F(3) of this Award.
D. FEMALE INCUMBENTS IN 35-HOUR POSITIONS
WORKING THROUGH THEIR ONE-HOUR UNPAID LUNCHES:
The Union asserts that systemic discrimination is further revealed by
numerous situations in which the female incumbents in 35-hour a week positions
regularly work through their unpaid lunches. The Union contends that these 35-
hour jobs are actually 40-hour jobs because they carry a workload that would
justify 40 paid hours a week. The Union maintains that these women are
performing work in the same manner as male incumbents in 40-hour jobs, and
yet the women, according to the Union, continue to be held at 35-hour jobs with
unpaid lunches. The Union asserts that the fact that the College maintains these
35-hour positions, which are predominantly filled by women, when they have a
workload that would justify 40 hours a week, is a reflection of systemic
discrimination. The Union presented evidence from incumbents in 35-hour
positions in the Daycare Program, the Co-op Program, the Peer Program,
Special Events, Financial Aid and Admissions, among others.
The evidence of multiple witnesses, in multiple 35-hour a week positions,
in multiple areas of the College, establishes, without contradiction, that the
employees who have been working through their lunches, be it on a regular or
seasonal basis, have never been asked to do so by their supervisors.
Additionally, it is acknowledged by the Union that the College has never
instructed these employees who have worked through their lunch breaks either to
stay at their College worksites or to be available to the College during their lunch
breaks. The evidence establishes that the 35-hour employees who work through
lunch are doing so because they feel a need either to complete their work or to
service the students, but not in order to tend to duties assigned by the College
during lunch.
1. The Davcare Program:.
Ms. Marilou Martin Benoit and Ms. Laura DeVries, two staff who work, or
have worked, in the Daycare Program, testified that they regularly work through
their lunches because they find it impossible to complete their Daycare paper-
work within their paid hours. Ms. Benoit disputed the assertion of Ms. Moira Bell,
the Childcare Supervisor, that she would schedule time off for staffto do paper-
work during working hours. Ms. DeVries and Ms. Benoit testified that in addition
to being required to work through lunch to complete their paper-work, they
sometimes need to take their paper-work home. As noted, both Ms. DeVries and
Ms. Martin Benoit acknowledged that they were never told that they had to work
through lunch, that they had to be available during lunch or that they could not
leave the Daycare premises during lunch.
The College students who work in the Daycare Program share the
lunchroom with the Daycare staff. The evidence reveals that students, with some
regularity, approach the Daycare staff during lunch for feedback on their student
plans and performances. Ms. DeVries acknowledged that Ms. Bell continues to
advise students during their orientation sessions that they are not to talk to staff
while they are on lunch. Ms. DeVries acknowledged that there are a number of
places close to the Daycare where she could take her lunch away from the
students. She stated, however, that she would never tell a student not to talk to
her in the lunchroom.
Ms. Bell testified that in order to give staff time to complete their paper-
work during their working hours, she combines groups of children during
playground-time and sleep-time in order to release some staff members so that
they can tend to their paper-work. Ms. Bell stated that she does not expect staff
to work through lunch, to take paper-work home or to complete it on unpaid time.
According to Ms. Bell, 35 scheduled work hours a week reflects the operational
needs of the Program. Ms. Bell stated that if staff have to wait for a parent to pick
up a child after working hours or if they have to attend a function or perform a
specific assigned task outside their 35 hours, they are provided with lieu time
compensation.
2. The Co-op Program:
Ms. Martin Benoit currently works as a Co-op Officer. She testified that
she usually works through lunch and eats at her desk doing email, voicemail and
research on the internet for prospective employers for the Co-op Program. As
well, she responds to students who come into her area during the lunch period.
Ms. Benoit stated that she works through lunch out of a sense of commitment to
her work. She acknowledged, though, that she has never been told either not to
take lunch or not to leave the premises.
Ms. Doreen Pashkoff has been a Co-op Officer since approximately April
of 2002. She stated that she works through her lunch the majority of the time
because she finds it difficult to stop for a one-hour break amid her multiple
meetings with employers and students. She noted that as a Co-op Officer, she
spends a good deal of time outside the College looking at prospective
employment sites for students, meeting with employers, meeting with students,
working on the internet and talking on the telephone. On cross-examination, Ms.
Pashkoff acknowledged that nothing would prevent her from stopping her work at
a given time to take a one-hour lunch break.
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It is undisputed that Ms. Martin Benoit and some other Co-op Officers had
a meeting with Ms. Julia Kennedy, the Manager of the Co-op Office at the
relevant time, in or about October to 2002. The Officers complained that they
were over-worked, under-staffed and were working through their lunches on a
regular basis. Ms. Martin Benoit disputed the accuracy of Ms. Kennedy's
evidence that she advised the Officers at the meeting that she did not want them
to work through lunch, that it was imperative that they get a break and, therefore,
that they should talk to her if they felt the need to work beyond their 35 hours. At
the same time, Ms. Martin Benoit acknowledged that Ms. Kennedy was
sympathetic to the concerns of the Co-op Officers and that she had indicated that
she would be talking with the new Dean about the situation in order to find a
remedy.
