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Union 07-25-2003
IN THE MATTER OF AN ARBITRATION BETWEEN: Ontario Public Service Employees Union and its Local 740 Union -and- Lakehead Association for Community' Living Employer IN RESPECT OF: Grievances relating to the Awake Night Support Worker position.. BEFORE: M.V. Watters, Sole Arbitrator APPEARANCES FOR THE UNION: J. Gilbert, District Grievance Officer L. Sochackey, President, OPSEU Local 740 APPEARANCES FOR THE EMPLOYER: A.G. McKitrick, Counsel N. Doucette, Human Resources Director HEARINGS: October 15, October 16, 2001; March 25, ~arch 26, March 27, April 29, April 30, May 8, May 9,. 2002; January 30, January 31, March 27, April 24, April' 25, June 3, 2003. AWARD This proceeding arises from three (3) grievances filed by'the Union in'early 2001 concerning the Employer's decision.to use Awake Night Support Workers, rather than support Workers, on the.night shift at eighteen. (18) Homes in its residential program. The material part of' the grievances, which are undated,' read: (i) "STATEMENT OF GRIEVANCE. The Union grieves that the Employer has posted new, lower classified positions to replace existing higher rated poSitions. SETTLEMENT DESIRED 1. The postings be cancelled. 2. That the night shifts be staffed by the appropriate classification. 3. That all affected employees be made whole." (Exhibit #5) (ii) "STATEMENT OF GRIEVANCE The Union grieves that the Employer is discontinuing the use of support workers on the night shift. SETTLEMENT DESIRED 1. The Employer cease this practice. 2. Any affected employees be fully made whole. 3. That support workers be used on the night shift.,' (Exhibit ~6) (iii)' "STATEMENT OF GRIEVANCE The Union grieves that the Employer has created a new classification to replace an exiSting classification. SETTLEMENT DESIRED 1. The Employer discontinue this plan. 2. Any and all changes made by the Employer be reuersed retroactively to the change. 3. All affected employees in the Bargaining Unitbe whole, without'limiting the generality of the foregoing, reinstated, to their former positions, full retroactivity on wages, with interest, any lost benefits reinstated and all seniority credited.." (Exhibit #7) Two (2) further grievances were filed with respect to the contested change (Exhibits #8 and #9). The parties agree that consideration. of these'additional grievances will be deferred pending the decision in this case. This has been a complex and lengthy proceeding. Evidence was presented over the course of thirteen (13.) days 6f hearings. - Closing argument took two (2) days to complete. I do not consider it necessary to reproduce all Of the evidence and argument in this Award. Suffice it to say that the evidence and submissions have been closely considered in the process of fashioning this decision. The Union's evidence was Presented through the following witnesses: 1. Ms. Jan Pilley - Ms. Pilley. is an OPSEU Staff Representative with responsibility for this Local. She was involved in the bargaining of the two (2) . collective agreements covering the period April 1, 1993 to March 31, 20'02 (Exhibits #3 and #4); 2. .Ms. Georgia Coughlin - Ms. Coughlin has worked for the Employer since ~991. She is currently a full-time Support Worker at the Margaret Street Home. Ms. Coughlin previously worked as a part-time Night Counsellor, a part-time Residential Counsellor and a full-time Residential Counsellor at the Great Lakes Home, the North Leeland Home and the Merrill Street Home, 'respectively. Ms. Coughlin is a Grievance Steward and has been the Secretary-Treasurer of the Local since 1994. She serves on the Health and Safety Committee and the Employee Relations Committee; 3. Ms. Patty Walker - Ms. Walker has.worked for. the Employer since 198'7. Ms. Walker was on a leave of absence when the instant dispute arose in early 2001. Since the commencement of her employment, she has worked as a full-time Night Counsellor, a part,time Residential Counsellor, and a full- time Residential Counsellor at a number .of Homes including Castle Green, North Leland, and Master Street. Ms. Walker moved to -3- the day, in contrast to the residential, program in or about 1993. Ms. Walker has been aCtive in the Union'. She has served as a Steward and has been both the Vice-President and President of the Loca. Ms. Walker was the spokesperson fOr the Union during the pay equity process and was on the bargaining team which negotiated the collective agreements filed as Exhibits.#3 and #4. She chaired the bargaining team with respect to the latter agreement, which is the contract 'under which this dispute arose. Ms. Walker was elected t° the Union's Executive Board in 1999; 4. Ms. Lisa Hurst - Ms. Hurst has worked for the Employer since 1993. She was off on maternity leave at the time this dispute arose. Prior thereto, she worked as a permanent part-time Support Worker across all three (3) shifts. Ms. Hurst returned to a similar position following the leave. Ms. Hurst has worked in a number of Homes including Masters Street, Amelia Street, Walsh Street, North Marks Street and Brown Street; 5. Ms. Cindy Mazan - Ms. Mazan has worked for the Employer since 1994. She is a permanent part-time Support Worker. She has worked as such at the Merrill Street Home and at the Academy and Huron sites. Ms. Mazan worked some night shifts at the latter location. She was no longer scheduled to work nights following the Employer's decision to use Awake Night Support Workers On the night.shift; 6. Ms. Elizabeth Szwajda - Ms. Szwajda has worked for the Employer since 1999 as a permanent part-time Support Worker at the Margaret Street Residence. She was scheduled to work three (3) night shifts every three (3) weeks. Ms. Szwajda was also scheduled for day and evening shifts and would pick up additional shifts if gaps occurred in the schedule; 7. Mr. Angelo Fo~lia - Mr. Foglia has worked for the Employer since 1991 as a casual employee in the residential'program. On average, he works about three (3) shifts per.week. These shifts are generally during the evenings and at night, as he has other full-time employment during the day. Mr. Foglia has worked at about thirty-five (35) Homes as a casual; 8. Mr. Larry Sochackey - Mr. Sochackey has worked for the Employer since 1993. He is a full-time Support Wor'ker. Over the period of his employment, he has worked at the following Homes: Merrill street, Lanark Crescent~ and at the Huron and Academy sites. Mr.- Sochackey became a Steward in 1997. He was on the bargaining team that negotiated the collective agreement under which this dispute arose. Mr. Sochackey was Acting President of the Local in early 2001. The Employer's evidence was presented through the following. witnesses: 1. Ms. Suzanne-Perrier-Clark - Ms. Perrier-Clark has worked for the Employer since 1984. She is currently a Team Leader responsible for seven (7) Homes, including Market Street and the Huron and Academy sites. Ms. Perrier-Clark supervises Support Workers,'Night Support Workers and ' Awake Night Support Workers in these Homes. She has previously worked for the Employer as a Continuing Education Instructor, an Employment Counsellor, a Senior Counsellor,' an Acting Supervisor and a Planning Facilitator; ~- 2. Ms. Lynda Jarrett-Stewart - Ms. Jarrett-Stewart has worked for the Employer for eighteen (18) years. -She is currently a Team Leader responsible for six (6) Homes, including Margaret Street. She, too, is responsible for the supervision of front-line support staff. Ms. Jarrett-Stewar~ has previously worked for the Employer as a Continuing Education Instructor, a Job Placement officer, a Program Manager and a Program Supervisor; 3. Mr. David Blackwood - Mr. Blackwood has worked for the Employer since 1998. He is currently the Director of Supports and Services.. In this position, he is responsible for ensuring that supports and services are provided in accordance with the philosophy and vision of the Lakehead Association For Community Living. His job description was filed as Exhibit #29. Team Leaders report to Mr. Blackwood. He reports to the Executive Director. At the time material to this dispute, Mr. Blackwood was one (1) of three (3) Acting Executive Directors. He has approximately ten (10) years experience in thedevelopmental services field; 4. Ms. Nadine Doucette - Ms. Doucette has worked for the Employer since 1998. she is currently the Human Resources Director. In this position, she is responsible for all human resources functions, including labour relations matters and the development of policies and'procedures. Ms. Doucette's job description was filed as Exhibit #30. She reports to the Executive' Director. Ms. Doucette was also one (1) of the Acting Executive Directors in early 2001. The Lakehead Association For Community Living (hereinafter referred to as the Association) is a not for profit social service organization funded by the Ministry of Community, Family and Childrens' Services. The Association, throUgh various programs, provides, residential, employment and recreational supports to adults with developmental disabilities living in the community. The support provided may vary from as little as two (2) hours per week up to twenty-four (24) hours a day. Support is individually tailored so that the persons in receipt of same may maximize their personal goals and objectives. In this regard, staff of the Association are guided by the following list of "Personal Outcomes" in their interaction with supported individuals: "1. People choose personal goals. 