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HomeMy WebLinkAboutGandhi 15-12-01IN THE MATTER OF A GRIEVANCE UNDER THE LABOUR RELATIONSACT, 1995 AND PURSUANT TO A COLLECTIVE AGREEMENT Between: CANADIAN BLOOD SERVICES (the "Employer") m"M ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 5101 (the "Union") and in the matter of a grievance relating to Tina Gandhi — 2014-5101-0001. Russell Goodfellow — Sole Arbitrator APPEARANCES FOR THE EMPLOYER: Sarah A. Eves, counsel Shana Gilbert Lisa Bruce APPEARANCES FOR THE UNION: Jennifer Fehr, grievance officer Sheila Rodriguez Pina Gandhi A hearing was held in this matter on September 4, 2015; further factual material was provided on September 21, 2015. This is a job -posting grievance. The issue is whether the grievor was an "internal" or "external" applicant for the posted job. If the grievor was "internal", the grievance must be upheld; if she was "external", it must be dismissed. The following is the relevant collective agreement provision: ARTICLE 13 - JOB POSTING, TRANSFER AND )PROMO'T'ION 13.03 In filling a vacant position, preference will be given to internal applicants before external applicants will be considered. However, the Employer reserves the right to advertise externally at the same time internal postings are initiated in accordance with Article 13.01 The following are the agreed facts, with documentary references omitted: AGREED STATEMENT OF FACTS )JMl,,,,, 1_ The parties agree that Arbitrator Russell Goodfellow has jurisdiction to hear and decide this matter. 2. Canadian Blood Services (the "Employer") is a not-for-profit, charitable organization whose mission is to manage the blood and blood products supply for Canadians. 3. The Employer and the Union are parties to a collective agreement (expiry March 31, 2014) covering Registered Medical Laboratory Technologists (MLT) working at and out of the Employer's locations in Toronto, Brampton and Hamilton. Employees under this collective agreement are represented by OPSEU Local 5101 (Toronto), Local 210 (Hamilton), and Local 200 (Brampton). 4_ The parties are currently in negotiations for a renewal collective agreement. 5. The GriQvor, Ms. Pina Ghandi, filed a Job Competition Grievance dated March 25, 2014 when she was not awarded a full-time "Technical Specialist" position at the Brampton site. 6. The Employer, by letter dated April 17, 2014, denied the grievance. 7. Prior to 2012, the Employer operated production and distribution sites for blood and blood products in Toronto and Hamilton. These production and distribution facilities were consolidated at the new site in Brampton when it opened in February 2012. 2 Had the Grievor worked at the Brampton site she would have been granted an interview for the full -tune Technical Specialist position. 8. As part of a Provincial Labour Adjustment Plan, the Employer voluntarily recognized OPSEU Local 200 at the new production site in Brampton. 9. As a result of the opening of the Brampton site, all MLT positions in Hamilton and, a number of MLT positions in Toronto, moved to the Brampton location_ 10_` The Grievor has been employed continuously by the Employer at the Toronto Centre since July 4, 2006 and has held the following positions: July 4/06 to Oct. 1106: Temporary Full-time Lab Assistant, NAT Laboratory Oct. 2106 to Jan. 3110: Regular Part-time Lab Assistant, Component Production Department Jan. 4110 to May 8111: Regular Part-time MLT, NATAVNV Laboratory in DonorTesting Department May 9111 to Nov. 6111: Temporary Full-time MLT in Diagnostic Services Department Nov. 7111 to current date: Regular Full-time MLT in Donor Testing Department 11. In the fall of 2013, the Employer created the new position of "Technical Specialist, Distribution" in Brampton.. Among other qualifications, the position required registration as an MLT. The Employer posted for 4 full-time and 2 part-time Technical Specialist positions, working at the Brampton site. 12. The Grievor applied for both a fall -time and a part-time Technical Specialist position. She was denied an interview for the full-time position because she worked at the Employer's Toronto site and qualified applicants who worked at the Brampton site were awarded the full-time Technical Specialist positions. Had the Grievor been a Brampton employee she would have been interviewed for the position. 13. On February 26, 2014, the Employer offered the Grievor the opportunity to take a written test in connection with her application for a part-time Technical Specialist position_ She declined the opportunity but was still interested in full-time opportunities_ 14. In mid-March the Grievor became aware that the full-time Technical Specialist positions had been awarded and that she was not considered_ 15. The Union asserts that the Grievor is an internal candidate within the meaning of article 13.03 and should have been included in the competition for the full-time Technical Specialist position. The Union is seeking a re -run of the competition to include the Grievor. 