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HomeMy WebLinkAbout1989-1185.North et al.90-05-31 ONTARIO EMPL OYi~S DE i.A COuRONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SE'I'I'LEMENT REGLEMENT i BOARD DES GRIEFS L 180 DUNDAS S~T WES~ SUI~ 2~, TORITO, ONTAR~. M5G I~, RUE DUNDAS OUEST, BUREAU 21~, TORO~O (ONTARIO;. M5G 1185/89, 1186/89 1235/89 IN THE MATTER OF AN ARBITBATiON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEMENT BOARD BETWEEN: CUPE (~orth et al) Gr~evor - and - The Crown ~n Right of Ontario (Ministry of Housing) Employer - and - BEFORE: B.A. Kirkwood Vice-Chai~person M. Lyons Member A. Stapleton Membe~ FOR TBE R. Carnovale GRIEVOR: National Representative Canadian Union of Public Employees FOR THE K. O'Shea EMPLOYER: E. Lobo Consulting Staff Central Industrial Relations Institute HEARING: February 19, 1990 Page 2 DgCZSZO~ The grievances of John North, William Way and Peter Oostwouder were consolidated and were heard on February 19, 1990. Mr. North and Mr. Way testified for the Union. Mr. Oustwooder chose not to testify, even though the Ministry advised the Union at the hearing that. it would not treat the evidence of the other grievors as evidence of Mr. Oustwooder. The Board has used the term "grievor" or "grievors" in tkis decision as referring only %0 the evidence of Mr. Way and to Mr. North. The grievors were Caretakers. As Caretakers, they are responsible for general cleaning of buildings from 8:30 a.m. to 4:30 p.m. At 4:30 p.m., the grievors punch out their time cards and return to their apartments to await for calls from the Tenant inquiry Board or from 'the Project Office which accepts calls from all tenants and other persons which require immediate attention, and which then dispatches the caretakers to ~he sites required. From 4;30 p.m. to midnight, the grievors are considered on-site Caretakers. Mr. Way also occasionally acted as a Serviceman General during the day and carried on as an o~-site Caretaker after 4:30 p.m. As the grievors were required to live on-site, the Ministry provided the grievors with subsidized living accommodation, in accordance with article 13.01 of the collective agreement and paid the grievors premium pay for the additional responsibilities that they are obliged to perform from 4:30 p.m. in accordance with article 13.02 of the collective agreement. Page 3 Approximately 14 months ago, =he Ministry introduced a new classification of Superintendent. The position was posted and the grievors successfully obtained the position. The Ministry advised the grievors that as Superintendents, they no longer had the benefit of subsidized accommodation. The Employer offered the grievors the opportunity to continue to reside at the same location, but to pay rent. The grievors were still holding the position of Caretakers at the time of the hearing and were carrying on their duties as described above. They had not ye% had any experience carrying out the duties of Superintendent and we had no evidence of the duties which they were being asked tO perform while holding the position of Superintendent after normal working hours. Th~ grievors were seeking the position of Superintendent in addition to the position of on-site caretaker. It was the Union's position that the grievors have the right to the position of Superintendent and have the right to retain their position as on-site caretakers, and receive subsidized housing and the payrate and premiums for caretakers from 4:30 It was the Ministry's position that =he position of Superintendent is a new classification which does not include the duties of the on-site caretaker, nor the premium payments which the on-site caretaker receives. The Ministry's counsel submitted that a Superintendent has a higher hourly pay rate than aCaretaker, but he does not have the right to subsidized housing under the collective agreement. Therefore, he submitted that if the grievors were to accept the position of Superintendent, they had to give either up .the apartment or to pay rent. As the grievors have successfully won the position of Superintendent, t~ey have the right to that position; however, the issues are: 1) does the position of Superintendent include the position of caretaker and the rights flowing therefrom; and if not, 2) does the Superintendent have the right to retain the position of caretaker and receive the rights flowing therefrom. Although the parties were unable to produce a copy of the collective agreement in effect as an exhibit, the par~ies agreed that Articles 13.01 and 13.02 of the collective agreement state: ARTICLE 13-ON-SITE CARETAKER 13.01 A caretaker who is required to live on- site' will be supplied by the Employer unfurnished living accommodations, heat, .. water supply, a standard telephone (excluding personal long distance calls) and hydro at a monthly rental rate of $270.00 effective July '1, 1986 and the monthly rental rates effective January 1, 1987 and January i, 1988 will be subject to the guidelines of Provincial legislation. 13.02 A caretaker who is required to live on- site shall be required to be on-site until midnight, except for his normal scheduled days off and will be paid on-site premium of $0.50 per hour and: -$0.55 per hour effective July 1, 1986 -$0.60 per hour effective January 1, 1987 -$0.65 per hour effective January 1, 1988 for the period from 4:30 p.m. to midnight. Article 15.01 shall not apply to caretakers who are required to live oh-site during the period for which they receive the on-site premium. The parties also agreed that article 12.01 provides the classification and applicable wage rates for a Caretaker and for a Superintendent. The posting of the Superintendent position represented the hourly rate for a Superintendent at $14.55 and the hourly rate for a Caretaker at $13.16. Even though the grievors had become on-site car'etakers in response to the Ministry's posting for the position, there is no separate classification as "on-site caretaker". 