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HomeMy WebLinkAboutUnion 95-04-28 IN THE MATTER OF AN ARBITRATION L. a "5 BETWEEN: NIAGARA COLLEGE OF APPLIED ARTS AND TECHNOLOGY - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION UNION GRIEVANCES BOARD OF ARBITRATION: JANE H. DEVLIN CHAIR ROBERT J. GALLIVAN COLLEGE NOMINEE JON MCMANUS UNION NOMINEE WALLACE KENNY, FOR THE COLLEGE MAUREEN DOYLE, FOR THE UNION OPSEU FILE NOS.: 94E250 & 94E251 DATE OF HEARING: February 28, 1995 1 The grievances which were filed by the Union involve a claim that the College improperly failed to post a vacancy in the classification of Caretaker at the St. Catharines campus. The relevant provision of the collective agreement is Article 17.1, which provides as follows: 17. JOB POSTINGS/PROMOTIONS 17.1 Notices Notice shall be posted of a vacancy in a classification covered by the Agreement for a period of five (5) days at each Campus and, at the same time, shall be sent to other lOcations of the College. No outside advertising for the position shall be conducted and no employee shall be hired from outside the College until the position has been posted for the said five (5) days. Such notice shall contain the classification, payband, hourly rate range, current Campus location, current hours of work, current shift(s), and an outline of the basic qualifications. Such notice shall be posted in appropriate locations accessible to employees. For the purposes of this Section, reference to days shall exclude Saturdays, Sundays, and statutory holidays. Copies of all posted vacancies shall be sent to the Local Union President at the time of distribution for posting. Also of relevance is a Letter of Understanding appended to the collective agreement, which is to the following effect: October 21, 1992 Mr. F. Upshaw President Ontario Public Service Employees Union 100 Lesmill Road North York, Ontario M3B 3P8 Dear Sir: CONTRACTING OUT It is agreed that no bargaining unit member who has completed the probationary period will be released from the 2 College's employ as a direct result of the College contracting out his/her work. However, contracting out to an employer who will employ the employee with comparable terms and conditions of employment is not a breach of this letter of understanding. This letter of understanding will expire on August 31, 1994, but should the parties not have reached a new collective agreement by that date, the letter shall continue to operate until the earlier of a Memorandum of Settlement being entered into or there is a right to strike or lock-out. Yours truly, I. McArdle Secretary Human Resources Committee The facts which gave rise to the grievance are not in dispute. Prior to July, 1994, George Watson was employed as a Caretaker B at the St. Catharines campus. In this capacity, he was one of 3 emPloyees working in the Physical Resources Department. The other 2 employees were Yvonne Michaud, a Clerk, and Hank Harssema, a General Maintenance Worker. Also working in the area of the Physical Resources Department was Danny Melmoth, an employee of Commercial Cleaning Service, an organization with which the College has a contract to provide cleaning services. In July, 1994, Mr. Watson retired and the College did not post a vacancy in the Caretaker classification. In this respect, it was the position of Mr. Kenny, on behalf of the College, that certain duties previously performed by Mr. Watson were properly contracted out or reassigned to other employees with the result that there was no vacancy to be filled. It was 3 the position of Ms. Doyle, on behalf of the Union, that there remained a job of work to be done which ought to have been posted in accordance with Article 17.1 of the collective agreement. In the period prior to his retirement, Mr. Watson performed a number of caretaking and maintenance duties. These included opening the building on a daily basis, turning off a number of security systems and opening and checking each room. This duty generally took 1 1/2 to 1 3/4 hours each day. As well, Mr. Watson performed minor repairs to the building and equipment, which including repairs to desks, filing cabinets and door locks. He also provided a key service for classroom and fitment locks, issued keys and maintained records of persons to whom keys had been issued. In addition, he retained possession of all keys, allowed persons access to restricted areas and cut locks to assist students to get into their lockers. Prior to his retirement, Mr. Watson was also required to move furniture and equipment and in the event of a heavy job, he was assisted by Mr. Harssema. Evidently, Mr. Melmoth was also involved to some extent in moving furniture and equipment. As well, Mr. Watson made certain daily deliveries and 3 to 4 times each year, he delivered 100 to 150 boxes of books to the Continuing Education Department. He also delivered parts and supplies to the automotive and welding.shops and the evidence indicates that the time spent on deliveries varied from 10 to 15 4 minutes to 1 1/2 hours daily. Mr. Watson also spent 15 to 20 minutes each day replenishing classroom and lavatory consumables. As well, Mr. Watson was required to inspect the boiler which involved taking certain water samples, conducting chemical tests and "blowing the boiler down" 2 to 4 times daily, depending on test results. The evidence indicates that these duties generally took approximately 1 1/2 hours each day. On a bi- monthly basis, Mr. Watson also changed the filters on certain air exchange units and was assisted in this task by Mr. Harssema. In addition, Mr. Watson cleaned the mechanical and maintenance areas, which took approximately 20 minutes a day and, in the winter months, he spread salt and cleared entrances of snow. He also cleaned the cafeteria daily and carried out certain duties relating to the recycling of cans and paper which took about 1 hour each day. Finally, he conducted rounds at the end of the day to ensure that all was in order for night classes. Subsequent to Mr. Watson's retirement, the duties relating to opening the building, turning off the security systems and opening and checking each room were transferred to Diane McMillan, an employee of Metropole Security Services. Since July, 1994, Ms. McMillan has worked at the St. Catharines campus from 7:00 a.m. to 10:00 a.m. daily. 