HomeMy WebLinkAboutUnion 06-09-21
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN BLOOD SERVICES
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
CLINIC ASSISTANTS LA YOFF GRIEVANCES
BEFORE: S.L. STEWART
APPEARANCES:
FOR THE UNION:
FOR THE EMPLOYER:
R. BLAIR, COUNSEL
F. GALLOP, COUNSEL
THE HEARING IN THIS MA TTER WAS HELD IN TORONTO, ONr-[ ARID ON
OCTOBER 5, 2004, FEBRUARY 18, MAY 13, DECEMBER 2,2005 AND
JAUNUARY 30, FEBRUARY 24 AND JULY 14,2006
'\.
AWARD
T~ere are a number of grievances before me, all of which arise from
the layoffs of clinic assistants. There was no objection to my jurisdiction
to determine the grievances. The essential issue between the parties is
whether the circumstances of the layoffs are captured by Article 6.02 of
the Collective Agreement, as the Union contends, or by Article 17, as the
Employer contends.
The relevant events took place in the Toronto Centre division of the
Employer's operation. Toronto Centre is composed administratively of
four regions: Toronto, Metro West, Barrie and Peterborough. As part of a
collection staff that included registered nurses and phlebotomists, the
laid off clinic assistants performed duties associated with registration,
preparation of clinics and data entry.
Ms. C. Lipton, a senior manager for Toronto Centre at the relevant
time, testified about concerns arising from a review of the operation for
which she was responsible. Although the ten full-time clinic assistants
in Toronto were paid for 75 hours every two weeks in accordance with
the Collective Agreement, they were generally not offered 75 hours of
work. Article 12.01 a) provides for the payment for 75 hours even if an
employee is scheduled to work fewer hours. For the period April 1, 2003
2
to May 2, 2004, the average number of full-time hours scheduled for the
clinic assistants was 69.70. The shortfall of hours worked was due to the
fact that most clinics in Toronto ran about four hours and the travel time
was limited. There was no suggestion that this was a situation that had
arisen recently. Rather, it appears to have been longstanding. In Metro
West, which was staffed entirely by part-time employees in all three
classifications, many employees were working close to full-time hours.
To cover clinic demands, sick time and absenteeism, Toronto empl<?yees
were often moved to Metro West, however this entailed payment of extra
travel time and mileage and meal premiums. Over the period April 1,
2003 to May 2, 2004, there were 158 instances of full-time clinic
assistants being sent out of the region. In the course of this review, Ms.
Lipton was advised by donor services that their existing structure did not
capture the York Region, which had a large population growth and thus
was a large potential donor base.
Ms. Lipton had a concern about the Employer paying for hours not
worked in Toronto and viewed it as a significant ongoing financial
liability. She testified that while an apparent option at the outset was to
layoff the full-time clinic assistants, replacing them with part-time
employees who would be paid for the actual hours worked, it was an
option that she wished to avoid, and in this regard noted the very long
service of this group. It was her view that a voluntary transfer of clinic
3
assistants from Toronto to Metro West could address the operational
challenges that were faced. The matter was initially raised with Union
representatives, and there were a series of communications
subsequently. Ms. M. Alvarado Fenn, local president, testified that the
process that the Employer was undertaking was described by its
representatives as "restructuring" or "reorganizing". As is not
infrequently the case with respect to matters of this kind, the
communication process was not without difficulties. There is no value in
reviewing the evidence with respect to this aspect of the matter, as it
does not impact in any way on the ultimate determination I am required
to make.
