HomeMy WebLinkAboutUnion/Morrow 15-11-10 1
IN THE MATTER OF AN ARBITRATION BETWEEN:
ALEXANDRA HOSPITAL
(The Employer)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(The Union)
RE: Grievance of Renee Morrow, OPSEU #2011-0106-0004
Policy Grievance, OPSEU #2011-0106-0002
For the Union: Ed Holmes
Counsel
Ryder, Wright, Blair & Holmes LLP
Lynne Easter Froats
Staff Representative
Sandi Blancher
Local President
Mickey Riccardi
Acting Staff Representative
OPSEU
Renee Morrow
Grievor
For the Employer: Shane Smith
Counsel
Ellis Smith Mendicino
Rosilee Peto
Director, Clinical & Environmental Supports
Frank Deutsch
Chief Financial Officer
Alexandra Hospital
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Hearings in this matter were held in London, Ontario on May 9 and June 22,
2012
DECISION OF PAMELA A. CHAPMAN, SOLE ARBITRATOR
The grievances before me concern the layoff of Renee Morrow from the full-time
position of Registered Technologist, at Alexandra Hospital in Ingersoll. One is an
individual grievance filed by the Grievor, seeking reinstatement to her previous full-time
position. The other is a policy grievance by the union. Both complain of the process
followed by the employer in implementing the layoff, and in particular that the Grievor,
who is a full-time employee, was laid off in advance of part-time employees with less
seniority, contrary to the collective agreement.
Having considered the positions of the parties concerning the collective
agreement requirements that applied to this layoff, I conclude that the employer did not
breach the agreement, and that the grievances must be dismissed. My reasons for this
conclusion are set out below.
FACTS AND ANALYSIS
The Grievor was employed as a full-time x-ray technician in the Diagnostic
Imaging department at the hospital. It is undisputed that she was the least senior full-
time employee in the classification of Registered Technologist (“RT”) in the department;
she started work with the hospital in March 2003, first as a part-time employee, and then
eventually working full-time. However, there were several part-time employees in the
department with less seniority than the grievor. By notice of permanent layoff to the
union, dated May 4, 2011, the employer advised that it was exercising the option to lay
off the Grievor, as a result of restructuring in the department; the formal notice of layoff
was issued July 5, 2011, after the initial stages of the layoff process were completed.
No part-time employees were laid off at this time. The employer also advised that it was
creating a regular part-time RT position, which was eventually occupied by the Grievor.
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Collective agreement provisions governing layoff
Much evidence was heard about the process the employer utilized in
implementing the layoff, and in particular how seniority was deployed to determine who
would be affected. The collective agreement sets out various seniority provisions
referenced by the parties in their arguments. It is the interplay between these provisions
that leads to the dispute in the present case, so I will set them out in some detail, with
the most important provisions highlighted:
ARTICLE 10 – SENIORITY AND SERVICE
10.02 Seniority List
A seniority list will be maintained for each department. The
Hospital shall post such list and provide the Union with a copy,
indicating bargaining unit seniority, twice per year.
10.06 Application of Seniority on Layoff and Recall
For purposes of layoff and recall, seniority shall operate on a
department-wide basis, ie., laboratory, radiology or such other
departments which exist in the individual hospitals where the employees
are covered by this Agreement.
10.07 Layoff and Recall Rights
Seniority lists and layoff and recall rights for full-time employees
shall be separate from seniority lists and layoff and recall rights
for part-time employees, subject to Article 11.04(1)(d)(e)(g).
These provisions establish department-based seniority, and there is no dispute
about that aspect of the layoff process. However, the language is somewhat ambiguous
about the interplay between full-time and part-time employees when seniority is applied
in a layoff situation. Article 10.02 indicates that a seniority list will be maintained for
each department, and 10.06 speaks to layoffs and recalls operating on a department-
wide basis, without reference to the separation of full-time and part-time employees.
However, Article 10.07 says that “seniority lists and layoff and recall rights” shall be
separate for full and part-time employees, subject to Article 11.04(1)(d)(e) and (g).
Article 11 of the collective agreement deals more specifically with layoff and
recall, establishing a process for notice of layoff, and detailing the options available to
employees affected by a layoff, as follows (with key provisions in bold):
ARTICLE 11 – LAYOFF AND RECALL
NOTE: Article 11 applies to Full-Time and Regular Part-Time Employees only.
