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HomeMy WebLinkAboutUnion 05-06-07 ,~.. ~~ ~..... . C" LOU """'U"': "'Wt:lM 10:416 340 8250 ' '-"V' u,', L-UU~ 4"""""""" .,- ..----., ~ "---. - ---- .---. PAGE 4/12 , In The Matter of an Arbitration Between O.P .S.E.U.. Local 496 [the "Unionn] And Corporation of County of Hastings [the "Emp(Qye~] Re: Lay-Off Grievance Before: M.B. Keller, Arbitrator Appearances: ElizabQth Nurse for the Union Kees Kort for the Employer Hearing in Belleville. June 3, 2005 . ~~.':":~"':::.:'_'" U:>~_L':._....t<:UI'I.:~W.~_H___.. 10:416 340 8250 PAGE 5/12 , -2- AWARD The employers Intake Screening Unit (ISU) performed intake screening not only for the County of Hastings but for various other municipalities in Eastern Ontario, Commencing in the Fall of 2004. it was rumoured that the Provincial Government would close the regional centres scattered through the Province and this was done officially on December 15, 2004. The result for this bargaining unit was that the employees would be required to perform theirwotk for the County of Hastings only and no langerfor its other "clients., Lay- offs necessarily were inevitable. Pursuant to the provisions of the collective agreement, the union was involved and the lay. off procedure commenced. It was the manner in which some aspects of the lay-off procedure were done) or proposed to be done. by the employer that led the union to file two grievances raising three issues. Those issues are: 1) Did the manner in which the employer give notice of lay-off violate the collective agreement? 2) Did the manner in which the employer assesses qualifications and ability to determine bumping rights ín article 14.05 violate the collective agreement? 3) Is the employer entitled to continue usíng the job posting procedure in article 13.01 when notices of redundancy have been given to employes and/or there are employees on la~off, (1) Article 14.02 (a) reads as follows: "14.02 (a) In the event of a layoff of a permanent or loogterm nature. the . EmpJoyerwill provide affected employees with ninety (90) days notice or pay in lieu of notice. Notwithstanding the above empioyees in the Daycare Centres shall be provided wíth as much notice as possíble but not less than thirty (30) days. The Employer agrees to provide ninety (90) days' notice (thirty (30) days for empioyeesin the Daycare Centres) to the Union to meet with the Employer during this time period, IT requested. to discuss means of avoiding the layoff and/or minimizing any negative impact." vun-ouo-~", 'o'~. ....t<:UM't<:W~H 10,416 340 8250 ._~. ~",---- -- -- ..- PAGE 6/12 , A3. On March 4, the employer delivered letters to employees in the bargaining unit The fetters went nat only to those in ISU who would be directly and initially potentially affected, but to others who might be dísplaced as a result of being bumped by mare senior employees. The union argues that article 14.02(a) limits the employer to giving notice of la~ff to directly affected employees only. Initially. they say. this means employees in ISU and might, later, mean other employees as they become affected by being bumped by ISU and ather employees. The union relies on. the award in the matterofRe: C.U.P.E Locals 45 and 46 and Oshawa Genera~¡ax Pickering GeneraLHosRijal, unreported award dated February 2S. 1997 (Mitchníck) to support its position. The emptoyer argues that the award is either wrong or dístinguishable because the language of the collective agreement interpreted by Mr. Mitchnick reads: "(ii) provide to the affected employee(s), if any, no less than siX (6) months wñtten notice of layoff, or pay in lieu thereof'. In the instant case~ submits the employer, it is simply following the terms of the language because the language does not refer to notice of layoff to affecterl employees but rather notice in the event of layoff to persons who may be affected, This means. says the employert notice to employees who could be affected directly or indirectiy and in the instant case that applied to each employee in receipt of a notice. Finally, the employer argues that, unlike the Case decided by Mr. Mitchnick, there was no "batchll letter because different types of tetters were sent to employees depending on how they might be. affected. Notwith~tanding the arguments of the employer a reading of the letters to employees shows that they were lay-off notices. J n the words of the letters the notices stated that "it .....u~-ouo-~o !C'L! rt<:UM'~W~H 10:416 340 8250 PAGE 7/12 . -J"""""-~- --.-- ,.- "----" -. .._--. .. -4- is necessary ...to ray you off...11 or it was a "layoff notice in anticipation... 