HomeMy WebLinkAboutMitchell 14-04-23In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act
Between:
Canadian Blood Services
-and-
Ontario Public Employees’ Union
Local 5103
Grievance of Joan Mitchell
OPSEU File No. 2013-5103-0001
Arbitrator: Randi H. Abramsky
Appearances
For the Employer: Sarah Eves Counsel
For the Union: Jane Letton Counsel
Hearing: April 15, 2014 in Toronto, Ontario
2
AWARD
This grievance concerns the interpretation of new language introduced into the
parties’ 2011-2013 collective agreement and a Memorandum of Understanding dated
December 20, 2012. The grievance was filed on April 17, 2013 by part-time
Phlebotomist Joan Mitchell. It asserts that the Employer violated the collective
agreement by failing to assign her to a .5 FTE position, after it hired two new .3 FTEs.
The Employer contends that it did not violate the collective agreement.
Facts
The parties proceeded by way of Agreed Facts and Documents, which are set out
below. The documents referred to in the Agreed Facts have not been reproduced in this
Award.
AGREED STATEMENT OF FACTS
1.The parties agree that Arbitrator Randi Abramsky has jurisdiction to hear and decide
this matter.
2. Canadian Blood Services (the “Employer”) is a not-for-profit, charitable organization
whose sole mission is to manage the blood and blood products supply for Canadians.
3. The Employer and Ontario Public Service Employees’ Union (OPSEU) are parties to a
collective agreement (expiry March 31, 2013) covering support employees working at
and out of locations in Brampton, Ottawa, Toronto, Hamilton and Ottawa. (see Tabs 1, 2
and 3). Employees under this collective agreement are represented by OPSEU Locals
160, 210, 477, 5103, and 200.
4. The parties are currently in negotiations for a renewal collective agreement.
5. OPSEU filed a Grievance on behalf of the Grievor dated April 17, 2013 (see Tab 4).
6. The Employer, by letter dated May 6, 2013 denied the Grievance (see Tab 5).
3
7. The Grievor works for the Employer as a regular part-time Phlebotomist in
Peterborough. She was hired by the Employer as a Clinic Assistant I, effective May 14,
2001. The Grievor was promoted to a Phlebotomist effective September 22, 2008.
8. Full-time employees, including full-time Phlebotomists, are regularly assigned 75
hours in each two-week pay period. Annually, this is 1,950 hours, inclusive of vacation
and holiday time.
9. The Grievor worked the following hours as a regular part-time Phlebotomist between
2010 and 2013 (see Tab 6):
2010: 1,146.64
2011: 1,128.63
2012: 1,190.00
2013: 1,240.50
10. Prior to the negotiation of the 2011-2013 collective agreement, part-time employees
were not guaranteed hours of work by the Employer.
11. Pursuant to a Memorandum of Settlement (“MOS”) dated December 20, 2012 (see
Tabs 2 and 3), the parties agreed on the following new provisions for the renewal
collective agreement:
12.XX Regular part-time employees, except those employed at the Sarnia Site and
Drivers employed at Kingston and Windsor Sites, shall be assigned a defined Full Time
Equivalent (FTE) at the time of hire under the following conditions:
a) The defined FTE shall be averaged over a six (6) week period. The Employer
shall endeavour to minimize the variation in posted scheduled hours over a bi-weekly
period.
b) The number of regular part-time positions and the defined FTE’s shall be
determined by the Employer.
c) All leaves of absences with or without pay shall count towards the defined FTE.
d) The defined FTE for regular part-time employees shall be noted in such
employees’ employment offer letters.
e) Regular part-time employees must commit to be available to work as scheduled
by the Employer except as provided by any other provision of the Collective Agreement.
f) After all regular part-time employees have been scheduled to their defined FTE,
the Employer shall first schedule remaining available work to those employees assigned a
defined FTE of less than 0.5 on an equitable basis, by classification and
4
department/section separately at each Blood Centre, Region or permanent clinic, until
such employees have all been scheduled to a 0.5 FTE.
