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HomeMy WebLinkAboutPrue 13-12-12BETWEEN: IN THE MATTER OF AN ARBITRATION UNDER THE ONTARIO LABOUR RELATIONS ACT KINGSTON GENERAL HOSPITAL ( "the Employer") AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 444 ( "the Union ") GRIEVANCE 2010- 0444 -0007 MICHELLE PRUE —JOB POSTING AWARD ARBITRATOR: Barry Stephens FOR THE EMPLOYER: Peter Hass, Human Resource Advisor, KGH FOR THE UNION: Peggy Smith, Counsel, Peggy E. Smith Law Office Bev Weaver, OPSEU Local 444 Bargaining Unit President Heard by written submissions and conference call on November 1, 2013 AWARD [1] The issue between the parties arises from prior agreements involving the grievor. The parties agreed to proceed by way of agreed statement of fact and to present their submissions to me in writing and in a conference call. [2] The agreed statement of fact sets out the background as well as the issue in dispute as follows: AGREED STATEMENT OF FACTS 1. The parties are signatory to a recognized Collective Agreement. 2. Michelle Prue, the grievor, has a bargaining unit seniority date of April 17th, 1986. Her current classification is ECG Technician - Technician 3. 3. The grievor is the subject of two separate MOAs: a. Attachment 2: MOA dated January 12th, 200[6] outlining the details of a split role for the employee between the EGG Lab and the CV Lab that ensures the appropriate rate of pay for the respective jobs. b. Attachment 3: MOA dated [September 11, 20031 providing that the next full -time Technician 4 vacancy in the CV Lab would be awarded to the grievor. 4. The employee filed a grievance dated October 081h, 2010. 5. The settlement requested was: a. To be made whole b. All wages for Technician 3 work to be paid at the Technician 4 rate for the past two years c. Permanent transfer to Technician 4 in the CV Lab 6. It is common ground that the employee has been appropriately paid for the level of work performed and is whole with respect to compensation and benefits. Therefore, the outstanding settlement requested is a permanent transfer to Technician 4 in the CV Lab. 7. Due to operational requirements, it is a fact that the grievor works a strong majority of her hours in the CV Lab. S. There are currently three other bargaining unit employees holding full - time permanent Technician 4 jobs that are attached to the CV Lab. These positions were appropriately awarded to the incumbents through the bidding process contained in the collective agreement. These three Technician 4 incumbents all have a lower seniority date than the grievor. 9. The parties admit to not fully understanding the position of the other during that previous mediation discussion using your office. Despite goodwill efforts to clarify this point, it is understood that the parties did not have a common meeting of the minds. 10. The Hospital has established a new classification of Electrophysiology Technologist in the bargaining unit, which will work exclusively in the CV Lab. The position has not been posted as of this date. The QUESTION: Based on the foregoing, the question we would put forward to you for decision: Should the grievor be placed into a permanent and exclusive Technician 4 role in the CV Lab? Union Submissions: [1] The union has been made aware that the employer is planning a reorganization in the CV lab, and that there may be a reduction of CV Tech 4 work as a result of that reorganization. The union maintains that the issue before the Arbitrator is the application of the collective agreement to the possible reduction of hours in the CV laboratory. [2) There are currently 3 full -time CV Tech 4 positions. In addition, the employer and the union have created a unique 'split classification' position for the grievor. This position is currently a .9 Tech 4 and .1 Tech 3 position. The grievor is the most senior 2 employee performing CV Tech 4 work. The union submits that the grievor has held a split classification position in the CV laboratory since the MOS was signed in 2005, acknowledging and classifying her work performed in CV as that of a Tech 4. The position has evolved over time to the current status of almost 100% Tech 4. [3] In 2003, the grievor applied for a Senior Tech 3 position that was awarded to a junior employee. The grievor filed a grievance, which was resolved by way of the September 2003 minutes of settlement. The parties agreed that she would continue to be provided opportunities in the Cardiovascular Lab as a Tech 4, "so that she could maintain and expand her skill based within that classification." They also agreed to award Ms. Prue with the next Tech 4 vacancy. There was no discussion in the 2003 MOS about whether the next vacancy would be part-time or full -time. At the time the settlement was reached, Jim McKinven held a .6 part-time Tech 4 position. He was reaching retirement age, and the expectation of the union and the grievor was that the resultant vacancy would be awarded to Ms. Prue. [4] As stated