Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 May 26, 2014 ArbitrAtion AwArds at James S. Bell Junior Middle School and Wellness Academy in Toronto — filed a grievance argu- ing storage bunkers should be in- cluded as part of size calculations, entitling caretakers to a higher rate of pay. Gordon Luborsky, the arbitrator presiding over the case, agreed with Gossling and the Canadian Union of Public Employees (CUPE), or- dering a policy change at the school board. Initially, the TDSB's policy stated the base hourly rate of pay of the head caretaker is to increase with each size increase of the school. But the collective agreement did not include an express definition of the word "school," nor did it explic- itly describe how the square foot- age was to be determined. The bunker in question had been a fixture on Gossling's school prop- erty likely since the 1980s, and simi- lar to a number of storage bunkers on other TDSB school properties. The bunker is a prefabricated con- crete box used for storage. According to the school board, the square footage of any school is based on "instructional" space only — such was the intent of the collec- tive agreement. The TDSB likened the storage bunker to being part of the playgrounds and parking lot outside of school property and therefore not to be included in the calculation of the square footage or rates of pay. This grievance was not about "equity or fairness," the TDSB said. "Storage bunkers have been on school property for decades — and since at least the amalga- mation of the six municipalities resulting in the creations of the current school board in 1998 — they have never been included in the calculation of the square foot- age of the school." But the union argued that be- cause there had been no specific discussions about storage bunkers during negotiations, bargaining history was immaterial. CUPE urged Luborsky to look specifically at the language of the collective agreement. "It would be grossly inequitable and unreasonable to think that the union would have agreed that its head caretakers would not receive the same credit for their responsi- bilities in connection with outdoor storage bunkers at the school in the same manner as their management of storage rooms within the foun- dation of the school building itself," CUPE said. And therein lies the rub —what is a school? Luborsky based his de- cision on this definition, up to his discretion, as the collective agree- ment makes no mention of it. Despite the fact no instruc- tional activities occur in the stor- age bunkers, they should still be considered part of school prop- erty and included in square foot- age calculations. He suggested a "functional test" going forward, to deter- mine whether physical struc- tures be included. "Such a test is in harmony with the idea that the greater the total square footage of the school broad- ly defined — which can include outbuildings in the sense of not be- ing directly attached to or within the foundations or footprint of the educational facility itself — the more compensation is payable to the head caretaker." Luborsky ruled Gossling's in- dividual grievance and the policy grievance both be allowed. Reference: Toronto District School Board and the Canadian Union of Public Employees (CUPE) Local 4400, Unit D. Gordon Luborsky — arbitrator. Tony Brown and Gail Geronimo for the employer, Cynthia Petersen for the union. April 28, 2014. Custodian makes mess of school's privacy policy Wade NoddiNg — a cus- todian with Nova Scotia's South Shore Regional School Board — came across a piece of paper on a classroom floor while working the evening shift on April 9, 2013. The piece of paper turned out to be a letter written by a student detailing bullying experienced at the hands of a classmate. What Nodding did with that letter led to his termination. Nodding has worked as a custo- dian for the school in question since 1998 and has served as a volunteer assistant coach on the school's wres- tling team for a number of years. By all accounts Nodding was a hard worker who took pride in his position. While performing his usual du- ties on April 9, Nodding came across a piece of paper, folded in half and lying on the floor. Not knowing whether the paper was important he picked it up and opened it. The piece of paper was in fact a letter written by a student to a teach- er, detailing bullying suffered by the author and identifying a classmate as the perpetrator. Nodding said he was afraid to leave the letter for fear someone other than the teacher would find it the following day. He decided to take possession of the document, bring it home with him after he finished work and return the letter to the teacher the next day. But taking the letter home was not the only thing Nodding did. He also made a copy. Nodding had — within the last year — been disciplined due to is- sues surrounding the confidentiality and privacy of school and student information. In May of 2012 he shared information about a student and staff members during a public meeting. Because of this previous discipline, Nodding testified he felt he needed a copy of the letter to pro- tect himself. The following day Nodding re- turned to the school and found the teacher in question. After explaining the situation Nodding made anoth- er copy of the letter before returning the original. The school's principal and vice-principal were then made aware of the situation. An investigation into the incident was held on April 16, 2013. When asked why he read the letter instead of simply placing the paper on the teacher's desk when he realized it was not garbage, Nodding said he had "every right to look." Nodding was asked several times at the meet- ing to return the copy of the letter, but he refused. He eventually returned the copy — and admitting to making the first copy, which Nodding testified he burned — on the advice of his union. Because of his previous discipline the employer saw Nodding's copy- ing of the letter — as well as his ini- tial refusal to return the copy — as a culminating incident. The employer said it could no longer trust Nod- ding to work alone in the school without supervision and had no faith he would respect the need for confidentiality in the future. Nod- ding was fired on April 22. The Canadian Union of Public Employees (CUPE) Local 4682 filed a grievance on his behalf, seeking full redress for all lost wages and ben- efits. The union argued Nodding was acting with due diligence when he read the letter. Paper on the floor of a classroom could be important, and he was right to determine its status rather than simply throw it out. The union further argued his de- cision to make a copy of the letter was not an attempt to violate confi- dentiality or privacy, but rather an action solely for his own protection. Regardless of his intention Nod- ding breached the board's privacy policy, the employer said. The em- ployer also emphasized Nodding's power of access as a custodian. His position was one of trust. Reading the letter, taking it home and copying it were reason enough to warrant termination, the em- ployer argued, but this was not Nodding's first breach of the confi- dentiality that is so crucial in school setting. It would be entirely inap- propriate to return him to the work- place and the employer submitted the grievance should be dismissed. Arbitrator Augustus Richardson agreed Nodding's making a copy of the letter was a clear breach of the board's rules and procedures re- garding confidential student infor- mation. "Even more disturbing," Richard- son said, "is the fact that the grievor made a second copy of the letter the day after he found it." However, due to mitigating fac- tors such as Nodding's concern for student welfare and his contribu- tions to the school's community, Richardson found that termination was unreasonably severe. Nodding was reinstated without compensation but without loss of wages or seniority. Reference: South Shore Regional School Board and the Canadian Union of Public Employees (CUPE) Local 4682. Augus- tus Richardson — arbitrator. John C. MacPherson for the employer, Carl Crouse for the union. March 23, 2014. < from pg. 1

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