2. People choose where and with whom they live. 3. People choose where they work. 4. People have intimate relaZionships. 5. People are satisfied with services. 6. People are satisfied with their personal life situations. 7. People choose their daily routine. 8. People have time, space and opportunity for privacy. - 9. people decide when to share personal information. 10. People use their environments. 11. People live in integrated environments. 12. People participate in the life of the community. 13. People interact, with other members of the community. 14. People perform different social roles. 15. People have friends. 16. People are respected. lY. People choose services. 18. People realize personal goals. 19. People are connected to natural support networks. 20. People are safe. 21. People exercise rights. 22. People are treated fairly. 23. People have the best possible health. 24. People are free from abuse and neglect. 25. People experience continuity and security. " (Exhibit #22) As was mentioned numerous times during, the course of the hearing, the Association's goal is "to do with instead of doing for" This dispute concerns the residential program and the nature of supports provided to individuals living in the community in Homes owned by either the Association or private landlords. I was' informed'that the Association itself owns five (5) Homes and that another sixty (60) Homes are rented from others in the community. While not of relevance to this case, there.are an additional seventeen (17) Homes under the Family Home Program. I was left with the understanding that individuals in these Homes reside with other family members and, as a consequence, only 'require the provision of daytime support. It will be useful at this juncture to briefly outline the bargaining history between these parties, with particular reference to the treatment of employees providing support to individuals in the.residential setting. The Union was certified as bargaining agent in 1988. The first collective agreement between the parties, filed as Exhibit #1, -had a term of April 1, 1989 to March 31, 1990. SchedUle "B" thereof provided for three (3) levels, of Residential Counsellors. Employees within this classification primarily worked the day and evening shift. Provision was also made for a Night Counsellor position. Employees within this classification worked the night shift and were paid a lesser wage rate than the Residential Counsellors. The job description for the Night Counsellor position was filed as Exhibit #34. The second collective agreement negotiated between the parties was effective for the period April 1, 1990 to March 31, 1993 (Exhibit #2). Schedule "B" of the agreement again provided for three (3) levels of Residential Counsellors and for the Night Counsellor position. During the term of this collective agreement, there was an evolution away from the use of the Night Counsellor. This occurred because the Association was required to support persons with higher, needs as a. consequence of deinstitutionalization at the Northwest Regional Centre and the Hogarth-WeStmount facility. These individuals needed a'higher level of care. To meet this emerging need, the EmPloyer started to rotate Residential Counsellors Over all three (3) shifts. There was a corresponding reduction in the use of Night Counsellors. By 1991, only two (2) Homes continued to utilize the position. The pay equity process was on going between 1991 and 1993. This process led to the merging of.the pay equity and bargaining teams. New job descriptions were prepared and jobs were re- evaluated. Ultimately, the parties decided to roll the Residential cOUnsellor and Night Counsellor positions into a new Support Worker position. Support Workers in the residential' program rotated across the day, evening and night shifts. The wage for this new position was determined by averaging a number of compensable factors for each of the aforementioned shifts. These changes were incorporated into the parties third Collective'agreement effective for the period April 1, 1993 to March 31, 1996. The agreement. provided for three (3) levels of Support Worker (Residential Counsellor). The Night Counsellor position was deleted. The agreement also provided for a Support Worker (Instructor) position to replace the former Vocational Instructor position. In or about 1994, the parties reached an informal agreement to -9- institute a new Night Support worker position on a trial basis. The position was designed to provide necessary backup to Support Workers who worked alone at night. Incumbents in the position were permitted to sleep during the shift, unless assistance was required by the Support Worker in the Home. Initially, this newly created position was used at three (3) Homes. Employees in the job earned' minimum wage. Following a review of this initiative through the Employee Relations Committee, the parties agreed to continue the position until their next round of bargaining. Bargaining did not occur until around 1998 as 'the third collective agreement was rolled over for two (2) additional years given that neither party gave notice to bargain. The parties fourth collective agreement (Exhibit #4) was effective for the period April 1, 1998 to March 31, 2002. The grievances mentioned at the outset of this Award were filed under the terms of this agreement. Schedule "B" of the agreement provides, inter alia, for three (3') Levels of Support Worker, Casual Support Worker and Night Support Worker. The Support'Worker classification was intended to capture employees working in the residential setting across all three (3) shifts, as well as those individuals working as Instructors in day programs. The hourly rate for Support Workers, as of April 1, 2001, ranged between $16.32 and $17.00. The generic job description for Support Worker was filed as Exhibit #21. The job description for Casual Support Worker was filed as Exhibit #32. This position was then, and continues to be, used to fill gaps in the schedule and to cover for -10- unforeseen absences on the part of full-time andpart-time Support Workers. The hourly rate for Casual Support Workers, as of APril 1, 2001, was $12.11. The Night Support Worker position merits specific, comment. The inclusion of this position in the collective agreemen~ was the product of an Employer proposal. In effect, the parties agreed to formalize the temporary position first established on a trial basis in or around 1994. The wage rate, as of April 1, 2001, was set at $7.18. This rate was paid for time sleeping. If an employee in this position was required to assist a Support Worker at night, or if he or She had'to deal with an emergency, the casual hourly rate would be payable. I was also informed that Night Supuort Workers were the only night shift employees at approximately fourteen (14) higher functioning Homes. Lastly, I note that Ms. Pilley,.Ms. Walker and Mr. Sochackey all testified that the issue of a new Awake Night Support Worker position was not raised by the Employer during the bargaining of the fourth collective agreement. At that juncture, both parties were aware that Support Workers rotated over all three (3) shifts in the Homes which 'required twenty-four (24) hour coverage by employees in this classification. To be clear, the Employer did not then propose any change in the duties performed by Support Workers during the night shift. On the evidence, I am satisfied that a change in the staffing of the night shift was first raised by the Employer in early 2001. In February, 2003, the parties concluded a new collective -il- agreement expiring in 2005. The Union was not prepared to agree to the inclusion of the Awake Night. Support Worker position while the instant grievances remain outstanding. Prior to April 1, 2001, there' were eighteen (18) Homes in which Support Workers rotated through the day, evening and night shifts. Approximately one hundred and thirty (130) full-time and part-time Support workers worked in these Homes. It is the staffing of these Homes which is material to this dispute. At approximately thirty (30) other Homes, Support Workers did not rotate through all three (3) shifts, but instead only worked days and evenings. In this latter group of Homes, the. night shift was worked by Night Support Workers or staff was not scheduled for Such shift as coverage was unnecessary given the level of functioning of the individuals residing in the Home. Approximately ninety (90) full-time and part-time Support Workers did not work at night. After reviewing all of the evidence presented, I am satisfied that Support Workers performed the following set of duties when working the day and evening shifts prior to April 1, 2001: 1. Develop and promote Family Contact; 2. .Develop and liase with day progra~ contacts activities; 3. Develop and liase with employment contacts and provide work support; 4. Develop and liase with volunteer opportunities; 5. Review personal support.agreements and set goals around supports; 6. Assist individuals with cleaning; 7. Assist individuals with general household duties; 8. 