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HomeMy WebLinkAboutBrennan 03-01-20 - IN THE MATTER OF AN ARBITRATION BETWEEN SAUL T AREA HOSPITALS (The "Employer") AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The "Union") GRIEV ANCE OF TERESA-JO BRENNAN APPEARANCES FOR THE EMPLOYER Mr. Gordon Acton, Counsel Frank Sarlo Jr., Counsel Don Muio, Vice-President Hospital Services Joe D'Angelo, Manager Diagnostic Imaging Jeff Lee, Human Resources Coordinator APPEARANCES FOR THE UNION Jim Gilbert, District Grievance Officer Teresa-Jo Br ;nnan, Grievor DATE: OF HEARING October 23 & 24, 2002 DATE: OF AWARD This grievance involves a claim that the Employer has violated articles 13 and '74 of the colle::tive agreement, the relevant provisions which read as follows: ARTICLE 13 - JOB POSTING, PROMOTION AND TRANSFER 13.01 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 clays. Applications for such vacancies shall be made in writing within the seven day period referenced hearing. Notwithstanding the above, the Hospital may fill at its 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 (f) specific tasks not expected to exceed six (6) month.. In tìlling 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 set out in Article 13.06. ... 13.06 In tìlling posted vacancies the selection shall be made based on skill, ability, experience and relevant qualifications of the applicant. Where these tàctors are relatively equal, bargaining unit seniority shall be the governing factor. 13.11 From time to time the job duties or scope of a bargainingunit position(s) may change in such a way as to represent a development opportunity, a specialization, or a broadening of duties for a limited number ot . employees within a department or appropriate work unit, without increasing the complement of employees in the department. When this occurs, the Hospital shall post this opportunity in the form of an information notice in the relevant department(s) for a period of at least seven days. A copy of the posted notice will be sent to the Local President or designate within the aforementioned seven (7) calendar days. ¡. Employees wishing consideration for these opportunities must express their interest, in writing, within the 7 day period referenced within. The Hospital shall consider employees for these °pPOliunities on the basis 1 2 I, of skill, ability, relevant qualifications and seniority. Notwithstanding the above, the tìnal decision for selection will be at the discretion of the Hospital. If requested, the Hospital will discuss with the unsuccessful applicants reasons why they were not chosen for the opportunity. ARTICLE 24 - CONTINUING EDUCATION 24.01 Th Hospital and the Union recognize that continuing education is important for all employees and that they have shared interest and responsibilities in ensuring equitable access to it. Therefore: (i) The Local Paliies will endeavour to maximize internal opportunities for training and development which may include, but are not limited to: lunch hour programs, quest lecturers, trained employees, training other employees, teleconferences, and access to in-house programs/seminars. (ii) Continuing education opportunities will be communicated within the department(s). Where access to al10pportunity is limited, the Hospital will identify pertinent selection criteria, terms of payment, etc. Decisions about continui'ìg education opportunities will be made at the departmental level within the context of employees, Hospital and department/program needs. (iii) Where the employee requests it, the Hospital and the employee will jointly create an Annual Development Plan outlining continuing education goals and objectives. (iv) In the event of dissatisfaction with the way in which continuing education decisions are made at the departmental level, the issue will be considered by a continuing education sub-committee of the Labour- Management Committee. This sub-committee will consider opportunities, employee needs, Hospital needs and ¡ department/program requirements. The sub-committee may make recommendation(s) to the Hospital. The grievance arose fì-om the following posting dated May 21, 2001: In order to maintain a flexible and fluid workflow within the department a ,., .J part time X-Ray Technologist will be trained in Room 2. The tecl~ologist will be available for relief in that area. If you are interested, pie .se let me know. Thanks. .Joe Joe i, Mr. Joseph D'Angelo, the Director of Diagnostic Imaging. The !Srievor responded to the posting on March 23,2001, as follows: As per our conversation Friday, March 23,2001, this is my letter of interest for angiography training. I am applying for training in every facet of the procedures performed and the capability of the equipment used for angiography. It is understood that the trainee will be a competent experienced angiography technologist so that the end result will b¡ an independent and f1uid workf1ow. This training can be encompa"'sed into my regular