HomeMy WebLinkAboutBonca Et Al - 98-07-16
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IN THE MA TIER OF AN ARBITRA nON
AND IN THE MATIER OF THE GRIEVANCE OF HONCA ET AL
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION. LOCAL 216
the "Union"
- and -
FAMILY SERVICES OF HAMILTON-WENTWORTH INCORPORATED
the "Employer"
SOLE ARBITRATOR:
Richard L. Verity, Q.C.
FOR THE UNION:
Mitch Bevan
Grievance Officer
FO R THE EMPLOYER:
Brent J. Foreman
Evans, Philp
Counsel
HEARINGS:
May 27, 1998
June 19, 1998
Hamilton, Ontario
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A WARD
In this matter 13 individual grievances were filed as a result of the employer's
unilateral decision to close the agency on December 24, 1997 and January 2, 1998 allegedly
in violation of Article 12.06 of the collective agreement. The reason for the employer's
decision was to achieve savings to reduce an operating deficit There were no scheduled
hours of work for staff on either day, except at Northcrest Home, a residential facility for
troubled youth. The union did not consent to the reduction of hours and as a result these
grievances were filed. The employer adopts the position that there was no violation of any
provision of the collective agreement
The article in dispute reads as follows:
12.06
No reduction in hours of work of bargaining unit positions shall take place to prevent or reduce the impact
of a lay-off without the consent of the Union Local through negotiation with the Staff/Management
Committee.
The employer, a social welfare agency with a staff of 52 employees, provides a variety
of counselling seIVÎces and operates Northcrest Home. The agency is funded by the United
Way, the Regional Municipality of Hamilton-Wentworth and by various self-generating
funding programs. Due to the need for additional staff the agency incurred deficits during
the past four or five years. In particular, a significant deficit was recorded in 1997. A
number of steps had been previously taken to deal with this deficit, including a reduction
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in the number of management and supervisory personnel, a reduction in program delivery
and active employee involvement by working specific days without pay.
It is helpful to set out the background of this dispute. In early March 1997 the terms
of a new collective agreement were ratified by the parties. Some two weeks later, however,
the employer circulated a memorandum entitled "cost cutting measures" (Exhibit 3), which
was a five point plan which included a reduction in employee benefits (group benefits, drug
benefits, dental coverage and extended health benefits) and, in addition, a minimum of two
days with no scheduled hours of work. The cost savings for the reduction in employee
benefits was estimated at $11,000.00 and the savings from two days without scheduled hours
of work was $16,000.00. It is hardly surprising that the memorandum upset the union given
the fact that the parties had so recently agreed upon the terms of a new collective
agreement in which there was no reduction of benefits and no unpaid days. The union local
took its concerns to an OPSEU staff representative and eventually to a conciliator for
clarification. The end result was that the memorandum was withdrawn by the employer.
On June 16, 1997 the employer submitted a written proposal to the union at a
staff/management committee meeting (Exhibit 4). Briefly stated, the proposal consisted of
two options: option 1 described as a "Lay-off [i.e~ more than five days as per Article 12.01]"
which specified a lay-off of bargaining unit staff except for teachers, teaching assistants, van
drivers and youth care workers for a period of seven days coinciding with the relocation of
the main offices; option 2 described as a "Temporary Lay-off [i.e. NOT more than 5 days
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as per Article 12.01]" which included the provision that all bargaining unit staff with the
exception of teachers, teaching assistants, van drivers and youth care workers would take
four unpaid days "staggered throughout the year." The employer favoured the second
option which it described as the least disruptive approach. In the words of Manager of
Finance and AdmiIJ.istration Art Mclean "the second option spread the pain over fewer
days to more people." Local Union President Terry Schwendiman testified that both
options were presented to the membership and were rejected. The employer abandoned
both options as being basically inequitable.
Subsequently at a staff/management meeting on July 10 the employer informed the
union that there would be no scheduled hours of work on Tuesday, September 2, 1997,
Tuesday, October 13, 1997, Wednesday, December 24, 1997 and Friday, January 2, 1998
(Exhibit 7). On behalf of the union Ms. Schwendiman responded.that management's latest
proposal was a violation of Article 12.06 of the collective agreement The employer then
abandoned this proposal.