'Assist individuals with quality health care-medical/ dental appointments; 9. Support individuals with recreational opportunities; 10. Support individuals with transition planning '(i.e., moving-looking for a 'new home, discussing details with landlord, hydro, telephone); 11. General maintenance of home; -12- 12. Facilitate learning of financial planning; cash counting; General bills and utility payments; 13. Menu planning and grocery shopping; 14. Participate in Team Meetings; 15. Develop and facilitate community connections; 16. Plan activities and provide support with activities; 17. Provide personal care as di~ectsd; 18. Coordinate transportation (i.e., HAGI); 19. Support individuals in the community (restaurants, malls, plays, dances); 20. Assist individuals in developing friendships and meaningful relationships; 21. Advocating for individuals by regularly educating people about their rights; The above list ~f duties reflect, in large measure, the mission of the Association, this being to help individuals learn skills that are necessary for effective participation in the community and to. assist them achieve personal goals and objectives, It is apparent, from their very nature, that'many of the listed duties could not be performed at night when most of the community .is asleep.. Indeed, the witnesses for 'both the Union and the Employer agreed that virtually all of the above duties were not performed by support Workers when working the night shift. To be clear, not all of these duties would be performed on each and every day and evening shiftl Rather, they reflect the duties Support Workers were expected ~to engage, in over a period of time as part of their regular employment. A considerable amount of evidence was presented with respect to the duties Support Workers performed when working the night shift prior to April, 2001. There was very little conflict in the evidence on this point. Generally, I accept that the duties varied from Home to Home. The tasks to be performed at night would either be determined at Team meetings or would be assigned by the Team -13- Leader, if the duties could not be agreed to by members of the Team. In certain of the Homes, such as Lanark, a Duty List was prepared outlining the expected night duties (Exhibit #20). After assessing the evidence, I think that the range of duties engaged in by Support Workers on the night shift may be fairly summarized, as follows: i) Support of the individuals living in the Home, as required. Ms. Coughlin testified that at Margaret Street she would read magazines and play with blocks and puzzles with one (1) individual who would routinely be awake to about 2:30 a.m., on average. At times, this person would be awake till as late as 4:30 a.m. Ms. Szwajda testified that she cooked and baked with this same~person during the first part of the night shift. A number of the witnesses described their efforts in "redirecting" individuals back to bed; ii) Assist individuals with toileting and personal care. Support Workers were required to wake certain individuals during the course of the night for toileting purposes. In the event of an accident, they would'shower and bath individUals, if required, and would strip and change beds. They might also be called upon to change a person's attends. Ms. Hurst described one (1) individual with a gastro- intestinal tube insertion. This tube had to be checked and flushed during the night hours; iii) Perform. household cleaning. Support workers swept and mopped the kitchen and bathroom floors and cleaned the oven, fridge, toilet and cupboards. They would also finish the laundry, if not completed on the prior shift. This could involve washing, drying or folding of clothes or bedding. Support Workers were expected to launder clothing if an individual experienced personal care difficulties at night; iv) Completion of the Health and Safety Checklist and Water Temperature Check. support Workers completed the Daily Health-and Safety Check list (Exhibit #16) to ensure certain listed areas of the Home were free of hazards. They would also test the water with a thermometer to ensure the temperature was no more than 49 degrees Celsius. This test was done early in the morning before the residents woke up and the results were recorded on the Daily Water Temperature Checks list (Exhibit #15); -14- v) Balancing of cash and accounts. At. certain Homes, Support Workers were expected to count and balance accounts. This process involved the grocery account, petty cash and the supported individuals' wallets and ledgers. At certain Homes, such as Merrill Street, this task was assigned to the evening shift as the Team Leader wanted two (2) staff to count the cash and then sign off on same; vi) Reading of Logs and Charting. Support Worker.s were expected to. read the Communication Log to review messages or information recorded by. Colleagues or supervision, similarly, they were expected to review the individuals' personal logs so as to update themselves on any material developments. They might also make entries in these logs, if such was necessary. Additionally, in certain cases, they might record information relating to items such as sleep patterns or agitation on a behavioral chart; vii) SupPort Workers would provide First-aid, if required. They would also administer PRNs or any prescribed medications. Support Workers might also be called upon to count and check medications upon receipt; In early 2001, the Employer determined that it would likely run a deficit in the amount of approximately $194,000.00 for the' fiscal year commencing APril 1, 2001. As the Employer's primary funding body, the Ministry of Community, Family and Childrens' Services, and its Board of Directors both operate under a no- deficit policy, the management team consisting of Mr. Blackwood, Ms. Doucette and Ms. Kathy Pozihun was compelled to look at various options to combat the projected deficit. The management team, in Conjunction with Team Leaders, considered a number of alternatives including the increased use of casual staff to fill replacement hQurs, layoffs, reduction in the level of supports and services and the closing or consolidating of existing Homes. After reviewing these options at a "brain-storming session" in mid-January, 2001, the Employer decided instead to explore the possibility of -15- implementing a new Awake Night Support Worker position for the night shift. Ms. Doucette subsequently consulted with other Associations for Community Living in Ontario which utilize such a position and then reported back to the management team. Ultimately, the management team ~oncluded that the creation of an Awake Night. Support Worker' position would address the financial concerns as well as enhance the Employer's mission. On the Employer's analysis, it would achieve the latter by further distancing its Homes from the "institutional model" in which alot of activity occurs at night in contrast to a more normalized home environment. The creation of the Awake Night Support Worker pOsition was broached with the Union at meetings of February 5'and February 14, 2001. .During the course of these meetings, the Union's representatives, including Ms.' Pilley and Mr. Sochackey, were presented with a draft job description for the position (Exhibit #17) and were advised, inter alia, of the following: (i) the Employer intended to create thirty-six (36) Awake Night Support Worker positions to staff the night shift at eighteen (18) Homes; (ii) the employees in each position would work fifty-six (56) hours over a two (2) week period; (iii) the rate of pay would be $12.11 per hour, this being the casual rate, plus four percent (4%) in lieu of benefits; (iv) the implementation of the position was to commence on or about APril 1, 2001; and (v) the initiative would affect twenty~seven (27) permanent positions but would not result in any layoffs, as there existed a large number of permanent -16- and temporary vacancies into which the affected employees could be assigned.' It is apparent from the evidence that the Union's repreSentatives were not supportive of the Employer's intentions. It was their overall assessment that Awake Night Support Workers Would essentially perform the same tasks as previously performed at night by Support Workers but under a different job title and at a substantially reduced wage rate. The Employer was advised that the Union objected to the initiative and that it would be contested by way of a grievance. The Employer subsequently held further meetings with staff, family members and Team Leaders concerning the. new position. Ultimately, the position was implemented pursuant to a schedule filed as Exhibit #41'in this proceeding. Ms. Doucette prepared the draft job description for ths Awake Night Support Worker position. The document was revised in September, 2001 to correct a typographical error (Exhibit #24). The revised job description is appended to this Award. It reads, in part: Job Function 1. To support individuals during the overnight period, in all aspects of his/her home. The support worker is expected to be awake for the overnight period. Job Specifications Pre-Employment 2. High School Graduation Diploma and/or equivalent adult education credits implemented with courses in the Human/Social Services. DUTIES AND RESPONSIBILITIES RELATING TO MAJOR ACTIVITIES Major Activity "A" - 75% Direct Support Service 24. Responsible for providing support based on the established night routine of the individual (singly -lY- or in small groups) in his/her home. 25.' May administer ~nd record prescribed medications as per medication policy and procedure. Is familiar with possible contraindications and side effects of prescribed medications. 