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HomeMy WebLinkAbout1988-1551.Adair et al.94-06-09~ ~ = ' ':': ' ~ '" C~OWN E~PLO~E~S OEL'ONTAR/O GRIEVANCE CQMMISSION DE SE~LEMENT REGLEMENT BOARD DES GRIEFS 780 DUNDAS STREET WESL SUITE2100, TORONTO, ONTARIO. 'MSG 1Z8 TELEPHONE/TELEPHONE: (416] 326:7388 ;$0, RUE DUNDAS OUEST, BUREAU 2TO0, TORONTO (ONTARIO). MSG ~Z8 FAOSIM~LE/T~LECOPIE : (4;6) 326-~$96 1551/88 IN THE NATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Adair et al) Grievor - and- The Crown in Right of Ontario (The Metropoli. tan Toronto Housing Authority) ~ Employer BEFORE T. Wilson Vice-Chairperson M. Vorster Member M. O'Toole Member FOR THE 'E. McIntyre GRIEVOR Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors FOR THE C. Osborne EMPLOYER Counsel Fraser & Beatty ~ Barristers'& Solicitors HE~RING October 5, 6, 1989 ~ January 12, 1990 March 16, 1990 July 18, 1990 DECISION Ten grievances were scheduled for hearing. The parties agreed that the Board would hear two of the grievances, namely those of Christine Leung and Denise Lord. The other eight grievances were referred back to the Registrar to await for a request by either of the parties for ~ rescheduling. Both of the grievances heard by the Board are that the Grievors are improperly classified. Their current classification is Property Manager 1 with 'th'e position title of Assistant Property Manager. Because of complex classification changes that were made by the employer to othe~ positions and the resulting possibility that additional evidence might become neCeSsary to clarify the significance of these changes, at the concluding day of hearing, Counsel for the Employer · and the Union agreed that this Board should decide at this time the question only of Whether the Grievors are currently properly classified. Should· the Board decide that they are not properly classified, then it would so state without deciding the appropriate classification but remain seised of these two Grievances. It was agreed that the two grievances are ~to be decided on their individual merits and are not to'be considered as necessarily representative of. the other grievances remitted to the'Registrar. Evidence which is found to be common to both grievances should apply to both of them. The Classification Standards form Appendix A of this Decision. They originated in. the Public Service, but in 1980, the Public Service discontinued these Classifications. The Public Housing 3 Authorities however continued the series. The Classifications of Property Manager 2 & 3 are vacant for reasons set out later in this Decision. The Grievors are classified at the Property Manager 1 level. Christine Leung testified~that she began to work for the MTHA1 in January 1981. She described the MTHA as follows:'it has a number of projects in Metropolitan Toronto which it divides into .six districts. She is an Assistant Property Manager at the Warden Woods Project which is in District 2 in Scarborough. There are five projects in District 2. In the Warden Wood Project there are about 890 units, There are Assistant ProPerty Managers only in large projects; she believed that the requirement was 850 units but it also depends on other factors such as geographical location, whether units are scattered and social-problems. 'In her own project, she is the only Assistant Property Manager. By way of comparison, Regent Park in the City of Toronto has three Assistant Property Managersz. Her project is scattered over four different sites: 1. Firva!ley Court at Warden south of St. Clair, 2. 'Patmer Court near Victoria Park and St. Clair, 3. Birchmont & St. Clair (3479 St. Clair E. & 3488 St. Clair E.) and 4. 3190 Kingston Rd., east of McGowan. The greatest distance between sites is 11 ½ kiiometres with the other two in between. The Project combines highrises and townhouseso3 The Senior Property Manager for the Project is Mrs..Olipah. There are also a Senior Maintenance S~pervisor, an Assistant Maintenance Supervisor, a Community Relations Worker and a support Metropolitan Tqronto Housing Authority Hereafter referred to as an APM. i.e. row houses' clerk. The maintenance crew is a separate bargaining unit. The Senior Property Manager~ is in charge of the total operation 'of the project including' both administrative matters and the 'welfare of the tenants. The Senior Maintenance Supervisor is responsible for the upkeep of the buildings. The Assistant Maintenance Supervisor assists his Supervisor and supervises the maintenance staff. The support clerk is under the authority of the Senior Property Manager, except that if the SPM is absent, the Grievor gives instruction to the clerk. There are also management trainees from time to time. This witness was herse!f~a management trainee at Regent Park for eight months..When she completed that, she applied to be an APM and was hired for that and placed at Jane and Firgrove which had about 650 units. On August 12, 1985, .she moved to the Warden Woods project. In August 1985, there was a reorganization in MTHA for administrative pUrPoses. With a view to economizing, the MTHA created more senior portfolios by adding units to existing projects. Jane and Firgrove was expanded to include an extra area as a result. The Grievor's move at that point to Warden Woods was part of that reorganization. Firvalley and Kingston Road were combined. There was~still however for the combined project one SPM and one APM. The Grievor testified that with this increase, in the number oR units, she became more involved in decision making rather than just performing Clerical functions~ She also testified that` the SPM whose functions she performs in the absence of the SPM is also now busier sinCe the reorganization. The Position Specification for the Assistant.Property Manager was filed as Exhibit 4. it bears the date 29/9/78 and the Grievor testified t~at ~ Hereinafter referred to as the SPM. 5 it was inaccurate. A draft Position Specification was also filed in evidence (Exhibit 6); this is included as Appendix B of this decision. It states under Purpose of Position that: "Under the 'general supervision of the Senior Property Manager, assist in the day-to- day management and operation of a large housing portfolio." This Grievor disagreedwith the