Ms. Kennedy testified that in response to Ms. Benoit's request at the
meeting that the Co-op position be made a 40-hour job, she advised that she
would look at the operational requirements to determine whether the Program
needed those additional hours. She commented in evidence that at the point of
the meeting, the Co-op Program had just gone through its first cycle, that they
were in the midst of doing a needs analysis, and that it would have been
premature at the point of the meeting to determine whether the operational needs
of the Program justified an increase to 40 paid hours.
Ms. Kennedy testified, more generally, that if a staff member needs to
work extra hours to meet with an employer participant in the Co-op
Program on short notice, for example, then the College would pay overtime. Ms
Kennedy noted that in the month prior to her testimony, she had received and
paid two claims for overtime.
3. Special Events, the Peer Pro.qram and Financial Aid:
Ms. Cynthia McDonagh is currently in the position of Coordinator of
Special Events which is a position paid at 35 hours a week. She stated that she
works through lunch on occasion to complete work but does not do so frequently.
She stated, however, that in her prior position in the Student Affairs Department
administering the Peer Program for tutoring, a position paid at 35 hours per
week, she worked through her lunch on most days so that she would be available
to answer student questions during their lunch breaks. She commented that her
Peer Program manager never told her to work through lunch.
Ms. Gennett Cox is currently an Assistant Manager in Financial
Assistance but previously was a Financial Aid Officer. She stated that as a
Financial Aid Officer, which is a 35-hour position, she and the other officers
would get together to ensure continuous coverage during lunch by staggering
their respective breaks. She stated that they were always asked to take their
lunch breaks on the understanding that otherwise they would burn out because
of the high volume of work. Ms. Cox testified that when she felt the need to work
unpaid hours, she would go to her manager and tell her. She stated that
normally her manager would encourage her not to work through lunch. If working
through lunch was authorized, however, she would be given lieu time to do so.
Ms. Cox disagreed with the evidence of Ms. McDonagh that the Financial Aid
Officers always work through their lunches.
4. The Admissions Department:
Ms. Sophie Wong is a Junior Assessor in the Admissions Department and
a grievor. She stated that she works through lunch when there is a high volume
of work because she tries to service students as quickly as possible. She noted
that she works through lunch for about one-third to one-half an hour once every
two weeks. She commented that students might ask her a question just as she
would be about to leave for lunch. Overall, however, she stated that she
generally takes her one-hour lunch and that she has never been directed to work
through lunch. She has received overtime when she has been required to work
extra hours during the high peak periods. It would appear that in January of
2002, she worked approximately 24 hours beyond her scheduled hours and was
paid overtime. In August/September of 2002, she was paid approximately 19-20
hours of overtime; and in July, she was paid approximately 8.5 hours of overtime.
She also acknowledged that when in August of 2002 she was asked to work
through lunch, she received time off in lieu.
5. Human Resources and the Colle.qe Perspective:
]3
Ms. Nancy Hood is the Director of Human Resources at George Brown
College. She stated that the various hours of work that are set for the various
jobs are reflective of operational needs. She stated that in her own Department
there are 10 support staff who stagger their lunch breaks so that there is
continuous lunchtime coverage. She further stated that she wants her staff to
take their lunch breaks because it improves their concentration and gives them
time to do personal things. She noted that staff are free to leave the premises
during their one-hour unpaid lunches. She stated that she does not need her
staff to work 40 hours and cautioned that if the positions were increased to 40
hours, it would probably mean that they would need to cut out one position
because of the financial pressures. She stated that in her Department, when
they require extra hours of work in peak periods, they give their staff overtime or
lieu time.
Ms. Hood testified that College-wide, if employees find they are having
difficultly taking their lunch breaks, she expects them to discuss the situation with
their managers. She commented that sometimes the workload problem may be
rectified by re-setting priorities or by re-allocating the work, where one staff
member may be taken off less pressing tasks to help another who, at that point,
may be overwhelmed with work. Ms. Hood noted that overtime cannot be
undertaken unilaterally by employees and, instead, must be authorized in
advance by a manager.
6. Contrast with the 40-hour Positions with Paid Lunches:
By way of contrast with the situations set out above, where the 35-hour
employees who work through lunch do so on their own initiative, Mr. Bashar
Amer, the Director of Facilities Management, testified to the situation surrounding
the lunch breaks for the employees under his jurisdiction, who are paid at 40
hours a week inclusive of a one-half hour paid lunch, such as the Maintenance
Group, the Renovation Technologists and the Housekeepers. He noted that in
each of these positions, the employees are required to carry pagers during their
lunch breaks in order to be available within a five minute response time to handle
unexpected circumstances or emergencies. Housekeepers, for example, may be
called back during lunch to be able to take care of emergency situations, such as
spills or leaks that might arise while they are on lunch. Similarly, the Maintenance
Group need to be on call during lunch for emergencies that may a rise or to
attend to other duties, such as taking care of deliveries that arrive during their
lunch. Overall, Mr. Amer stated that all of the 40-hour positions under his
jurisdiction have been established in response to the operational needs of the
College.