g) Following the application of 12.04 (f) above, the Employer shall schedule any
remaining available work on an equitable basis amongst regular part-time employees by
classification and department/section separately at each Blood Centre, Region or
permanent clinic
h) Notwithstanding the above, the Employer may reduce a regular part-time
employee’s defined FTE and such reductions shall be done in the reverse order of
seniority by classification in the affected department/section separately at each affected
Blood Centre, Region, or permanent clinic. The Employer may identify certain FTE’s
within which such reductions shall occur and such reductions shall not constitute a layoff.
Should such reduction exceed twenty (20%) per cent of a regular part-time employee’s
FTE in a twelve (12) month period Article 6 shall not apply, however such employee
shall have the following options to be exercised within ten (10) working days following
notification of such reduction in their defined FTE:
i) Accept the reduction of the defined FTE, or;
ii) Displace a regular part-time employee with less seniority and who is the least
senior in the same classification at the same Blood Centre, Region, or permanent clinic,
or;
iii) Terminate her employment on a date to be determined by the Employer and
accept a severance paid at one (1) week of severance pay, equal to one (1) week of
regular earnings per year of service, plus a pro-rated amount for any additional partial
years of service with CBS, to a maximum of twenty six (26) weeks. Regular earnings
shall be the average weekly regular wages earned by the employee in the sixteen (16)
week period immediately preceding the date of termination. Such severance includes
statutory severance as required under the Employment Standards Act.
h) Should a regular part-time employee with a defined FTE obtain another job for
any reason, she shall assume the defined FTE assigned by the employer for that job.
12. The parties also agreed in the MOS to a new Memorandum of Understanding
(“MOU”) which contained the following provisions:
Whereas Article 12.04 contemplates the provision of a defined Full Time Equivalent
(FTE) for regular part-time employees who, heretofore, have had no such provision, the
Parties hereby agree to the following:
1. Regular part-time employees on staff at the time of ratification of the
current collective agreement (April 1, 2011 – March 31, 2013) shall be
assigned a defined FTE of 0.6, averaged over a six (6) week period on
5
the following basis, with the exception of Drivers at the Kingston and
Windsor permanent clinics who shall not be assigned a defined FTE:
Classification Department Locations(s)
Clerk All All
Lab Assistant All All
Driver
Driver Logistics
Brampton
London
Ottawa
Barrie
Peterborough
Driver II Logistics Brampton
Shipper/Receiver Logistics Ottawa
Logistics Attendant Logistics Kingston
Brampton
2. Regular part-time employees on staff at the time of ratification in the
classifications listed below, shall be assigned a defined FTE of 0.5 or
0.3, averaged over a six (6) week period. Such employees shall
indicate their preferred choice of defined FTE in writing within two
(2) weeks of the Employer posting “Letters of Interest”, and the
Employer shall notify such employees on approved leaves of absence
of the posting of such “Letters of Interest”. Such employees shall be
assigned their preferred choice of defined FTE in descending order of
seniority, however, no greater than fifty percent (50%) of such
employees within each department/section at each Blood Centre,
Region, or permanent clinic shall be assigned a 0.5 defined FTE.
Notwithstanding the foregoing, regular part-time employees at the
Sarnia permanent clinic shall not be assigned a defined FTE.
Classification Department Locations(s)
Clinic Assistant Clinic Services All except Sarnia
Phlebotomist Clinic Services All except Sarnia
Donor Service
Representative
Donor Services All except Sarnia
3. Following the implementation of this MOU, all regular part-time
employees shall be covered by all provisions of Article 12.04
4. This Memorandum of Understanding shall expire on March 30, 2013.
13. The new article 12 section and the MOS were effective January 25, 2013, the date of
ratification of the MOU.
6
14. In accordance with paragraph 2 of the MOU, the Employer set out to assign defined
FTEs of 0.5 and 0.3 for Phlebotomists on staff at the time of ratification.