word "assists" since there are jobs she does on her own and for which she is responsible. Union Counsel took her through Paragraph 1. of the Draft Position Specification and essentially thewitness testified that with very few exceptions she does these things by herself With little or no intervention by the SPM. She agrees she is under the supervision of the SPM'b~t is not assisting her. For example in the case of delinquent rent payments, she has discretion whether or not to initiate tenant termination proceedings. If she discovers misrepresentations with respect to income of the tenants, she does consult with the SPM and together they will initiate legal.proceedings, i.e. it is in the form of a recommendation signed by the SPM which goes to the Board. In October, 1987, there were changes when Mrs. O~ipah became the SPM; sometimes the Grievor prepares the fact sheets on the tenant's misrepresentation which then are set out in the materials that. go to the board.'it. She acts as the representative of the Board in advising Counsel at Court. She has to instruct Counsel on any settlements and if no settlement is reached, she will be a witnes~ for the Board in court. With respect to anti-social behaviour by tenants, the Grievor used to do the notices, but now they are done by the SPM. Her testimony with respect to item ! f was that upon receiving advice ~rom the legal department as to the date for eviction, she would handle this and make the necessary arrangements for any 6 necessary staff to~'be present. She is~present at the eviction and does an inVentory etc. The SPM would normally not be present at evictions unless ~he tenant is abusive. If the tenant has requested to pay on the spot, the Grievor· has to use her own'discretion whether to accept it. There is now a new policy that the eviction goes forward without so accepting. With respect to damage in in cases of moveout lin transfers, she has some discretion on charges with respect to ~ormal wear and tear; there is a table or chart. Turning next' to paragraph 2 of the draft Position Specification, she,.agreed with subparagraph~a. She testified that in fact she spends about 50% of her time out of the office at sites· for general functions~ The SPM's job requires less time in the project, except when she does her inspections with the Maintenance Supervisor or when she visits tenants. The' SPM spends more time than the witness on committees and when the SPM is away from the site, the witness 'is responsible for the site. The witness also agreed with the description in 2 b except that She is not responsible for pre-transfer inspections. She does not do move-out inspections unless the unit is~ in bad shape and the maint~enance supervisor needs a witness. She agreed with 2 c and 2 d. She also agreed with the words: " Under the general supervision of the Senior Property Manager" in paragraph 3 but added that there was not very much, if iany, general Supervision. With respect to rent changes, there is a policy for the exercise of the discretion she has in some cases. With respect to number 4, she testified 'that she gave more than just "advice and guidance" to trainees; she teaches them. She agreed with 4 b. She also does 4 c: prior to the current SPM, it was in fact the support clerk who did it. She 'also agreed with paragraph 5 a.& b. She now belongs to the safety and security committee at the district level. 7 This. Grievor referred next to the Class 'standard (see: Appendix A). She testified that it was no longer a training level position. The first year was entry level and training but not after that. With respect to the second sentence in the Superintendent 1 · Class Standard, she 'did not agree that her job was to "assist" senior working, level Superintendents since there are areas where she .has to use her own judgment. With respect to the penultimate paragraph in the Preamble which speaks of full working level Superintendents, she testified that although she did not supervise the Maintenance Supervisor,' she does instruct him to carry.out tasks that are necessary and she doe.s instruct the support clerk on a day to day basis as well as management trainees. In cross-examination, Ms Leung testified essentially that she has never been'overruled on tenant placement: She gave an example as recently as a few months prior to her testifying at the hearing of her getting Tenant Placement to cancel a proposed placement because of its inappropriateness. With respect'to tenant damage charges, she agreed that the SPM signs the form and then the District Manager, but she maintained that the SPM does not check it and that-she has cancelled charges in the absence of the SPM. Again she gave a recent example. She further testified that she could charge a tenant without the SPM's approval if it Was under $200 and then when it comes back from District Office sign it in the-absence of the SPM. Also, she will make the adjustments in the case of' tenant overpayment caused'by a decrease in the tenant's income as. where the tenant loses her job and goes on welfare. She tells the tenant how much to pay next month. The SPM signs the authorization, but this is just a rubber stamp. When the SPM is away, it is Common for the adjustment to be processed on just the Grievor's signature alone and she takes it to District Office for the District' 8 Administrative Officer to sign. Termination notices for arrears are generated by the computer and the Grievor screens them. Then she takes them to the SPM for her signature but:the SPM does not check them. She also instructs the .clerk to prepare the files for legal eviction proceedings. Where the grounds are for anti-social behaviour, in cases where she has served the Notice, she would do the affidavit. There is no procedure requirin'g'the signature of the SPM to refer these matters to legal proceedin'gs, though there is consultation. Where the anti- social behaviour do.es not fit within the Landlord and Tenant Act, the decision is up': to the Board but sometimes the Notice is served first. Normally settlement is not anticipated and only in a few cases before the 6ourt hearing has she asked the SPM whether she should settle. In cases where the tenant wanted to settle at court and the Grievor has been unable to contact