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11.03 In the event of layoff, the Hospital shall lay off employees in the
reverse order of their seniority within their classification,
providing that those employees who remain on the job have the
qualifications and ability to perform the work.
Employees shall be entitled to three (3) months written notice of
permanent or long term layoff...
After receipt of such written notice, affected employees will have a
period of up to fourteen (14) calendar days to indicate to the Hospital
their choice of options as outlined below...
11.04(1) An employee who is subject to permanent or long-term layoff shall have
the following entitlements:
[this Article sets out a long list of options which an employee subject to
permanent or long-term layoff may exercise, including to accept the
layoff and be placed on a recall list or receive pay in lieu of notice. The
following provisions concerning the displacement of less senior
employees are of relevance to the arguments of the parties]
(c) the employee may displace an employee who has lesser
bargaining unit seniority and who is the least senior
employee within his or her classification, identical paying
classification, or lower paying classification in her discipline
or department...
(e) If the full-time employee cannot displace a full-time employee
in (c), the employee may displace a part-time employee who
has lesser bargaining unit seniority and who is the least
senior employee in her classification, identical paying
classification, or lower paying classification in her discipline
or department...
(f) If the part-time employee cannot displace a part-time employee in
(c), the employee may displace a full-time employee who has
lesser bargaining unit seniority and who is the least senior
employee in her classification, identical paying classification, or
lower paying classification in her discipline or department...
(g) (i) If the full-time employee cannot displace a full-time
employee in (e), the employee may displace a part-time employee
who has lesser bargaining unit seniority and who is the least
senior employee in another department, if the employee originally
subject to layoff can perform the duties of the least senior
employee in another department.
(ii) If the part-time employee cannot displace a part-time
employee in (f), the employee may displace a part-time employee
who has lesser bargaining unit seniority and who is the least
senior employee in another department, if the employee originally
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subject to layoff can perform the duties of the least senior
employee in another department.
There was some confusion about the numbering of the provisions in Article 11.04
referenced in Article 10.07 above. The parties agreed that the reference to Article
11.04(1)(d)(e)(g) was in fact a reference to sub-paragraphs (e), (f) and (g); the original
paragraph references were inadvertently not changed to reflect the new numbering
when the Article was amended in an earlier round of bargaining.
Article 11 thus further complicates the question of how full and part-time
employees are to be treated in the event of a layoff. Article 11.03 deals with the initial
layoff decision, and says only that employees are to be laid off “in the reverse order of
their seniority within their classification”. While this Article does not refer specifically to
department, the interplay between this language, the language in the rest of the Article,
and the language of Article 10.06, suggests that layoff would proceed in reverse order of
seniority within a classification, within a department. The parties appear to agree with
this interpretation.
The parties do not agree, however, on how the language of the two Articles
applies to full and part-time employees. The employer says that Article 11.03, read
together with Articles 10.07 and 11.04, obliges the employer to layoff in reverse order of
seniority, within a classification, within a department, and separately for full and part-time
employees. Thus, asserts the employer, if it determines that it is appropriate to eliminate
a full-time position, then it must give notice of layoff to the least senior full-time employee
in the classification and department. If the layoff is of a part-time position, then the notice
goes to the least senior part-time employee.
The employer argues that the careful sequence of bumping rights created in
Article 11.04 confirms this approach, as it demonstrates that movement between the full-
time and part-time seniority lists only occurs as an exception to the general rule, and at
the end of a process which initially retains the distinction between the two groups.
Article 11.04 (a) through (c) deal with the ability of a full-time employee to fill available
full-time positions in their classification, and then to displace less senior full-time
employees. Similarly, part-time employees have the right to fill available part-time
positions or displace part-time employees. It is not until Article 11.04(e)(f) and (g) that
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any movement between the two lists is permitted. This interpretation does appear
consistent with the language of Article 10.07, which requires the maintenance of
separate “seniority lists and layoff and recall rights” subject only to these named
provisions.