3 16. The Employer takes the position that, by virtue of the language of the collective agreement, the qualified job applicants who already worked at the Brampton site had preference for those positions over applicants who worked at other Employer sites. In other words, the Employer operates three sites: Toronto, Hamilton and Brampton. The Brampton site was added in 2012. All of the employees are included in a single bargaining unit covered by a single collective agreement, albeit with different locals for each site. The Grievor worked at the Toronto site. The job posting was for a position at Brampton. The grievor applied for the position but was denied an interview. The reasons for the denial are expressed in the step two response to the grievance: 2014-04-17 Pina Gandhi Donor Testing WITHOUT PREJUDICE OR SETTING PRECIDENT Re: Grievance dated 2014-03-25 --- Step 2 Response Dear Pina: Please consider this Canadian Blood Services' Step 2 response In the grievance, you had indicated that Canadian Blood Services had violated the collective agreement, specifically Article 4 and 13, the complaint being that the employer did not give you an opportunity to interview for position of Technical Specialist located in Brampton_ I explained that as per Article 13.03, when it comes to filling a vacancy, preference will be given to internal applicants before external applicants will be considered. Since you are not a member of OPSEU, Local 200, you are considered an external applicant. The position was offered to an intemal applicant_ As such, please be advised that Canadian Blood Services maintains its position that there was no violation of the collective agreement. Therefore, this grievance is denied. Sincerely, "Shang Gilbert" Consultant, Talent Services cc: Grievance File Sheila Rodriguez, Union Steward, Local 5101 Sheila Annett, Union Steward, Local 5101 (At the hearing, the reference to local union membership was treated as a reference to the site.) 4 The Union submits that the Employer's position was incorrect. According to the Union, Article 13.03 is a typically worded job -posting provision, drawing no distinction between centres or sites. "Internal" means internal to the bargaining unit not internal to the centre or site. The Union also refers to the following collective agreement provisions: ARTICLE 3 — RECOGNITION 3.01 The Employer recognizes the Ontario Public Service Employees Union as the sole bargaining agent for all employees classified as Medical Laboratory Technologists, Senior Technologists, and Charge Technologists employed by Canadian Blood Services at the Toronto, Hamilton, Brampton Blood Centres, and any other positions recognized by the Employer and the Union as of March 31, 2005. ARTICLE 2 - DEFINITIONS As used in this Agreement: 2.01 The Employer shall mean the Canadian Blood Services (C.B.S.), Toronto, Brampton and Hamilton Centres. 2.02 Union shall mean the Ontario Public Service Employees Union. 2.09 "Site" shall mean the Employer's premises at 67 College Street, Toronto or 104 Parkshore Drive, Brampton or 299 Main Street, Hamilton. The Union points out that the collective agreement is between. the Union and the Employer, not the locals and the Employer, and that the Employer and the bargaining unit include all three centres or sites. The Union also submits that the surrounding provisions provide no support for the Employer's position. The Union refers to: ARTICLE 13 — JOB POSTING TRANSFER AND PROMOTION 13.01 When the Employer determines that a vacancy exists, or when the Employer creates a new position in the bargaining unit, such vacancy shall be posted for a period of nine 5 (9) calendar days. Applications for such vacancies shall be made in writing within the nine (9) day period referenced herein. 13.04 A copy of the posted notice will be sent by the Employer to the local designated Centre representative or her designate, within the calendar days as noted in Article 13.01 contained herein. 13.05 The name of the successful applicant will be forwarded by the Employer to the designated Centre representative. 13.06 (a) In filling posted vacancies the selection shall be based on a combination of skill, ability, experience and relevant qualifications of the applicants. Where these factors are relatively equal, bargaining unit seniority shall be the governing factor. (b) Notwithstanding Article 13.01, the .Employer may fill at its own discretion a temporary vacancy not to exceed six (6) months duration which may be extended by mutual agreement between the parties. In filing such a vacancy the Employer shall consider employees who have expressed an interest in writing in filling temporary assignments on the basis of the selection criteria as outlined in Article 13.06(a). (c) Notwithstanding Article 13.01, the Employer may fill at its own discretion a temporary vacancy left by a person on pregnancy, parental or adoption leave. In filling such a vacancy, the period shall