either the SPM or the District Manager, she has decided on the spot, but that was back in If the SPM is away, the next senior pergon is the Senior Maintenance Manager but he is only responsible for maintenance and' cannot be consulted on property management matters, such as rent administration, tenant social welfare, legal matters or even derelict vehicles, ~In emergencies she would call ~the District Manager. The Grievbr does not have the authoritY to send. the clerk home for disciplinary reasons; the SPM can do s0. With respect to the preparation of the operations budget, she has input and talks to the Senior Maintenance Supervisor, but does not prepare the figures. In re-examination, Ms Leung testified that in the case of termination for arrears of rent for which the notices are ~computer generated, a portion, of them will involve legal proceedings already commenced, others will be in the hands of a Social Worker and another group consists of special cases where the tenant gives an explanation and this Grievor may decide to withhold the Notice for a month. Some time in 1987 or 88, there was a change of policy that now requires the approval of the District Officer for the acceptance of payment~once an eviction order has been obtained. In these cases, the District Manager is briefed by the SPM or the Grievor and has never rejected the Grievor's recommendation. Denise Lord, the second Grievor, at the time of the hearing was an Assistant Property Manager at the North Regent Park project. She started With the employer as a clerk typist in November 1978, was a management trainee at Moss Park beginning in 1981 for six months and. then became an assistant Project Manager. She was transferred to Lawrence Heights-Project near.the Yorkdale Shopping Centre in July 1982 and then in 1985 to the current position at North Regent Park. It has 1,397 units under a Senior Property Manager and three Assistant Property Managers. There are management trainees from time to time and there are two support clerks. The bigproblem at this complex is the drug problem. With Exhibit 6 in front of her, Ms Lord described the functions of the SPM as follows: she' is responsible for the administrative and total operations including the staff budget and all aspects of housing including the grounds, complaints, maintenance and social aspects.. With respect to the APMs, they used to divide the project in three among themselves but since April 1988 when one of positions became vacant, a Go-Temp was brought in. The units were then divided into'two between the APMs. The Go-Tamp does a number of duties such as the cheques, leasing, and annual reviews, i.e. rent assessment reviews. The APM decides whether tenants should be charged for repairs. From there, it goes up to 10 the District Office to be typed and to be signed by Linda Bowes, the District Manager. The Grievor testified that she has never been questioned about" them. She testified that she attended on ail evictions. But only. the District Manager has the authority to cancel a writ of possession and she would have to be called. She cannot remember any situations where she has had any disputes with Tenant Placement. She testified that she did not conduct move-ins and move-outs, but does pre-transfer inspections. She nor~atty notifies maintenance of any damage not to be billed on moving out and bills the tenant..This requires District Office approval, not that of the SPM. With respect to rent reassessment; they are initialled b~ the other APM and.then go to District Office.~ They are very seldom seen by the SPM. She gives considerable training to the management trainees, especially since the SPM became ill. With respect~i to 5 a, Ms Lord explained that she had building meetings involving tenant organizations, such as the Tenant Action Group which is .Concerned with the drug problem, work groups involving the .race relations officer and other employees and tenants and staff.team meetings. In building meetings, she explains' policies with respect to transfers and complaints about neighbours. The SPM has attended those meetings. Initially, th~ SPM attended the race relations meetings, but then the APMs attended to give input. There is also on-site security and the Grievor testified that she had good relations with the Community Guardians. Ms Lord next testified about the role of the SPM in terms of Exhibit 6. The. SPM'has not been involved at all with 1 a and none with b. The APAs review the security and incident reports. In case of suspicion of the'use of cocaine, she would request the tenant to discuss the matter and advise her that it could result in a Notice of Termination. This discussion would be followed up with a letter to the tenant setting out the discussion. If a tenant refused to vacate in such a situation, the APM would'prepare the necessary submissions to the MTHA. board.for a Notice of Termination. The SPM occasionally reads the security reports. In her own experience, the SPM has never been involvedin item 1 c (rent arrears reports), but with respect to the credit balances, the SPM did play a big role for a number of months. With respect to 1 e, it is now the Clerk's duty to prepare the files etc, though the Grievor appears as a witness in court. The staff lawyer represents the housing authority · but it is the Grievor who gives instructions on settlement. Only once to her knowledge' has the SPM ever attended at the court proceedings. ~ Subparagraph 1 f in the draft position specification (Exhibit 6) with respect to-eviction is accurate according to Ms Lord and the SPM does not participate in it. She answered similarly with respect to g and h. The Grievor testified on 1 i: "assisting the SPM with the abandoned vehicle program", that the SPM signed the documents to be posted on the vehicles. The witness would take ali the actual 'steps then required under the procedures. Less than a year ago that policy changed requiring the SPM to handle the towing away procedures. With respect to 2 a, she.said that she had total control over authorizing repairs to public areas, except for such major items as the boiler room or repairing the driveways although she could'ask to have maintenance fill in potholes which they would. normally do. She has no control