HomeMy WebLinkAboutMorabito Group 14-08-27IN THE MATTER OF AN ARBITRATION PURSUANT TO THE LABOUR
RELATIONS ACT, 1995.
BETWEEN
North Bay Regional Health Centre
("The Employer")
Ontario Public Service Employees Union and its Local 662
("The Union/OPSEU")
Re: Group Grievance - Morabito et al 2012-0662-0018.
BEFORE: Gerry Lee (sole arbitrator)
.APPEARANCES:
For the Employer: Shane Smith, Counsel
Rob Taylor, Human Resources Generalist
For the Union: Daniel Hales, OPSEU Grievance Officer
Tony Morabito, Group Grievors Designated
Representative
Hearing held in North Bay, Ontario, on August 19, 2014.
1. The parties have appointed me pursuant to the collective agreement between
them and the Labour Relations Act, 1995, S.O. 1995, c. 1, to act as the
Arbitrator in connection with a Group Grievance filed on behalf of ten
Recreation Therapists. The Employer agreed to waive a preliminary
objection regarding the referral of this grievance to arbitration and agreed
that I should decide this matter on its merits based on a mutual agreement
between the parties that the issue in dispute be dealt with in an expeditious
manner.
2. The Union and the Grievors claim that the Employer violated the terms of a
June 5, 2012, Memorandum of Settlement between the parties by not
providing them with retroactive pay contrary to paragraphs 5, 6 and exhibit
B (paragraph 5) and Exhibit "C" (paragraphs 3 through 7) of this document.
Specifically, the Union claims that the Grievors should have received
retroactive pay for the time period April 1, 2011, and June 7, 2012. The
Union stated that the situation was unfair in that the Grievors worked beside
other Recreation Therapists who were receiving approximately $1.56/hour
more than what they received during the this time period. Conversely, the
Employer takes the position that they have fully complied with the June 5,
2012, Memorandum of Settlement in that the settlement does not
contemplate retroactive pay for the Grievors for the time period claimed.
3. By way of background, two separate hospitals existed in 2008, North Bay
General and North East Mental Health Centre (now called North Bay
Regional Health Centre) with OPSEU, ONA, SEIU and CUPE representing
employees at these facilities in various bargaining units. A partial integration
of services took place initially in 2008 followed by a more comprehensive
integration of services in 2011 resulting in the provisions of the Public
Sector Labour Relations Transition Act, 1997 (PLSRTA) being triggered.
PSLRTA deals specifically with labour relations issues arising from certain
kinds of restructuring in the municipal, education, and hospital sectors. It
provides a framework for establishing bargaining units, bargaining agents
and collective agreements for the new employer where the employees of one
or more of the former employers were unionized. The various integrations
caused employees to be transferred between the various organizations,
unions and bargaining units resulting in much confusion, litigation and
negotiation of various collective agreements and Memorandums of
Settlement.
4. The sections of the June 5, 2012, Memorandum of Settlement which the
union claim have been breached are outlined below:
June S 2012 Memorandum o Settlement
5. The parties further agree that the amendments to the collective
agreement shall be effective on the date of ratification except as provided
otherwise in these terms of settlement. Wage increases shall be retroactive
as and to the extent described in Appendix B. For the purpose of clarity,
unless otherwise agreed to in this Memorandum, wage rates shall be
rounded to two decimals.
6. Retroactive pay adjustments shall be paid no later than 60 days from
the date of ratification by both parties.
Wage Proposal
6. The wage issues will be resolved in accordance with the document
attached as Exhibit "B ".
Superior Conditions
7. The Superior conditions issue will be resolved in accordance with the
Minutes of Settlement attached hereto as Exhibit "C"
Exhibit "C"
3. Former members of CUPE who are now members of the OPSEU,
Local 662 bargaining unit, will be granted the increase in wages required
by the settlement between the central parties up to and including the
increase required for September 28, 2011.
4. Former members of OPSEU, Local 636 and SEIU who are now
members of OPSEU, Local 662, will be granted the lump sum increases
ordered by Arbitrator Kaplan effective I April, 2011. Such payment to be
made within sixty (60) days of this settlement.
5. All current members of OPSEU, Local 662 will be entitled to the lump
sum increases ordered by Arbitrator Kaplan effective 1 April, 2012. No
other lump sum increases will be applicable to such employees following the
date of this settlement.
6. The Hospital agrees that the Recreational Therapists transferred from
Northeast Mental Health Centre to North Bay General Hospital in 2008
(Danielle Lalonde, Gaston Lalonde, Heather Bennison) will be granted
wage harmonization with the CUPS pay grid effective 6 June, 2011, and will
be granted the 2% increase in wages effective 28 September, 2011.
7. The Hospital agrees that the three Recreational Therapists that were
employed by North Bay General Hospital and are now members of the
OPSEU, Local 662 bargaining unit [Melissa Hallett (no longer in the
bargaining unit), Rayna Bethune and Kayla Atkins] will be granted a 2%
increase in wages effective 28 September, 2011.
5. With respect to the issue of retroactivity, the disputed sections of these
documents guide us through a series of complex, confusing links, perhaps
somewhat unnecessary in my view, to the substance of the issue. Paragraph
5 refers the parties to Appendix B of the Memorandum of Settlement
whereas Paragraph 6 simply provides a timeline for retroactive pay
adjustments. Accordingly, we then turn to Appendix B, paragraph b and 7
which in turn states that "wage issues" and "superior conditions" are to be
resolved pursuant to the document described as Exhibit C. This inevitably
leads us to sections 3 through 7 of Exhibit C which the parties agree speaks
specifically to the issue of retroactivity. These five sections identify when
and to whom and on which dates retroactive pay is to be paid to various
groups and individuals based on their specific status. The parties
acknowledge that the Grievors received the lump sum increase identified in
paragraph four of Exhibit B. Unfortunately for the Grievors, sections 3
through 7 fail to clearly identify any circumstances that would capture the
various situations of each Grievor and result in a retroactive payment. The
PLSRTA process undertaken by the parties was indeed a very complex
process and trying to cover all eventualities was most likely a Herculean
task. It is entirely understandable that the Grievors find the situation unfair;
however the Memorandum of Settlement simply fails to include the Grievors
for the retroactive payment desired. Accordingly, this grievance is hereby
dismissed.
Dated at Markham on August 27, 2014.
Gerry Lee — Sole Arbitrator