On October 9, 1997 the employer posted a Notice to All Staff (Exhibit 9) which
read:
There will be no scheduled hours of work for all staff on Wednesday December 24, 1997 and Friday,
January 2, 1998.
Staff may not use vacation or compensatory time on either of these two dates.
In order to meet client needs at Northcrest regularly scheduled Youth Care Counsellors are exempt from
this notice.
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Despite a written objectiõn from Union Local President Terry Schwendiman that the
employer's action violated Article 12.06, the employer implemented its decision and closed
the agency, except for Northcrest Home, on December 24, 1997 and January 2, 1998
respectively.
The impact of what may be characterized as a partial shut-down varied on individual
employees depending on the particular schedule of each employee (Exhibit 14). For
example, Terry Schwendiman, apart-time employee, was not scheduled to work on Fridays
and accordingly she lost seven hours of work on December 24, 1997. According to her
evidence, she would have lost 14 hours if she had been a full-time employee required to
work on Fridays. The employer prepared a list of bargaining unit members who were
affected by the shut-down (Exhibit 14). According to this exhibit, which the parties agree
may notbe totally accurate, the actual hours lost by individual employees varied from a high
of 17.5 hours to a low of 3 hours. Not affected were regularly scheduled employees at
Northcrest Home who were required to work on both days and employees who were on sick
leave or maternity leave. In cross-examination, Mr. McLean testified that of the 12 youth
counsellors at Northcrest Home seven lost some money in the sense that they were
scheduled for vacation on the two day shut-down.
Although the dispute focused on Article 12.06 of the collective agreement the parties
referred to other provisions as follows:
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ARTICLE 4 - MANAGEMENT RIGlITS
4.01
4.02
4.03
The Union and its Local recognize and acknowledge that the management of the Employer's
operations and the direction of the working forces are fIXed exclusively in the Employer. Witbout
limiting the generality of the foregoing, the Union and its Local acknowledge that it is the
exclusive function of the Employer to:
(a)
maintain order, discipline and efficiency, in connection therewith, to make, alter, and
enforce from time to time reasonable roles and regulations, policies. and practices to be
obselVed by its employees, and to discipline or discharge employees for just cause;
(b)
select,hire, transfer, assign, promote, classify, lay-off, recall, or retire employees, and to
select employees for positions excluded from the bargaining unit;
(c)
determine the location of operations, the nature and subject matter of all programs and
their expansion, limitation, curtailment, or cessation, the direction of working forces, the
sub-contracting of work, the schedules of operations, job content, the establishment of
work or job assignments; establish, change, combine, or abolish job classification;
determine the qualifications of an employee to perform any particular job; decide on the
number of employees needed by the Employer at any time, the number of hours to be
worked, starting and quitting times, when and whether overtime will be worked, and
require employees to work overtime; determine the equipment and materials to be used
and the methods and techniques of work; and determine all financial policies.
Without limiting the generality of Article 4.01(c), the Employer will advise the Union and its
Local regarding the nature and subject matter of all programs and their expansion, limitation,
curtailment, or cessation.
The whole of Article 4 is subject only to the Employer's lawful compliance with labour and
corporate regulation and to the express provisions of this Agreement.
The Employer agrees that it will not exercise its functions in a manner inconsistent with the
provisions of this Agreement. Any violation of this Article may be made the subject of a
gnevance.
ARTICLE 12 - LAY-OFF AND RECALL
12.01
12.02
12.03
For the purposes of this Agreement, a lay-off means a lay-off of more than five days.
In all cases of lay-off, the Employer shall recognize the seniority standing of each employee within
the full-time and part-time seniority lists and within the career streams established in Article 12.03
and Schedule B of this Agreement, subject only to terms and conditions specified in Article 12.05.
All bargaining unit positions shall be assigned to career streams as specified in Schedule B.
Staff/Management Committee (as established in Article 19) shall be responsible for.
(a)
(b)
assignment of new bargaining unit job classifications to appropriate career stream;
reassignment of existing job classifications within career streams; and
(c)
all maintenance, modification, or alteration of the career streams per se.
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12.04
12.05
12.06
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When 1ay-off of a job position or job classification is necessary, positions within the designated
position or classification shall be laid off in the following order: short-term positions (excluding
those specified in Article 2.03(a) that fall under criteria for special grants), on call positions,
probationary positions, part-time and full-time positions, subject only to terms and conditions
specified in Article 12.05.