26. May administer non-prescribed medications as necessary and within established guidelines. - 27. Administers first aid and calls for ambUlance as necessary. 28. May be required to carry out individual therapy programs as provided by appropriate professionals as required during the night. 29. Observes, records and maintains an awareness Of the individual's mental and physical health, unusual occurrences, changes or complaints. Major Activity "B" 25% - Non Direct Support 3©. Completes appropriate documentation as required. 31. Reports building, equipment and/or appliance problems to Team Leader immediately.. 32. Advises Team Leader as supplies/materials .are needed. 33. Performs position relation duties as assigned by the Team 'Leader. At the.outset, it is to be noted that pursuant to the above job description, Awake Night Support Workers only work the night shif~ .in that capacity. They do not rotate over all three (3) shifts as did the Support Workers previously in Homes requiring twenty-four (24) hour coverage. As a consequence, the Awake Night Support Workers are not required to perform the duties' Support Workers engage in on the day and evening shifts, as listed at pages 11 to 12 of this Award. Secondly, the Awake Night Support Workers, unlike the Night Support Worker, are expected to be awake for the -18- entirety of the night.shift. Lastly, the Awake Night Support Workers are required to have a High School Graduation Diploma oK equivalent adult education credits in the area of human/social services. In contrast, the job description for the Support Worker Position requires an "Undergraduate degree and/or diploma in the Human/Social Services from an accredited post secondary institution". Ms. Doucette testified it was intended that the Awake Night Support Workers would only perform the following tasks while on the night shift: 1. Provide personal care as needed or directed (i.el, change attends); 2. Provide medical assistance as required; 3. Encourage individuals to go back to bed if they get up; 4. Read, and communicate through., the Communication Log and the individuals' personal logs; 5. Prepare accident, and Possible incident, reports as required. It was the thrust of her evidence that persons in the position were not required or expected to count cash, 'do any laundry or household cleaning, or to complete either the Health and Safety Checklist or the Water Temperature Check. For purposes of this hearing, Ms. Doucette prepared a summary of the differences in the job descriptions relating to the following positions: (i) Support Worker; (ii) Awake Night. Support Worker; (iii) Night Support Worker; and (iv) Casual Support Worker. This document was filed as Exhibit #33. It was the thrust of her evidence that the first two (2) positions are materially different in terms of both the duties performed and the -19- responsibility exercised. This view was shared by Mr. Blackwood. He observed that, unlike Support Workers, employees in the Awake Night Support Worker position are not expected to be extensively involved in client or family interaction or in the development and implementation of the plan of care. Ms. Perrier-Clark expressed a similar opinion. In her view, Awake Night Support Workers, given the nature of their job and the time'during which it is performed, are not actively ·involved in either creating or implementing Personal Support Agreements. These Agreements between the Association, the individual and their family outline the individual's goals and objectives and the support to be provided in order to achieve same. A standard form of Personal Support Agreement was filed as Exhibit #23. It is apparent from the evidence that there was some initial uncertainty on the part of both Ms.. Jarrett-stewart and Ms. Perrier-Clark as to the tasks to be assigned to the Awake Night Support Workers. This issue requires a brief review of the evidence as to what occurred at the Margaret Street and the Huron/Empire/Academy sites. Ms. Jarrett-Stewart addressed the duties of the Awake Night Support Worker position at a meeting of the Margaret Street-Team held' on April 10, 2001. Minutes of the ·meeting were filed as Exhibit #10. Ms. Coughlin' and Ms. Szwajda were in attendance at the meeting. The relevant excerpt from the Minutes reads: "Awake Night Support - The new position will be starting Position April 28th, 2001. Duties - Duties that are assigned to days and -20- evenings that were done on midnights. - Clarification regarding Awake position needed from H.R. - A.'needs to be supported during the day to be awake to learn to sleep at night. This needs to be a gradual adjustment to her sleeping pattern. - tracking A~'s sleep patterns - Lynda will find out at the Team Leader meeting regarding duties, why there are some homes with exceptions (does Margaret Street qualify for this?) - balancing books 3-11 - water temP & staff checklist 3-11 - cleaning oven and fridge once a week 3-11 sundays-fridge and once a month for stove - cleaning of bathroom 3-11 - medication set up 3-11 once a month - emphasis on community involvement in logs - duties will be clearer once the Awake position is in place " It is clear from the minutes that the following tasks, previously performed by SuppOrt Workers at night, were to be assigned to the 3 p.m. to 11 P.m. shift: balancing of.books;. Health and Safety Checklist; Water Temperature Check; cleaning of oven and fridge; cleaning of bathroom; and medication set up. The second and-last bullet points under the heading of "Duties" suggests that Ms. Jarrett-Stewart required further clarification as to the specific duties to be performed bythe Awake Night Support Workers. At this juncture, she had received some instruction from senior management on this question. Additionally, she had been provided with'the draft job description for the position. Ms. Coughlin testified that the Team was initially advised at the meeting that the. Awake Night SUpport Workers would do nothing more than support individuals throughout the night, as required. -21- She recalled, however, that discussion ensued about whether some specific charting of A. would continue to be done at night. Ms. Coughlin stated tKat, after checking, Ms. Jarrett-stewart advised the Team that. the status quo would remain in effect for this individual. A subsequent meeting of the Margaret Street Team occurred on -May 8, 2001. Minutes of the meeting were filed'as Exhibit #12. Ms. Coughlin and Ms.' Szwajda were also present for this meeting. At the meeting, staff advised Ms. Jarrett-Stewart that they were' having difficulty mopping and cleaning the floors on the afternoon Shift, as wet floors presented a health hazard for the individuals residing in the Home. It also appears that they complained of having too' much to do on that shift. After discussion of the issue amongst the Team, Ms. Jarrett-Stewart decided that cleaning and mopping of the bathroom and kitchen floors and completion of both the Health and Safety and Water Temperature Checklists would be done by the Awake Night Support Workers during the course of the night shift at this particular Home. Ms. Doucette met with the Team Leaders on October 3, 2001. Minutes of .the meeting were filed as Exhibit #39. The material part of the Minutes read: ,, ..... ~ ............ Nadine reminded the Team Leaders to ensure that the Awake Night Support Workers are not doing job duties that are the responsibility of the daytime staff. Duties such as laundry, cleaning, bathing and documentation should NOT'be performed by the Awake Night Support staff. There should be a clear distinction of roles between the regular staff and the awake night staff ........................... -22- Ms. Doucette stated that .she took this initiative because she was approached by Team Leaders and asked to provide clarification on 'the role of the Awake Night Support Worker..From her perspective, the information conveyed to the Team Leaders was not new, rather it simply reiterated direetion given earlier in the year. Following the above communication, Ms. Jarrett-Stewart wrote in' the Communication Book that Awake Night Support Workers at Margaret Street should no longer engage in the tasks listed by Ms. Doucette. At this point, she had forgotten that she had previously permitted the Health and Safety and Water Temperature Checklists to be done on the' night shift. Ms. Jarrett-Stewart took steps to discontinue this practice in May, 2002 when it came to her attention that Awake Night Support Workers were initialling the Checklists. The Team Leader acknowledged that she should have 'noticed this earlier and that it was an error on her part to let the practice continue for as long as it did. Ms. Jarrett-Stewart expressed the opinion that she was "tricked" and "manipulated" by certain staff at the meeting of May 8, 2001. She suggested that they had "another agenda", 'this being to make it appear that Awake Night Support Workers have a broader range of duties than described by the Employer. Ms. Jarrett- Stewart testified that she did not have "total clarity" as of MaY 8th, in part, because she was working from a draft job description and was uncertain as to what was "excluded" from the position. The possibility of manipulation was not raised with Ms. Szwajda during her crossLexamination. Ms. Coughlin acknowledged she was aware -23- as of April 10 and. May 8, 2001 that the Union had filed grievances in respect of the Awake Night Support Worker position. On the view I take of this case, it is unnecessary to address Ms. Jarrett- Stewart's assertion. Ms. Perrier'Clark met with the Huron/Empire Team on April 25, 2001. Minutes of the meeting were filed as Exhibit #25. Mr. Sochackey and Ms. Mazan were-present at'the meeting. The relevant excerpt from the Minutes reads:' "NEW AWAKE NIGHT SUPPORT POSITION - Duties include and not limited to: - general housekeeping - documentation - administer PRNs - take out food for next day - A daily chart will be devised CASH COUNTING - 7-3 shift " Ms. Perrier-Clark testified that, at the time, she was unclear what ~he Awake Night Support Worker duties were "over and above being there for clients during sleeping hours". It was the thrust of Mr. Sochackey's evidence that following this meeting, the Awake Night Support Workers performed all of the duties previously performed by the Support Workers on the night shift, with the exception being the counting of cash which was thereafter done on the afternoon shift. More specifically, he noted that all of the tasks included on the Lanark Duty List, subject to the aforementioned exception, continued to be done on the night shift after the hiring of the Awake Night Support Workers. It was Mr[ Sochackey's general impression that any work needed to.be done on the night shift was, in fact, done by the -24- employee on the shift, including household cleaning, laundry, bathing, 'toiteting, logging and preparing lunch for one (1) individual. Ms. Mazan's evidenoe was consistent with that presented by Mr. Sochackey. Ms. Perrier-Clark stated that, in the period April to October, 2001, alot of questions were raised by staff .as to the "extra duties" of the Awake Night Support Worker. Additionally~ she was concerned about what Support Workers were putting on the duty list for the night staff to .do. As a consequence, Ms. 'Perrier-Clark sought clarification from Ms. Doucette and Mr. Blackwood. After so doing, the issue was further addressed at a Huron/Academy Team Meeting held on October 30, 2001. Minutes of the meeting were filed as Exhibit #26. The pertinent excerpt reads: "Awake Night Support Responsibilities: - The Awake Night support is to respond to the individuals support needs if the person awakes during the night. This can include assisting to washroom, sitting with the person if they cannot sleep and in J's. (name deleted) case administer a PRN if necessary. - They are not to do any cleaning etc. - Suzanne apologized if there was any confusion in this area. - Staff should read the job description if there (sic.) any concerns. - one posted at house. " Mr. Sochackey testified that, at the above meeting, Ms. Perrier-Clark indicated there had been a misunderstanding from the initial April 25th meeting as to the scope of the Awake Night Support Worker duties. It was his recollection she advised that the only expectation of the position was to provide supports, as needed, onthe night shift. He further recalled that Ms. Perrier- Clark instructed staff that Awake Night Support Workers were not to -25- perform laundry or cleaning unless an accident occurred and that these functions were not to be engaged in on a regular basis. MS. Mazan's evidence was to the same effect. -I was left with the impression that persons in the Awake Night Support Worker'position performed amore restricted range of duties following the meeting of October, 30, 2001. Ms. Jarrett-Stewart expressed the opinion that Awake Night Support Workers perform approximately one-eighth (1/Sth) of the duties of the support Workers. This estimate was premised on a comparison of a list of duties for the positions filed as Exhibit #19. From Ms. Jarrett-Stewart's perspective, Support Workers focus on helping individuals learn skills that are necessary in order to effectively particiPate in the community. She distinguished this from the supportive functions engaged in by the Awake Night Support Workers. Indeed, she suggested that seventy percent (70%) .to eighty percent (80%) of their night is spent waiting for something to occur requiring their attention. Ms. Perrier-Clark,-in a similar vein, testified that the primary responsibility of the Awake Night Support Workers is the provision of personal care including, the changing of attends, assisting with toileting and medical needs, providing a snack or drink, and redirecting individuals back to bed. She stated that, unlike the Support Worker, the night staff do not interact with the community .during the course of their shift. It is the thrust of the Union's evidence that Awake Night Support Workers on the night shift performed the same, or -26- substantially similar, duties to those performed by Support Workers when the- latter classification was assigned to that shift. The evidenCe on this point may be summarized as follows: (i) Ms. Coughtin testified that at the Margaret Street Home, the only change was that the counting of cash and the ordering and checking of medications was transferred to the evening shift; (ii) Ms. Walker asserted that the.duties and responsibilities listed in paragraphs twenty-four (24) through thirty-nine (39) of the Awake Night Support Worker job description are similar to what she did when working as a Support Worker on the night shift prior to the change here in issue; (iii) Ms. Hurst filled in for Awake Night Support Workers on five (5) or six (6) occasions at the North Marks Street Home after her return from maternity leave in August, 2001. She testified that, with the excePtion of the Health and Safety and Water Temperature Checklists, there was no difference between what she did on these night shifts and what she did prior to her leave. Ms. Hurst acknowledged that she did not receive any orientation in respect of these shifts; (iv) Ms. Szwajda also filled in for the Awake Night Support Workers at Margaret Street. She stated that on these occasions, she continued to clean, bake and talk to the individuals, as before. Ms. Szwajda acknowledged that no one told her to perform these duties and that she "did them on her own"; (v) Mr. Foglia worked between twenty-five (25) and thirty (30) night shifts at numerous Homes following the creation of the Awake Night'support Worker position. He was asked to compare night shift duties before and after the change. Mr. Foglia responded by stating that the duties really had not changed and that he still did what was expected of him. At another point in his evidence, he described the duties, before and after, as being "basically the same";' In cross-examination, it was suggested to Ms. Perrier-Clark that the change in staffing on the night shift did not reflect a change in the job performed at night but rather involved a better use of staff for the benefit of the individuals being supported. Ms. Perrier-Clark agreed with this suggestion. As mentioned previously, the job description for the Awake Night Support Worker specifies that the educational requirement is a "High School Graduation Diploma and/or equivalent adult education' credits implemented with courses in the Human/Social Services". Ms. Coughtin, in her evidence, referenced an internal job posting for the Awake Night Support Worker position'which was posted at the Margaret Street Home in early October, 2001 (Exhibit #14). The educational requirement was described therein as "an undergraduate degree/diploma in the area of human/social services..." The third paragraph of the posting outlined Support Worker duties, rather. than the duties expected of an Awake Night Support Worker on the night shift. Ms. Coughlin in .cross-examination agreed it was possible that this posting was "a mistake". Ms'. DoUcette advised that, in fact, the posting was a mistake and that it Was withdrawn and a corrected posting issued in the form Of Exhibit #38. The revised posting included an educational requirement consistent with the terms of the job description. A conflict exists in the evidence as to the attendance of Awake Night Support Workers at