over matters that have to be put out for public tender. She would however have input through the budget process; see: 2 d. On 2 c,. she testified that she had discretion as to charging, waiving or partly charging back against t~e tenant for damage beyond fair. wear and tear. She testified that it is no__~t reviewed by the SPM. It is countersigned by another ADM. 12 A District Manager. has never overruled her; if it happened as where the District Manager agreed with tenant it would then go back to the SPM. As for the general words in 2, namely "Under the general supervision of the SPM", Ms Lord said that She runs her Own project and the SPM is her supervisor. Since the new SPM was appointed in late 1989, she testified at the January 12, 1990 hearing that she had ~nly gone to .him once with a problem.. She estimated that the previous SPM had been on the site about 60% of the time and the new SPM about 50% of the time. Turning next to paragraph 3, the witness agreed with it and testified further that the SPMi does not participate. She is'there to give the witness guidance and support, who during the last year had been asked about it about a dozen times. Looking nex~~ at paragraph 4, Ms Lord testified that at the time of the grievance, there was one management trainee. The witness gave the ~rainee guidance, support, advice, and training. She also gives directions to the Community Relations.Workers on day to day matters. The agencies referred to in paragraph 5 'include such outside agencies as the police, Children's Aid Society, the fire department, and the fa/~ily benefits in the Metro ~oronto government. In cross-examination, Ms Lord was asked in situations where she wanted to refrain from serving a Notice of Arrears, would she discuss it with the SPM~ She replied: "not necessarily, if the tenant paid half of the arrears, if there is~an agreement, if she is already under~.a Notice of Illegal Act". She denied that she would discuss it with the SPM if there were extenuating circumstances. She agreed that at court, she would want a substantial portion of the arrears paid and would not extend payment beyond three months although she added "but that depends". At the time the grievance was filed the daily'security reports were put on the APM's desk by one of the guards. The SPM could look at them if she wished and if there was an emergency, the witness would tell her. In late 1988, the SPM got instructions to log all the security reports. The SPM would divide them up among the APMs who would then log them. The Ministry called Carol Ritchie.as a witness. She is the Senior Property Manager for Regent Park. The staff there includes 94 under her management, directly and indirectly. As an SPM, her accountability is for total management 'and operation of the portfolio including budget and staffing. She reports to the District Manager. Within the management team, the entry level is APM for property management and AMS in the maintenance side. There is a possibilit~ of ·cross over and the other route is through the trainee program which is contractual. She estimated that an APM with two to two and a half years experience depending on the individual, can succeed on a competition for a property manager. While an. SPM would spend more time in intense situations such as policy, procedures, a long term experienced APM is able to provide a level of expertise on a day to day basis without line direction. in resDonse to the question of what kind of·supervision an APM would need, the witness replied - to complete work on a timely basis that monthly activities are completed, trying to give the APM more exposure in prop%rty management and maintenance by involgement in'more community activity such as meetings. A younger APM would participate· Mrs. Ritchie characterized the APM position as a training position in the first two years and after that as a maintenance position of the administration of the portfolio. This involves handling most of the day to day routine, rent collection and tenant 14 negotiations. She testified that the APM is not responsible for the work of anyone else. The management trainee is contracted to head office and assigned to the responsibility of a CPM. That may be three to six months depending on the trainee's training{ the assessment and the assurance he receives best possible training. The role of the APM is to show the trainee how situations are handled. Until recently the trainees were not allowed 'an active role; she testified that the next batch would be handled differently. The SPM monitors the progress of the trainees. When a SPM is away such as on vacation, the SPM's authority is delegated to another senior ~who visits the portfolio. Some of 'the daily' maintenance is given to the APM and she can authorize it in the SPM's absence with respect to budget money. Maintenance documents have to be authoriZed.by two to three levels. Property management documents require :less and can be delegated to the District Administrative Officers. If the SPM is away temporarily as for example at a meeting and the document needs immediate signature, it will go to the District Office to be signed. The cross check of calculations is often done by the APM, but the actual document is signed at the district office. There are no examples where the witness delegates.her signing authority to the APM. The SMS signs in the absence of the SPM for maintenance and staffing. Mrs, ~itchie denied that an APM has any authority to assess property damage against a tenant. She testified that the rent is due on the first bf the month. When asked if an APM has any discretion to give a tenant time to pay the rent, she answered that she didn't think that they do that. If a tenant said that she could not pay until the 22nd but they would still proceed with the Notice Procedure. A notice is sent on the fifth of the month on the rent balance to the tenant. On the 17th to the 19th a Notice of 15 Termination is printed for every tenant whose outstanding rent exceeds $50 and unless it is paid or in certain other specified cases, ~he Notice is served and turned over to l~gat. The SPM is responsible for the notices because she is responsible for arrears of rent. Even if there are ext'enuating circumstances, the APM has no