7. Position of the Parties:
The Union asserts that the difference in pay between the 35 versus 40
hour a week jobs is not connected to a functional difference between the two
types of jobs, i.e. that it is not based on operational needs. Accordingly, the
Union maintains that those employees who are in 35-hour a week positions and
who work through lunch should be given the opportunity to be paid for those
lunch hours by increasing the paid hours for their positions to 40.
Moreover, counsel for the College notes that the Employment Standards
Act requires that employers pay employees for the time they are required to be
on standby during lunch. Accordingly, counsel maintains that the College has no
choice but to pay for lunch periods when the employees are required to carry
pagers to be available to return from lunch on 5 minutes' notice.
Counsel for the College maintains that the Union, in essence, is asking the
Board of Arbitration to rewrite the hours of work provisions in the collective
agreement a nd, effectively, to remove management's right to decide what hours
of work are necessary to get its work performed. Counsel maintains that, in
effect, the Union is asking the Board to make an Order that would set all
positions at 40 paid hours a week at the option of individual employees. Counsel
maintains that the College is entitled to determine what work will be performed
and the number of hours it is willing to pay for that work.
Counsel for the College contends that if an employee finds that he or she
has too much work to perform during his or her paid hours, the appropriate
course is to advise his or her manager and let the manager deal with the fallout.
For example, counsel asserts, if the College requires work to be performed that
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cannot be accomplished within an employee's 35 hours, the College would be
obligated to pay overtime or to provide lieu time for the work.
Additionally, according to counsel, it would be within the jurisdiction of the
College to decide to relieve an employee of work that cannot be accomplished
within the employee's regular hours and to either re-assign it or eliminate it.
Counsel for the College maintains that employees are acting outside the
scope of their positions by unilaterally performing work during unpaid hours. In
this regard counsel relies on the decisions in Re: Government of Northwest
Territories and Union of Northern Workers (1996), 52 L.A.C. (4th) 353 (M. I.
Chertkov); Re: Cooper Tool Group Limited and United Steelworkers, Local
6497 (1975), 10 L.A.~. (2d) 407 (J. D. O'Shea); and Re: Toronto Hospital and
Ontario Public Service Emplovees' Union, Local 0517 decision of Arbitrator
O.B. Shime dated February 23, 1996. At page 6 of the decision, Arbitrator Shime
states the following:
VVhile I am satisfied that Mr. Healey was a very conscientious
employee, who maintained a very high standard of performance, I
am unable to conclude that he was continually authorized to work
during his lunch break on the midnight shift due to the requirements
of patient care within the meaning of article 18.05(a) of the
collective agreement. The authorization to work must emanate
from the employer and must either be explicit or must be implicit in
the workload. Mr. Healy did not testify that he was ever given any
explicit authorization and his claim is based on his view only, that
his presence was required. However, the authorization under
article 18.05(a), cannot be a unilateral determination by the
employee based on his/her own standards or his/her view of what
is required. Nor am I satisfied that the grievor could be
professionally disciplined for taking a meal break under the
]7
collective agreement unless he as made aware explicitly or from
the circumstances, that he was required.
Counsel for the College describes the Union's case in the following
terms: some females, sometimes, in some departments working through
their lunch breaks because of the need to catch-up or keep-up with their
work, in circumstances where they have not either asked or been asked to
do so and where the grievors have made no claim by way of grievance for
overtime or lieu time.
7. DECISION AS TO WHETHER THE SITUATION OF 3S-
HOUR EMPLOYEES WORKING THROUGH THEIR
UNPAID LUNCHES REFLECTS SYSTEMIC
DISCRIMINATION:
No evidence was presented by the Union to contradict or challenge the
College's evidence that all of the employees who are scheduled to 40-hour
weeks are required to be available to work for their full 8 hours. Evidence that the
40-hour employees are required to carry pagers if they leave the work site so
they can return to duty within a 5 minute response time was uncontradicted.
Moreover, as further discussed below, the Technologists in Hospitality, for
example, are required to remain on site for the full eight hours; they take lunch on
site when time permits. Nor did the Union present evidence to dispute the
College's explanation of its rationale for scheduling the various 40-hour positions
based on its operational needs.
Having assessed the circumstances of the employees in 35-hour a week
positions, as well as the evidence relating to employees in 40-hour positions, the
Board is satisfied that there is a significant difference between the two categories
of employees. The Board is persuaded that the requirement for the 40-hour
employees to either remain at their work site for the full 8 hours, such as those in
Hospitality, or to carry pagers during lunch in order to be available within a 5
minute response time is based on the operational need of the College, for
example, to have the incumbent respond to emergencies or other circumstances
arising during lunch.