8, In the latter case. no further letter was sent if the anticipated became real meaning it too was notice of lay-off and not simply notice that they could be affected by the laYwOff. It might also be noted that article 14.03 simply uses the terms "notice of lay-ofr. Whife I can appreciate the desire of the employer to want to compress the tirrte frame of the process as much as possible by only giving notice once, that is not what it negotiated. It agreed it would give 90 days' notice to affected employees. In the instant case. the employer using its own words in íts letter did more than that It gave notice "in anticipation that ... the employee... will be bumped". That very phrase demonstrates that it was possible but not necessarily the case that some employees to whom a letter was sent would be affected. In Blacl<s Law Dictionary. one of the definitions of anticipation is the "act of doìng or taking a thing before its OTO1)ar time", (Emphasis Added) That is precisely the situation that prevailed when the notices were sent there was an anticipation but not a certainty and, in my view, the collective agreement contemplates notices when it is known that an employee will be affected and not just anticipated that an employee may be. I would note in further support of this that, in fact7 not all who received the nanticipatioo" letter were ultimately laid off or even bumped. Consequently. this question is answered in favor of the union and a declaration is made that the employer violated article 14,O2(a) of the collective agreement. I remitthe issue of further remedy to the parties as I am not in the position to determine who did not receive adequate notice. (Le.) notice when it was known they would be affected and I remain seized to deal with this issue at the request of either party. Î uun ~=-ou'" >o,¿> """'UM""WbM 10,416 340 8250 PAGE 8/12 '-;-~",---- -- -- ..- ..-.. -5- (2) The preamble to article 14.05 reads as follows: "14.05If any position becomes redundant or in the event of a layoff. employees who receive notice of layoff may exercise their seniority rights over junior employees whose jobs the senior employees are qualified and able to perform by opting to displace;" To determine whether employees were qualified and able to perform a job they opted to displace, the employer provided each employee with a document package to let them know what was available. As well, employees were given a bumping option sheet which was a spread sheet showing which jobs were available to each employee. From Apñl 6 to mid May employees were given the opportunity to chose a position or positions and they were then interviewed. Employees were scored on their qualificatio ns and ability to do the job forwhích they opted and the employer established a score of 50% as the threshold to detennine if an employee was qualified and able. The process was not a competitive one. Employees were not competing against each other. The exercise was sìmply to ensure that the minimum qualifications and ability to do the job was had by an employee opting to bump into a particular position, The employer argues that it has to have the ability to determine whether an employee meets the threshold requirements as it need only allow a bump if an employee is qualified and able to do the work of the position sought. It acknowledges it could not. and states it did not, use the interviews in a cof!1petitive manner. The union argues that employees were placed at a disadvantage because they were not advised of the minimum qualifications and abilities required for the posìtions they sought. The only documentation proviqed to them were the job postings. Thus, argues the union. the employer did not turn its mind in the proper fashion to how to judge quaUfications and abilities. uu~-~o-ou'" 'C'~' rt<:UM'~W~H 10,416 340 8250 PAGE 8/ 1~ '~'-" ""'". ....'-'......... -~.~- ,.- 0-_. -. 0.__. , -6- The union also takes issue with sooring, submitting that scoring was not necessary as the employer had only to determine minimum quarífications and abilities. The collective agreement clearly restricts ~e abìlity of an employee to bump. They may only do so if they process the qualifications and abilities to do the job sought. That being the case, it goes without saying that the employer has a right to make a determination in each case of a request by an employee to bumpþ as to whether the employee making the request possesses the necessary qualifications and abilities. This is what the employer did in the instant case and it was within its rights to do so. I have no difficulty, sUbject to what follows, to the employer havîng established a minimum score and a scoring process. There has to be SOme means, some line established, to determine if an emtyœ possesses the qualifications and abilities to do the job sought. Thus, as a princip e, and in response to question two, this question is answered in favour of the employer. As was discussed at the hearìng, this does not preclude individual employees from grieving if they feef they were not dealt with in accordance with the provisions of the collective agreement. t was asked to provide guidance to assist the parties