In the event of a proposed lay-off in the bargaining unit of a permanent or long-term nature, the
Agency shall:
(a)
provide the Union and its Local with no less than sixty (60) calendar days notice, when
possible, (effective August 22, 1995); and
(b)
meet with the Union Local through the Staff/Management Committee (as specified in
Article 19) to review the following:
(i)
(ü)
the reason causing the lay-off;
the method of implementation, including the areas of cut-back and employees
to be laid off;
(ill)
the ways the Agency and the Union can assist laid off employees to find other
employment within or without the agency.
Any agreement between the Agency and the Union Local resulting from this review and
concerning the method and terms of implementation of a lay-off shall take precedence over the
other terms of lay-off in this Agreement
No reduction in hours of work of bargaining unit positions shall take place to prevent or reduce
the impact of a lay-off without the consent of the Union Local through negotiation with the
StaWManagement Committee.
ARTICLE 16-VACATION
16.02
Vacations will be scheduled by management in a manner that ensures the ability of the Agency
to selVe the community as specified in the Agency's various service plans and contracts.
Requests for vacation must be made in writing and submitted to the employee's immediate
management supervisor prior to March 1st of each year. The management supervisor will post
a vacation schedule by Apri11st of each year.
ARTICLE 21 - HOURS OF WORK
21.01
Regular hours of work (except for frontline Youth Care Counsellors-see Article 21.02) shall be
thirty-five (35) hours per week in accordance with schedules established by the Employer from
time to time.
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21.02
Regular hours of work for frontline Youth Care Counsellors shall be forty (40) hours per week
in accordance with schedules established by the Employer from time to time. Frontline Youth
Care Counsellors shall be on duty during the one hour paid meal period per shift, and such time
shall be included as regular hours of work.
21.03
Nothing in this Article shall be construed as a guarantee of these of any other hours.
The arguments may be briefly summarized. The union acknowledges that the
definition of lay-off contained in Article 12.01, as a period of more than five days, is
unusual. Mr. Bevan contends that the trade-off for the inclusion of Article 12.01 is found
in the wording of Article 12.06 which he alleges is a safeguard to protect employees from
an employer's decision such as that contained in the notice of October 9, 1997. The thrust
of the union's argument is that, in the absence of union consent, the employer violated
Article 12.06 by the unilateral decision to schedule no hours of work for two days. Mr.
Bevan relied upon the testimony of Manager of Finance Art McLean who testified that
failure to implement either of the employer's proposals would have resulted in lay-offs. The
remedy requested is a declaratory order that the employer's actions violated Article 12.06,
that the practice cease and desist and that employees be compensated for all lost wages and
benefits together with interest. The following authorities were relied upon by the union:
&ú!arvey and Co. Ltd. (St. John's Branch) and Transport and Allied Workers Union. Local
855 (1992), 29 LA.C. (4th) 164 (Alcock); Re E. S. and A.:-Robinson (Canada) Ltd. and
Printing Specialties and Papers Products Union. Local 166 (1976), 11 LA.c. (2d) 408 (Swan);
and ßLExpress Airborn and Transportation-Communications International Union (1995), 50
LA.c. (4th) 271 (Frumkin).
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The employer argues that Article 12.06 has no application to the facts of the instant
grievances. Mr. Foreman adopts the position that on the combined wording of Articles
4.01(c) and 12.01 of the collective agreement the employer has the authority to impose
unilaterally a period of two days in which there would be no scheduled hours of work.
Counsel maintains that the two-day period was not a lay-off under the wording of Article
12.01 and that in October 1997 no lay-off was contemplated. Further, he contended that
the two days of no scheduled hours of work were selected to coincide with the holiday
season thereby having the least disruptive effect on client services. Counsel contends that
in this collective agreement there are numerous examples where individual employees are
not treated equally: for example, where there is a lay-off, the right to bump is restricted to
an employee's "career stream". Reference was made to the following authorities: Air-Care
Ltd. and United Steelworkers of America et al [1976] 1 S.c.R. 2 (S.C.c.); Re WIre Rope
. Industries Ltd. and United Steelworkers. Local 3910 (1983), 13 LA.C. (3d) 261 (Hope); and
F-e Corporation of the City of Toronto and Canadian Union of Public Employees. Local 43
(1991), 19 LA.c. (4th) 412 (Davis).