In contrast, in none of the 35-hour positions are the incumbents either
required to remain on site for the full 8 hours or required to carry pagers during
lunch in order to be available within a 5 minute response time. The 35-hour
employees who testified that they regularly worked through lunch presented no
evidence to establish that the College required that they remain on site to attend
to duties or required that they remain available to be called back to attend to
emergencies or other assigned work-related circumstances that might arise while
they are on lunch. All of the 35-hour employees who testified that they work
through lunch acknowledged that they are free to leave the College premises and
are free to pursue personal matters during their one-hour lunch break.
The evidence respecting the 35-hour employees who may regularly work
through lunch does not support a claim that the College is trying to get 40 hours
of work from female incumbents while paying them for only 35 hours. The
Union's claim of systemic discrimination is based on a situation where employees
are voluntarily working through their unpaid lunches when they have not been
asked to do so. It is within management's right to determine what work will be
performed. It is up to management to set its work priorities. If employees are
finding that they are unable to complete their job duties during the allotted paid
hours, it is up to them to approach management. Management may then
authorize overtime, provide lieu time, re-allocate priorities, re-distribute job duties
or eliminate the tasks that cannot be accomplished during regular hours.
Accordingly, in the circumstances set out and for the reasons given, the Board
concludes that the evidence of employees in 35-hour jobs who unilaterally and
voluntarily work through their unpaid lunch breaks does not support a claim of
system ic discrimination.
E. SITUATION OF THE COLLEGE INCREASING 35-
HOUR JOBS TO 40-HOUR JOBS IN THE
BOOKSTORE, DINING ROOM AND INFORMATION
TECHNOLOGY:
To further support its contention that the College has entrenched rather
than alleviated the alleged systemic discrimination since 1997, the Union
highlights a number of positions in respect of which the College has increased
the hours of work from 35 paid hours per week to either 40 or 37.5 paid hours.
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'1. The Bookstore:
The Union points to circumstances surrounding an increase in the hours
of the Clerk position in the Bookstore in approximately '1999. Two 35-hour
positions in the Bookstore were vacated by two female Clerk General C's. They
were posted as 35-hour positions and were filled by two males who, theretofore,
had been Caretakers in 40-hour per week jobs. It is undisputed that after the two
male applicants had settled into their new 35-hour positions, the hours were
increased to 40. The Union submits that the reason the College increased the
paid hours to 40 per week for these Bookstore Clerks was simply and only
because the two incumbents were male.
There is a conflict in the evidence as to whether the Union approached the
College about making the change in the hours of these Bookstore positions or
whether the request came directly from the incumbents. Two Union officials
testified that the Union did not approach the College for this change; they did not
know, however, what had triggered the increase in hours.
Additional and uncontradicted evidence received by the Board sheds
some light on the rationale for the change of hours in the Bookstore position. It is
undisputed that over the preceding period, the Union had been complaining to
the College that too many part-time employees were working in the Bookstore.
Ms. Regina Lapworth, the Manager of Employment Services within the Human
Resources Department who has responsibility for support staff classifications,
2]
testified that she asked the supervisor of the Bookstore to assess the situation
when she received the request to increase the paid hours of the two Clerk
positions in the Bookstore from 35 to 40 hours. According to Ms. Lapworth, the
College determined that because it regularly employed part-time employees to
supplement its workforce in the Bookstore and because the Union had been
complaining about the use of part-time employees, the College determined that it
could both satisfy the request it had received for the two Bookstore positions to
become 40-hour positions and simultaneously meet the Union's longer-standing
request that the College reduce the number of part-time employees in the
Bookstore. Ms. Lapworth denied that the College increased the paid hours of the
Bookstore positions because the incumbents were male. Rather, according to
Ms. Lapworth, the change was made because the number of paid hours in the
Bookstore supported additional hours for the full-time positions as long as the
College further met the Union's longstanding request to reduce its use of part-
timers in the Bookstore.
2. Decision Respectin.q the Bookstore:
Having carefully assessed the evidence, the Board is unable to conclude
that the situation in the Bookstore reveals discrimination. It is undisputed that the
Union had been complaining for a time that the College should decrease its use
of part-time employees in the Bookstore. It is further apparent that someone
asked the College to increase the hours from 35 to 40 for the Bookstore Clerk. If
it was not the Union, then it would appear to have been the new male
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incumbents. The identity of who made the request to increase the position hours
to 40 is not critical. The evidence of importance is that the College considered
both the request to increase the hours assigned to the position and the Union's
standing complaint respecting the College's use of part-time employees. The
Board accepts Ms. Lapworth's testimony that the College assessed its
operational needs and decided it could meet both concerns by eliminating the
use of part-timers and increasing the hours of the full-time position to 40. There is
no evidence to support a finding of a discriminatory motive on the part of the
College. The evidence does not suggest that it increased the hours to 40 simply
because the new incumbents were male.