above, the 2003 MOS did not specifically require a full -time Tech 4 position be formally awarded. In 2005, the grievor was working as a Tech 4 three afternoons per week on a regular basis and Mr. McKinven had not yet retired. The parties agreed to pay the wage attached to the classification when she performed Tech 4 work. However, the union asserts that the intent of the 2003 agreement was clear - rather than post future vacancies in the CV laboratory, such work would be awarded to the grievor. As a result, McKinven's part-time position was eventually rolled into the 3 grievor's position, in accordance with the 2003 the MOS. She was able to "top up" her hours to full time status, by returning to the ECG as needed. [5] The work performed by the grievor in CV has been recognized as falling into the Tech 4 classification under the Collective Agreement. The Union maintains that the grievor's request to be "transferred" to the CV laboratory is simply a request to formalize her current status. The employer is estopped from arguing that the assignment of Ms. Prue to the CV laboratory was meant to be or is a temporary arrangement. [6] The status of Ms. Prue in the hospital is evident. Recently, Clinical Laboratories assumed the management of the ECG department. The union asserts that neither the current manager or director recognize or include Ms. Prue as an employee in ECG. She has not worked any hours in that area in 2013. The Union maintains that at minimum, the status quo recognizes that Ms. Prue has assumed a unique full time position, and that any reduction of hours or work in the CV laboratory must take into account her seniority and work in that classification at the time the reduction takes place. The grievor has not worked any hours in ECG in 2013. In 2009 - 2010, she worked 11 days in ECG, zero in 2010 -2011, and about five days in total for the 2011 -2012 calendar year. She has consistently been assigned at least 4 days per week as a Tech 4 over the past few years. 4 [7] There are two possible scenarios arising from the intended reorganization. The first would be the employer's decision to eliminate a full time Tech 4 position. This would result in a layoff of the most junior Tech 4 in the classification. This would not impact Ms. Prue's position. The second scenario would be to eliminate the unique position held by Ms. Prue, which consists of a .9 full -time position in CV, and a .1 part- time position in ECG. Given the history, actions and intent of the parties over the past 10 years, Ms. Prue would be entitled to a notice of lay -off. In that situation, she would be entitled to exercise her seniority and bump into a Tech 4 position under s. 11.04(1) (c) or (f). [8] At minimum, she would be entitled to access .9 of a full -time position as a Tech 4. She is qualified to perform the work, and has performed the work and been paid the wages of that classification as agreed through binding minutes of settlement. Those documents must be interpreted and applied within the language of the collective agreement, to give meaning to the intent of the parties. [9] The employer is estopped through the commitments in the Minutes of Settlement reached in 2003 and 2005, and their actions over the past 10 years, from treating the classification of Ms. Prue as a Tech 4 in the CV lab as a temporary assignment. N7 Employer Position: [10] The employer submits that it has abided by the two original agreements in full. The fact that a significant portion of the grievor's hours is in one area is immaterial, as no proportionality between the roles was codified in the two previous agreements. Those documents set up and institutionalized, through a signed agreement between the parties, the concept of a dual role between the CV Lab and the ECG Lab to cover off the operational requirements of the Employer. No thought was codified as to either the length of the dual assignment or any trigger to action the reassignment, other than the sole decision lying with the Employer to declare a full -time permanent Technician 4 vacancy. To decide otherwise would confer upon the union a higher benefit than the specific details of the signed agreements afford. [11] The proper posting process for the permanent full -time Technician 4 positions, and for the grievor's Technician 3 position, was followed. To allow the grievor access to the higher classification through the grievance process, exclusive of the bidding process, as the union argues, would be an inappropriate outcome. [12] Any potential move towards the 'genericization' of the Technician 3 in the ECG Lab and the Technician 4 in the CV Lab is contrary to the internal classification system codified in the OPSEU Wage Schedule. That equity system is based on the fact that remuneration for the different positions contained therein is based on the specific value of the exact role. To make any other determination outside of either the classification system or open bargaining would violate the concept of internal