authority to refrain from serving the notice. The SPM has such authority but had better be prepared if it does' not work out because they are evaluated on her total ability to collect the rent and control the budget. An APM has nO ~uthority when the seven day eviction notice is obtained but then neither does the SPM. The. present policy is not to be lenient. Even in May 1988, a deal with' the tenant might be made at the door at the time of the eviction, but even then the District Manager'.s approval was necessary'. The witness would, need to put a call .through to the District Manager. With respect to settling at court, there is an oral policy which is set by each District Manager. The Position Specifications .for the Senior Property Manager was entered as Exhibit 5 in the proceedings. With respect to tenant complaints as set out at paragraph 5, the witness stated that she handles any call that comes through a request from H.O., politicians,'or.the Ministry or a tenant who was not satisfied with the problem resolution by lower staff. With respect to security reports, she reviews intense problems such as drugs and heavy assaults and she would also do the followLup in such cases, inquire from the appropriate APM, AMS or Community Worker if it had not been done. The APM has no role in paragraph 6 matters (Collective Agreement matters). In June, 1988, the SPM were appointed environmental officers. This gave them responsibility for the 16 assessment of all derelict vehiCles on the premises.5 In cross-examination, Mrs. Ritchie stated that she became the Senior Property Manager at Regent Park in the spring of 1987 and became an Acting Operations Director's' Officer at Head Office in the summer of 1989 and then was transferred, to to a Scarborough portfolio ~in September, 1989. In February 1988 she was away from Regent Park for about four weeks. At that time, Bob Hanna', another Senior property Manager, had to take on the Regent Park por%folio as well as his regular one. She was also off ill for about 'six weeks in late January/February, 1989 and then in the spring occasionally a few days at a time. Again in these periods, 'Hanna took over her responsibilities. It is the same type of arrangement as during vacation.'The SPMs do a lot of committee work, a greater proportion than property managers or APMs. Committee work involves preparation and follow-ups as well. She estimated two committee meetings a month involving a half day each along with a half day of preparation and follow-up. There is also the work involved with responding to the District Manager including meeting with him frequently. The route for advancement of management trainees is through successful competition on either an APM or AMS posting. In the second six months! of their training (the field placement phase), they do less complex property management duties. In the case of 'North Regent Park, the management trainee would be as.signed one third of the portfolio. Assistance would be provided by the senior APM, but if confused would go to the SPM. But she disagreed that they received day-to-day direction from the ASP. Both of the 5 It is apparently a common situation where old, worthless "heaps" are just left in the parking lot. trainees ~n 1988 were in their first six.months. This witness testified that although the second one may have arrived while this witness was away, she testified that she was assigned to Hanna and that this witness did a lot of the training. She also wrote the formal assessments and has no 'knowledge whether Lord did the training. Mrs. Ritchie agreed with Union Counsel that often she is busy with other matters, and relies upon the APMs for day-to-day problems. It is the APMs who hear about, investigate and try to work it out. In the smaller projects where there are' no Assistant Property Managers and a Property Manager with support staff is in charge, that PM is front line person like the APMs in the larger projects. Referring to Exhibit 7, a record of tenant charges, she explained that this is a request for a tenant invoice. It is completed by the maintenance department .because a ~epair is considered to be beyond normal repair.5 The AMS signs it, it then comes to the property management office where the Clerk checks it; it is' then is signed by the APM. Then it goes .UP to the District Office for invoicing. If there was an exorbitant? expense involved such as all the plumbing broken, then the APM would consult with the SPM before making any change to th~ charge. There is a schedule for charges but it does not c6ver everything. With respect to lease renewal, Mrs. Ritchie testified that she should see these as she 6 This exhibit relates to damage to a toilet bowl which resulted in its having.to be replaced. ? By exorbitant, the witness means beyond the schedule; not necessarily in the sense of an unjustifiably high charge. The exampl'e given would as I understood it refer to something in the nature of large damage committed by someone as for example~ during a-drunken rampage. 18 has to do a certain amount of recalculating to do (10S) and then District Office also has to do some recalculations. Exhibit 15 is. a report to the Board with recommendations if the tenant did not vacate after the Notice time. It would be prepared by the APM. Mrs. Ritchie was not involved in this report, as she was off ill at the time. She testified that she would have initialled the draft report if she had not been away. The report along with the file wouid then be 'sent to Bowes. who is the District Manager. If there is an accidental death,..under the Fire Code, the Senior Property Manager has to attend the Coroner's'Inquest which can assign responsibility directly to her. If she could not attend the APM would have to testify. With resPect to complaints and calls from tenants, politicians, and the police, they come to the APMs as well. If they are significant matters then it is expected they will be brought up to the SPM, otherwise the APM makes an decision and leaves a note in the file. Lynn Weber testified for the Ministry on the class standards and in particular', on the management classifications for the Property Managers and th9 Senior Property Managers. A R G U M E N T :'. There were originally ten grievances. By