'The decision of J.D. Roberts in CUP% Coulter) ~ al. and The Crown in R{g~l~ of Ontario (M~Distry O~ Ml,n~c{gal Aff~$ and ~Qu$~ng) August 23, 1983, which was referred to by the Union, reviewed the history of the caretaker classification and stated: Basically, this evidence showed that until the late 1960's there had been a s.eparate classification for on-site caretakers, or "resident" caretakers as they were then called. In 1970, at the behest of the Union, the parties amended the terms of the previous collective agreement between them --- which expired on December 31, 1969 --- to delete the classification of resident caretaker and regard all employees who had been in the classification "as caretakers on-site to whom the on-site premiums [of present Article 13.02] will apply." M~mor~Bdt~m of .qet~leme~ h~)~ee~ Ont~rlo HOUs~Jtg Corp/~rat~ qn ~)~ T.OCal 767, Can~dfan UnEoft of Puhl.(~ F.n%~loyees, June 10, 1979, para. 9(2). There was no evidence nor argument before us that indicates that the situation has changed and persuades us to conclude that the On-site Caretaker is a separate classification from a Caretaker. On the contrary, Article 12.01 indicates all the classifications and the applicable wage rates and only indicates a Caretaker classification. As the position of Superintendent and Caretaker are recognized as separate classifications in article 12.01 of the collective agreement, one position does not include the other. Articles 13.01 and 13.02 of the collective agreement do not provide a separate classification, but provide an entitlement to certain subsidized living accommodations for a "caretaker" who is required to live on- site. Articles 12.01, 13.01 and 13.02 are the only articles which have specific reference to "caretakers". There is no ambiguity in the interpretation of articles 13.01 and 13.02. As the partie~ did not use the term "employee" in articles 13.01 and 13.02~ as they do elsewhere in the collective agreement, when referring to the broadest base of the Union's members, we therefore must assume that the parties intended only to confer the benefits of articles 13.01 and 13.02 to caretakers, when the criteria in those articles are met. Page 7 On the plain reading of the collective agreement, a Superintendent is its own separate classification, and is not a "caretaker", and therefore a Superintendent is not entitled to the benefits of articles 13.01 and 13.02. Articles 13.01 and 13.02 of the collective agreement 'were not amended to provide these benefits to the Superintendent. The next issue is whether the grievors can hold both the classifications of Superintendent and Caretaker. The answer to this issue is dependent upon the nature of the work assigned to the employees, and how the grievors are classified. There was no evidence produced by either.party of the duties which the grievors were being asked to perform after normal working hours. The right to assign work and to classify employees is exclusively a management function. There is nothing in the collective agreement on its face, which gives the right to the employee to hold more than one classification. The correct classification is the result of the appropriate assignment of work. .. We have no evidence that the Ministry classified the grievors as Superintendents and then assigned the grievors work which leads the Board to the conclusion that the grievors remained caretakers after 4:30 p.m., who were required to live on-site and who were required to perform the duties of an on-site caretaker. The Union failed to discharge the burden of proof upon it to persuade us that on the evidence, the grievors are entitled to both the position Page 8 of the Superintendent and to the position of Caretaker. Therefore, the grievance fails. Dated at Toronto, this 31 day of May , 1990. /.,'~.~,:-~"~ · _ . B A. Kirkwood, V~cechairperson ~'--'i~! '~ '~~/ (Addendum attached) Art Staple~on, ADDENDUM O.S.B. 1185, 1186, 1255/.89 CUPE Local 767 (North/Way/0ostwouder) and Ontario Housing Co~poration/ Metropolitan Toronto Housing Authority I have concurred in this decision primarily because: i) it seems clear that Article 13 only applies to Caretakers and not other employees covered by the Collectiv~ Agreement; ii) there was no evidence given that Superintendents are (or would be) required to perform the duties of On-Site Caretakers from ¢:30 pm until midnight. (In fact, I believe it is implicit in our decision that, since Superintendents are not eligible to' receive the benefits of Article 13, they cannot be required to perform the duties of On-Site Caret akers.) So what happens now? · I believe the Grievors will turn down the S6perintendent positions because the benefits provided under Article 13 are worth approx,- i-mately $800/month while the difference in wages between the CaretaEer position and the Superintendent position is approx- imately $285/month. Keeping in mind two facts: i) a person is financially better off with an On-Site Caretaker position than a Superintendent position; ii) On-Site Caretaker positions are filled by c~pet- ition-on the basis of qualifications and ability; it seems likely that Caretakers who already hold On-Site Caretaker positions will tend not to.apply for Superintendent positions and' other highly qualified Caretakers will %end to wait for On-Site Caretaker vacancies rather than applying 'for Superintendent positions. ' ADDENDUM Surely this is a situation that is not is the best interest of either the,Union or the Employer and therefore they"should consider addressing the matter during the next round of negotiations. Dated et Toronto this 26th day of May, 1990