The union does not entirely agree with this interpretation, and it made several
arguments about the language of these provisions that focused on the ability of
employees to move between full and part-time positions during layoff, and the
inconsistencies between the various references to full and part-time lists and rights, as
outlined above. Reading all of the language in Articles 10 and 11 together, and giving
meaning to each provision, I must accept the employer’s position on the initial separation
of full and part-time employees in a layoff situation. Article 10.07 is particularly
significant here. It clearly obliges the employer to maintain separate full-time and part-
time seniority lists, but goes further, stating that “layoff and recall rights…shall be
separate” for full and part-time employees. The only coherent way to give meaning to
this provision is to conclude that layoffs for full-time employees are a separate matter
from layoffs for part-time employees.
That approach is then firmly reinforced by the detailed provisions in Article 11.04.
The first options that can be exercised by an employee subject to layoff are within their
department and classification, but also within their category, ie. full-time or part-time.
While Article 11.04 (c) refers only to an “employee” displacing an “employee”, it can only
be read to mean “full-time employee displacing a full-time employee” or “part-time
employee displacing a part-time employee”. This is because 11.04(e) and (f) give
further meaning to (c), giving the right to displace an employee in the other category only
if “the full-time employee cannot displace a full-time employee in (c)”, or “the part-time
employee cannot displace a part-time employee in (c)”. It is thus clear that layoffs are
strictly separated into either full or part-time, with rights only exercised inside that
category, until the final stages of the process, when a laid off employee may reach into
the other category to consider bumping. This maintenance of separate full-time and
part-time silos for the purposes of layoff, long into the process, is consistent with the
interpretation I have placed on Article 10.07. For these reasons, I agree with the
employer that, if it decides to eliminate a full-time position, then the layoff applies to the
least senior full-time employee in the first instance, subject only to the ability of that
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employee to exercise the right to displace a part-time employee, under Article 11.04(e)
or (g). That is the only reasonable interpretation to be placed on all of the language the
parties have negotiated, read together, as reviewed above.
For this reason, I disagree with the union’s argument that the employer should
have laid off in order of seniority within the department and classification without
reference to whether it wished to eliminate a full or part-time position. That would have
required the layoff of one of the part-time employees, as the grievor is senior to all of
them. Article 10.07 requires the maintenance of separate seniority lists for full-time and
part-time employees, but also states that layoff and recall shall be separate for those two
categories. That language requires the employer to identify either a full or a part-time
employee (or employees) for layoff, in reverse order of seniority within each separate list
– there is simply no language which supports applying seniority without regard to full or
part-time status, which would effectively merge the lists for the purpose of layoff.
However, I must proceed to consider the main argument of the union, that the
collective agreement restrains the employer even before these provisions come into
play, when it determines whether to eliminate a full or part-time position.
The decision to eliminate a full-time position
As noted above, the employer issued a notice of permanent layoff, to the union,
on May 4, 2011. The letter reads: “The layoff is of one full time Registered Technologist
position in the Diagnostic Imaging department”. The main arguments advanced by the
union focused on this statement, and disputed the employer’s right to decide to lay off a
full time RT position, arguing that it was required to eliminate a part-time position. The
union raised several issues:
• That the shift eliminated was one usually worked by part-time employees
• That the number of hours reduced (25) corresponds to the number of hours
worked by part-time employees, rather than the 37.5 hours worked by full-time
employees
• That there was not a significant reduction of work in the Diagnostic Imaging
department
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To review these arguments it is necessary to provide more information about the
rationale for the layoff, the hours of work normally worked in the department, and the
allocation of shifts.
The decision of the employer to restructure was explained by the employer
witnesses. Like many hospitals in Ontario, the employer faced a severe fiscal
environment, which was particularly acute for a small hospital and small community like
Ingersoll. The hospital had been in a deficit position for a number of years. It concluded
that it must find some efficiencies in the operations of the Diagnostic Imaging
department, and analyzed the allocation of personnel and hours. The employer
determined that the best way to reduce staff hours without impairing coverage would be
to eliminate a 5-hour shift worked Monday to Friday, from 9:00 a.m. to 2:00 p.m., for a
reduction of 25 hours of work. This shift was essentially a “swing shift” – it overlapped
an existing weekday 8-hour shift, from 7:00 a.m. to 3:00 p.m., which was always covered
by a full-time employee, often the Senior Technologist. That eight-hour weekday shift
also overlapped the afternoon eight-hour shift, which ran from 2:00 p.m. to 10:00 p.m..