3. The Dining Room:
Another situation of alleged systemic discrimination involves an increase
in the paid hours of two Technologist positions in the Dining Room in the
Business and Tourism Department. It is undisputed that in approximately
January of 1999, the College increased the paid hours of two Junior Level
Technologist positions in the Dinirg Room from 35 to 40 hours per week. Two
males had been hired into the new positions that had been posted at 35 hours.
The Union asserts that the reason the hours of work were then increased to 40
was because the two incumbents were male. The Union acknowledged,
however, that it was not aware of the operational requirements that may have
been behind the increase in the paid hours.
The College introduced evidence to provide an explanation for the
increase in paid hours. On or about November 27, 1998, Mr. Steven Burr, the
Chair of Hospitality, sent a memo to Human Resources requesting that the two
Technologists who had been hired, Mr. John Charnyk and Mr. Ken Langille, have
their paid hours increased from 35 hours to 40 hours per week. The memo
asserts that, "This is necessary since they are in the dining room area for the full
eight hours and are required to be available to the students."
Mr. Robert Scott, the Director of the Business and Catering facility since
2000, denied that the increase in paid ho urs in 1998 would have been because
the incumbents were males. He testified that the 40 hours for the positions are
justified by operational requirements. He stated that the incumbents under him in
these positions are unable to take scheduled lunch breaks because he needs to
keep them continually available and on site for their full 8 hours in order to
consult with the students, to address guest concerns and to deal generally with
the continual needs of the Dining Room. Mr. Scott noted that in late 2002, he
hired two females into these 40-hour positions. He asserted that gender has
nothing to do with the number of paid hours and that it is the demands of the
position that dictate that the incumbents, whoever they are, must be available to
the College for 40 hours a week. The veracity of Mr. Scott's evidence was not
challenged by the Union.
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4. Decision Respecting the Dining Room:
Having carefully reviewed the situation in the Dining Room, the Board
readily concludes that the change in the hours of the Technologists from 35 to 40
was based entirely on operational needs and was not the result of systemic
discrimination on the part of the College. The change was not based on the
gender of the incumbents.
5. Decision Respectin.q Increase in hours in Information and
Technolo.qv Services
A further situation raised by the Union as a reflection of systemic
discrimination is that following the changes to the collective agreement in 1997,
positions in Information and Technology Services were increased from 35 hours
a week to 37.5 hours a week and were filled predominantly by men. The Board
cannot agree that the evidence demonstrates discrimination. It appears that both
before and after the change from 35 to 37.5 hours a week, the IT positions were
and have been predominately filled by men. According to uncontradicted
evidence by Ms. Nancy Hood, the Executive Director of Human Resources at
George Brown since March of 2001, the increase in hours was made because of
an increase in workload volume and because of a need to increase the hours to
retain employees in these skilled positions. The evidence satisfies the Board that
the increase from 35 to 37.5 hours was due to operational requirements and had
nothing to do with the gender of the incumbents.
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The Union complained that the College cited no example of a 35 hour
position being increased to 37.5 hours for a female dominated classification. The
relevant question is not whether an equal number of male and female dominated
35-hour positions have been increased to 37.5 but rather whether there are bona
fide business related reasons to support the increase in hours. In the case of the
IT situation, the evidence clearly reveals that the trigger was operational needs,
not the gender of the incumbents. Accordingly, the situation in IT does not
support the Union's claim in the grievance.
F. THE STATISTICAL DOCUMENTATION RESPECTING
GENDER: EXHIBIT # 5, EXHIBIT # 7 AND EXHIBIT # 4:
Three statistical documents were submitted in evidence to provide
assistance to the Board in determining this grievance.
1. Exhibit # 5:
Exhibit # 5 shows that 56% of the people who were newly hired into 40-
hour a week positions following 1997 were women. This document further shows
that 4 out of the 5 persons newly hired into 37.5-hour jobs after 1997 were men
and that approximately 80% of the people newly hired into 35-hour jobs were
women. The parties agree that while this document shows persons newly hired
into these classes of jobs after 1997, it does not show the older seniority
employees who since 1997 have transferred into these jobs from within the
College.
26
2. Exhibit # 7:
Exhibit # 7 was created by a Union official, Ms. Cynthia McDonagh, for the
period covering 2000/2001/2002. Ms. McDonagh is the current coordinator of
Special Events, the second Vice-President of the Union, and a signatory to the
group grievance. This document shows that for the nine new 40-hour positions
introduced by the College, seven, or 77% of those positions, have been filled by
women. On cross examination, Ms. McDonagh acknowledged that this document
does not support a contention that women are not moving into 40-hour a week
positions. This document further shows that of the new 35-hour positions,
approximately 80% or more have been filled by women.
Exhibit # 7 reveals as well that for the ten 40-hour "replacement" positions,
i.e. positions that already existed but in respect of which vacancies were posted
because incumbents had moved out, five or 50 % were filled by women. Of the
approximate 56 "replacement" postings in 35-hour a week jobs in this period of
2000/01/02, 78% were filled by women.