equity contained in the 6 Collective Agreement, and which is specifically demonstrated by the existence of separate Technician 3 and Technician 4 positions. To that end, an outcome that simply lumps the two Technician classifications together at the same rate and then allowing seniority to decide work assignment is not supportable. [13] Likewise, allowing the grievor to transfer to the CV Lab and simply trigger a lay- off within the classification has all of the attendant cost issues related to packages. The result is still an artificial exercise to remove an existing Technician 4 by misusing the grievance process to achieve an outcome that is not supported by the Collective Agreement or the specific MOAs in this circumstance. The proper outcome contemplated by the parties to maintain a split Technician 3 /Technician 4 role until a permanent Technician 4 is posted has been established. [14] There is the planned institution of an Electrophysiology Technologist classification, with significantly different qualifications and functions, is an appropriate exercise of management rights in the workplace. In so doing, the Hospital has abided by the collective agreement language in Art 25.01. [15] It must be noted that the practice of EPT performed currently by Technician 4s has evolved and changed. KGH remains the only acute care facility in Ontario that has not instituted this higher level of practice. Given that the global funding to the Hospital is based on a benchmarking system across the province, KGH will face significant 7 funding exposure and liability were it not to proceed with instituting the EPT position and match our peers from an operational and, through that, funding perspective. [16] It is understood that this new EPT role would signal the fact that a full -time need exists in the CV Lab. However, it is not a vacancy that meets the criteria for any existing Technician 4 to perform. The qualifications for the new role includes a specialized technologist diploma, and cannot be done at the expected level by any incumbents of either Technician classification. The professional practice and boundaries of the CV Lab must expand to meet the KGH requirement for Outstanding Care, Always, and the requirement to benchmark with peers for future funding. That plan includes an EPT role, and not an additional Technician 4 role. [17] The individual circumstance of the grievor is compelling. It is also of interest to note that the issue of the shared position did not become a topic of discussion until the task of phlebotomy was introduced to the ECG Lab role. The Hospital does not dispute the existence of a bona fide medical issue for the grievor, but would note that the grievor is attempting to benefit from the grievance process in a way that negates the requirement for her to seek active treatment for what continues to appear to be a significant root cause of the grievance in the first place. The employee is currently accommodated when working in the Technician 3 role in the ECG Lab, which allows her to not perform a specific phlebotomy function common to the position, due to the bona fide medical reason. The employee agreed to undergo an external Fitness to Work Assessment in July 2011, which confirms the validity for the temporary accommodation, 0 and also confirms the medical reason is treatable. The KGH Occupational Health department confirms that there is still no active treatment being pursued by the grievor. [181 The Hospital agreed with the scheduling facts relied upon by the union, but pointed out that since 2011 the grievor has been scheduled four days per week in the CV Lab and one in ECG, except for weeks requiring vacation and /or sick coverage for the existing Technician 4s. While admitted it was technically correct, the employer took issue with the union's reliance on the fact that the grievor has not worked in the Tech 3 position in 2013. The reason for her not working in the position is that, based on the excerpt of the 2013 calendar year found in the chart below, the grievor has consistently used a combination of lieu days, vacation, and other mechanisms to cover all Friday shifts assigned in the ECG Lab. Work hours 2013/01/04 Regular 7 CVLB -TECH 2013/01/11 Regular 7.5 CVLB -TECH 2013/01/18 Banked OT Taken 2013/01/25 Regular 4.5 CVLB -TECH 2013/02/01 Regular 7.5 CVLB -TECH 2013/02/08 Vacation single day 7.5 2013/02/15 Vacation multiple day 7.5 2013/02/22 Regular 7.5 CVLB -TECH 2013/03/01 Regular 7.5 CVLB -TECH 2013/03/08 Regular 7 CVLB -TECH 2013/03/15 Vacation single day 7.5 2013/03/22 Regular 7.5 CVLB -TECH 2013/03/29 BankedStatHolPd 7.5 2013/04/05 Vacation single day 7.5 2013/04/12 Regular 7.5 CVLB -TECH 2013/04/19 Regular 6.5 CVLB -TECH 2013/04/26 Vacation single day 7.5 2013/05/03 Regular 7.5 CVLB -TECH 2013/05/10 STD - sick 7.5 9 2013/05/17 Regular 5.5 CVLB -TECH 2013/05/24 Vacation single day 7.5 2013/05/31 Vacation single day 7.5 Period of Short-term * ** disability * ** 2013/10/04 Regular 7 CVLB -TECH 