15. On February 11, 2013, the Employer’s Donor and Clinic Services management Team
sent out Letters of Interest for regular part-time staff to indicate their interest in being
assigned to a 0.5 FTE.
16. The Grievor received a Letter of Interest, and signed it back to the employer
indicating her interest on being assigned to a 0.5 FTE (see Tab 7).
17. At the time of ratification of the MOS there were 23 regular part-time Phlebotomists
working in the Peterborough permanent and mobile blood donor clinics.
18. In order of seniority (see Tab 8), the Employer assigned 0.5 FTEs to the 11 most
senior regular part-time Phlebotomists in Peterborough who had indicated their interest in
being assigned a 0.5 FTE. The remaining 12 regular part-time Phlebotomists, including
the Grievor, were each assigned to a 0.3 FTE (see Tabs 9 and 10).
19. At the time of ratification, Peterborough had two outstanding vacancies for regular
part-time Phlebotomists. Two individuals were hired for these positions and assigned a
0.3 FTE (see Tabs 11 and 12).
20. The Grievor takes the position that, in accordance with the MOS and the MOU, the
Employer must increase the number of 0.5 FTEs within the regular part-time
Phlebotomist classification at Peterborough up to a maximum of 50% whenever there is
an increase in the number of 0.3 FTE assignments.
21. The Employer denies that that MOS and the MOU require it to maintain any ratio
between the 0.5 and 0.3 FTE part-time Phlebotomists or that the Employer is required to
make any 0.5 FTE assignments at anytime.
Reasons for Decision
At issue in this grievance is the interpretation of Article 12 of the parties’
collective agreement and the Memorandum of Understanding, considered in light of the
collective agreement as a whole. The Union cites to Brown and Beatty, Canadian
Labour Arbitration, at Section 4:2100, which sets out that the goal in a case of contract
interpretation is to “discover the intention of the parties who agreed to it.” It further
states: “in determining the intention of the parties, the cardinal presumption is that the
7
parties are assumed to have intended what they have said, and that the meaning of the
collective agreement is to be sought in its express provisions.”
In this case, prior to the negotiation of the 2011-2013 collective agreement, there
was no guarantee of hours of work for part-time employees. One of the changes
negotiated was that regular part-time employees, with some exceptions, “shall be
assigned a defined Full Time Equivalent (FTE) at the time of hire.” The parties also
addressed how to deal with current part-time employees, as follows in relevant part:
Regular part-time employees on staff at the time of ratification in the
classifications listed below, shall be assigned a defined F.T.E. of 0.5 or 0.3,
averaged over a six (6) weeks period. Such employees shall indicate their
preferred choice of defined FTE in writing within two (2) weeks of the Employer
posting “Letters of Interest”, and the Employer shall notify such employees on
approved leaves of absence of the posting of such “Letters of Interest”. Such
employees shall be assigned their preferred choice of defined FTE in descending
order of seniority, however, no greater than fifty percent (50%) of such employees
within each department/section at each Blood Centre, Region or permanent clinic
shall be assigned a 0.5 defined FTE…
Thus, “part-time employees on staff at the time of ratification” could indicate their
preferred choice of defined FTE, and “shall be assigned their preferred choice” in
“descending order of seniority” but “no greater that fifty (50%) of such employees…shall
be assigned a 0.5 defined FTE.” At the time of ratification, January 25, 2013, there were
23 part-time Phlebotomists in Peterborough, and two part-time vacancies. The grievor’s
seniority placed her 12th on the list, and she was assigned a 0.3 FTE position.
The Union asserts that the two part-time Phlebotomist vacancies should have been
considered in the total complement, as it was reasonably foreseeable that the two
8
positions would be filled, and that the grievor should therefore have been assigned to a
0.5 FTE position. The two vacancies were filled effective March 25, 2013. In the
alternative, it asserts that as the complement of part-time Phlebotomists increased, the
Employer was required to maintain the 50% ratio of 0.5 FTEs to 0.3 FTEs.