Ms. McDonagh commented that two of the 40-hour positions in Exhibit # 7
(SSOA 02-062 and SSOA 02-024) previously had been 35-hour jobs but were
then revised in 2002 to 40 hours per week and were brought back at a higher pay
band. Exhibit # 7 shows that each one is now occupied by a female.
27
3. The Difficulties with Exhibit # 4:
The changes to the collective agreement were in 1997. The listing in
Exhibit# 4 of the gender of the incumbents in all job categories as of the time of
the grievance in March of 2001 shows the following: That 75% of the 88
employees in 40-hour a week jobs were occupied by men, that 74% of the 23
employees in the 37.5 hour jobs were men and that 83.5% of the 213 employees
in 35-hour a week jobs were women.
VVhat the Exhibit # 4 2001 listing which formed the basis of the grievance
does not show, however, is the impact of the grandfather provisions in the 1997
revisions which, in essence, preserved the status quo for pre-1997 employees, if
they so desired. The grandfather provisions in article 6.1.2 stipulated that
employees who had a normal work-week of less than 40-hours would not be
increased to a normal work week of 40 hours per week unless such was agreed
to by the employee. Similarly, an employee hired prior to 1997 who had a normal
work-week of 40 hours per week was guaranteed that he or she would not have
that work-week reduced as long as the employee remained in a group of listed
job categories that had previously been designated as 40 hours per week.
4. Conclusions Respectin.q the Statistical Documents:
Accordingly, because of the grandfather provisions, the 2001 figures in
Exhibit #4, standing on their own, do not establish the veracity of the position of
the Union that, notwithstanding the revisions to the collective agreement in 1997,
28
four years later, in 2001, the College's actions had done little to improve the pre-
1997 gender discrimination.
Neither the documentary nor verbal evidence establishes to what extent
the percentages in Exhibit # 4 may have been impacted by people exercising
their grandfather rights to preserve their own personal status quo in their 40-hour
or 35-hour positions. There may, for example, have been women who declined
an offer to transform their job into a 40-hour a week job or declined to post for a
vacancy in a 40-hour a week job because, for personal reasons, they preferred
working 35 hours a week. Similarly, there may have been men in 40-hour a week
jobs who exercised their grandfather rights to remain in their 40-hour job, thus
making it more difficult to adjust the hours of the position to 35 or to free up a 40-
hour job for a female.
Accordingly, given the unknown impact of the grandfather provisions
which, at the option of pre-1997 employees, preserves the 1997 status quo,
which both parties agree was discriminatory, the 2001 listing cannot be relied
upon to support the conclusion that as of 2001 the College had taken insufficient
steps to make changes to rectify the pre-1997 systemic discrimination.
Exhibit # 5 is a document that is unaffected by the grandfather provisions
because it shows figures relating to persons newly hired after 1997. Of the 16
people newly hired into 40-hour a week jobs after 1997, 56% were women.
Moreover, the document prepared by the Union, Exhibit # 7, which covers
2000/01/02 is also unaffected by the grandfather provisions. It shows that for the
nine 40-hour positions that were new to the College during that period, seven or
77% were filled by women.
The Board accepts the assertion of counsel for the College that Exhibit #
7, covering the situation in 2000/01/02, further shows that for pre-existing 40-
hour positions where existing College employees have moved into the 40-hour
positions, five out of ten, or 50 % have been filled by women. We note that the
evidence of Mr. Scott reveals that the two Technologist B's hired to replace the
two 40-hour male incumbents (one of whom was Mr. Ken Langille) in Hospitality
were females.
The fact that a substantial majority of incumbents and newly hired
employees in 35-hour a week jobs continues to be female does not establish the
continuation of systemic discrimination. The Union's complaint was not so much
about too many women occupying 35-hour a week jobs as it was about men
monopolizing the higher paid 40-hour a week jobs. Respecting the 40-hour a
week jobs, the purest figures, in the Board's view, are those relating to new hires
for the 40-hour a week jobs since 1997, as well as those hired into newly created
40-hour a week jobs. Of the people newly hired into 40-hour a week jobs since
1997, 56% were female. Of the new to the College 40-hour a week jobs, 77%
3O
were filled by women. These figures do not reflect a continuation of systemic
discrimination. Instead, they show its reversal.
G. SUMMARY:
While the 2001 document, Exhibit # 4 (which gives a snapshot of the
situation as of the point of the filing of the grievance) shows 75% of the 40-hour
jobs were filled by men and 83.5 % of the 35-hour jobs were filled by females, the
figures do not reveal to what extent they were impacted by individual employees
exercising their grandfather rights between 1997 and 2001. Accordingly, the
Board concludes that this document is significantly limited in the extent to which it
may be said to reflect a lack of desire or action on the part of the College, as of
2001, to rectify what both parties had agreed was a discriminatory situation as of
1997.
Moreover, the Union's additional evidence respecting women working
through lunch in multiple 35-hour a week jobs, such as Daycare, Co-op, Financial
Aid and Admissions, among others, fell short of establishing gender
discrimination. The uncontradicted evidence established that management had
never asked the women to work through their lunches without compensation.