with respect to this issue, It would be, in my view, that the employer was obliged to act in a consistent fashion in assessing the qualifications and abilíties of employees, that the assessment had to be in relation to the job sought and relevant to the tasks of the job and that the employer did not act in an arbitrary or discriminatory manner and did not act in bad faith. I remit the consideration of individual cases back to the parties and remain seized as required. (3) Articles 13.01 (in part) and 14.13 read as follows: Q13.01 The Employer and the Union recagníze: (4) The pñncíple of promotion within the service of the Employer, (5) That job opportunityshourd increase in proportion to length of service. I vu~-~o-ou'" 10:¿¿ rt<:UM'~W~H 10,416 340 8250 PAGE 10/ 1 ~ '-- ~ ",-~~- -- -- "- ,.- -7. Therefore, in making staff changes, transfers or promotions to a position that has been posted, the forfowing factors shall be considered: (i) Skill, ability, qualifications and experience; (ií) Seniority. Where the factors in (i) are relatively equal, (ii) shall.govern. 14.13 So long as laid off employees remain on the fecal/list described in Article 14.12 above, such employees shall be recalled in order of seniorityforavaílable bargaining unit work provided the employee has the skilJ, ability and qualifrcations to perform the available work. Notice of reeall shall be in accordance with Article 12.06(d)." The employer did not provide priority to employees identified to be laid off, nor does it intend to provide priority to employees on the recall list. It argues that it has the right. under article 13.01, to continue with the normal job posting procedure and employees identified for lay-off or on the recaU list have the opportunity to apply in the same manner as any other employee. The union submits that being identified for lay..off or being on the recall list creates an exception to the right of the employer to post a job and establishes a Pñority for these employees. It points to other exceptions to the general rule in article 14 and argues that this is one such exception. It also argues that the test in article 14.13 is a threshold test that the parties have i establíshed in order to get laid off employees back to work which differs from the more onerous relative ability test in article 13.01 which does not necessarily favor an employee about to be laid off or who has been laíd off. .....u~-~o-~'" Ib'¿¿ rt<:UM'~W~H 10,416 340 8250 PAGE 11/12 '-JU' "",' Go""....... 4""""'~ ..- ,~---" ~ "---. -.---.. . " -8- There are two significant competing interests at play in trying to determine this issue. The first is the general consideration ofthe importance of seniority inherent in article 13.01 and the second is the equally important obligation to return laid off employees to work. In my view these competing interests can be fairly reconciled by the manner in which the employer intends to interpret the collective agreement. As a starting point. it must be said that article 13.02 specifICally obligates the employer to notify employees on lay-off of posted positions. Thus, employees on lay-off are able to seek those positions in the same manner as employees at work. This suggests. atthe very least. that it was the intention of the parties to treat laid-off employees and employees still at work on the same footing. If this as not the case. why include laid of employees specifically within the terms of the posting article. In my view it had to be because the parties wanted to ensure that laid-off employees be given the chance to compete fer job postings. If they were to be gfven a priority, there would have been no need to include them in article 13.02. Equally important is the statement by the employer made at the hearing that laid-off employees would be given prioJÍty(subjectto possessing the necessary skills, abïlitiesand qualifications) to the position vacated by the successful candidate to the job posting. The result of the inter-play of articles 13.01 and 14.13 is to provide an opportunity to laid-off employees to respond to job postings as any other employee. while creating an exception or priority to ensure a return ta work in the newfy vacated position. The rights of a laid-off employee are not necessarily to the best job available to the detriment of more senior employees in the bargaining unit. The interpretation ofthe union could create this result The interpretation of the employer, which I accept, protects both seniority rights and provides. a return to work for raid.off employees. Question 3, therefore, is answered in favour of the employer, UU~-~C-~~ 'C'~~ ~t<:UM'~W~H 10:416 340 8250 PAGE 12/12 ~'-" -' ,---- -- -- ..- . . -9.. To summarize, question one is answered in favour of the union and questions two and three in favour of the employer. I remain seized as required. Ottawa this 7th Day of June. 2005. ~ M.B. Keller. Arbitrator