The task of the arbitrator, of course, is to interpret rather than amend the words
which the parties themselves have agreed upon. That limitation is made clear by the words
contained in Article 10.06 which read:
The arbitration board is not authorized to make any decision inconsistent with the provisions of this
Agreement. Neither is it authorized to alter, modify, or amend any part of this Agreement.
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I turn now to a review of the relevant provisions of the collective agreement. Under
Article 4.01(c) the employer has the exclusive authority to determine lithe number of
employees needed by the Employer at any time" and lithe number of hours to be worked."
Article 4.02 provides that the employer will abide by lithe express provisions of this
Agreement II Similarly, Article 4.03 specifies ,that the employer "will not exercise its
functions in a manner inconsistent with the provisions of this Agreement"
Article 12.01 defines "lay-off' to mean "a lay-off of more than five days." While this
definition is not a model of clarity neither party argued that it was ambiguous, although it
is unusual. In my view, "lay-off' in this agreement must be read broadly as being a period
of time off work, qualified by the words "of more than five days." The five day qualification
period is most unusual. Accordingly, any employee who is off work for a period of time of
five days or less cannot be said to be on a lay-off as defined by Article 12.01. Article 12.02
provides that in the event of a lay-off (as defined in Article 12.01) the seniority standing of
each employee is recognized according to "career streams" (Le. technical, administration,
credit counselling, social work, child and youth care).
Regular hours of work are defined in Articles 21.01 and 21.02 to be 35 hours per
week and for front line Youth Care Counsellors to be 40 hours per week. Article 21.03
goes on to provide that "nothing in this Article shall be construed as a guarantee of these
or any other hours."
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Neither party argued that the two days in question with no scheduled hours of work
constituted a lay-off as defined in Article 12.01. What took place on December 24, 1997
and January 2, 1998 was a temporary shut-down, whereby Northcrest Home remained fully
staffed, for the legitimate business reason of reducing the agency's deficit. While the
employer may have preferred to shut-down the entire facility for the two day period
coinciding with the holiday season, in my view, that was virtually impossible given the needs
and safety requirements of the Northcrest Home clientele.
In these particular
circumstances, the employer cannot be faulted for exempting regularly scheduled Youth
Care Counsellors from the generality of the two day shut-down.
The wording of Article 12.06 is clear and unambiguous. The effect of this article is
to prevent the employer from reducing hours of work instead of applying the seniority
provisions on lay-off, without the consent of the union. Under Article 12.06 union consent
is tied into the concept of lay-off as defined in Article 12.01.
In my view Article 12.06 has no application to the facts of this case for the reason
that the employer had no intention of implementing a lay-off, as defined in Article 12.01,
when the decision was made in October 1997 not to schedule hours of work on December
24, 1997 and January 2, 1998 respectively. That was not the case, however, on June 16,
1997 whereby under option 1 the employer contemplated a seven day lay-off which was
within the meaning of lay-off as specified in Article 12.01. On the evidence adduced, I am
satisfied that the employer abandoned any further thought of implementing a lay-off in June
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of 1997 when both employer options were rejected by the membership of the union local.
The union contends that Mr. McLean gave contradictory evidence. On several occasions
throughout his testimony Mr. McLean appears to have used the term lay-off in the normal
sense - any period of time off work. That does not coincide with the definition of lay-off
in Article 12.01 and accordingly Mr. McLean's testimony can not materially assist the
union's case.
There is no dispute that in implementing the two-day partial shut-down the employer
acted in good faith and for legitimate business reasons. Except for the requirement that
regularly scheduled Youth Care Counsellors staff Northcrest Home, the decision to shut-
down the agency for the two days in question affected the vast majority of employees. It
may be said, however, that the impact upon individual employees varied in accordance with
individual employee schedules, whether or not an employee was on sick leave or maternity
leave and whether the employee held full-time or part-time status. There was not sufficient
proof presented that any employee or group of employees was singled out for special
treatment.
For the above reasons these grievances are dismissed on the finding that there was
no violation of this collective agreement. In the particular circumstances of this case, I find
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that the employer acted reasonably, in good faith and for legitimate business reasons.
DATED at Brantford, Ontario, this 16th day of July, 1998.
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SOLE ARBITRATOR