VVhen it did ask employees to work through lunch or to work extra hours, it
compensated them with overtime or lieu time.
Additionally, in one of the newer programs, the Co-op Program, where
employees and management met over the employees' complaint that they were
consistently unable to complete their work in 35 hours, the uncontradicted
evidence reveals to the Board's satisfaction that management was actively doing
a review of the new Co-op Program and was open-minded to increasing the
hours to 40 per week if its analysis of the Program's operational needs was
supportive of such.
As well, in those situations where the Union alleged that 35-hour jobs
were changed to 40-hour jobs simply because the new incumbents were male,
such as in the Bookstore, Hospitality and IT, the evidence of the College
established without contradiction that there were credible business reasons,
devoid of gender considerations, for the increases in hours. Moreover, in
Hospitality, in 2002, two females were hired to replace the male incumbents who
were the original employees whose hours had been increased from 35 to 40.
Finally, as particularly probative of the College's intentions respecting the
elimination of the pre-1997 systemic discrimination, the evidence shows that of
the newly hired persons into 40-hour positions since 1997, 56% were women and
of the newly created 40-hour positions over 2000/01/02, 77% were filled by
women. This evidence goes a long way to re-aligning the snapshot that was
taken by Exhibit #4 in 2001, at which point 75% of the incumbents in the 40-hour
a week jobs were male.
32
In all the circumstances, the Board is satisfied that the College has taken clear
steps since 1997 to adjust the gender imbalance, particularly in respect of the critical 40-
hour positions, so that it can no longer accurately be said that the assignment of hours
to positions reflects systemic discrimination.
For all of the considerations set out above, the Board concludes that the College
has not violated either article 2.3 (the No Discrimination clause of the collective
agreement) or article 3.1 (the management's rights clause) or The Human Rights Code
of Ontario. The Board finds that the College has not engaged in systemic discrimination
on the basis of sex in the manner in which it has distributed hours of work among the
various classifications at the College. The Board is satisfied that since the changes to
the collective agreement in 1997, the College has taken overt and consistent steps to
eliminate the systemic discrimination that had been reflected in the pre-1997 collective
agreements.
Accordingly, for the reasons set out, the group grievance is, hereby, dismissed.
Dated at Toronto this 22nd of December, 2004.
Pamela Cooper Picher
Chair
fsc
I dissent for reasons
set out below "Pamela Munt-Madill"
Union Nominee
I concur
"Robert J. Gallivan"
College Nominee
DISSENT OF UNION NOMINEE
With all due respect, I must disagree with the Majority's decision. I believe that
the evidence brought before the Board clearly established a prima facie case of gender
discrimination which required a response from the college. In coming to this conclusion,
I take issue with several aspects of the Majority's decision, the first and most important
of which is the Majority's lack of enunciation of the legal standard against which they are
measuring the union's case and the Employer's actions.
In the oral argument and in subsequent written submissions, both the Union's and
the College's Counsel made representations to the Board regarding the appropriate
legal standard to be applied in this case. While it is not necessary for the Majority to
include a lengthy examination of the case law, it is necessary to enunciate the standard
against which the evidence is being measured. The Majority has not done so.
After a thorough consideration of the submissions of the parties, it should have
been concluded that once the Union had established a prima facie case of gender
discrimination, the onus shifted to the College to show a legitimate business reason for
the large differentiation in gender representation between the higher paid classifications
and the lower paid classifications. The Union's evidence in this case more than met the
prima facie burden.
In finding that the statistical evidence (primarily contained in Exhibit 4) did not
show a violation of the Collective Agreement, the Majority states that the Union
acknowledges that it played a role in a development of the problem of the 40-hour per
week and 37.5-hour per week jobs being predominantly occupied by males. This is not
an accurate statement of the Union's position or of the provisions of the pre-1997
Collective Agreement. Nowhere in the pre-1997 Collective Agreement was there any
enshrinement of the gender of the individuals who occupied the 40-hour per week and
37.5-hour per week job classifications. What was contained in the Collective Agreement
was a requirement that the job classifications stay at their current hours per week.
However, even if one accepts the Majority's view of the Union's position and this
interpretation of the Agreement prior to 1997, the statistics supplied by the parties
showing the continued gender domination of the higher paid groups by males post 1997
more than substantiates a prima facie case. As the grievance was filed in March 2001,
there is then an approximate two-year period between the changes to the Collective
Agreement and the time the numbers in Exhibit 4 are generated. The Majority has
several reasons why these statistics fail to establish a prima facie case of discrimination.