Team Meetings. Ms. Coughlin testified that the night staff are required to be at these meetings unless they worked the immediately preceding night shift. She maintained that they are, in fact, scheduled to attend. Ms. Jarrett-Stewart and Ms. Doucette, in contrast, stated that Awake Night Support Workers are invited, rather than expected, to attend Team Meetings in the Homes. The former added that she "encourages" -28- their attendance. Ms. coughlin referred to a letter dated October 1, 2001 from Ms. Jarrett-Stewart to the Manager of the Royal Bank in ~randview Mall (Exhibit #28). In this correspondence, Ms. Jarrett-Stewart names the staff .who might assist individuals with their banking transactions. She included the names of the two (2) Awake Night Support Workers from the Margaret Street Home. Ms. Coughlin suggested that their inclusion on the list evidenced, the fact that these employees might complete a tranSfer slip during the course of a night shift on behalf of an individual being supported. Ms. Jarrett,Stewart testified that-, staff merely witness the transactions at the Bank and that they do not "co-sign" on the individuals' accounts. She emphasized that banking is part of the day shift routine and is not done by Awake'Night Support Workers on the night shift. It was her evidence that in preparing the letter, she simply included the names of all of the staff working at Margaret Street. Ms. Jarrett-Stewart acknowledged that it was a mistake to include the names of the two (2). Awake Night Support Workers in the list of employees in Exhibit #28. Ms. Doucette also agreed that it was a mistake to include these two (2) employees on the list. She was aware that Mr. Blackwood had spoken to Ms. Jarrett-Stewart about the matter. Additionally, she believed that Mr. Blackwood had spoken to other Team Leaders and instructed them not to include Awake Night Support Workers in any similar list of names given to the Bank. Ms. Doucette Was unaware if the letter of October 1, 2001 has been amended so as to conform with the -29- Employer's expectations. The'relevant provisions of the collective agreement are as follows: ARTICLE 2 -'MANAGEMENT RIGHTS 2.01 The Union acknowledges and .recognizes' that the Management of the Employer's operations and the direction of the working force are fixed exclusively with the Employer and shall remain solely with the Employer. except as specifically limited by an express provision of this Agreement. Without restricting the generality of the foregoing, the Union acknowledges that.it is the exclusive' function of the Employer to: a) maintain order, discipline and efficiency; b) hire, assign, retire, discharge, direct, promote, demote, classify, transfer, lay-off,~recall, suspend or otherwise discipline employees provided that a claim of discharge or discipline without just cause by an employee whohas completed his probationary period may be the subject of a grievance and dealt with as hereinafter provided; c) make and.enforce and alter from time to time rules and regulations to be observed by all employees; d) determine the allocation and number of personnel required, services to be performed and the methods, procedures and equipment to be used in connection therewith, when and whether overtime shall be worked, and all other matters concerning the Employer's operations not otherwise specifically dealt with elsewhere in this Agreement. ARTICLE 8 - ARBITRATION 8.05 Authority of Arbitration Board: It is understood and agreed that the Arbitration board shall have authority only to settle disputes under the terms of this Agreement and may only interpret and apply this Agreement to the facts of the particular grievance involved. Only grievances arising from the interpretation, application, administration, or alleged violation of this Agreement, including a question as to -30- whether a matter is arbitrable, shall be arbitrable. The Board of Arbitration shall have no power .to alter, add to, subtract from, modify or amend this Agreement or any part of it nor to make any decision inconsistent therewith nor to deal with any matter that is not a~ proper matter for a grievance u~der this Agreement. ARTICLE 2Y - GENERAL 2Y.01 Changes in Classification: The Employer shall prepare a new job desoription wheneVer a job is created or whenever the duties of a job change. When the duties of any job are changed or increased, or where the Union and/or an employee feels a job is unfairly or incorrectly classifieds or when a new job 'is created or established, the rate of pay shall be subject to negotiations between the Employer and the Union. If the parties.are unable to agree on the reclassi£ication and/or rate of pay for the job in question, such dispute shall be submitted to grievance and arbitration for determination. The new rate shall become retroactive to the time the new position was first filled by the employee or the date'of change in job duties. The threshold issue between these parties is whether the implementation of the Awake Night support Worker position constitutes the creation of a new job, or a change to the duties of an existing job, so as to trigger the dispute resolution mechanism provided for by article 2Y.01. It is the position of the Union that the Employer should have negotiated the introduction of the Awake Night Support Worker position instead of imposing it in a 'unilateral fashion. The Union's representative observed that these parties have previously negotiated the following issues around staffing: (i) the creation and deletion of the Night Counsellor position; (ii) the rotation of Support Workers across all three (3) Shifts, at the same wage rate, in the residential component of the ~mployer's operations; and -31- (iii) the inclusion of the Night Support Worker in the collective agreement. He emphasized that the parties were aware during bargaining that .Support Workers worked all three (3) shifts and that many of the duties listed in their job description could not be Performed on the night shift. Put another way, they knew that Support Workers on the night shift did less than when they worked the day and evening shifts. The Union's representative submitted that, in view of this common understanding, the Employer could not base its decision to reduce wage rates on the difference in the level of activity on the respective shifts. He reiterated that this matter -should have been addressed at the bargaining table rather than through a unilateral exercise of management rights. The Union's representative further noted that the parties did not turn their attention to a change in the Support Worker position in the round of bargaining which resulted in the collective agreement under which this dispute arose. He submitted that the failure to raise ~his issue, together 'with the prior bargaining history, .should serve to estoppe the Employer from unilaterally creating the Awake Night Support Worker position. 'It is the position of the Union that there is an onus on the Employer under article 27.01 to establish that there was a significant change in duties such that a new position was created requiring the'parties to either negotiate or'arbitrate a different wage rate. On the Union's analysis, the article has not been triggered as the changes 'imposed are relatively minor, in nature. The Union's representative referenced the statements of Ms. Pozihun and Ms. Doucette during meetings with the Union in February, 2001 to the effect there would be little, if any, change to the actual work 'performed on the night shift. I was asked to accept the evidence of the front-line employees called by the Union as witnesses who each testified that there was no material change in- the night shift duties after the introduction of the Awake Night Support Worker position. The Union's representative submitted that their evidence should be given greater weight than that presented by the supervisors and upper management personnel called as witnesses'on behalf of the Employer. From his perspective, what occurred in this case was more a change in job title than in job duties. He argued that any minor change, which may have occurred, did not warrant a reduction in the wage rate of four dollars ($4.00) per hour for the entire eight (8) hours of the night shift. It was submitted that my endorsement of the new wage rate for the Awake Night Support Worker position would constitute a violation of the prohibition contained in article 8.05 of the collective agreement. On this aspect of the dispute, it was suggested that the EmplOyer removed certain duties from the Awake Night Support Worker position in October, 2001 in an effort to improve its position in this arbitration proceeding. The Union's representative argued that even if the Employer is correct, the Union is entitled to a remedy in respect of Margaret Street between May and October, 2.001. On the Union's assessment, the.contested change was driven.by financial considerations and not by service or objective business concerns. The Union's representative suggested, in effect, that the Employer's conduct reflects a deliberate attempt to subvert the contractually agreed to wage rate for