The Employer asserts that the contractual language does not require it to assign
50% of the part-time Phlebotomists to a 0.5 FTE because the language refers to a
maximum – “no greater than fifty percent (50%) of such employees within each
department/section”, versus a minimum of 50%. It also submits that the provision deals
with a one-time situation – what to do with existing part-time employees in terms of their
FTE status, based on the existing staff on the date of ratification. It submits that there
was no agreement to consider staff hired after the date of ratification, nor did they include
an on-going commitment that 50% of part-time staff – after ratification – would be
assigned to 0.5 FTE status.
Having carefully considered the language of Article 12, the parties Memorandum
of Understanding and the collective agreement as a whole, I am not persuaded that the
Employer has violated its obligations under the collective agreement. The onus is on the
Union to establish, on the balance of probabilities, that the parties intended to include
Phlebotomists hired after the date of ratification in the calculation, or that there is an
ongoing obligation to maintain a 50% ratio between 0.5 and 0.3 FTEs. On the evidence
presented, I cannot conclude that the Union met its onus on either point.
9
The language negotiated by the parties is clear – it applies to “[r]egular part-time
employees on staff at the time of ratification…” In other words – existing part-time
employees – not future hires.
The provision then states that ‘[s]uch employees shall indicate their preferred
choice of defined FTE” within two weeks and that “[s]uch employees shall be assigned
their preferred choice of defined FTE in descending order of seniority, however, no
greater than fifty percent (50%) of such employees within each department/section…shall
be assigned a 0.5 defined FTE.”(emphasis added). The words “such employees” clearly
refer back to the first sentence of the paragraph – the regular part-time employees on staff
at the time of ratification in the classification. This provision obligates the Employer to
consider the requests of existing staff and to assign them, in descending order of
seniority, to either a 0.5 or 0.3 FTE. It limited the number of 0.5 FTEs to “no greater
than fifty percent (50%) of such employees…” Under this language, the Employer did
not have to consider unfilled vacancies; it had to consider the number of regular part-time
employees on staff at the time of ratification in the classification.
At the time of ratification, January 25, 2013, there were 23 regular part-time
Phlebotomists working in the Peterborough permanent and mobile blood donor clinics.
The Employer assigned 0.5 FTEs to the 11 most senior regular part-time Phlebotomists;
the remaining twelve, including the grievor, were assigned to a 0.3 FTE. Because the
assignment of FTE status under this provision was based on the “regular part-time
10
employees on staff at the time of ratification”, the Employer properly considered only
existing staff in the classification. It did not have to consider unfilled vacancies.
Nor can this provision be construed as an on-going obligation on the Employer to
maintain a 50% ratio between 0.5 and 0.3 FTEs. This provision was clearly a one-time
matter to determine the FTE status of existing part-time employees. Future hires are
governed by Article 12.04, and they are assigned “a defined Full Time Equivalent (FTE)
at the time of hire…” The parties, in Article 12.04(b), explicitly placed the responsibility
for determining the number of part-time positions and the defined FTEs on the Employer.
The provision set out in the Memorandum of Understanding, which deals with part-time
employees at the time of ratification, does not modify Article 12.04(b).
I can certainly understand the frustration of Ms. Mitchell, who was on the cusp of
a 0.5 FTE assignment. I can also understand her view that it was reasonably foreseeable,
at the time, that the existing vacancies would be filled. But the parties were quite clear in
the language that they negotiated and it was limited to “regular part-time employees on
staff at the time of ratification.” At the time of ratification, no “employees” had filled
those two vacant positions, and the Employer did not have to consider them in its
assessment.
11
Conclusion
For all the reasons set out above, I conclude that the grievance must be dismissed.
Issued this 23rd day of April 2014.
/s/ Randi H. Abramsky
_____________________________
Randi H. Abramsky, Arbitrator