agreement, the parties agreed to proceed ~w.ith these two grievances first; they were not presented as representative grievances. The class standards in question were originally taken from the Public Service classifications system. Now however the Property Manager and the Senior Property .'Manager positions have been moved under a Management Compensation Plan so that the Superintendent 2 and 3 19 classifications are empty or vacant (or unused). Ms Osbourne in closing argument claimed that they were deleated from the classification system When the PM and SPM became~management level. The PM and the SPM are now classified respectively as PM16~and PM17. The PM17 position is a benchmark position. The Union began its closing argument with the submission~that the Grievors either be reclassified at the Superintendent 2 or 3 level or in the alternative for a management classification series APM16 bearing in mind that there are no benchmarks which are within the bargaining unit. In the final alternative, Union asked for a Berry order. Since the Union is requesting retroactivity to August, 1985, and Since the grievances were not filed until May, 1988 and no evidence has in this hearing been presented on it, there would be a need for a continuation of the hearing to determine the retroactivity issue if it arises. However, by the conclusion of the ~arqument, both Counsel decided that due to complex classification changes already made by management to'the other property manager positions as indicated, it would be better simply for the Board to decide whether the Grievors are properly classified and if not to remained seized to receive further evidence and argument. The Board agreed. THEtUNION'S ARGUMENT The fundamental argument of the Union is that the Grievors are performing at a working level and not at training or entry level. The Standards which were made in 1972 did not even contemplate the Grievors positions. The Class Standard for Superintendent 1 covers "entry and training level positions of employees in the process of acquiring experience in the role of the property management function in a public housing setting." and "assist senior working 2O level Superintendents in carrying out many of the less complex duties mentioned in' the preamble." The Union submits that the Grievors do very complex duties. The duties involved are described in the last two paragraphs of the Preamble which indicate which are more or less complex. If there is anyone at the'Superintendent 1 level it is probably the management trainees, but they are not classified staff,..but unclassified contract staff. Denise Lord is working at North Regent Park where there are 1,387 units. There is an allocation of three APM positions, but in' fact only two are filled permanently, with the result that in fact this .Grievor is responsible for about 700 units. She has been delegated almost complete responsibility on a day-to-day basis for the rental of these units which Mrs. Ritchie conceded was with "little or no supervision": ' With respect ',to supervision: the two Grievors in reality supervise clerical staff even though formal supervision remains under the SPM. Even the maintenance staff and the Community Relations Worker are in fact under her supervision, knd the Grievors superviS'e,and train the management trainees. The kPMs do on a day to day basis the same as a PM in a project of less th~n 500 units, with theexception of the budget. Unlike the APM and the PMs, the SPMs are indeed involved in a great deal of committee work concerning the Employer as a whole which requires them-to leave the day-to-day responsibility and day-to-day operation, of their portfolio to the APMs. In the case of the Grievor, Leung, the SPM did not testify and so her evidence is in fact uncontradicted. Furthermore, there, was a reorganization in 1985 which added a number of units tOlthe existing portfolios without any increase in management staff.:: ~t Warden Woods, an entire site was added. This increased the involvement of the APM in decision making while the 21 SPM became more occupied with ~othe'r matters. On. her testimony, Exhibit 6 is. a more accurate than Exhibit 4. The union filed as part of its argument its own version of Exhibit 6 which was marked Exhibit 6U which it submitted was based on the testimony. Exhibit 6 .and 6U state: "Under ~the genera1 supervisioR (of the SPM) assists" in paragraph 2 PURPOSE OF POSITION,~ while Exhibit 4 states: "Under the direction- and supervision" (of the SPM), .is responsible..~." The Union's submission is that many of the tasks performed by the APM are only rubber stamped by the SPM if even that. As-an example of this, Union Counsel referred the Board to the question of whether the tenant can pay when the sheriff is at the door. The~approval of the District Manager is required for the decision but that is true of both the APM and the SPM. Another example is in court proceedings where it is in fact the APM who attends and deals with possible settlements. In'the case of rent arrearsr printed-out by the computer, it is the APM who decides which need to be put on the spM's desk. So it is in fact the APM who exercises the discretion with these, especially smaller ones, i.e. tenant .charges under $200. With respect to paragraph 3 the Rent Administration duties, the evidence from Lord was that the SPM does not participate in these matters and it is the APM who supervises the clerical staff. In paragraph 4, it is providing direction and supervision to the clerical staff and management trainees rather than simply "advice and guidance". Paragraph 5, the APM attends as the representative of management. With respect to 5b: providing information to ministries, staff, etc., Ms McIntyre allowed, that there were differences in the testimony of the two grievors but submitted that this was because of their different experiences and argued that they were not significant. 