the Support Worker. Additionally, he asserted that acceptance of the Employer's position would create a dangerous precedent, for the following reasons: (i) it could lead to the setting of separate rates for Support Workers depending on when they work and the volume of their activity, ie. a weekend, a holiday'or an afternoon rate; (ii) it would undermine the pay equity process.which recognized the high value of certain components of the work performed on the night shift; and (iii) it would permit the Employer to return duties to the night shift in a manner which would not require the restoration of the prior wage rate. The Union asks that t declare the Employer to have contravened the collective agreement by its introduction of the Awake Night Support Worker position, it seeks an award of the remedies claimed in the grievances now before me. I was asked to remit the question of damages back to the parties and to remain seized in the event they experience difficulties in quantifying same. The Union relies on the following authorities in support of its position: Re Hydro Electric Power Commission Of Ontario And Canadian Union Of Public Employees, Local 1000 (1976), 5 L.A.C.. (2d) 168 (O'Shea); Re Ipso Inc. And United Steelworkers Of America, Locals 58~0 and 9061 (1993), 38 L.A.C. (4th) 100 (Ish); Re Windsor Public Utilities Commission And International Brotherhood Of Electrical Workers, Local 91] (1974), 7 L.A.C. (2d) 380 (Adams); Re St. Joseph's Hospital [London) And London And District Service Workers''Union, Local 220 (1982), 4 L.A.C. (3d) 116 (Rose); Re Sperry Inc. And United Automobile Workers~ 'Local 641 (1985), 20 L.AoC. (3d) 385 (Hinnegan); Re Westcoast Energy Inc. And Energy And Chemical Workers' Union, Local 862 (1994), 46 L.A.C. (4th) 88 (Coleman); Re Canadian Pacific Ltd. And Canadian Telecommunications Union (1975), 10 L.A.C. (2d) 178 (Adams); Re International Association Of Machinists,-LocaI 1740, And John Bertram And Sons Co. Ltd. (1967), 18 L.A.C. 362 (Weiler). It is the position of the Employer, in response, that the Creation and implementation of the Awake Night Support Worker job is consistent with the rights provided to management by articles 2.01 and 27.01 of the collective agreement. Counsel for the Employer referenced the right to assign, direct and classify employees and the right to determine their allocation and the services they perform. Additionally, he emphasized that, pursuant' to the latter provision, the Employer is entitled to both create a new position, as well as change the duties of an existing position, subject to its obligation to negotiate or arbitrate a new wage rate. It is the Employer's further position that the decision in issue was made in good faith and for bona fide operational reasons. Counsel acknowledged that, at first instance, the decision may have been motivated by financial'concerns. He noted, however, that the change in staffing of'the night shift allowed the Employer to make better use of the skill and ability of Support Workers on the day and evening shifts. It was his assessment that this change promoted -35- the mission of the Association and led to benefits for both staff and the 'individuals being supported. Counsel .argued that, in respect of the latter, the change resulted in a more normalized, less-institutional-like, environment. He also observed that the decision was implemented without the need. to layoff any existing staff. In summary, Counsel argued that the change here in question was made in pursuit of legitimate business objectives and in a manner that was entirely consistent with the requirements of the colle~ctive agreement. In this regard, he asserted that the onus is on the Union to establish a contractual violation. Counsel for the Employer submitted that the Association, in this instance, createda new position. This submission is premised on two (2) grounds. First, that the Awake Night Support Workers perform fewer tasks at night in comparison to those formerly performed by Support Workers when on that shift. Second, and more importantly, Awake Night Support Workers do not perform Support Worker duties on the.day and evening shifts, as they are assigned exclusively to the night shift. Counsel argued that there is "a vast difference" between the duties of Support Workers on'the day and evening shifts and those engaged in by the Awake Night Support Workers on the night-shift. He suggested that the former set of duties'are designed to further the Employer's primary objective, this being to promote community integration for.the individuals being supported, In contrast, he described the duties of the Awake Night Support.Workers as being limited to the routine provision of support at night. It was the substance of counsel's argument -36- -that this Case, ultimately, turns On the fact that Awake Night Support Workers are not required to perform the whole range of Support Worker functions given that they only work .on the night shift and are not assigned, in that capacity, to the day and evening shifts. Counsel submitted that the fact Awake Night Support Workers may perform "a portion" of the duties previously performed by Support'Workers on the night shift is not dispositive of this dispute in the Union's favour. On his reading, there is nothing in the collective agreement to compel a conclusion that the night shift may only be worked by Support Workers or that' such classifi~a'tion has a "monopoly" over the duties performed on that shift~ Counsel noted that there are a large number of Support Workers in the Association,s employ who have never worked a night shift. From the perspective of the Employer, the Awake Night Support Worker position is closer in nature to the Night. Support Worker position than it is to the Support Worker position in terms of the duties actually performed. Counsel further suggested that the Night Support WOrker classification, and its history, are relevant for the following'reasons: (i) it demonstrates that the Union has 'previously recognized the Employer's.right to classify; (ii} it Shows the Union has accepted that the Employer has the right to assign duties, including those previously performed by Support Workers on the night shift'; and (iii) it is consistent with a .recognition that night duties are of ,a lower classification than day duties". Lastly, I was cautioned against finding that the Employer's consultation with the Union Surrounding the creation of the Night Support Worker position should operate to.the Employer's detriment in this case. It is also the Employer's uosition that there is no foundation in the evidence justifying resort 'to the doctrine .of estoppel. Counsel submitted that prior negotiation is not a precondition to the operation of article 27.01 of the collective agreement. 'He argued that the article would have .little, if any, effect if a prior agreement on classifications could not be changed other than through formal bargaining. Counsel for the Employer referenced several "distractions,' advanced by the Union. These.'inctuded the following: (i) pay equity considerations; (ii) the error relating to educational qualifications in the Margaret Street posting for Awake Night Support Worker positions; and (iii) the apparent confusion or uncertainty on the part of some Team Leaders as to the scope of Awake Night Support Worker duties. Counsel maintained that none of these issues should be treated-as a determining factor in the resolution of this dispute. · For all of the above reasons, the Employer asks that I dismiss the .grievances. It relies on the following awards in .support of this request: Re Bertrand Faure Ltd. and. United Steelworkers of America, Local 8694 (1998), 72 L'.A.C. (4th) 368 (Newman); Re City of Vancouver and Vancouver Fire Fighters' Union, Local 18 (1995), 52 L.A.C. (.4th) 89 (Munroe); Weston Bakeries Limited and Milk and -38~ Bread Drivers, Dairy Employees, Caterers and Allied Employee~, Local 647 (1987), unreported (Wetters); Re Windsor Public Utilities Commission And International Brotherhood Of Electrical Workers, Local 911, previously cited; Re Metropolitan Separate School Board and Canadian Union of Public Employees, Local 1280 (1997), 68 L.A.C. (4th) 265 (Brown); Re Auto Hautaway Inc. and Teamsters Union, Local 927 (1995), 47 L.A.C. (4th) 301 (Outhouse); Re Columbia Forest Products and I.W.A.-Canada, Local-2995 (2001), 96 L.A.C. (4th) 1 (Starkman). As previously mentioned, article 2.01 of the collective agreement provides the Employer with the rights to assign, direct and classify employees; maintain order and efficiency; and determine the allocation of personnel and the services to be performed. Additionally, on my reading, article 27..01 permits the Employer to create a new job, or change the duties of an existing job subject to its obligation to negotiate or arbitrate a new wage rate. The primary issue in this instance is whether the latter article was triggered by the implementation of the Awake Night Support Worker position in April, 2001. I generally accept the reasoning expressed in the cases relied on by the Union as to what constitutes a new classification. In Re Windsor Public Utilities Commission, it was determined that there must be "a real and significant change in job duties and responsibilities to. warrant the finding of 9 new classification" (page 385). The policy underlying this requirement is addressed in the following excerpt from the award in Re Nurses' Assoc. Joseph -39- Brant Memorial Hospital and Joseph Brant Memorial Hospital (1972), 24 L.A.C.