Mandatory meetings were scheduled for all collections staff, who
were notified by memorandum dated January 26, 2004, of the dates of
meetings in each region to "share details and answer questions about the
planned restructuring of the Toronto and Metro West regions". In these
presentations a number of problems and their resolution were identified,
including an adjustment to the borders of the Metro West and Toronto
regions, transferring the area between the 427 and Keele Street and from
the 427 to Yonge Street north of the 401 from Toronto to Metro West. In
terms of staffing, the plan entailed 5 full-time clinic assistants in Toronto
and 6 full-time clinic assistants in Metro West where the clinic assistants
were all part-time. With respect to part-time clinic assistants, the plan
entailed 5 part-time clinic assistants in Toronto and 4 part-time clinic
4
assistants in Metro West. Ms. Lipton testified that while it was
recognized that this staffing plan would not entirely solve the matter of
hours worked not meeting the 75 hour target, it would reduce the
problem and the option of transferring outside of the region could
continue on a reduced scale. Transportation to and within the Metro
West area was identified as a concern by the Toronto clinic assistants.
There were also objections to the staffing plan by the Metro West clinic
assistants. There were no volunteers to transfer among the full-time
clinic assistants and the Employer determined that it would not
implement this staffing plan except on the basis of voluntary transfers.
As the plan could not be accomplished by voluntary transfers, it was
determined that all full-time Toronto clinic assistants would be laid off
and that the work would be performed by part-time staff. Ms. Lipton
noted that there were a variety of options available to affected employees
arising from a notice of layoff, including the option of bumping. Ms.
Lipton also noted in her testimony that the boundary changes had no
effect on the decision to layoff full-time clinic assistants as sufficient
hours for the retention of full-time clinic assistants would still not exist.
Ms. R. Naiman, Centre Director, issued a memorandum dated
March 24, 2004 to all collections staff, which states in part as follows:
I am writing to you today to clarify the facts. As you know,
your management team has been looking at rebalancing our
regions geographically. In addition to geography changes, we
needed to also review the number of staff currently assigned in
5
each region. Meetings were held to inform Collections staff of
this issue and the need to rebalance Toronto and Metro West
specifically. The intent was to inform staff and request feedback
through your unions. After consideration, it was evident that we
needed to reduce the full-time complement of Collections staff in
the Toronto region. This, of course, changes the terms and
conditions of employment of the affected staff and CBS will be
required to issue layoff notices.
This does not mean that we want any of our Toronto Centre based
Collections staff to leave CBS. On the contrary, as stated at the
information sessions, we value your contribution and hope that
you will decide to stay with the organization by considering part-
time employment.
All full-time Toronto clinic assistants were provided with written
notice of layoff on or about March 31, 2004. The relevant portion of the
text of the letter states as follows:
Re: Official Notice of Lavoff/Clinic Assistant
As per Article 17 of the current Collective agreement between
Canadian Blood Services and OPSEU Local 5103 this letter will
serve as your official notice of layoff from employment at Canadian
Blood Services - Toronto. This action is being initiated due to our
need to reduce our full time staffing complement within the
Collections Department.
It is regrettable that the Collections Department at the Toronto
Centre can no longer support full time employment for a number of
long service and valuable employees in your classification.
There are a number of options available to you as outlined in the
attached document. You have until April 7th/2004 to make your
decision on which of these courses of action you would prefer. In
the interim please feel free to seek assistance or information from
the Human Resources Department and/ or your Union to enable
you to make the most informed decision possible taking into
account your individual circumstances.
We sincerely hope that as [sic] you decide to continue your
employment with Canadian Blood Services. However, we will also
6
completely understand and wish you the best if you elect
otherwise.
The options set out in the document referred to in the letter are as
follows:
In accordance with the terms found in your Collective Agreement
you have the following options:
1. accept the layoff and the associated severance payout as
outlined
I. Working notice period - minimum eight (8) weeks
II. Severance - 26 weeks - Approx. *$16,594.
* Minus statutory deductions, i.e. E.I., C.P.P.
2. accept the layoff and be placed on a recall list for full time
employment (Maximum 12 months). If a suitable position is
not found within this time frame then the severance payout
as outlined in point #1 shall be made and your employment
shall cease at that time.
3. displace another full time employee who has lesser
bargaining unit seniority and is the least senior employee in
an equal or lower paying classification provided that you can
perform the duties of the lower paying classification within a
training period of one month's duration.