2013/10/11 Vacation single day 7.5 2013/10/18 Vacation multiple day 7.5 2013/10/25 Regular 7.5 CVLB -TECH [191 Therefore, it is not the position of the Employer that there is no operational reason to assign the employee to the ECG Lab. Instead, the employer argues that the grievor is actively avoiding the work assignment of her own volition. The need for, and validity of, the split position as distinct and separate from the current complement of permanent Technician 4s remains as it has since the establishment of the role. With respect to the manager not recognizing the inclusion of the grievor as a member of the ECG Lab, the Hospital would note that the on -going scheduling of the grievor in the ECG Lab would reflect otherwise. [20] The employer asserted that the existing shared position confirms that the employment arrangement has worked within the terms of the two MOAs for years. The structure of the job was not grieved at the time, except as captured specifically in the MOAs. Using the grievance and arbitration dispute resolution process as a means to avoid this responsibility in pursuit of another outcome is an improper use of process. To conclude, when bound by the constraints of the collective agreement and the signed MOAs attendant to this issue, there is no contractual basis to allow the grievance. The 10 Employer asks that you properly conclude that there is on violation and the answer to the question posed to you should, respectfully, be `NO'. Decision [211 This case is unusual, in that it is not a pure classification grievance, but a grievance that calls for the interpretation of the grievor's classification based on special agreements between the parties. Given the nature of the agreements, the surrounding context, and the subsequent developments, the issue becomes something of a mathematical exercise. [22] In my view, the answer to this dispute lies in the original agreement dated September 11, 2003. The key provisions of that agreement are as follows: 1. The Hospital will continue to provide the grievor with opportunities as a Technician 4 in the Cardiovascular Laboratory so she may maintain and expand her skill base within that classification. 2. The next vacancy as a Technician 4 in the Cardiovascular Laboratory will be awarded to the grievor without any posting in accordance with the collective agreement. 3. At the time that paragraph #2 is triggered, article 13.07 will apply for the grievor and /or hospital to utilize. [231 As outlined above, when Mr. McKinven retired after 2005, his .6 part -time job was not posted. Rather, in accordance with the 2003 agreement, the hours were transferred to the grievor. 1 do not conclude that this arrangement was intended to be a temporary measure. Rather, the status accorded the grievor was, in my view, that of a 6 part-time Tech 4. This status seems to me to flow directly from the 2003 agreement. 11 [24] The agreement stipulated a process whereby the grievor would obtain more experience in Tech 4 work, and set up a mechanism whereby she would automatically be appointed to the next Tech 4 vacancy without the need for a competitive posting. McKinven retired, his job was not posted, and the grievor took over his duties. This was not merely the transfer of hours. As I read it, the intent of the September 2003 agreement was that the grievor would be awarded a vacant position and, as a result, she would achieve status as a Technician 4. This is confirmed by the fact that the September 2003 agreement makes specific reference to the triggering of Art. 13.07, an article which provides for a sixty day trial period during which the employer and the employee have an opportunity to assess the viability of the newly awarded position, with the proviso that the employee may be returned or elect to return to his or her former position if the new position does not appear to be a good fit. In my view, the reference to the application of Art. 13.07 can support no other conclusion than that, aside from the absence of a competitive process, the assignment of McKinven's vacant position to the grievor was to be treated the same as any other promotion to a vacancy. [25] As it turns, McKinven's position was a .6 part-time vacancy. The agreement did not stipulate whether the grievor was to receive a full -time or part-time vacancy, only the "next vacancy." Mr. McKinven's position was the next vacancy. Given that it was not posted, I can only conclude that McKinven's vacancy was awarded to the grievor. Therefore, I conclude that once the employer transferred McKinven's work to the grievor, it had satisfied the requirements of Paragraph 2 of the agreement. At the same 12 time, upon being assigned to McKinven's work, the grievor's status changed, in part, to that of a permanent .6 part-time Tech 4. [26] The grievor was working, and continues to work full time, so the question arises as to how to characterize her status for the rest of her work not covered by the .6 part- time Tech 4 position, i.e. the remaining .4 of her assignment. [27] Again, the answer to this must be found in the special agreement between the parties, and the manner in which that agreement has been implemented. 