-104 (Hinnegan) at pages 112 to 113:. "In our view, in order to constitute a changed occupational classification within the meaning of art. 16.02, there must be more than a mere change, addition to, or subtraction from the actual job content of a classification. Rather, there must be a substantial, qualitative change in-the ~r actual function performed by the employees.in the classification. The employees' basic job function, subject of course to the de minimis principle, must have changed in fact even if not in name. To hold otherwise would be contrary 'to the terms of this. collective agreement and the weight of authority in this area ......................................... , ....... . ...... ,, I am satisfied that the approach expressed above is equally applicable to the circumstances of this dispute. The core functions of the Support Worker are those listed at pages 11 to 12 of this Award. As noted, most of these duties were. not performed by Support Workers prior to April, 2001 when on the night shift. Rather, this range of duties were performed when they worked on the day and evening shifts. The focus ofthese duties is to help individuals learn skills that are necessary for effective integration into the community and to assist them achieve personal goals and objectives. The duties performed by Support Workers on the night shift prior to April, 2001 are outlined at pages 13 to 14 of this Award. I have compared these duties with what the Employer required from employees in the newly created Awake Night Support Worker position. I note that Awake Night Support Workers were not to count cash, do laundry or household cleaning, or complete the Health and Safety and Water Temperature Checklists. I find that Ms. Doucette's account of Awake Night Support Worker tasks, found at page 18 of -40- this Award, accurately'describes the duties the Employer expected employees in this classification to perform. After assessing all of the evidence, I conclude that the duties performed on the night shift by Awake Night'Support Workers are not materially different from the duties previously engaged in by Support Workers when working the night shift. I accept the evidence of the Union's witnesses on this point. In my judgment, removal of the identified tasks from the night shift does not, in and of itself, support a finding that a new position was crea~ed and that a four dollar ($4.00) per hour reduction in the wage rate was justified. Put another way, I do not think.that article 27.01 would be triggered solely by the changes to the duties and responsibilities of the night shift. I consider it material, and ultimately dispositive of. this dispute, that Awake. Night Support'Workers do not work the day and evening shifts. Unlike the situation with Support Workers prior to April, 2001, they are exclusively assigned to the night shift. As a consequence, they are not called upon to perform the core functions of the Support Worker position and, as a consequence, have little or no interaction with the community. To repeat, prior to the change, Support Workers performed these functions when they rotated through the day and evening shifts. I have not been convinced that this change is relatively minor in nature or that it is more of a change in job title than in job duties. Instead, in the language of the jurisprudence, I think it is substantial and qualitative. In the final analysis, I find that the Employer -41- created a new job when it implemented the Awake Night Support Worker position and restricted employees in the classification to the night shift] In this regard, I think that there are similarities between this initiative and the prior introductionof the .Night SuppOrt Worker position. In a procedural ruling made at the outset of this case, I held that the Union had the onus of establishing a breach of the collective agreement. For purposes of this decision, I am prepared to accept the Employer has an onus under article 27.01 to present evidence showing that a ~ew position was created. I am satisfied sufficient evidence was led by the Employer to Support my ultimate conclusion that a new position was, in fact, created· It is clear on the evidence that the Employer opted to explore, an~ subsequently create, the Awake Night Support Worker position because of a· projected deficit. In the process of creating the position, the management team came to believe that it might also serve to enhance the operation of the Association in several respects~ I have not placed much weight on this belief, · and the fact enhancements may have been achieved, in fashiOning this Award. The decision in this case is premised, rather, on a determination that the Employer;s actions were in conformity with the Provisions of the collective agreement. On all of the ~ evidence, I am satisfied that the decision to implement the Awake Night Support Worker position was made in good faith and for bona fide operational reasons. I am unable to conclude that it reflects an intent to subvert the contractually agreed to wage rate for -42- Support Workers. It is apparent that'in the past these parties have negotiated changes in staffing surrounding the night shift. As mentioned, they negotiated the following: (i) the creation and deletion of the Night Counsellor position; (ii) the rotation of Support Workers across all three (3) shifts in certain of the Association's Homes; and (iii) the inclusion of the Night Support Worker, or sleep position, in the collective agreement. While such an approach to change may be preferable from a labour relations perspective, I am unable to find that it is mandated by the terms of the collective agreement. Indeed, articles 2.01 and 27.01, in combination, suggest that the Employer may act unilaterally' in decisions of this nature, subject to a requirement to negotiate or arbitrate a new wage rate. I also acCept that the Employer did not address changes to the Support Worker classification or the creation of a new Awake Night Support Worker position in the .bargaining of the collective agreement under which this dispute arose. The term of the aforementioned agreement was April 1, 1998 to March 31, 2002. Given this term, and the point in time at which the projected deficit materialized, it is Very likely that the Employer had not turned its mind to the need for some change at the time the parties negotiated the agreement. Ultimately, I conclude there is insufficient evidence to justify resort to the doctrine of estoppel. For reasons outlined above, a delay occurred in fully implementing the change at Margaret Street and at the -43- Huron/Empire/Academy sites. Given the view I take of this case, this delay does not entitle the Union to a remedy. The affected employees at these Homes did not continue to rotate across all three (3) shifts in the period April to October, 2001. At most, they simply performed a few more duties over the course of the night shift. I have not been persuaded that these duties were removed in October, 2001 as part of an effort by the Employer to improve its position at arbitration. Instead, I think that the removal of duties was consistent with its original intention vis a vis the nature of the Awake Night Support Worker position. In my judgment, nothing turns on the fact that the Employer initially circulated an inaccurate job posting at Margaret Street and that Ms. Jarrett-Stewart included the names of night staff in her letter to the bank. With respect to the former, the posting was amended once the error was detected. It is clear that the Employer does not require Awake Night Support Workers to have an undergraduate degree or diploma. With respect to the latter, Ms. Jarrett-Stewart simply made a mistake by including the names of all staff in her correspondence~ It is readily apparent that Awake Night'Support Workers would not have the opportunity to interact With bank staff during the.course of the night shift. Lastly, I accept the Employer's evidence that Awake Night Support Workers are invited, but not required, to attend Team Meetings. As indicated, evidence was presented during the course of this proceeding in respect of the pay equity process engaged in by these parties. Neither party in argument suggested that this case should be determined on the basis of pay equity considerations. If this decision,' Upholding the Employer's implementation of the Awake Night Support Worker position, has pay equity ramifications, they will have to be addressed by 'the parties through further negotiations or in another forum. For all of the above reasons, the grievances are dismissed. I remain seized to deal with the remaining grievances related to the creation of the Awake Night Support Worker position. Dated at Windsor', Ontario this ~5~ day of ~ , 2003. M.V. Watters