4. accept part time employment provided that sufficient
vacancies exist for your placement in your classification. The
employer reserves the right to determine the location as well
as the number of normally scheduled hours associated with
this position.
The provisions of the Collective Agreement that are directly relevant
to the issue before me are the following:
7
ARTICLE 6 - JOB SECURITY
6.01 If in the event of technological change, reorganization
or reassignment of bargaining unit work employees
who require new or greater skills, shall be given a
period of training in order to acquire the new or
greater skills. The Employer shall assume the cost of
tuition and travel. There shall be no reduction of
wages or benefits during the training period, however,
the employee will not be entitled to overtime. Training
shall be given during working hours whenever possible
and may not extend beyond six (6) months.
6.02 In the event that an employee is unable to acquire the
required new or greater skills or if an employee's
position becomes redundant as a result of
technological change, reorganization, reassignment of
bargaining unit work or contracting out she shall be
given advance notice of lay-off or pay-in-lieu of notice
in accordance with Article 6.03.
6.03
a)
Employees with greater than one (1) year but
less than five (5) years of service, who are laid off
under Article 6, shall be given four (4) months
advance notice of lay-off or pay-in-lieu of notice,
subject to Article 6.04.
b)' Employees with five (5) or more but less than
ten (10) years of service, who are laid off under
Article 6, in addition to severance entitlement
under Article 17, will be given an eight (8) month
advance notice of lay-off or pay-in-lieu of notice,
subject to Article 6.04
c) Employees with ten (10) to twenty (20) years of
service, who are laid off under Article 6, in
addition to severance entitlement under Article
1 7, will be given a ten (10) month advance notice
of lay-off or pay-in-lieu of notice, subject to
Article 6.04.
d) Employees with more than twenty (20) years of
service, who are laid off under Article 6, in
addition to severance entitlement under Article
17, will be given a fourteen (14) month advance
6.04 a)
8
notice of lay-off or pay-in-lieu of notice, subject
to Article 6.04.
Employees who are required to work during their
notice period shall be guaranteed to receive the
cash equivalent of their notice period under
Article 6.03 at the time of lay-off or, in place of
such payment, they may elect to exercise their
rights under Article 17.
b)
Employees who are not required to work during
their notice period under Article 6.03 must elect
within five (5) weeks to either receive the cash
equivalent of the remainder of their notice period
under Article 6.03 or, in place of such payment,
to exercise their rights under Article 17. In the
event that such an employee bumps into a lower
paying position under the provisions of Article
17, their pay rate shall be maintained at the
scale for the position from which they were laid
off for a period of six (6) months.
6.05 Employees who opt to receive the ca'sh equivalent shall
be deemed to be terminated and the provisions of
Article 1 7 shall not apply to such employees.
6.06 The notice periods referred to in Article 6.03 includes
statutory notice required under the ESA and, where'
required, payment shall be processed for the
applicable notice period, in accordance with
legislation. All employee insured staff benefits,
including Pension if applicable, will continue during
the statutory notice period.
ARTICLE 17 LAY-OFF AND RECALL
17.01
a)
For the purpose of this agreement a layoff shall
mean a reduction of staff complement either at a
Blood Centre, Region or at other permanent
clinic sites where employees are employed by the
Blood Centre. Layoffs will occur separately at
each location.
b) Seniority lists and layoff and recall rights of full-
time and part-time employees at each location
17.02
17.03
9
shall remain separate and apart for all purposes.
The Employer reserves the right to layoff either
full-time or part-time employees in accordance
with the provisions of this Article. The Employer
agrees to endeavour to give preference to the
maintenance of the full-time component where
feasible, subject to such operational
requirements as may be appropriate.
c) In case of layoff casual and temporary employees
shall be terminated first, by classification, and
shall be given notice and severance in
accordance with the Employment Standards Act.
No other provisions of Article 17 shall apply to
temporary and casual employees.
