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HomeMy WebLinkAboutUnion 00-05-29 .' ~,-. .... IN THE MATTER OF AN ARBITRATION BETWEEN: HAMILTON HEALTH SCIENCES CORPORATION (hereinafter called the "Employer") - and - THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 273 (hereinafter called the "Union") Union Policy Grievance BOARD OF ARBITRATION: Richard H. McLaren, C.Arb., Chair Ed Seymour, Union Nominee Don Bates, Employer Nominee APPEARANCE FOR THE EMPLOYER: Rod Carroll, Employee Relations Specialist APPEARANCE FOR THE UNION: Mitch Bevan, Grievance Officer A HEARING IN RELATION TO THIS MATTER WAS HELD AT HAMILTON, ONTARIO, ON APRIL 17, 2000. .. . "'" Page 2 AWARD On August 25, 1999, the Union grieved: . . . that the current directive with respect to multiple position holding is in violation of the Collective Agreement and past practice. "Settlement desired": recent directive be rescinded and returned to previous practice.... [Exhibit # 1] The directive referred to in the grievance reads: Date: 07/19/99 To: LU.O.E., Local 772 C.D.P.E., Local 794 C.D.P.E., Local 839 O.P.S.E.D., Local 206 O.P.S.E.U., Local 273 cc: Human Resource Associates, Sue Eastham, Gayle Holmes, Ted Capstick, Shelley DaCosta From: Employee Relations RE: Multiple Position Holding at the Hamilton Health Sciences Corporation ð Page 3 BACKGROUND The Hamilton Health Sciences Corporation was created in 1996 through the merger of Chedoke-McMaster Hospitals and the Civics Hospitals. The CMH and Civics Hospitals, prior to merger, had different practices in regards to employees' ability to hold more than one position. After merger, the CMH practice continued. With time, however, significant problems and concerns with multiple position holding among Unionized employees came to the fore. Human Resources, as a result, embarked upon an assessment of the issue. THE ISSUES Employees who hold more than one incumbency pose operational, administrative, legal, and fiscal challenges to the Corporation. While the precise extent and scope of these challenges is not yet known, a number of real and pressing concerns about multiple position holding have been identified. These concerns include, but are not limited to, the following: . Seniority and Service Accrual . Benefits . Vacation Accrual and Pay . Statutory Holidays . Lieu Pay, and . Sick Pay In addition, as the Corporation currently has no mechanism to control the hours employees with multiple jobs can work per week and/or pay, the Corporation's ability to meet its legislative obligations, such as those set forth in the Employment Standards Act, is challenged. od Page 4 IN SEARCH OF A SOLUTION: A MEMORANDUM ON ADDITIONAL MULTIPLE POSITION HOLDERS As an interim solution to the problem of multiple position holding within the Corporation, Human Resources has recommended a moratorium on the creation of additional multiple position holders within Union locals. Alternatively stated, during this period of assessment, HR has recommended that employees be restricted to one (1) incumbency per Union Local; for example, one position in C.U.P.E., Local 839. IMPORTANT NOTE The intent is for Human resources, in particular the EWIBS team, to analyze the issue and develop a policy on multiple position holding at the Hamilton Health Sciences Corporation. Accordingly, the above is not an official policy, but, rather, an interim practice. [Exhibit #3] The Union called as a witness, Duane Boychuk. He is the Union President and was on the Union negotiating team for the Collective Agreement. The Employer called as witnesses, Cindy McArthur, an employee relations associate, who is responsible for grievance and arbitration administration and preparation, as well as being a resource and consultant for contract negotiations. She was involved as one of the negotiators on behalf of the Employer. The other witness was Brenda Grant, who is the administrator of general labs for the Employer. She is directing the overall organization of the Hamilton Regional Lab medicine program planning and allocating resources which will regionalize the lab facilities. .' Page 5 Before 1996, in the Hamilton area there was, the Hamilton General Hospital andthe Nora Francis Henderson Hospital which were known as The Hamilton Civic Hospitals; and, the Chedoke and McMaster University Hospitals. These four hospitals operated as two separate entities. In 1996 they were merged to form the Employer at these proceedings, The Hamilton Health Sciences Corporation. The McMaster University Hospital as part of this merger was largely a non-Unionized Employer. At the McMaster Hospital, following the merger to become part of the present Employer, there was voluntary recognition of the Union. It was certified in early 1998 to cover the labs at the McMaster University Hospital site. A first Collective Agreement was entered into on March 9, 1999 and filed as Exhibit # 2 in these proceedings. The directive, Exhibit # 3 (quoted above), was issued with respect to not only the OPSEU Collective Agreement but other Collective Agreements. Duane Boychuk testifies that he was first hired while he was a student in the summer of 1988 as a Non-certified Medical Technician in the laboratory and was given the equivalent of a .2 of a full time equivalent position {.2 translates into one shift per week of 7.5 hours}. In the fall of 1988 he applied for a position in the chemical lab and was successful. That position started as a .7 which would be 26.25 hours per week. Later his work load was increased to a 1.0 full time equivalent which was a 37.5 hour per week in the chemistry lab. In April of 1996 he had the opportunity, and reduced his hours to a .7 full time equivalent, pursuant to a general scheme of early retirement and reduction in hours. This position was in the chemistry lab but at that point it was beginning to become, what it is now described as today, the core lab. Then in