HomeMy WebLinkAboutLazar 92-10-16 IN THE MA~TER OF AN ARBITRATION
FANSHANE COI~EGE
[Hereinafter referred to as the College]
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
IHereinafter referred to as the Union)
AND IN THE MATTER OF THE GRIEVANCE OF NANCI~ZAR
OPSEU FILE 92C013
BOARD OF ARBITRATION: Gail Brent
Ron Hubert, College Nominee
Jon McManus, Union Nominee
APPEARANCES:
FOR THE COLLEGE: Patricia G. Murray, Counsel
Gall White Malloy, Personnel Officer
Richard Matew, Chair Community Programs
Division
FOR THE UNION: Mary Anne Kuntz, Grievance Officer
Nanci Lazar, Grievor
Sandra Kippen, Chief Steward
Hearing held in London, Ontario on September 28, 1992.
DECISION
The matter before us arises out of a grievance (Ex. 1] dated December 2,
1991 alleging that the College violated the grievor's conditions of employment
and past practice by not paying for her parking fees on its main campus. The
College raised a preliminary objection regarding jurisdiction.
The parties agreed on all material facts. Reproduced below is the agreed
statement of facts presented to us:
1. The grievor, Nanci Lazar is employed by Fanshawe College
as a Programme Coordinator in the Community Programming
2
Division in the School Continuing Education. The grievor
became a full-time employee on April 1, 1986.
2. Nhen the grievor first commenced employment, the School of
Continuing Education was located at 520 First Street.
This office was located in a Strip Mall; parking was
available to all employees worklng at this location, free
of charge. The grtevor worked at this location for
approximately four to five years.
3. In 1989, the Community Programming Division relocated to
temporary offices until space was available in the main
campus for the entire staff of the School of Continuing
Education. In September of 1990, the Department moved
onto the main campus. Free parking is not available on
the main campus.
4. In 1991, the grievor filed a grievance claiming entitle-
ment to reimbursement for parking fees.
5. Fees charged for parking on the main campus range from
8123.05 to 8308.16 yearly, depending upon the location of
the parking lot chosen.
6. The College employs approximately 3,200 staff. Revenue
generated from fees collected for parking is used to
maintain and repair the roads, driveways and parking lots
of the College. All employees are responsible for the
payment of their own parking fees while parked on College
premises.
No witnesses were called; however, in addition to the agreed statement of
3
facts we were informed that the College obliges the grievor to have a vehicle
for her work, and implicit in this is the need to have her vehicle at the
College. We were also informed that there are other satellite campuses of the
College where there is no charge for parking.
The College's position, in essence, is that the matter is inarbitrable
because it is not a grieVance within the meaning of the term as defined in the
collective agreement.
The Union's position, in essence, is that there is an implied obligation
to exercise management discretion in a fair and reasonable manner and that,
because the grievor's Job gives her no real choice about whether to take her
car to campus or where to park it, there is discrimination against people in
her position. It argued that it was an inequity to levy a parking fee against
people in the grievor's position and that it affected the compensation
structure in the collective agreement.
In reply the College said that wage issues should be a matter of
negotiation and that the collective agreement specifically addresses certain
situations where automobile expenses are reimbursed, leading to the conclusion
that they determined that parking fees should not be included. The College
also pointed out that the collective agreement covered all community colleges
in the province and to the extent that there is any inequality of treatment it
has been sanctioned by the parties who determined that there should be no
special treatment based on location.
We were referred to the following authorities: Re Seneca College of
Applied Arts & Technology and Ontario Public Service Employees Union (1978),
17 L.A.C.(2d} 113 (Brown); Re Stanley Works Ltd. and International Association
of Machinists, Local 1226 (1979), 24 L.A.C.(2d) 395 (Hinnegan); Re Dominion
4
Stores Ltd. and Retail Wholesale & Department Store Union, Local 414 (1976),
13 L.A.C.(2d) 245 (0'Shea]; and Re St. John's Convalescent Hospital and
Canadian Union of Public Employees, Local 790 (1983), 11 L.A.C.(3d) 278
(Devlin).
The following provisions of the collective agreement were cited:
3.1 Union Acknowledgements
The Union acknowledges that it is the exclusive function of the
Colleges to:
- generally to manage the College and without restricting
the generality of the foregoing, the right to plan, direct
and control operations, facilities, programs, courses,
systems and procedures, direct its personnel, determine
complement, organization, methods and number, location and
classification of personnel required from time to time,
the number and location of campuses and facilities,
services to be performed, the scheduling of assignments
and work, the extension, limitation, curtailment or
cessation of operations and all other rights and respon-
sibilities not specifically modified elsewhere in this
Agreement.
8.3 Kllometrage Allowance
An employee authorized to use his/her car on approved College
business including travelling to assigned duties away from his/her
normal work location shall be paid kilometrage allowance in
accordance with the following:
18.1.4 Grievance
"Grievance" means a complaint in writing arising from the inter-
pretation, application, administration or alleged contravention of
this Agreement.
18.7.5 Limitations
The Arbitration Board shall not be authorized to alter, modify or
amend any part of the terms of this Agreement nor to make any
decision inconsistent therewith nor to deal with any matter that is
not a proper matter for grievance under this Agreement.
Letter of Understanding
AUTOMOBILE INSURANCE
This will confirm the parties' agreement that for those employees
for whom the ownership/lease and use of an automobile is a condition
5
of employment, the College will pay, to a maximum of one hundred and
twenty dollars ($120.00) per year, the difference between private
automobile insurance and commercial automobile insurance, if
required by the employee's insurer. The employee will provide to
the College proof of the differential from his/her insurer.
There is no provision in the collective agreement dealing with parking
fees charged on campus. The parties, in negotiating a province-wide agree-
ment, were undoubtedly aware that there was no consistent province-wide
practice in relation to the provision of parking and the terms under which it
was provided. They dealt specifically with two items of reimbursement for
employees who were obliged to use their cars (see Article 8.3 and Letter of
Understanding above).
As a board of arbitration we are limited in our powers by Articles 18.1.4
and 18.7.5. The Union has been unable to indicate any specific provision of
the collective agreement which has been violated in this case. To award
parking fees in the face of the provisions of this collective agreement would
be to amend the terms of the collective agreement to grant reimbursement for
an item which the parties themselves did not see fit to include when dealing
with automobile expenses.
In Dominion Stores (supra), a case dealing with parking, Arbitrator
O'Shea made the following comments at page 249 regarding any perceived
inequity:
We find nothing inconsistent with the provisions of the
collective agreement by reason of the fact that parking is available
to employees at some locations, but not others. If parking was a
"working condition" it might be argued that those employees who do
not use this benefit should receive some other benefit to equalize
the compensation of employees. We are satisfied that this was not
the intention of the parties. If the collective agreement required
complete equality among all employees with respect to facilities
provided by the company, employees working at older stores could
complain because the conditions under which they work are not equal
to conditions which might exist at newer stores.
6
We therefore find that the company's implementation of the rule
against employees parking at the Princess St. store was within its
rights as protected by ... the collective agreement and was a rule
with respect to its facilities and store operations rather than a
rule which affected wages or working conditions ....
There is no suggestion that the College violated the collective agreement
by charging parking fees per se. Even accepting that the College's rights
under Article 3.1 must be exercised in a fair and reasonable manner, there is
nothing to suggest that they were not in this case.
For all of the reasons set out above, the grievance is dismissed.
Gail Brent
I concur / 4-~sae~t
Ron Hubert, College Nomine~/
I concur / d~o~t c ~AX~ .~j
n Mc~nus, Union Nominee