5 Apart from the duties currently carried out by Ms. McMillan, other duties previously performed by Mr. Watson were assigned to Mr. Harssema and Ms. Michaud and their Position Description Forms ("PDF's") were amended accordingly. It was also acknowledged that neither of these employees incurred overtime in carrying out any additional duties. Some of the duties previously performed by Mr. Watson were also assigned to Mr. Melmoth. In this regard, the evidence indicates at the time of Mr. Watson's retirement, Gall Wickenden, the Administrative Assistant, advised Mr. Melmoth that he would have to perform certain additional duties and although it is not clear precisely what duties were referred to, evidently some mention was made of recycling. As to the assignment of specific duties, the evidence indicates that minor repairs are now carried out by Mr. Harssema who is also required to move furniture and equipment, a duty which continues to be performed by Mr. Melmoth. Mr. Harssema and Mr. Melmoth also carry out delivery duties as does Ms. Michaud. As well, Mr. Melmoth replenishes classroom and lavatory consumables. He also cuts locks to allow students to get into their lockers and provides access to restricted areas while Ms. Michaud issues keys and maintains records of persons to whom keys have been issued. 6 Although Mr. Harssema's PDF has been amended to include the requirement to inspect the boiler and add chemicals as necessary, as a practical matter, the evidence indicates that Mr. Harssema blows the boiler down only once daily and does not conduct chemical tests. The evidence also indicates that since his retirement, Mr. Watson has been called in on one occasion to get the boiler started. Certain repairs have also been carried out on the boiler and both before and after Mr. Watson's retirement, repairs were performed by an outside contractor. Subsequent to Mr. Watson's retirement, Mr. Harssema and Mr. Melmoth have changed the filters on the air exchange units and, as indicated previously, this task is performed bi-monthly. Mr. Harssema has also been assigned to clean the mechanical and maintenance areas and to spread salt and clear entrances of snow. Mr. Melmoth, on the other hand, cleans the cafeteria daily and carries out duties relating to the recycling of cans and paper. Finally, Ms. Michaud was assigned to conduct rounds at the end of each day and although her PDF was amended to reflect this requirement, she advised the College that she did not have sufficient time to perform this duty which has not been reassigned. It was acknowledged that Ms. Michaud has not been disciplined for failing to perform this function. The issue, then, is whether the College violated the posting provisions contained in Article 17.1 of the collective 7 agreement. This Article specifies that notice of a "vacancy" within a classification shall be posted for a period of 5 days at each campus and, at the same time, sent to other locations of the College. The meaning of the term "vacancy" was recently considered by a Board of Arbitration in Lambton College of Applied Arts and Technology and Ontario Public Service Employees Union January 9, 1995 (Devlin (unreported)), which was relied on by the College in this case. In the Lambton College award, the Board commented as follows: ...it is generally accepted that a "vacancy" refers not merely to an empty position but rather to one for which there is adequate work in the opinion of the Employer to justify filing the position: see Re Oil, Chemical & Atomic Workers, Local 9-599, and Tidewater Oil Co., (Canada) Ltd. (1963), 14 L.A.C. 233 (Reville); Re United Brewery Workers, Local 800, and Loblaw Groceterias Co. Ltd. (1967), 18 L.A.C. 420 (Weatherill) and Re Beacon Hill Lodges of Canada Ltd. and Service Employees Union, Local 210 (1985), 20 L.A.C.(3d) 316 (McLaren). This is not to say, however, that the Employer can turn a blind eye to the realities of the Situation but instead must determine whether, in fact, there is sufficient work to fill the position: see Re Horton Steel Work Ltd. and United Steelworkers, Local $598 (1973) 3 L.A.C.(2d) 54 (Rayner). To similar effect is ~e Air Canada and Canadian Air Line Employees' Assoc. (1975), 8 L.A.C.(2d) 239 (Brandt), which was relied on by the Union. As is evident, therefore, a "vacancy" is not simply an empty position but rather one for which there is a job of work to be done. In this case, the evidence indicates that following Mr. 8 Watson's retirement, certain duties which he had previously performed were transferred to Ms. McMillan and Mr. Melmoth, both of whom are employees of organizations which are independent of the College. The Union contended, however, that the transfer of work did not involve a legitimate contracting out as Mr. Melmoth, in particular, was performing duties beyond the scope of the contract between Commercial Cleaning Service and the College. Nevertheless, the collective agreement contains no restriction on the nature of the work that can be contracted out, nor is there any requirement that work be contracted out pursuant to the terms of a written contract. Accordingly, even if some of the duties now performed by Mr. Melmoth are beyond the scope of the contract between the College and Commercial Cleaning Service, this is not a sufficient basis upon which to find that the College did not engage in a genuine contracting out of the work in question. In fact, there was no evidence upon which the Board could draw such a conclusion. Moreover, it was acknowledged that the contracting out did not result in the release of any bargaining unit member and, accordingly, the Union did not allege a violation of the Letter of Understanding set out earlier in this award. Apart from the duties transferred to Ms. McMillan and Mr. Melmoth, certain duties previously performed by Mr. Watson were assigned to Mr. Harssema and Ms. Michaud. Although, as noted by the Union, some of the duties, such as conducting rounds at the end of the day are not actually performed, it is for the College to decide whether or not it requires the work to be done. As to the remaining duties, it was acknowledged these duties can be performed by Mr. Harssema and Ms. Michaud without the necessity of overtime and the Board was not referred to any provision of the agreement which would preclude the reassignment of duties which occurred in this case. In the result, the Board finds that some of the duties previously carried out by Mr. Watson are no longer performed and that the remaining duties were either contracted out or reassigned to other employees in a manner which did not violate the .collective agreement. Accordingly, following Mr. Watson's retirement, there was not a job of work to be done which would require the posting of a vacancy pursuant to the provisions of Article 17.1 of the collective agreement. For these reasons, therefore, the grievances are dismissed. DATED AT TORONTO, this 28th day of April, 1995. Chair "R.J. Gallivan" College Nominee "Jon McManus" Union Nominee