not exceed fourteen (14) months' duration which may be extended by mutual agreement between the parties. The Employer shall consider employees who have expressed an interest in writing in filling temporary assignments on the basis of the selection criteria as outlined in Article 13.O6(a). Article 13.01 speaks of a new position "in the bargaining unit". While 13.04 and 13.05 refer to the "centre", it is for information purposes only; it has nothing to do with who can apply as an internal candidate. Importantly, Article 13.O6(a) indicates that "bargaining unit seniority" is to be taken into account in cases of relative equality in job postings. There is no reference to "centre" or "site" seniority. The Union also notes the existence of a lengthy and detailed Letter of Understanding to the Agreement that that was negotiated at the time of the merger of the Toronto and Hamilton bargaining tants in 2003. Section 3.4 of the Letter states: G Regular Positions 3.4 All job vacancies other than those identified in Appendix I and II attached hereto shall be posted at both Centres. All employees in the bargaining unit employed by Canadian Blood Services at either Centre shall have the ability to apply for vacancies at either Centre as an internal applicant_ For the purposes of such vacancies, there shall be one seniority list for employees of the merged Unit in accordance with Article 11.02 of the Toronto Collective Agreement. The Union points out that when the parties agreed to merge the Toronto and Hamilton units and collective agreements they agreed to the very thing that the Union submits applies here: posting jobs between centres with all employees being'considered internal applicants. The Union submits that there is no reason to believe that the parties would have intended anything different upon the addition of Brampton. Anticipating a central aspect of the Employer's argument, the Union submits that the reason no similar clause was negotiated following the voluntary recognition of the Union at Brampton is because there was no pre-existing Brampton collective agreement_ Hence, there was no need to sort out pre- existing contractual rights as there was in Toronto and Hamilton. Perusing the Agreement still further, the Union submits that the parties know how to make something site specific when that is their intention: 11.02 Full-time and other than full-time seniority lists will be maintained for the bargaining unit for each site. The Employer shall post such list and provide the Union with copies, indicating bargaining unit seniority as of January I", April I", July 15Y and October I" of each year. Posting of the seniority Iist shall be done no later than the 15`h of the month in which it is due. The Union also refers to Article 1.4.04(a), which provides, in a specific sequence, for the right to bump between sites in a layoff situation. The Union submits that the parties would be unlikely to have intended anything different in a job -posting situation: 14.04 (a) An employee who has received notice of layoff shall have the right within ten (10) working days to displace an eanployee who has lesser bargaining unit seniority and who is the most junior employee in a lower or identical paying classification within her section or should the employee not wish to bump within her section, she shall have the option to bump the most junior employee in an equal or lower paying classification in another section at another site. Failure to exercise such right shall be deemed to be an acceptance of layoff. An employee who is so displaced shall be laid off, subject to her rights in accordance with the provisions of this article, excluding article 14.01. In cases of recall, the Union notes, no mention is made of sites, and such rights are bargaining unit - wide: 14.06 Recall Rights (a) An employee shall have the opportunity of recall from a layoff to an available opening in an equal or lower paying classification in order of seniority, provided she has the qualifications and ability to perform the work; before such opening is filled on a regular basis under the job posting procedure. The central point for the Union, however, is that the operative provisions, Article 13.03 and Article 13.O6(a), do not draw the distinction claimed by the Employer and, therefore, the grievor was an internal candidate. The Union asks that the grievance be upheld and for an order that the competition be re -run with the grievor being treated as an internal candidate. The Employer submits that we are dealing with a unique collective agreement: one in which employees are represented by three different locals at three different work locations. With that in mind, the Employer submits, the word "internal" in Article 13.03 can easily be understood as referring to the location — a reading that becomes clear as one examines other provisions of the agreement, in .particular the seniority clause. In the Employer's submission, employees at Toronto have no recognized seniority for purposes of job postings at Brampton and vice -versa. The Employer refers to the following: ARTICLE 11 — SENIORITY 11.01 (a) Bargaining unit seniority for full -tune employees shall be defined as the length of an employee's service from the last date of hire. It shall be used to determine priorities for right or preference to vacation as per Article 20, promotions, and in case of layoff and recall. 