scheduled rotation to maintain my full time commitment to Diagnostic Imaging. The tratning opportunity was given to a part time technologist and the grievor filed this grievance asking that she be immediately provided with a training opportunity in Room 2 (angiography) or Cat Sccm, that the training opportunities be posted according to the collective agreement and that any posted opportunities improperly assigned be stopped immediately so that they can be properly posted and filled using the criteria established in the Collective Agreement. For purposes of this hearing, one other provision of the Collective Agreement waC' relied on by the Union, namely Article 3 - No Discrimination; specifically article 3.02, which?ads as follcws: It is agreed that there will be no discrimination by either party or by any of the employees covered by this agreement on the basis of race. creed, colour, national origin, sex, marital status, age, religious affiliation, sexual orientation or any other factor not' " pertinent to the employment relationship. The grievor, Teresa Jo Brennan, was first hired at the Plummer Memorial Hospital in 1983 as a part time genera] duty X-ray Technician working 20 hours per week. In 1985 she became qllal¡Üed to perform mammography, partially through in house training and partially through her 4 own lnc.ependent efforts. In 1986 she became a full time employee and worked primarily as an X-ra:/ technician in mammography. The Plummer Hospital amalgamated with other area hosptals to become part of the Sault Area Hospitals and mammography remained at the Plummer site initially but was later moved to the General Hospital site. At the time there were tìve technicians trained on mammography but, because of an illness, only four rotated on a regular 'vveekly basis. Since there was only one technician needed in mammography Monday to FridEY, the grievor might not be scheduled in mammography for several weeks at a time depe1ding on her regular schedule. Ms. Brennan testified that the Employer traditionally determined the need for a training assignment and the successful candidate was chosen interpally from the X-ray technicians on staŒ The training assignment at issue involved an opportunity for on-the-job training in angiography and the Cat Scan. The grievor testified that this training was important because it could lead to an acting or permanent assignment in the future. Once an employee is trained, there would be opportunities to pick up extra shifts in the area, placing that empIL;,ee in a more tàvourable position for future advancement. It was her view that seniority has little meaning becalse the Employer always gives more credit to experience. Another reason she was seeking this additional training was 10 obtain more favourable positioning in the case of lay-offs and she was :nterested in caring for a different kind of client and learning something new. She felt she had made it clear to the Hospital that she \vanted additional training and because of this long- stanc.ing interest she believed she would be offered the next training assignment. When she spok~ to Mr. D' Angelo, he encouraged her to apply but told her he would have to make his deci~ iOll based on the needs of the Department. The grievor was never formally told that she had not been given the assignment t 't learned later that it had been given to a part time employee. She spoke to Mr. D' Angelo who told her that she should10t take his decision personally, that he was very pleased with her performance, confident in her abilities and proud of the work she had done on mammography. He had decided .to offer the assignment to a part timer because she would provide more flexibility in scheduling, which - 5 the Department needed. Ms. Brennan testitied that these assignments are rare. The last full time employee to receive on the j)b training was assigned to training in 1998 in angiography. There were two others in 1998 in CT, which were given to part time employees. In 1999, no job training opportunities were postl~d. Mr. D' Angelo testified for the Hospital. He has been the Manager of Diagnostic Imaging since 199i(. Before that he was the Department Head of Ultra Sound at the Plummer.: !is current resp::msibilities are to supervise the 9 full time and 5 part time technicians who rotate through the genera: x-ray rooms, the angiography room and mammography. The full time employees rotate on a 24 hour, 7 day a week basis 365 days of the year and the part time provide relief, although they can be scheduled on regular shifts. He had prepared a list of X-ray technicians according to seniority. The full time list showed 13 employees, of three of whom were on maternity or long term sick leave and one on accommodation. Of the 9 remaining, all but two have additional areas of training involving ang.ography, mammography, clinical instructor, vascular lab, cardiac lab CT, MRI and the designation of Certified MRI technologist. Almost all of the training for the addi~ional