Eliminating the 9:00 to 2:00 p.m. shift would reduce the amount of time on weekdays
when two technologists were on duty, from six hours to a single hour, from 2:00 to 3:00
p.m.. This would allow the Senior Technologist to perform some administrative duties
knowing that another technologist is on duty, would maintain coverage for the same
hours, permitting the department to have the same operating hours, but would eliminate
duplication that the hospital concluded was unnecessary.
The radiology department is open from 7:00 a.m. to 10:00 p.m. Monday to
Friday, and 8:00 a.m. to 8:00 p.m. on Saturday and Sunday. Historically two 8-hour
weekday shifts were generally divided between two full-time employees, one working
7:00 a.m. to 3:00 p.m., and the other 2:00 to 10:00 p.m.. A further weekday shift was
usually scheduled from 9:00 a.m. to 2:00 p.m., although it would be extended from 9:00
a.m. to 5:00 p.m. when worked by a full-time employee, with a part-time shift then
worked from 5:00 to 10:00 p.m.. Weekend shifts covering the hours of the lab from 8:00
a.m. to 8:00 p.m. were shared by all staff. While the weekday eight-hour shifts were
often worked by the two full-time technologists, this was not always the case, and the
grievor might work the shorter daytime shift and/or weekend hours in any given week.
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The opening hours of the department remain the same after the layoff, and the
same shifts are generally worked, but for the 9:00 a.m. to 2:00 p.m. shift which was
eliminated.
Prior to the layoff, the department was staffed by 2 full-time employees, one the
Senior Technologist, 2 regular part-time employees, and 4 casual part-time employees.
Following the layoff there is only one full-time employee, the Senior Technologist, and
the number of regular part-time employees has increased to 3. In essence, the position
held by the grievor has been reduced from a full-time to a part-time position.
The union challenged a number of aspects of the employer’s explanation of its
decision to reduce staff hours, along with the process it adopted to do so, in order to
make the case that the employer was obliged to layoff a part-time, rather than a full-time,
employee, in the circumstances of this case. First, it turned to the hours of work
provisions in the agreement, to claim that the hours to be reduced here, according to the
employer’s own evidence about its needs, were part-time hours. The hours of work of
full and part-time employees are also set out in the Local Provisions – 7.01(b) sets full-
time hours as 30 or more regularly scheduled hours over a four-week scheduling period,
and 7.06 provides that regular part-time pre-scheduled hours will be distributed fairly and
equitably in order of seniority up to 37.5 hours per week. As well, regular (as opposed to
casual) part-time employees are obligated by Local Provision 3.01 (b) to offer 22.5 hours
per week. Considering these two provisions, the union argues that the reduction of 25
hours is, in essence, the elimination of part-time hours, and thus mandates the
elimination of a part-time rather than a full-time position.
The union argues further that it is appropriate to examine the particular ”bundle”
of hours and/or work that is being reduced, considering not only how many hours are
entailed but also what shift or shifts are to be eliminated and who usually works those
shifts, to determine whether it is a full-time or a part-time position being eliminated. At
the start of the hearing, the union asserted the 9:00 a.m. to 2:00 p.m. daytime shift which
the employer decided to eliminate was one worked primarily by part-time employees, as
well as being a five-hour – rather than an eight-hour shift – adding up to only 25 hours
per week. Given all of those qualities, argued the union, a part-time job was eliminated
by cancelling that shift.
