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HomeMy WebLinkAbout1977-0039.CUPE.78-06-Between: 39/77 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Metro (CUPE) And Ontario Housing Before: Ptdessor G. W. Mrs. Mary Gibb Mr. Harry Simon Corporation Adams Chairman Member Member For the Grievor: Mr. P. J. O'Keefe Assistant Director CUPE (Ontario Region) Suite 5Cl 212 King St. w. Toronto, Ontario For the Employer: Mr. A. P. Tarasuk Central Ontario Industrial Relations Institute Suite 200 85 Richmond St. W. Toronto, Ontario Hearing: Suite 2100 180 Dundas St. W. Toronto, Ontario May 8th, 1978 -2- In this case the Union is pursuing a "policy grievance" on behalf of all on-site caretakers who claim that they "are being subjected to a cost that isn't allowed for"in the Arbitration Award of the 1976 Collective Agreement. The relevant provision of the collective agreement is Article 13.01 which provides: A Building Custodian who is required. to live on-site, will have supplied to him by the Employer, unfurnished living accommodation, heat, water supply, hydra and a standard telephone (excluding personal long distance calls) at a monthly rental as follows: =) Rent will be calculated on the employee's wages utilizing the current rent-geared-to-incom formula for family housing. b) There will be a maximum on the rent which will be a market rent for comparable accommodation in the locality as determined by OHC of the Housing Authorities from time to time. The maximum rent so calculated will be subject to the grievance procedure if the Union is not satisfied with the result of the calculation. C) There will be a minimum rent of $45 per month for both senior citizens and family housing units. The cost which the on-site caretakers object to is one in relation to cable T.V. About 1965 the Employer was approached by a number of tenant associations to provide cable T.V. in its buildings. There is no evidence that any or a majority of the on-site caretakers were involved in these discussions -3- or that caretakers made a similar request. The Employer agreed to provide this service and negotiated an arrangement with a cable T.V. company which provided for a bulk billing procedure.(the Employer to pay the total monthly charge for all buildings) and for the cable T.V. company to utilize existing wiring systems in the buildings instead of the installation of a unit by unit servicing system. The result was that everyone living in the buildings, whether they wanted it or not, were provided with access to cable T.V. and this, of course, included the on-site superintendents. This grievance arises because of a change in the method of payment for cable T.V., effected sometime in 1976. The Central Mortgage and Housing Corporation (C.M.H.C.) supplies general operating funds to the Ontario Housing Corporation and related authorities to operate their buildings and to subsidize the losses experienced because of the rent charge restrictions applicable to public housing. This additional charge in relation to cable T.V. had to be negotiated by the Employer with C.M.H.C. and it was. However, prior to 1976, the charge for cable T.V. was, apparently, included in the rental charge for each unit and was not accounted for as a separate and distinct item in the Employer's dealings with C.M.H.C. and the tenants. C.M.H.C. subsidized the overall loss experienced by the Employer because of the rental charge limitations and, obviously, some of the subsidized loss was a product of the charge shouldered by the Employer for cable T.V. However, sometime in 1976 C.M.H.C. required the Employer to -4- separate the cable T.V. charge from the more basic rental charge. As a result, a unit for which a tenant paid $200 before 1976, had its costs, after 1976, reported as a $198 rental charge and a $2.00 charge far cable T.V. If~.a tenant did not have a T.V., there was to be no cable :: T.V. charge. .From that time on, on-site supervisors were asked to pay the cable T.V. charge, while continuing to receive their "living. acconnnodation, heat, water supply, hydro and telephone service" in accordance with the collective agreement. However, the wording of the collective agreement was not changed from that which existed from 1965 to 1976 when they received this service without charge. The Union argued that the phrase "unfurnished accommodation" should be interpreted in light of the practice of the parties prior to 1976 and that it should be found to include the provision of cable T.V. It stressed the unfairness of the Employer being able, suddenly and unilaterally, to institute a separate charge for something that on-site superintendents have no real opportunity to refuse and that they have been receiving for a long period of time without charge. Evidence was adduced that the matter had not been raised in the most recent round of negotiations by either party and the Union took the position that, in the light of this long standing practice of the parties, the onus was on the Employer to negotiate this additional charge into the collective agreement. The Employer submitted that its position had been made clear to the Union before the current collective agreement was signed and, given the wording of the existing provision at that time, the onus was on the Union to negotiate the cable T.V. service into the agreement -5- without charge. Not having done this, the Employer submitted the Union was now estopped from pursuing the grievance before this Board. It is our ruling that this grievance must succeed. The meaning to be attributed to "unfurnished living accornnodation" must have regard to the long standing practice of the parties of not treating cable T.V. as a separate matter. The phrase is patently ambiguous and must take on its meaning from the context in which it is used. There is no evidence suggesting the cable T.V. service was being bestowed upon the employees gratuitously prior to 1976. If the employees are now to be charged for this service, resulting in a net reduction in their total level of compensation, the Employer must seek an amendment to the collective agreement. The Employer adduced no evidence that it detrimentally relied on the Union's failure to seek a change in the wording of the collective agreement and;as early as December 31, 1976, the Employer itself was on notice that the Union disputed its right to effect this change unilaterally. Moreover, as we have ruled, It was the Employer that should have sought a'revision of the collective agreement. The Board retains jurisdiction with respect to the appropriate compensation order, if any, pending discussions between the parties to resolve the issue without need for the Board's intervention. Dated at Toronto this , day of June, 1978. Chairman I concur Mary Gibb Member I concur Harry Simon Member