Firstly, the Majority is troubled by the fact the Exhibit 4 does not show the impact of the
'grandfathering clause' in the 1997 Collective Agreement revisions which preserved an
individual's hours of work if they so desired. In coming to the conclusion that this is a
problem, it should be noted that the grievance in front of the Board has 120 grievors in
35-hour classifications asking to have their classifications moved upwards. This
34
represents, I believe, approximately one half of the employees h the 35-hour wage
groups. In light of this, it is difficult to imagine that the lack of movement from 35-hour
classifications to 40-hour classifications has been the result of the grandfathering
provision. Furthermore, at no point in time did the College bring forth any evidence that
individuals had been offered a change In classification from a 35-hour to a 40-hour work
week, and had said no. There is therefore no basis to assume the 'grandfathering'
provisions have been an impediment to the breaking (:bwn of the wage differential
between males and females in this bargaining unit.
The second aspect of the statistical evidence which the Majority finds lacking
involves the statistics contained in Exhibits 5 and 7. Exhibit 5 shows the gender of
newly-hired employees since 1997. Exhibit 7 shows the movement of existing
employees into newly-posted positions over the same time period. Exhibit 5 is a
document unaffected by the 'grandfathering' clause. Although the majority notes that of
the sixteen people newly hired into 40-hour a week jobs after 1997 56% were women,
the Majority does not note in its conclusions on page 29 that Exhibit 5 also shows that
out of the new 37.5 hours jobs, 80% were filled by male applicants. Therefore, of the 21
newly-created job positions in the higher paid classifications since 1997, only 10 of the
21 went to female employees and, therefore, the replacement rate was only 47.6%
female. In a bargaining unit where approximately 66% of the employees are female,
one would expect at least 66% of the new employees in the higher paid classifications to
be female. This would be the case without any efforts at all to address the systemic
gender imbalance in the higher wage rates. A statistic of 47.6% female is far below
even a minimLm to conclude that the gender gap is being closed.
Similarly, the Board's evaluation of Exhibit 7 again does not include consideration
of the 38 hour a week replacement positions which were filled 100% by male
incumbents. Therefore, Exhibit 7 which deals with replacement positions shows that of
the 12 positions which are in the higher wage classifications into which current
employees move, 5 out of 12 were female. This is again less than 50% in a bargaining
unit where 66% of the employees are female.
VVhen the statistics are comprehensively looked at, they paint an extremely
different picture than that suggested by the Majority's decision. VVhen one looks at both
the newly-created and replacement positions which exist in the higher wage
classifications, it is clear that these jobs continue to be filled more than 50% of the time
by male applicants in a bargaining unit of whom 66% are female. Such a result would, I
believe, under any test of a prima facie case, clearly reverse the onus.
Two other areas of evidence were presented by the Union in order to substantiate
their claim of a persistence of unequal wage rates according to gender. The first of
these areas of evidence involved the working of female employees during their lunch
hour and has been fully canvassed by the Majority in their decision. I agree with the
Majority that the evidence called on this issue was riddled with conflicting testimony and
cannot be said to have painted a consistent picture of anything.
The other area of evidence which the Union presented was the situation with
regard to four job positions, two in the Bookstore and two in the Dining Room. The
Majority suggests that the Union's position is undermined because there were bona fide
operational reasons for the increase of tqe Bookstore and Dining Room employees'
hours from 35 to 40 hours a week. In fact, the circumstances surrounding the change in
hours for these employees is exactly in keeping with the Union's assertions. It was not
the Union's position that bona fide operational requirements did not call for the increase
in hours for either the Bookstore or the Dining Room employees. The Union's position
was that the College only undertook systematic operational needs reviews once male
incumbents occupied these four 35-hour a week jobs.
As was noted, Exhibit 11 shows that at an Employment Stability Committee
Meeting, the Union urged Management to review the hours assigned to full-time
employees in the Bookstore. However, the College chose to post the Bookstore
positions at 35 hours a week despite the Union's contention. Only once those positions
had been occupied by male incumbents did the College undertake the operational
review required and, Io and behold, came to the conclusion the Union suggested.
The situation with the Dining Room was the same. Once again, we are dealing
with positions that were newly posted and newly filled at the 35-hour a week rate.
Again, only once those positions were filled by male incumbents was an operational
review undertaken and subsequently an upgrading to a 40-hour a week position.
Nothing could be more in line with the Union's position in this case.
Furthermore, without evidence that there were changes in the operational
requirements between the posting of the positions and the Lpgrading to the 40-hours
positions, clear concern needs to be raised about the Employer's actions with regard to
the position postings for these jobs.
Finally, no evidence was introduced by the College to support the Majority's
conclusion on the final page of their decision that the College had taken "overt and
consistent steps to eliminate systemic discrimination". In fact, at all stages of the
hearing, the College's position was that no prima facie case existed of gender
discrimination and therefore no such overt and consistent steps were required of them.
The College did, as in reflected in the Majority's decision, show bona fide business
reasons for the upgrading of the Bookstore and Dining Room classifications to the 40-
hour a week wage rate. The Union's position with regard to this was simply that it took
male incumbents in this position to have them do so.
In light of the above, the Union has more than fulfilled its obligation to show a
prima facie case of gender discrimination. The College should have been ordered to
undertake a review of their current operational requirements for positions in the 35-hour
wage classifications.
"Pamela Munt-Madill"
Union Nominee
36