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However, the evidence about the allocation of that shift – the “swing shift” - and
other shifts, proved not to be as clear as initially suggested. The evidence from both the
union and employer witnesses, and review of the schedules, revealed that all staff
rotated through the various shifts on the schedule, in order that all staff took a share of
weekend shifts, and also to provide on-call coverage overnight. The 7:00 a.m. to 3:00
p.m. weekday shift was usually worked by a full-time employee, but the 2:00 to 10:00
p.m. shift rotated between full and part-time staff. The 9:00 a.m. to 2:00 p.m. shift was
often worked by a part-time employee, but sometimes by a full-time employee. When it
was worked by a full-time employee it would have to be scheduled as a longer shift, to
5:00 p.m., in order to meet the collective agreement requirement of minimum 7 ¼ hour
shifts for full-time employees; the 2:00 p.m. to 10:00 p.m. shift would then be eliminated,
and a 5:00 to 10:00 p.m. shift would be worked by a part-time employee. The grievor
agreed that she worked at least four such shifts over a six-week schedule, and said that
this was done to increase fairness and flexibility for the part-time employees, who juggle
other jobs in other locations. She said that she also worked one 12 hour weekend shift
every third week, and would be on-call, from 10:00 p.m. to 7:00 a.m., usually about once
a week. The employer introduced a summary of who worked the “swing shift” – either
9:00 a.m. to 2:00 p.m., or 9:00 a.m. to 5:00 p.m. – from March to August 2011. Of the
67 such shifts, the highest number were worked by the grievor – 21 – compared to 20 for
the most senior part-time employee, and 18 worked by the Senior Technologist. The
other two part-time employees worked 6 and 2 swing shifts during that period.
Since the grievor was laid off and moved into a part-time position, the full-time
Senior Technologist has generally worked the 7:00 a.m. to 3:00 p.m. shift. Part-time
employees have worked the other regular weekday shift, from 2:00 p.m. to 10:00 p.m.,
and the 12-hour weekend shifts. The regular part-time employees are performing more
of the on-call shifts, in order that they have enough hours, so there is less use of casual
employees to cover the overnight on-call period.
Finally, the union claimed that there had not been a significant enough reduction
of work to justify the elimination of a full-time position. The grievor testified that there
had been no reduction of work during the six months prior to the layoff, and none since.
She claims that it has been much busier since the 9:00 a.m. to 2:00 p.m. shift was
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eliminated, with much less opportunity for administrative work of various sorts, including
committee work, to be completed. The grievor brought a workload report for the 2011-
2012 year, to demonstrate that there were more procedures done in the six months after
the layoff than before. However, this workload report demonstrated significant variation
month to month, and the grievor agreed that this was typical. The employer introduced
summaries of the numbers of procedures performed over three fiscal years, beginning in
2009. That summary demonstrated a significant reduction in the number of radiology
exams, and particularly ECG’s, from 2009 to 2012.
Whatever the evidence about the particular hours affected by the reduction of
hours in the radiology lab, and who worked those hours in the past, the employer asserts
that neither the hours of work provisions of the collective agreement, nor the particular
allocation of employees to shifts, have any significant – and certainly not a controlling -
effect on the decision about whether to layoff a full or a part-time employee when a
reduction of hours is required. It says that it considered a number of significant
operational matters in deciding that the best way to achieve efficient operation of the
radiology department was to eliminate the shorter daytime weekday shift, and to move to
only one full-time position in the department, including: the need for flexibility in
coverage, the need for on-call coverage, and the need to retain part-time and casual
staff in order to meet those needs. Most importantly, it points out that nothing in the
collective agreement creates any priority to retain full-time employees over part-time,
and nothing relates the number of hours, or who has performed them, to the
identification of an employee for layoff. The employer asserts that its management
rights to determine the hours of work, the allocation and number of employees to be
required from time to time, work assignments, and layoff, are not constrained in this
regard, so long as it complies with the layoff rights and procedures set out in Articles 10
and 11 as reviewed above.
There is no question that the union has grave concerns about the erosion of full-
time positions as a proportion of the workforce, at this hospital, and more generally in the
hospital sector. The staff representative offered the view that the ideal ratio was 70%
full-time employees to 30% part-time, while conceding that it is not typically this high,
and is more commonly 50-50. She was very concerned that this change converted the
ratio from approximately 50-50 (not counting casual part-time employees) to 25-75.
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However, the employer did not agree that 70-30 was the ideal ratio, and more
importantly, pointed out that the parties have not negotiated any preference for full-time
over part-time employees – within a bargaining unit made up of both – or an agreed-
upon ratio.