areas of skills ,vere obtained within the Department. Only mammography and MRI required outside training or teaching. Of the five regular part time employees in the department, three were trained in CT but no other additional training was noted. On that list was included Mr. D' J\.ngelo' s assessment of the departmental requirements which were as folIo ,lis: Department Full Time Part time Mammography ,., 1 .J CT ,., 2 ¡. _1 Room (Angiography) '" 1 .J MRI 2 The training at issue in the instant grievance involved an employee shadowing another employee for 2-6 weeks depending on the volume of work. Because of the low number of scheduled 6 procedures, it was anticipated the training in this case would require 4-6 weeks. It was Mr. D' Allge lo' s view that he needed 3 full time and 1 part time employee in the angi(\csraphy room. In order to maintain competency, a technician needs to be exposed to the procedles on a regular basis. The procedures are invasive and require a technician to know the physicians' routines and equipment. For that reason it is not in the interest of the Department to train all employees since the v:)lume of work would result in long intervals without work in the area. Acccrding to the list of requirements prepared by Mr. D' Angelo, his long term plans had been met in all areas with respect to the full time staff These depalimentallong term goals were deve'oped by Mr. D'Angelo in consultation with the Chief Radiologist to provide regular relief statI in all areas. Because no relief staff is trained in Room 2 the potential to cancel procedures becalse of a lack of trained technicians is real. Depending on the rotation and the requirements in other areas of the department, it might be impossible to transfer someone out c~.Cthe regular rota! on to work relief in Room 2. Part time trained relief would resolve that problem. SUBMISSIONS Mr. Gilbert, for the Union, took the position that the Employer had violated the collective agreement in filling this training assignment. The posting specifically excluded full time emp¡oy,~es, which is contrary to the collective agreement. In addition, the job was not posted for the tiJll seven days required and was only posted at the Plummer site, other breaches of the collective agreement. Witl:l respect to the assignment itself, the collective agreement requires the Employer to consider the SK.iIL ability etc. of the applicants. There is no evidence that the Employer did that but rather simply~xcluded the full time employees tÌ"om consideration. That, it was said, was not a genuine exercise of discretion. The Employer relied on the grievor's full time status to exclude her from the assignment and that was a breach of the collective agreement because it was a factor not re¡evan~ to her employment relationship. contrary to Article 3.02. 7 Not" ithstanding the Employer's insistence that it would not rely on a person's additional training in Rcom 2 when applying the promotional or lay-off provisions of the collective agreement, the Uniol maintained that Mr. D' Angelo's own evidence showed the contrary. He stated that he woull not assign the grievor to Room 2 unless she had been trained in angiography. It is hard to imaglne he would ignore that lack of training if he were seeking to fill a permanent position in the d'~partment or was faced with laying of some of the employees. The grievor'f belief that this additional training would serve her well in those situations was valid and should ')t be ignored by this Board. In su Jport of its position the Union relied on the following cases: Re Air Canada and Inter'1arionalAssociation of Machinists, Lodge 148 (1990), 13 LAC. (4th) 110 (Foisy); Re NFG Canedo Limited and Union qfNeedletrades, Industrial and Textile Employees, Local 1305 (1997), 66 LAC. (4th) 408 (R.B. Ray) and Re Bousquet and Ministry of Natural Resources (199l), GSB # 541/90, 542/90 and 543/90 (Gorsky). The Union was seeking a declaration that the Employer improperly posted the position for less than seven days, contrary to the collective agreement, that the posting improperlJ~xcluded full time employees contrary to article 3.02, that the Employer's discretion in not unfettered and that the d~cision as to who should be awarded the position was improperly decided. It asked that the grievor be appointed to the training position immediately and that the Employer be directed to post ::tI1 training and educational opportunities in accordance with the collective agreement. Mr. Acton, counsel for the Employer, took the position that this case concerns the method in which the Hospital operates its services. The Employer recognized a need for I11ore staff to be trained in Room 2. It determined that the needs of the department required part time employees to pr;wide more í1exibility and posted according. Mr. D' Angelo testified about that and other reascns for the decision to seek part time employees, including the difficulty rem:1ving someone from the regulc.r rotation to fill in for