22 Ms McIntyre further-submitted as proof that the Grievors are improperly classified is that the Property Managers, Senior Property Managers,and District Managers were moved up respectively .to APM 17, 18'and 20iirespectively in the management classifications in order to reflect their increased responsibilities. Ms OSborne, Counsel for MTHA, submitted that the management standards remained unchanged except for the District Managers, Senior Property Managers and Property Managers. The main factor argued by Counsel Was that as Exhibit 3 demonstrated.the Assistant · Property Manager, ~classified as a Superintendent 1 is at the "entry and training level"~. What is classified is the position, not the person. A grievor might have been in a position for a long time but tha~ does not affect the classification: ~see, ~arrand v. Ministry of the A.G. Ont. GSB 521/81 at page 26. Entry level means: the first rung. The Ministry's evidence was that it did not matter whether the person remained at that level for years. The Employer does not dispute that the Grievors have distinct job duties for which they are accountable. However, in performing these' duties they assist the SPM who has ultimate responsibility, Consistent with the second Paragraph in Exhibit 3, the Grievors carry out less complex duties. They do not do budgets and do not supervise and are not responsible for subordinate staff. Turning to Exhibit 6U filed by the Union as part of its argument, Ms Osbourne argued that the second and third bullets set out as the Grievors' duties were in ~act the duties of the SPM. The Grievors are in the Barga~inin§ Unit and and do not dis.cipline or do performance appraisals, if the decision raises that issue, it then becomes a matter for the Tribunal. With respect to the absence of Mrs Ritchie because of illness or other reasons, the accountability still remains with the SPM, REASONS FOR DECISION A finding'of improper classification would raise extremely complex issues since the other two positions in property management were raised to the management level, ~.e. outside the bargaining unit, before th~se grievances were filed. It is for this reason that Counsel at the conclusion of the hearing submitted that the Board simply decide at this point whether the Grievors are properly classified or not and if not then~to remain seised of the matter. The preamble in the class standard states: Superintendent 1, Public Housing The "entry and training' level wher6 there is participation in the Property Management functionsoutlined in the series under the direction of, and as an assistant to, a Superintendent 3, Public Housing. Superintendent 3, Public Housina , The' "senior', working level where the housing complex supervised is comprised, of more than 500 rental units. The class'standard for the Superintendent 1 states:. "entry and training level positions of employees in the process of acquiring experience in the role of the property management function". And "assist senior working level superintendents in carrying out many of the less complex duties mentioned in the preamble". There are serious problems in the application of these standards to these Grievors. There was no dispute in the testimony 24 that the SPM has become a very responsible position w~thmany more functions than were.originally envisaged when these standards were prepared. Indeed,. the SPM now spends a substantial amount of time off site in meetings thus leaving the APMs in actual Control of the sites. As a result of these .changes, many of the functions whic~ the APM was originally only~intended to assist the SPM with when the standards were drafted have now become their de fact© responsibilities. I have no difficulty in finding first of all that these two Grievors are not in a training position; albeit, they do acquire experience, as all people in any position of any challenge do and especially when that position has more duties thrust on 'it than were originally envisaged. There is now a true openin~ for management training, and that is contractual position of management trainee. With respect to the description of "entry" level, that is true so far as b~ing the first or lowest classified position but that only tells uS that there is no classified position in the series below it. It does not answer whether the question whether the class standard properly classifies tkat position. Ms Leung's testimony, which I have no difficulty accepting, clearly shows she exercises significant decision making in the case of detinguent rent payments, evictions, moveout damage claims and tenant placement. She clearly is now only under the general supervision of the Senior Property Manager and as' she says: "there is not much of that", she in fact trains the trainees. She instructs both the Maintenance Supervisor and. the support clerk. Even in Landlord and Tenant proceedings, she exercises judgment and discretion and even final decision at the court house on settlement when the SPM was inaccessible. Clearly these functions are not captured by the class standard and are essential duties. In the case of Ms Lord, she has a difficult portfolio where the normal complement of three APMs has been made'more complicated due to the absence of a permanent third APM whose'position has been filled with a Go-Temp. She also has been doing the actual decision making on tenant damage charges, although-signed by the District Manager.' Like Ms Leung, she also makes the decisions on Tenant Placement. She also provides much of the training for management. trainees. Regent Park has serious social problems, and Ms Lord is much involved in conLmittee meetings over these issues. She clearly handles. drug eviction issues (the Board makes the decision), rent arrears and gives instructions at court on settlements. She in facts instructs the maintneance with respect to any repairs other than where public tendering is required. I am satisfied that her testimony was accurate and represents what in fact occurs as distinguished from what the official theory of authority would indicate. Again these important job functions are not captured by the class standards and again the reality of de facto limited supervision is not correctly stated in the standards. These important daily functions which these two grievors perform are not reflected in the class standards. They are Significant, not marginal functions and their absense from the class standards results in an improper.classification of these two grievors. Accordingly, having found the Grievors improperly classified I restrict the ruling at this point to that finding and a declaration that these two grievors are' 26 improperly classified with this panel remaining seised, of this matter. Dated at Toronto this 9th day of June, 1994. Thomas H. Wilson - Vice-Chair Menno Vorster - Member Michael O'Toole - Member SUPER/NTENDENT PUBLIC HOUSING SERIES This series covers those positions in the On:eric Housing Corporation whose employees are engaged in the "on site" management of a Public Housing complex or area. ~mployees. in these positions administer a comprehensive range of property managemen~ functions and in this context) they are responsible for the efficient operation of their assigned project locations. '-'his is a three level series designed to accommodate positions of. Superintendents operating at either a "senior" working level, a "~ull" working level, or an "entry or training" level. 