1 do not agree that the grievor acquired full -time Tech 4 status either at the time of taking over McKinven's job or through some process thereafter. She was classified as a Tech 3 performing Tech 3 duties prior to taking over Mr. McKinven's position, as is reflected in the January 2006 agreement, and this state of affairs continued after she was awarded the McKinven vacancy. Her scheduled assignments, at least since 2011, continues to include one day per week as a Tech 3, except for times when she is asked to cover Tech 4 vacation or sick leave. The fact that she may have used vacation or other lieu time to avoid the Tech 3 shifts does not negate the nature of her assignment. The fact that she is asked from time to time to fill in for Tech 4's who are sick or on vacation does not, in my view, impact this portion of her status, any more than it would impact any other employee who is similarly asked to temporarily fill in for a higher rated position. Thus, I conclude that the grievor was and remains assigned to a Tech 3 position for approximately 20 percent of her time. 13 [281 Given the above, it is my view that the result of the September 2003 agreement is that the parties have created a unique status for the grievor, in that she is classified for .6 of her time as a Tech 4 and for .2 of her time as a Tech 3. That leaves .2 of the grievor's status, a 'grey area' so to speak, that should be clarified. [291 As I see it, there are two possible ways to view this remaining part of the grievor's assignment. First, it could be viewed as work assigned to her under paragraph 1 of the September 2003 agreement, i.e. Tech 4 work intended to "maintain and expand her skill base" in the Tech 4 job, and, thus, it is partially a reflection of the employer's attempt to accommodate the grievor's medical disability with respect to the phlebotomy work. Or, it could be that the grievor has been assigned the work as it fills an ongoing need in the Tech 4 areas of responsibility. [301 There are good reasons to find for either outcome but it is my view that, to the extent it is necessary and important to determine the question, the remainder of the grievor's assignment should be viewed as a de facto permanent assignment of Tech 4 work. I say this for two reasons. [311 First, given the structure of the September 2003 agreement, it is likely that the intention of the parties was that paragraph 1, the assignment of Tech 4 opportunities, was intended lead to paragraph 2, the automatic appointment to the next vacancy. It seems unlikely that the parties intended that the obligation under paragraph 1 would continue beyond the fulfillment of paragraph 2. 14 [32] More importantly, when dealing with classification disputes, arbitrators invariably concentrate on what is actually happening in the workplace. The manner in which this portion of the grievor's time has been assigned over the years speaks for itself. It is significant that even under the .2 of the grievor's Tech 3 assignment she is assigned to some Tech 4 work covering for vacations or sick leave. In other words, the employer has made use of the grievor's Tech 4 skills in a manner that even encroaches on the time she would otherwise be assigned to her Tech 3 work. That being the case, it seems to me that the Tech 4 work in the .2 'grey area' to which she is regularly assigned, but which exceeds the .6 position, is real, ongoing Tech 4 work, and is not in the nature of a temporary arrangement to satisfy the needs of the September 2003 agreement. This state of affairs has continued for a number of years, and it is my conclusion that the `grey area', .2 portion of the grievor's work assignment should be classified as permanent Tech 4 work. [33] Given the above analysis, I conclude that the grievor is in a hybrid assignment, .S Tech 4 and .2 Tech 3. This novel status is not an accident of history, but is a result of the intention of the parties as set out in the September 2003 agreement, and it is manifested in the manner in which that agreement has been implemented over the last ten years. [34] As a result, my answer to the question put to me by the parties is in the negative, the grievor is not "placed into a permanent and exclusive Technician 4 role in 1s the CV Lab ", but is assigned, by special agreement between the parties, to two classifications at the same time, .S Tech 4 and .2 Tech 3. While this is an assignment that is outside the normal classification structure in the collective agreement, the parties have a right to jointly agree to such anomalies or deviations from the collective agreement, and it is my conclusion that they have done so in this instance. [35] 1 remain seized to deal with any issues arising from the implementation of this award. VI I Barry tephens, Arbitrator December 12, 2013 16