It is clear from the evidence that the interplay between full and part-time positions
in a department such as this one is complex, and that the issues around scheduling as
well as recruitment and retention, nuanced. The employer explained its preference for a
higher number of part-time positions in the Diagnostic Imaging department, and thus its
decision to eliminate one of the full-time positions, based on various operational and
staff retention considerations, some of which are reviewed above. If a part-time position
had been eliminated, rather than a full-time position, the employer would generally have
to allocate the remaining two full-time employees to cover the two eight-hour weekday
shifts, covering 15 hours per day, in order to meet the minimum hours required to
maintain full-time status. This would leave only the two 12-hour weekend days, and
overnight on-call hours, to be covered by part-time employees. That would prevent the
employer from maintaining even two regular part-time positions, as it would not have 22
hours to guarantee a second set of hours, meaning much greater reliance on casual
employees. As well, the employer witness was concerned about being able to retain
even one regular part-time employee if the hospital was offering primarily weekend
shifts. The union suggested that employees could be rotated through the weekend
shifts, as is done to a lesser extent now, but given the need to have the Senior
Technologist in the lab during weekday hours, there are limits to how frequently the full-
time employees can be scheduled into the weekend.
The union generally asserted that the best way to retain staff is to provide full-
time positions – the grievor noted, for example, that when she joined the hospital in 2003
she was a part-time Radiology Technologist, and all of the positions in the lab were part-
time. When both she and the Senior Technologist were moved to full-time positions
about a year later, she understood that this was done to improve staff retention.
However, she agreed on cross-examination that part-time and casual staff usually held
other jobs, and that this would limit the number of shifts they could commit to the
hospital, and in particular which shifts they could work. This created some complexity
into the scheduling, but the fact that technologists would generally be working elsewhere
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also meant that a failure to provide an adequate number of hours, and/or desirable
shifts, to part-time employees would endanger the hospital’s ability to rely upon them
when necessary.
Regardless of what the perfect balancing of all of these nuanced considerations
might be, I am satisfied that the employer had the right to make a decision about how to
achieve efficiencies in the Diagnostic Imaging department, to choose to do so by
eliminating the “swing shift” from 9:00 to 2:00 p.m., and to layoff a full-time Registered
Technologist in response to that reduction of hours. Nothing in the collective agreement
obliges the employer to prefer the retention of full-time employees, to maintain a certain
number of full-time positions, or to create or maintain a ratio of full-time to part-time
positions. While the total number of hours reduced was 25, this did not mean that the
employer must eliminate a part-time position, and could not reallocate the remaining
hours between part-time employees rather than ensuring that at least 37.5 of them were
clustered to retain a full-time position. Similarly, the fact that the “swing shift” was often
worked by part-time employees did not dictate that the decision to discontinue that shift
would require the employer to layoff a part-time employee; in fact, the grievor worked
that overlapping shift as much as any other employee, even though it was converted to
an eight-hour shift when performed by a full-time employee. There is simply nothing in
the collective agreement that creates a platform for the limitation of the employer’s
management rights to make these decisions, so long as it follows Articles 10 and 11
when implementing any resulting layoff.
Failure to provide a meaningful opportunity to consult
The final argument made by the union is that the employer failed to consult
adequately prior to deciding on the layoff. Article 11.01 provides a process for
consultation between the union and the employer in the event of a long term or
permanent layoff:
11.01 The Hospital and the Union agree to work jointly to minimize any
adverse effects of a long term or permanent layoff (greater than
thirteen (13) weeks duration) on employees, and maximize
creative approaches that meet the interests of both the Hospital
and the employees. Accordingly, in the event of such a layoff the
Hospital will:
(a) provide the Union with no less than five (5) months notice.
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(b) commencing at the time that notice is given to the Union, and prior
to the giving of written notice to the employees if possible, jointly
evaluate, plan and review:
- the reason causing the layoff
- the service the Hospital will undertake after the layoff
- how the Hospital intends to effect the lay-off, including areas
where layoffs will occur, and which employees will be laid off
…
- ways and means of avoiding or minimizing the impact, including:
• identifying and reviewing possible alternatives to any
action that the Hospital may propose taking;
…
To allow the Labour Management Committee to carry out its
mandated role under this Article, the Hospital will provide the
Committee with pertinent financial and staffing information and
with a copy of any reorganization plans which impact on the
bargaining unit.