2'he ~hree levels involved are structured as follows: Superintendent ], Public Housin~ The "senior" working 'level where the housing complex supervised is comprised of more than 500 rental uni:s. Superintendent 2, Public Housing The "full" working level'where the number of rental units under supervision is less than 500. Superintendent 1, Public Housing . The "entry and training" level where there is participation in the Property Management functions outlined in the series under the direction of, and as an assistant to, a Superintendent 3, Public Housing. The primary, responisibilities carried out by Superintendents at each. level of the series are Property Management functions such. as the leasing of apartmen%an~ residential units; the caretaking and maintenance of assigned project sites;'and the preservation of good tenant relations. Superintendents a= the '"full" 'working level Usually supervise a subordinate organization consisting of a Maintenance SuDervisor and several caretakers, labouxers and servicemen. Superintendents a% the "senior" working level usually supervise, in addition, a C_~m__~unity o~-- Relations Officer and a Superintendent in training. Employees allocated to this series are responsible, either' d~re~tly or ~hrough their subordinates, for such'characteristic duties. as preparing an~ controlling an'operating budget co~ering their assigned area of responsibility; controlling all aspect~ of rent collect-ion in =heir assigned project locations; settling rent dispute~; conducting ongoing reviews of tenants' incomes for ten% determination purposes;. 21106 CL~SS STANDARD: SUPERINTENDENT 1, PUBLIC'HOU$IN~ This class covers entry and =raining Level positions of employees in ~e process cf acquiring experie~e in ~he role cf the property management function in a, public' ho.~sing setting, · Employees in this class assist' senior working level Superintendents in carrying ou~ many o~ the less complex ~uties mentioned in the p.reamble. After sufficient experience in this mapaciry,'incumbents would be considered qualified *~ apply for vacancies amongI positions. classified at the full' working ,level ~f Superimtendea~ 9.+, Public Housing. SKILLS. A~D KNOWLEDGE.:: .. Ability t~ deal tactfully and effectively with tenants. May 1~ 1972 CLASS STANDARD: SUPERINTENDENT Z, PUBLIC HOUSING This class covers~ positions of. employees Who are respon.~ible for The proper~y management £unction of a public hous/ng complex comprised of up to 500 rental units. This is ~he full working level of employees involved in the "on si~e" managemen~ of public housing and the incumbents of such positions are responsible for carrying out the full range of duties and responsibilities outlined in ~he preamble. SKILLS ~ND KNOWLEDGE: . Supervisor~ ability. Abili~/ =o deal =actfully and effectively with ~enants. Thorough knowledge of the proper~f management techniques ana procedures used by the Ontario Housing CorPoration. · · 21110 CLASS STANDARD: SUPERINTENDENT 3j I~3BLIG HOUSING This ¢la-~s covers posi~Lo~ of employees who are responsible for the property management function of a public housing complex consisting of more than 500 rental units. . Thi th~ "on site" management of public housing aa~ ~he incumbents of such positions, in addition to carrying out the full range Of duties and responsibilities set out in ~he preamble, also supervise a Co,unity Relations Officer and may be required to supervise a Superintendent in Training. SKILLS AND KNOWLEDGE: . Supervisory ability. Ability to ~eal tactfully and effectively with tenants. ThorOu&h knowledge of the property management techniques a~d procedures used by *the Ontario H~using C6rporation. M~y 1, 1972. APPENDIX - rovi~t~9. lng reio%vX~ Lioues a~ e~t~en~ 8t~ua~tofls (e.g. tire, o~ re. iden% tO~ teale infraction, e~c. fleceisar2 pa~rwor~ a~er i~rova~ a~ ~c~fy ~o~fltl o~ S~GNATU~ES L ! Appearln9 aa a witness £or the M,T.~.A, at sourS. ~.T.~.A. vehicle pFogF~. o~ Duil~ings vp~eep and grounds in ~e po~c~olio iff aQ~o~th~e wi~h M,T.H,A. cheo~ Chat sate~y equi~en~ (hoses, i~o.) ia in apparent looker and l&undr~ ~o~l~ e~c., are ~in~ uin~alned in c~e~n a~, Iago oondl~ion~ chl~ gfou~l I~ are .~epc nea~ ~d well Xep~ at a~l ~t~es, &pp~opria'~e oupe~visor sC a~ ai~uati~ ~htoh requi~e8 a~enci~fl and reoognistn~ possible budget.expenditures. of units'and a~mitcing report; on ~or~ required~ revievin~ ~t. nCenaflce o~argel w~ere d~ge is hOC me o~a~ged co ~enan~o. pa~tct~t~g tn prep~mat~ofl Ot su~nisaion eOt rtcurri~ a~ nonorecurring b~gec ~ provid!~9 input' ~rom o~oervacionl ~de durin9 tnlpoo~iono and d!suuosiona wi~ residents at tenan~ association Under ~hetenoral iupervis~on °f c~l Senior ~ - de~ermiAin~ rent char~e/ne~ lease in merriage/com~aon-iaw/aa~i~ion ~o family com~o~i~io~ ~ - asweesing eligibili~M and ~aloullting rent a~us~man~e for ~enan~s whose income de~rease~. ~0%, ~. ProvLdes advioe and g~id~nge ~o clerks en~ mana~eaent ~atnees - moni~orin~ the reoordin~ o~ ren~ - aaais~in~ ~n ~hs p~e~ra~ion oi.NO~iCeg' behavio~r, ren~ arrears, e~e,~ ~n! serving Va~an~ a~ lor~ardinV ~ Ten~n~ Plaoemen~ lO~ S. Performs rela~ed d~ies ~, - par:i~ipa~ing in regular =as~ings'wl~h $~pervisor, pOli~icians~, mitts, and egen~ies, ~0 share into~a~l~n - ~s assignat. (~,.e. ~'xe ~anGXo~ and ~duinis~a~Lve ~nowledgo o~ ~a~e~n~ process. Wor~lng.~nowledge o~ po~sonal con~e~s. ?ac~, diplona~¥ amd ~le~e~ion are requ~re~ ko e~£e~ivel2 w~h ~enan~$, &ll. levels o~ m~a~ end outside