3 (b) Regular part -tune employees shall accrue seniority based on actual hours worked excluding overtime hours. One (1) year of seniority shall have been accumulated for each one thousand five hundred (1,500) hours worked. (c) Seniority shall be used exclusively to determine priorities between regular part- time employees in case of filling of full-time vacancies, preference of vacation period and in cases of layoff and recall. (d) Seniority shall not be applicable to temporary employees. However, if a temporary employee is appointed prior to the expiration of her term to a permanent vacancy, the employee shall be credited with seniority based on actual hours worked, excluding overtime hours, from the date of last hire. 11.02 Full-time and other than full-time seniority lists will be maintained for the bargaining unit for each site. The Employer shall post such list and provide the Union with copies, indicating bargaining unit seniority as of January Is;% April I", July Is` and October IS=, of each year_ Posting of the seniority list shall be done no later than the 15ts of the month ib which it is due. While Article 11.01 provides that bargaining unit seniority will be used to determine promotions among full-time employees, Article 11.02 requires that separate seniority lists be maintained for each site. The Employer notes that this clause was added only after the Brampton site was brought within the Collective Agreement. The Employer submits that this clause must be given meaning and the obvious meaning is that the use of seniority is site-specific unless the collective agreement expressly says otherwise. Referring to section 3.4 of the Letter of Understanding, the Employer also points out that, despite the pre-existence of the bargaining unit -wide seniority clause in the job -posting provision (Article 13.06(a)), the parties still found it necessary to provide expressly for the ability of Toronto and Hamilton employees to apply for positions between sites. The Employer submits that this shows recognition on the part of the parties that express language is needed in order for such a right to exist. Additional support for its position, the Employer submits, can be found in Articles 13.04 and 13.05, which refer to the "designated Centre representative", and in Article 14.04, which expressly permits bumping between sites in a layoff situation. 9 Finally, the Employer refers to the terms of a separate collective agreement between it and the Union, including the Toronto and Brampton locals, that applies to support staff. That agreement was recently amended as follows: 16.01 xx (new) All employees in the bargaining unit employed by Canadian Blood Services at any Centre shall have the ability to apply for vacancies at all locations as an internal applicant. Employees applying from other centres must be able to start on the date specified by the employer to be considered for the position. Again this shows, the Employer submits, recognition by the parties that express language is needed in order to create rights between sites. In fairness, however, the Employer notes that the language of the collective agreement that was being amended by the above provision was clearer than the present with respect to the scope of seniority -rights. Article 15.02(c) of the support staff agreement reads: 15.02 (c) Seniority shall only be applicable within a Blood Centre, Region or at a permanent location for the purpose of vacation scheduling, promotion, the filling of vacancies (subject to Article 15.01 b), transfers, layoffs and recall. In sum, the Employer submits that the collective agreement, read as a whole, tells us that there is no seniority -based right to apply for jobs between sites unless expressly provided for in the Agreement. Since there is no such right involving the Brampton location, the grievance must be dismissed. In reply, the Union notes that the support staff agreement is a piece of extrinsic evidence to which I should have no recourse unless the terms of the Collective Agreement are ambiguous, and they are not. However, even was I to consider that agreement, the Union submits that the amendment to which the Employer refers was made necessary by the terms of the pre-existing seniority clause, which is it to the opposite effect from the one that applies here. As for the keeping of separate seniority lists for each site, the Union submits that it is for information purposes only and may be relevant to such matters as vacation. In any event, it does not create three separate bargaining units or define how seniority can be