Both the union and the employer called evidence about the scope and nature of
the discussions between the union and employer about the proposed reduction of staff in
the radiology department. In the notice first provided, the employer made reference to
setting up a meeting to have the discussions required by the collective agreement. A
first meeting was held on May 18. The parties agree that there were discussions, and
that the employer shared its concern that the department was overstaffed, and that it
intended to reduce the overall service hours by 25 per week, while still needing to
maintain the same opening hours for the department. The layout of the department,
including the number of staff, how they were scheduled, etc., was also reviewed with the
union. Some of these discussions took place as part of larger conversations which were
underway because of local bargaining, which worked as the grievor was on the
bargaining tem and of course understood more about the department and its needs.
The union expressed its concerns about the layoff, and the employer agreed to look into
its concerns. The parties then met again on May 30. There were also e-mail exchanges
between the parties about their concerns and positions, between the two meetings.
The union representative testified that, while there were discussions on May 18
and 30, the employer had a firm position about how it intended to achieve the desired
reduction in hours, by eliminating the 9:00 a.m. to 2:00 p.m. shift, and by eliminating a
full-time position. The union argued strenuously that the employer should not lay off a
full-time employee while retaining part-time employees, and expressed its concern over
erosion of the full-time complement, arguing that this was also in the employer’s best
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interest, as it would help them to retain employees if they retained full-time positions.
The employer did not accept these arguments, and persevered in its decision to
eliminate that particular shift, and to layoff the grievor. For these reasons, the staff
representative expressed the opinion that the employer had a firm position, had “dug in
its heels”, intended to exercise its right to layoff, and would not really consider
alternatives. In her view, this meant that the discussions were not meaningful, within
the meaning of the collective agreement.
The staff representative also testified that she was concerned that the employer
was “targeting” the grievor in its decision to layoff a full-time employee, perhaps because
of her active role in the union, as a steward and member of the bargaining team.
However, no real evidence was called to establish a nexus between the employer’s
decisions around the reduction in hours and anti-union animus, and this assertion was
not made in argument. I am satisfied that there is no evidence that the grievor’s role
played any part in the decision to reduce hours in the radiology lab, and to achieve that
by eliminating a full-time position.
The employer expressed concern that the union had failed to advise that it had
any concerns about the consultation obligation not being met during the step meetings
under the collective agreement, or in its written grievance correspondence. It was
alleged that the union had not raised this issue prior to the arbitration hearings. Despite
this concern, evidence was called and argument heard on the issue around consultation.
Obviously the goal of having a provision such as Article 11.01 is to permit the
union the opportunity to play a meaningful role in discussing, and hopefully mitigating,
the effects of long term and permanent layoffs on employees. Indeed, it is clear that the
process is designed to create an opportunity for layoffs to be avoided. However, there is
nothing in the language that requires the employer to agree with the union, or to accept
its suggestions, so long as it provides the opportunity for input and considers the
concerns expressed. While it is true that the employer maintained its position in this
case, without modifying its approach in response to the union’s objections, it was clear
from the evidence given by both the union and employer witnesses that it heard and
understood the concerns, that it turned its mind to the options offered by the union, and
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had a rationale for refusing to adopt them. I cannot agree that more was required by the
language of the collective agreement.
Caselaw
Both parties provided caselaw in support of their positions in argument. In
particular, the union submitted a number of cases on the importance of seniority rights,
and the application of those rights in layoff situations, particularly involving full-time
versus part-time rights, going back to the seminal decision in Tung-Sol of Canada Ltd v.
United Electrical, Radio and Machine Workers of America, Local 512 (1964) 15 L.A.C.
161 (Reville).
I have considered and applied the principles set out in the cases in considering
the specific language in this collective agreement and how it impacts the layoff of the
grievor in the present case. As noted in the excerpt from Palmer & Snyder: Collective
Agreement Arbitration in Canada, 4th ed, submitted by the union, the interplay between
management rights and layoff provisions generally means that an employer has the right
to arrange its workforce, identify staff levels, and decide when it is necessary to layoff
employees, subject only to limits in the collective agreement including seniority clauses.
This is true as well when a layoff invokes the sometimes conflicting rights of full and part-
time employees. The union pointed in particular to a quote from Serco Des Inc., [2008]
O.L.A.A. No. 258 (Luborsky), which explored a question at the heart of this case:
“whether the relevant provisions of the collective agreement evidence an intention by the
parties to restrict management’s right to change, for bona fide reasons, the ratio of full-
time to part-time employees in the manner contemplated”. In considering that question,
the arbitrator acknowledged “management’s generally accepted ability to change the
ratio of full-time to part-time employees subject to express or implied limitations in the
collective agreement”. However, he noted that where there are separate full and part-
time bargaining units, together with a requirement to post vacancies, and a limit on the
performance of bargaining unit work by non-bargaining unit employees, “the employer
will have violated the collective agreement if it fills what is objectively found to be a full-
time body of available work with part-time employees from the other bargaining unit”.