September of 1997 a position was available in the Page 6 microbiology lab and it was .6 of a full time equivalent or 22.5 hours. He applied and received that position and later he was given an additional .1 to bring it up to a .7. All the time he continued his position at .2 in the core lab. He currently holds these two positions. The thrust of the Union grievance centres on the fact that there were a number of other individuals in the OPSEU bargaining unit who had these fractional positions of full time equivalent positions in the labs of the McMaster University Hospital. Then unionization occurred. Mr. Boychuk testified that he believed that he might be the only person who was still working within the labs with this pattern of fractionalized positions equated to a full time equivalent. The concern of the Union as expressed at the arbitration hearing was that the directive of July of 1999 meant that anyone in such a position would be unable to retain the fractional position in applying for any new posting. The objection from the Union was that such arrangements had not been negotiated at the time of the bringing into effect of the Collective Agreement which was a first contract. The evidence is clear that both sides came to the bargaining table to negotiate the first Collective Agreement without reference to the issue of the fractional positions. Mr. Boychuk, as one of the Union negotiators, was aware of the situation as he was indeed one of those employees. The Employer, bearing in mind that it had become the consolidated Employer through the merger of four hospitals under The Hamilton Health Sciences Corporation, was not aware of the specific practice at McMaster University Hospital. Thus, it came into the negotiations without being concerned about any issue of negotiations surrounding fractional employee positions. Page 7 The Union apparently negotiated, assuming that these arrangements would continue. Both parties were negotiating merely local issues as the Collective Agreement which was going to form the fundamental basis of the relationship was that negotiated centrally on behalf of OPSEU and a number of Participating Hospitals. Therefore, in effect the matter was overlooked and not dealt with during the negotiations. Ms. McArthur was quite frank and candid in conceding that Exhibit # 3 (the directive quoted above) when it was issued was not directed at the particular practice that existed at McMaster Hospital in the past. It was not thought of nor contemplated as being within the directive. Indeed, it only became an Issue following the filing of the grievance by the Union in August of 1999. On the basis of the foregoing facts, the Union argues that the Employer has not negotiated the elimination of fractional positions and that the practice which existed at the McMaster University labs is to be preserved. It asserts that practice arises by virtue of the theory of estoppel and in argument presented the case of Hôtel Dieu de Montréal and Fédération des Infirmières et Infirmiers due Québec, 18 L.A.C. (4th) (Frumkin), January 21, 1991. The Employer representative argues that there can be no practice established when there is a first contract situation. It is also asserted that when various provisions of the Collective Agreement are examined such as Article 15 and several others, that the Collective Agreement only contemplates full time positions and not fractional ones. They submit that there cannot be an estoppel because there is no active representation and indeed there was no knowledge of the circumstances. Page 8 The relevant provisions of the Collective Agreement read as follows: ARTICLE 15 - JOB POSTING. PROMOTION AND TRANSFER 15.01 Where a vacancy exists, or where the Hospital creates a new position in the bargaining unit, such vacancy shall be posted for a period of seven (7) calendar days. Applications for such vacancies shall be made in writing within the seven (7) day period referenced herein. Notwithstanding the above, the Hospital may fill at it's own discretion vacancies caused by: (a) illness; (b) accident; (c) pregnancy and parental leaves of absence; (d) leave of absence not expected to exceed six (6) months; (e) vacation; (t) specific tasks not expected to exceed six (6) months. In filling such temporary vacancies, the Hospital shall consider employees who have expressed an interest, in writing, in filling such vacancies, on the basis of the selection criteria, as set out in Article 15.06. Employees in bargaining units at the Hospital represented by OPSEU selected to fill such temporary vacancies agree not to apply for other temporary positions while filling the temporary vacancy. Upon completion of the 15.06 Page 9 temporary vacancy, the bargaining unit employee will be returned to his former position. Such employees shall continue to accrue seniority while filling a temporary vacancy. Employees newly hired to fill a temporary vacancy will not accrue seniority during the filling of such vacancy. If such employees successfully post into a permanent position within the bargaining unit, prior to the end of the non-posted vacancy, they will be credited with seniority from their last date of hire. The release or discharge of such employee at the completion of the temporary vacancy shall not be the subject of a grievance or arbitration. In filling posted vacancies the selection shall be made based on skill, ability, experience, and relevant qualifications of the applicants. Where these factors are relatively equal, bargaining unit seniority shall be the governing factor. ARTICLE 24 - CONTRACTING OUT 24.01 The Hospital shall not contract out work currently performed by members of this bargaining unit if, as a result of such contracting out, a layoff of any bargaining unit employees occurs. This clause will not apply in circumstances where the Hospital no Page 10 longer provides particular services as a result