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Home My WebLink About1982-0600.Coulter et al.83-08-23IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievers: ----- For the Employer: Hearing: June 30, 1983 Grievors CUPE (S. Coulter, et al) - And - The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing) Employer R.J. Roberts F.D. Collom B. Lanigan Vice Chairman Member Member T. Edwards Representative, Local 767 Canadian Union of Public Employees A.P. Tarasuk Consultant Central Ontario Institute Industria ,l Relations , -2- This is a group grievance raising the ~question whether the Employer possesses~ the 'authority to require on-site caretakers to perform work at locations other than the building in which they live. For reasons which follow, we conclude that the Employer does have this right and ' that the exercise of this right is not restricted to emergencies or vacations or illnes~s of caretakers in other locations. The grievance 'is dismis~sed. The grievors in this case 'all work in Metro District D. For the past two years the Project Yanager in this District has been Mrs. Carol Ritchie. Up until November, 1982, none of the grievors was required to work on a regular basis in any building others than the one 'in which he lived. They performed their caretaker'duties in their own buildings for eight hours during then day. '.From 4:30 p;m. until mid-night they received a premium under Article 13.02 of the collective agreement* i This premium was to compensate the grievors * Article 13.02 reads as follows: A caretaker who is~ an on-site caretaker will be paid. an on-site premium of 45C per hour effective January 1, 1982, 5Oc per hour effective January 1, 1983 for the the period from 4:30 p.m. to midnight, during which he is required to be on site, with the exception of his scheduled off-duty days as remuneration for availability. Section 15.01 shall not apply to caretakers who are on-site caretakers during the period for which 'they receive 'the on-site premium. for being requireh~ to. remain on-site during this time in order to be 'available 'to take ~emergency calls, etc. In November, 1982,~ ~the 'established pattern of work to which the grievers had become 'accustomed abruptly ended. Mrs. Ritchie decided to have 'the grievors rotate from building to building in the projec~t during the eight hours in which they performed the~ir caretake~r duties. Thereapparently were at least two motivations for this move. First, Mrs. Ritchie believed that rotating the 'caretakers through the buildings would assist in familiarizing each one with all of the buildings ~a in the project. This would make 'it much easier to familiarize a new employee with the quirks, etc. of the buidlings should one of the on-site caretakers decide to leave. Further, Mrs. Ritchie apparently believed that rotating her on-site caretakers in this fashion would lead to greater efficiency. This was something that was of considerable concern to her. Because of an austerity~program that apparently was in effect in the Ministry, one full-time staff position in her project already had been eliminated. Mrs. Ritchie saw the rotation as way in which~to streamline her operation. When Mrs. Ritchie 'informed the grievors of her intention to rotate them from bu'ilding to building they protested. It seems that whe~n they became on-site caretakers they never h -. . -4- contemplated working under these 'conditions. They believed that the position of on-site 'caretaker was different from that of an ordinary caretaker who was not required to reside in one of the Employer~'s ,buildings. They liked the existing setup and did not wish~'to see it changed. When Mrs. Ritchie proceeded with ~her plan the grievors filed the group grievance leading to the' pres'ent he'aring. At the hearing, .the submis~sions of both the Employer and the Union focused upon the ambiguous nature accorded by the collective agreement to the ~job of on-site caretaker. While various provisions of the ~collective agreement, including Article 13, expressly refer to on-site caretakers, the classification schedule of Article 12 does not list this position as a separate classification. The Union essentially contended that despite this omission on-site caretakers were different from ordinary caretakers. Article 13.01, the Union submitted, defined an on-site caretaker as "a caretaker who is required to live on-site", and the site referred to in this Article, the Union submitted, must be the site where the caretaker works. Under this interpretation, the Union submitted, the ~Employer would lack any authority to require an on-site 'caretakers to perform work off-site. The Employer met this argument withy convincing evidence that Article 13.01 could not bear the interpretation urged by the Union. Basically, this evidence showed that until the late ~1960 F,s. ther~e 'had been a sep~arate 'classification for on-site 'caretakers, or "resident" caretakers as they then were '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 that classification '!as care- takers on-site to whom the on-site 'premiums [of present Article 13.021 will apply." Memorandum of Settlement between Ontario Housing Corporations and. Local.767;Canadian Union of Public Employees, June '10, 1970, para. 9(~2). The evidence further demonstrated that this change was accomplished in order to enable persons who had been classified as resident caretaker to leave the buildings in which they resided and perform work elsewhere 'during the eight hours per day in which they were ~required to perform their caretaker duties. What this evidence shows is that, within the meaning of the current collective ~agreement, an on-site caretaker cannot be regarded as one who is required to perform his caretaker duties on the site at which he is required to live. It seems that the ‘most appropriate definition would be that such a caretake~r is one who is required to stay on- site, i.e., where he is ,required to live, during the period of time for which he 'is paid the on-site premium set forth in Article 13.02. At the same time, it must be said that when the above-mentioned change was made 'in 1970, the parties probably did not contemplate that the Employer,would make use of the flexibility it acquired to move about on-site caretakers in the fashion in which Mrs. Ritchie did. There was at least an indication in the' evidence that what the Union initially contemplated was gaining some 'flexibility for on-site caretakers, so that they might occasionally perform duties in other buildings of the Employer, e.g., in emergencies, when other employeeswereill or on vacation, or when an on-site caretaker's duties~ as Union Steward required. It seems to be unlikely that when the change occurred in 1970, either Union or management contemplated the permanent assignment of on-site caretakers to perform their day-time duties in buildings other than the ones in which~ they~resided. Nevertheless, there 'was evidence to show that throughthe several collective agreements that intervened between 1970 and the current collective 'agreement -- which is for the two year period ending December 31, 1983 -- the Employer expanded without complaint from the Union its flexibility in assigning on-site caretakers to the point where.it is now too late for the Union to contend for a more limited power. The 'evidence showed that when the current colledtive 'agreement was negotiated there were 'several on-site caretakers who for a period of years wer~e required to live on-site 'and work from 8:00 A.M. to ;.- - 7 - 4:00 p.m. at locations other than those in which they resided. At present, some 27% of on-site caretakers in the Metro Toronto Housing Authority followed this procedure. There seems to be no doubt that the practise of the Employer in making such assignments has been open and notorious, and was so at the time of negotiation of the current collective agreement. Yet, for all the 'evidence discloses, the Union did not raise the matter. Moreover, it seems that until now the matter never was raised in a grievance, In these circumstances the ambiguity in the collective agreement must be resolved in favour of the Employer. It must be our conclusion that when this collective agreement was negotiated the parties contemplated that the flexibility of the Employer in assigning on-site caretakers extended to assigning them on a permanent or rotational basis to perform their caretaker duties in buildings other than those in which they were required to reside. If the Union wishes to restrict or eliminate this power of the Employer it must do SO by negotiation. The 'grievance is dismissed. DATED AT London, Ontario thisBrd' y of ,g)f-F;?yt lgE3* 4:1300 5:2000 Vice-Chairman Collom, Mem!?er