However, the arbitrator in Serco Des Inc. differentiated between that situation,
where full and part-time employees are in separate bargaining units, and cases “where
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the existence of a single bargaining unit covering both full-time and part-time employees
provides the employer with the flexibility to fill a vacancy previously occupied by a full-
time employee with part-timers, particularly where there is no guaranteed number of full-
time employees or agreed upon ratio of full-time to part-time employees set out in the
collective agreement”. That was the situation in the case before him, and it is similarly
the case here. The fact of a single all-employee bargaining unit does not end the
enquiry, as the arbitrator in Serco Des Inc. noted, but one must look to the collective
agreement to see whether there are any limits imposed: “the essential consideration in
every case is determining the parties’ intention as derived from the specific provisions of
the collective agreement at issue”
The union cited various decisions in which arbitrators considered the specific
provisions of a collective agreement to determine whether there was any restriction on
the employer’s ability to layoff a full-time rather than part-time position, or to otherwise
alter the ratio of full to part-time employees. In Hertz Canada Ltd. V. Canadian Office
and Professional Employees’ Union, Local 378, [2011] 106 C.L.A.S. 61 (Hall), the union
complained when the employer laid off senior full-time employees when junior part-time
employees were retained. The arbitrator found that this breached the collective
agreement, which established a single seniority list for full and part-time employees, and
stated that “the employee with the least amount of seniority in any job will be the first laid
off from that job”. This language is very different from the provisions in the agreement
before me, which establish, in Articles 10.07 and 11.04, separate seniority lists, and
separate layoff and recall rights, for full and part-time employee. Ironically, the employer
in that case argued that the term “in any job” had to be read as including not only
classification but also hours of work, an argument which the arbitrator rejected. This is
quite similar to the argument made by the union here, that the work to be eliminated
should be considered part-time work because of the number of hours to be reduced.
In Bonnechere Manor and CUPE, Local 1508, [1993] 32 O.L.A.A. 292 (Young),
the seniority and layoff provisions were also very different than those in the present
case, with seniority defined as “the principle of granting preference to full-time
employees in matters of promotion, demotion due to staff reduction, layoff and recall”,
and preference given to full-time employees after layoff, to access available part-time
work. Despite these provisions, the arbitrator concluded that “in light of the language of
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the present collective agreement…the employer is at liberty to lay off full-time employees
for reasons of economy and/or efficiency and to replace them with part-time employees”.
The arbitrator considered whether he should apply a general test of reasonableness to
the decision of the employer, concluding that the employer’s power was limited only by
the terms of the collective agreement. But interestingly, in considering whether the
decision to layoff full-time employees was “reasonably related to the employer’s
legitimate business interests” (citing Re Toronto East General Hospital and Service
Employees Union, Local 204, [1984) 13 L.A.C.(3d) 400 (Burkett)), and concluding that it
was, the arbitrator the noted that “laying off full-time employees was an effective cost-
cutting measure and one which, to some degree at least, increased operational
efficiency by giving the employer greater flexibility with respect to scheduling”.
Furthermore, the arbitrator specifically rejected the argument that the employer should
not be permitted to lay off full-time employees unless there was no work for them to do,
noting that this would mean that “virtually all of the part-time employees would have to
be laid off before the employer could lay off a full-time employee”. The arbitrator did not
agree that any such restriction was established by the collective agreement language
before him, and there is no such restriction in the collective agreement before me.
My interpretation and application of the collective agreement, as reviewed
carefully above, is therefore consistent with the principles established by the cases
which were cited to me; I note as well that none of the cases referenced contained
language significantly similar to the provisions in this case.
DECISION
For all of these reasons, the grievances are denied.
DATED AT TORONTO THIS 10th DAY OF NOVEMBER, 2015
_________________________________________
Pamela A. Chapman, Arbitrator