used within. the unit. 10 Decision The issue in this case is whether the grievor, who is employed at the Toronto site, was an "internal" or "external" applicant for the posted position at Brampton. Again, for ease of reference, Article 13.03 states: 13.03 In filling a vacant position, preference will be given to internal applicants before external applicants will be considered. However, the Employer reserves the right to advertise externally at the same time internal postings are initiated in accordance with Article 13.01. Ordinarily, a job -posting provision that distinguishes between internal and external applicants, according the former a preference before the latter are considered, is one that distinguishes between bargaining unit members and those external to the bargaining unit. That, in my view, is the normal and natural reading of such a clause, regardless of whether the employer's operations are conducted at more than one location and regardless of whether, for reasons of history, employees at the different locations have separate local affiliations. All those that are included in the unit can apply, without distinction, unless the collective agreement says otherwise, The question, therefore, is whether the present agreement says otherwise expressly or, perhaps, in effect. On my reading, it does not. Article 13.03 clearly draws no such distinction. Indeed, in my view, the use of the word "advertise" to describe the "external" activity, in contrast to the word "postings" to describe the internal, lends at least some support to the idea that "external" means external to the Employer not also within the Employer but external to the site. The use of the plural "postings" in the second sentence might also be seen to be consistent with multi -site activity. Further, as emphasized by the Union, and much more importantly, seniority rights for promotion purposes are expressly said to be bargaining unit -wide, not centre -based: see Article 13.06(a). When it comes to the use or application of seniority, in other words, it is bargaining unit seniority that matters. Moving beyond the immediately relevant job posting and seniority provisions, the Employer points to the express reference to bumping between sites (Article 14.04), to the provision in the Letter of Understanding expressly conferring the right in question when the Toronto and.Hamilton units were 11 merged, to the newly added provision in the support staff agreement, and, even within Article 13, to the requirement to maintain separate seniority lists for each site. In my view, these additional references are not sufficient to overcome the normal and natural meaning of Article 13.03 or Article 13 read as a whole. The presence of separate seniority lists, identifying bargaining unit seniority by site, does not mean that seniority rights only have meaning within the site unless the Agreement expressly says otherwise_ While the use that might be made of such lists was not fully developed at the hearing, it may well have ZD relevance in layoff situations (see Article 14.04 above) and, perhaps, to vacation scheduling. More particularly with respect to Article 14.04, the fact that the parties have used express wards to provide for a right to bump between sites in a layoff situation is less meaningful when it appears to form part of a two-step process, with the first step being within the site. The practical effects of bumping and of posting into vacant positions are not the same and it is not at all unusual for different rights to apply to each situation. Section 3.4 of the Letter of Understanding, which was created as part of the merger of the Toronto and Hamilton bargaining units in 2003, can readily be understood, as the Union suggests, as the product of a detailed effort to clarify rights under two agreements even if both contained language equivalent to Article 13.03. With no prior agreement, Brampton was an entirely different situation, with no cause for concern as to how pre-existing rights might apply in a merged unit. Lastly, I agree with the Union that there is no basis for referring to the support staff agreement because there is no ambiguity in the present agreement. However, even were I to do so, I would be unable to find that it supports the Employer's position. As Employer counsel quite professionally noted, the amendment was negotiated against the backdrop of a seniority clause that expressly restricted the application of seniority in job -postings to the centre or site; that is not our situation. The grievance is accordingly upheld. The presumptive remedy is a re -running of the competition with the grievor being screened -in, rather than out, for an interview. However, I will leave it to the 12 parties, in the first instance, to consider whether that, or some other outcome, is the preferred resolution in all of the circumstances. I will remain seized in respect of remedy. DATED at Toronto this 1st day of December 2015. Russell Goodfellow —,Sole Arbitrator