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HomeMy WebLinkAboutGauvreau 88-05-16IN THE MATTER OF AN ARBITRATION BETWEEN · (hereinafter called the "Employer") - and - THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (For Support Staff Employees) (hereinafter called the "Union") [Grievance of M. Gauvreau - # 87K12] BOARD OF ARBITRATION: E.E. Palmer, Q.C. Chairman A. Merritt E. Seymour APPEARANCES FOR THE COLLEGE: M.A. Hines & Others APPEARANCES FOR THE UNION' R.R. Wells & Others A~ARD 2. The present arbitration arises out of a grievance filed by Mr. M. Gauvreau on 29 April 1987 alleging he was improperly paid for certain work that he did. This matter was not resolved during the grievance procedure and so forms the basis of the present arbitration, a hearing in relation to which was held in Sudbury, Ontario, on 8 March 1988. At that time the parties were given an opportunity to present evidence and argument. The facts in this matter are relatively brief and not in dispute. Thus in the present case the grievor, Mr. Gauvreau, is replacing another employee, Mr. John Callan, who is on sick leave. Mr. Callan is part of a Ground Crew and was classified by the Employer as a Tradesman Journeyman at Pay Band 8. The other members of the Crew were classified as Caretaker Bs and were paid at Pay Band 2. Upon his replacing Mr. Callan, the grievor was paid at Pay Band 2. The reason that the College paid as they did arises out of the'history of which Mr. Callan was classified at the leve! he was. Briefly, if one looks into Mr. Callan's history it would seem that initially he was evaluated in his work at a !evel which would have put him in Pay Band #5; in fact, he was raised to the level mentioned above as a result of certain negotiations [see Exhibits IV to VII]. In short, it was agreed that Mr. Callan, if he were classified today, wou!d not find himself appropriately in the job of Tradesman Journey- man and at Pay Band 8. As we!l, it was indicated that Mr. Gauvreau did not do al! the work of Mr. CalIan. Accordingly, the Col!ege took the view that he would be overpaid if p!aced in ei~ther Pay Band 5 or Pay Band 8. 3. Before turning to the arguments and resolution of this matter, it might be noted that the present grievance has been brought by the Union. This is so because a temporary employee does not have the right to file a grievance under the present collective agreement: see Article 18.3.3. As well, the Union, as a remedy, wishes monies to paid to it in trust for payment to the individua! employee. In any event, the co!lective agreement language which underlies the Union claim is found at page 107 of the col!ective agree- ment, Appendix D, the re!evant part of which reads: APPENDIX D Temporary Employees 1. The terms of this Appendix apply to persons emp!oyed on a casual or temporary basis to replace bargaining unit employees absent due to vacation, sick leave or !eaves of absence. No other provision of the Collective Agreement shall apply to such persons un!ess otherwise stated in this Appendix. 2. The rate to be paid to such an emp!oyee shall be the appropriate rate app!icable to the classification of the replaced employee, subject to progression steps applic- able to the replacing employee, where appropriate .... Based on the foregoing, the Union argument is relatively simple. In their view in the present circumstances paragraph 2 of Appendix D applies to this situation. Thus, the first question to ask is who is the rep!aced employee. The answer to that is Mr. Callan. One must then, according to the Union, look through Mr. Callan's classi- fication and here the answer is Tradesman/Journeyman A. Thus, the fina! question that is to be asked is what is the appropriate rate which would be paid !n these circumstances and this is the rate which in fact was paid to Mr. Ca!lan and that is found in Pay Band 8. Accord- ingly, the Union requests that such be paid to him in trust as noted earlier. e The Union also notes that the alternatives to this make no sense. In these circumstances if the College feels that it was improperly paying Mr. Callan it should take issue with that full-time employee. In the present circumstances, however, the payment which should be made to the replacing employee is clear. The College takes the position that the first question to be looked at in this matter is the work which is actually done by the replacing employee. Under these circumstances, the College emphasizes that the replacing employee, in reality, does the work of the other persons in the group, rather than Mr. Callan. Thus, stressing the word "appropriate" they come to the conclusion that it would be more fitting to pay him ac.cording to this. In their view, this approach is one which in some cases wi11 favour the replacing employee and in others act as detriment. Nonetheless, it does not create difficulties and unfair results. In short, in their view this approach prevents absurd results. In the opinion of the Board the position taken by the Union is one which is correct. Quite simply, however one deals with the term "appropriate rate" such must relate to the "classification of the replaced employee." The latter is clearly that of a Tradesman/ Journeyman. The position taken by the College in no way relates to this classification. In our view, therefore, the question of "appro- priateness" of the rate relates to questions of service in the particu- lar classification. In this regard, it might be noted that the present collective agreement in Appendix E has a progressive rate for persons in the various classifications, including a Start Rate, a 6-Month Rate, a One Year Rate, a Two Year Rate and a Three Year Rate. It is to these various levels that the question of appropriateness arises. The final issue is the question oF relief. Briefly, the College is of the view that no relief should be given to the Union in this cas. e except any losses which it might have incurred. As none would appear to exist in this case, the College takes the view that the present Board is limited to declaratory relief. In the opinion of the Board, again, the position of the Union is to be preferred. Thus, the maintenance of the integrity of the collective agreement is an issue in which the Union has a clear interest. To merely allow declarations as to breaches of the collec- tive agreement when the Union is the grievor, with no possibility of the individual employee involved being made whole, would limit the effectiveness of the Union as a bargaining agent. Accordingly, it is our view that the money be given to-the Union in trust for the replacing emp]oyee. DATED at Lynden, Ontario, th~s ld~:y/of May, 1988. E./E. Palme~, Q.C. CHairman A. Merritt I c oncur/di~ E. Seymour ADDENDUM In regard to the above award I am in agreement with the conclusions reached by my colleagues on the Board of Arbitration. There are, however, at least two points which came out at the hearing on which I would like to comment for the record. The first is that it has been clearly established and agreed to by al! parties that a temporary employee cannot grieve for himself but that such a grievance must be carried forward by the Union. The second point that was made at the hearing by counsel for the ~'ollege~and was acknowledged by the Unionjwas that a temporary employee is to be paid at the same rate as the person he replaces. This is to be followed regardless of the consequences. In the instant case, the grievor stands to benefit monetarily by the award. It is acknowledged, however, that in the future the reverse cou!d be the case, and a person who was over-qualified as a replacement might find himself receiving less than his qualifications would seem to call for. To my mind these points seem quite significant and shou!d be so set out.