absences, the lack of opportunity to maintain competence and the fact that there were, at the time, no part time employees trained to work in Room 2. That 8 is why the posting was limitecl to part time employees. That is what the Employer decided it needed al1d that was a reasonable exercise of its discretion. Article 13.11 is not a competitive clau:;e like 13.06. The Hospital is required to post only an informational notice of a developmental opportunity but the final decision rests with the Employer With respect to the allegation that the Employer breached article 3.02, it was submitted that the fulliime or part time status of the applicants is a clear characteristic of the employment relationship. The collective agreement itself differentiates between full time and part time emp .oyees. In this case, it was logical to do so since the flexibility of part time status would give the Employer the coverage it needed in Room 2. The Union has suggested that Mr. D'Angelo's assertions about training in Room 2 having no affe( t on promotional or lay otI situations are false and should be ignored by this Board. His evid!~nce on this point was clear and unequivocal. His evidence was that the lack of training in i Room 2 would not disadvantage an employee in those situations. There is no reason for this " Board to discount his evidence. In support of its submissions the Employer relied on the following cases: Re Metropolitan School Board und CUP£. Local 1280 (1997),68 L. A. C. 4th 268 (H. D. Brown); United ,:;'ood and Commercial vVorkers International Union, Local 175 and Great Atlantic and ia, .lie Co. Of Canudo (2000), [2000] O. L. A. A. No. 960 (Etherington) and Centennial Health Centre and Ontclrio Public Service Employees Union, Locul574 (1999), [1999] O.L.A.A. No. 511 (Devlin) DECISION This case'involves a review of the decision of management to assign a training opportunity to a part 1ime employee, or more specifically, to exclude full time employees from consideration. Ther'~ are also allegations of technical violations of the posting provisions with respect to 10catloE and length of posting. 9 Dealing first with the technical violations, the evidence with respect to the time the notice was poskd was equivocal. The grievor was "pretty sure" it was posted for less than seven days. There was no direct evidence about the date it was posted and/or taken down. W': are therefore unat Ie to determine how long the notice was posted. The Employer has characterized al1Y such breach, if it existed, as technical in nature which should not affect the outcome of the process. We disagree. If the Employer did not follow the provisions of the collective agreement, whether the treach is material to the outcome or not, the Union is entitled to a remedy for the breach, even if that remedy is only a declaration. However, in this case we do have enough evidence to tìnd that the Employer breached the time limits ofthe posting requirements. As well, the posting requ rements under 13.11 state that the opening will be posted in the department or appropriate work unit. In this case that was the Diagnostic Imaging department at the Plummer where Room 2 is ~;jtuated. The notice of the position was posted in accordance with that article and there has been no breach. " Deallng now vv.ith the substantive aspects of the grievance, the Union relies on several provisions of th,; collective agreement. In the case of job vacancies or new positions, the Employer is required to post notice of the vacancy and to till it in accordance with the provisions of article 13.0(j, that is having regard to the ability, experience and relevant qualifications of the applicant. Whe1 those factors are relatively equal, seniority is the governing factor. However, the parties have specifically excluded certain vacancies from that provision, including illness, accident, pregnancy al1d parental leaves of absence, leaves of absence under six months, vacation and specific tasks not expected to exceed six months. They have also made provision for developmental opportunities such as the one in the instant grievance in article 13.11 and article 24. l\.ccording to article 13.11, when one of these opportunities arises, it is to be }-'osted in the department for seven days. The Employer is to consider the applicants on the bdsis of skill, ability, relevant qualiiìcations and seniority. However, notwithstanding the above, the final dec is :01' for selection \vill be at the discretion of the Hospital. If the training opportunity in Room 2 was the type envisioned in miic1e 13.11, the provisions of 10 that article leave the final decision to the Employer. The only question to be answered then is whether the exercise of that discretion was reasonable in the circumstances, motivated by bad fath or discriminatory. As was stated inthe Re York Region Roman Catholic School Board and OE.C'. TA. (1995),52 L. A. C. (4th) 285 (Phillips) in the NFG Canada case (supra) at page 293: ...the collective agreement