of the rationalization or sharing of services between Hospitals in a particular geographic district, or as a result of the withdrawal of the Hospital's license to perform such serVIces. DECISION In argument the Board was taken through a number of provisions of the Collective Agreement. Only two areas of which are quoted as examples in this decision. Nevertheless, it is the conclusion of this Board that the Hospital submission is correct that the Collective Agreement contemplates that an employee holds only one position. Whatever may have been the situation in the past the Collective Agreement has established that with the commencement of the first Agreement there were no longer fractional or multiple positions as described herein. The Board finds that the directive is not contemplating the interpretation of the parties' Collective Agreement herein. On a review of the various provisions cited in argument, the Board is of the conclusion that the proper interpretation of the Collective Agreement is that there can only be a single position contemplated by the language of the Collective Agreement. There is no provision whatsoever relating to fractional or multiple positions. If that is the proper interpretation of the Collective Agreement by examination of the language, then the extrinsic evidence surrounding the parties' intentions and their absence of recognition on either side of the issue of fractional Page 11 positions does not affect the proper interpretation of the Agreement. One has to remember that the contents of the Agreement were derived from the central bargaining and merely adopted by these parties. The evidence clearly establishes that Duane Boychuk, and perhaps other employees, at the time of the arbitration hearing, held fractional positions at the McMaster University Hospital. Therefore, the issue becomes one of what to do with those employees. There was a pattern of conduct at the McMaster University laboratories that involved the use of fractional time for employees in variol;ls labs which were equated to a full time equivalent. The Board finds that Exhibit #3, the directive, is not really intended to be directed at this particular issue. Thus, it becomes unnecessary to interpret the document. While the Employer asserts that it was unaware of the circumstances when it negotiated the agreement, the Union asserts that the employer had constructive knowledge or that someone on the Employer's behalf must have known because it both paid and scheduled Mr. Boychuk on the basis of being a fractional employee. The Board takes the conduct of the Employer, since the coming into existence of the Collective Agreement, by both the scheduling and paying of this particular employee, as being one which is a derogation from the written collective bargaining agreement as set out in the Collective Agreement and its proper interpretation as established by this Award. Therefore, there is a representation by conduct by the Employer in scheduling and paying Mr. Boychuk. While the Employer is free to ~ ' Page 12 take the position enunciated in Exhibit # 3 in its directive as a matter of interpretation and application of the Collective Agreement, it cannot do so to the extent that it has represented to Mr. Boychuk; and, perhaps other employees, that their situation which had existed for some time after the coming into effect of the Collective Agreement is to be affected by the directive or some other exercise of managements rights. Therefore, the Board finds that with respect to those employees who worked as fractional full. time equivalents in the OPSEU bargaining unit, after the coming into force of the Collective Agreement, and who were still doing so as of the date of the arbitration hearing on April 17, 2000, are entitled to the benefit of an estoppel by conduct so long as they continue to work on the same basis that they did at the date of the arbitration hearing. To its credit, the Employer has made no attempt to remove the Grievor or any other employee from a fractional job. The Employer will only be able to change their circumstances in the event that the employee elects to apply for a job posting and becomes the successful applicant for a full time position or the employee is no longer employed by the Employer. The effect of this estoppel will cease with the expiry of the Collective Agreement on March 31, 2001. In effect, this is the period of reasonable notice required to bring the estoppel to an end by exhausting the effect of the Employer's representation by conduct in paying and scheduling fractional positions for its employees. After such time the Employer will be entitled to return to the strict contractual rights as found in the Collective Agreement or as re-negotiated. The Board is only aware of Mr. Boychuk as being a person who would be affected by the above estoppel. The Union has thirty (30) days in which to identify any other employees who may also be within the terms of this arbitration award. If " .:" ,p . Page 13 I there is any disagreement between the parties as to the inclusion of other individuals, the matters may be returned to the Board of Arbitration for fmal determination as to their inclusion or exclusion if the parties are unable to agree. The Board orders that the Employer is to administer and apply the Collective Agreement in accordance with this award with respect to Mr. Boychuk and any other employees who are identified by the above order for the duration of the Collective Agreement. The Board encourages the Employer to take any pro-active steps it can to assist the Grievor in obtaining a full time position, if Mr. Boychuk so desires, before the expiry of the present Collective Agreement. DATED AT LONDON, ONTARIO, THISJ.,.qPÐAY OF MAY, 2000. £Lj Ill/) ~ Richard H. McLaren, C.Arb Chair I concur/elifJlJl!ln~ "~,. Ed Seymour, Union Nominee ~Jj~ I concur tdissøFlt Don Bates, Employer Nominee ,!