must be viewed in a holistic manner consistent with the presence of an implied principle or tenn of reasonable contract administration. Where these are specitìc provisions of a collective agreement which circumscribe management rights, the discretion must be exercised reasonably, and must be judged on an objective basis. Reading article 13 as a whole it is clear that the Employer retained the right to fil~ertain v2ca;1cies at its own discretion. Specifically it retained the right to fill temporary or short term vrcancies outside of the limitations in article 13.01 and 13.06. Additionally, the parties put their minds to the type of vacancy at issue in the instant grievance. They identified developmental opportunities, specialization or the broadening of duties as instances where .he Employer would , h2ve the íìnal say as to who would be offered the assignment. The Employer, in this case, based it~: decision on the needs of the department and as part of a long term goal to ensure the most efficient and reliable service to the public. The criteria were established based on the present trained staff levels, the need for more f1exibility in the future, the difficulty in taking some one fwm the regular rotation to replace an employee in Room 2 and the real possibilit'f that pJOœdures would have to be canceled due to a lack oftrained staff. All of those 'onsiderations are r~sponsive to the needs of the department now and in the future. It cannot be said there is no merit to Mr. D'Angelo's concerns. As the head of the department he is in the best position to make these determinations and his decisions in the circumstances were not arbitrary or in bad faith. T 1e Union has argued that the Employer's decision to exclude full time employees was a . violation of article 3.2 because it took into account factors not pertinent to the employment relationship. On the contrary, the evidence from Mr. Ð' Angelo was that the factors that were considered when determining employee needs in Room 2 related to flexibility, availability and tl::e current and future needs of the department. The fact is that the full time statu' affected both . 11 of those areas of concern. It is clear from the lisT he prepared that there were no part time emp .oyees trained to \vork in any ofthe specialty areas except CT. It is equally clear that when he clHlsidered what criteria to apply in these circumstances, the status of the grievor was a relevant factor pertinent to his deliberations. We are further persuaded that reading ofthe collective agreement as a whole supports our deci~;ion. Article 24 is a recent addition to the collective agreement and seems, in some ways, to expand on article 13.11. Article 24 is entitled Continuing Education and applies to internal train lng opportunities for training and development. It contains a list of examples of assignments that might tìt into that category which, no doubt, includes the one at issue in this grievance. Artie Ie 24 is consistent with article] 3. ] 1 in that the decision about the creation of and assignment of these opportunities is at the discretion of the Employer. Article 24, however, is even more explicit about the Employer's right to detern1ine the need for these opportunities, the i pertÏ1ent selection criteria and terms of payment shaF be made at the department<..ìlevel within \, the c:mtext of employees, hospital and departmental needs. There can be no dour that deveopmental opportunities were intended to be a management function with input from the Union. As proof of the parties intentions, we note that in the event of dissatisfaction with the decision of the Employer. the parties have referred the matter to the Labour-Management COffi:11Í":tee which can make recommendations to the Hospital. We interpret that to mean that a dispUe about a developmental or training opportunity is not to be processed through the grievance procedure but rather through the internal Labour-Management Committee. In any evel1"!, this provision is in keeping with the intention of the parties in respect of job opportunities such as the one in the instant grievance. It is (,ur conclusion that there has been no breach of the posting provisions of arti .le 13 or the assig1ment of the training opportunity under article 24. The Employer exercised its discretion in deter-nining the criteria for the position, which it was entitled to do under the collective 19reement. The evidence has not shown that this discretion was exercised in an arbitrary manner but rt.ther was arrived at after consideration of the needs of the depmiment. The decision was . 12 reasol1C,ble and made in good faith. The suggestion that the Employer exercised its discretion in an d scriminatory manner contrary to article 3.02 is rejected. Fonhese reasons the grievance is dismissed. Dated c.t Toronto this 20th day of January, 2003 II II ,,' >. lJ /"~ì'~;~d~ 4¿A~7 ." /1 d!~~ß \ CJYjU¿k. \_/{dretta Mikus 'JÖÍ1l1 McManus Roy Bernardi Chair Union Nominee Emplúyer Nominee ,