In the event of a layoff of a permanent or long term
nature, the Employer will:
a) make every effort to provide the Union with
forty-five (45) calendar days notice of such layoff,
and
b) meet with the union to review the following:
i) the reason causing the layoff;
ii) the areas of cut-back and the employees
to be laid off;
iii) alternatives that might be resorted to in
order to minimize the number of
employees to be laid off.
c) In the event of a layoff the Employer shall reduce
staff in the reverse order of classification
seniority in the Blood Centre, Region, or
permanent clinic site wherer the layoff is to
occur, provided that those employees who
remain on the job have the qualifications and
ability to perform the work.
Except as otherwise stated under Article 6, notice of
layoff or pay-in-lieu of notice shall be made on the
basis of one week per year of service to a maximum of
eight (8) weeks. Severance entitlement will be paid to
an employee with five (5) or more years of service on
the basis of one (1) week for each year of service up to
10
a maximum of twenty-six (26) weeks. Severance pay
will only be paid upon termination of employment.
Article 17 goes on to provide for bumping and recall rights.
It was the Union's position that the events resulting in the layoffs
of the clinic assistants were captured by Article 6.02 of the Collective
Agreement and constituted both a reorganization and reassignment of
bargaining unit work. It was submitted that the fundamental distinction
between Article 6 and Article 1 7 lies in the decision making ability of the
Employer. Article 17 rights, it was argued, flow from layoffs caused by
matters such as a decline in demand for serv~ces, over which the
Employer has no control, with the common feature of the Article 6
triggers being that they involve decisions on the part of the Employer as
to how it will utilize its resources. In situations where the Employer is in
a position to make a decision about the matter, it was argued that the
Collective Agreement extracts a greater cost in terms of a greater
severance. In support of the position that there was both a reassignment
and reorganization of work in this instance, Mr. Blair emphasized that
the entire full-time clinic assistant staff in Toronto was laid off and that
the layoffs were precipitated by the Employer's decision to reorganize its
human resources. Mr. Blair emphasized the reference to the "planned
restructuring" of the Toronto and Metro West regions referred to in the
Employer's January 26, 2004 memo to all staff as well as Ms. Fenn's
testimony that the parties consistently referred to this process as
11
"reorganizing". In Mr. Blair's submission, the evidence clearly
established that the work was reassigned when it was removed from the
full-time clinic assistants and given to part-time employees.
On behalf of the Employer, Ms. Gallop argued that the evidence
clearly established that the reason for the layoffs was a lack of work for
full-time employees. She noted that the full-time clinic assistants were
not working full-time hours on an ongoing basis and that the
determination of the number of employees is a matter that is within
management rights. She submitted that Article 17 sets out the general
rule for severance and that Article 6 is an exception to the general rule.
She argued that the exceptions in Article 6 ought to be interpreted
narrowly and argued that the basis for the distinction between the
provisions urged upon me by Mr. Blair is not supported by the language
of the Collective Agreement. Ms. Gallop emphasized that there must be a
causal link between the reorganization or reassignment and the layoff
and that it is not sufficient that they simply be contemporaneous. Ms.
Gallop argued that the evidence established that the Employer was
prepared to retain the services of all of the grievors as clinic assistants.
Therefore, she argued, the positions were not in fact redundant. Ms.
Gallop emphasized Ms. Lipton's testimony to the effect that the boundary
changes were of no significance in relation to the layoffs. In her
submission, the cause of the layoffs was the lack of full-time work in
12
Toronto and the unwillingness of the full-time clinic assistants to
transfer to Metro West. She noted that the Union failed to support the
Employer's proposal, which would have preserved the full-time positions.
In her submission, the Union failed to meet its onus to establish a causal
link between a reorganization or a reassignment of work and the layoffs.
In support of the Employer's position, Ms. Gallop referred me to the
following awards: Re Mitchell Press Ltd. and Communication Energy and
Paperworkers' Union, Local 2000 [2004] B.C.D.L.A. 500 (Glass); Re Board
of School Trustees of School District No.4 7 (Powell River) and Canadian
Union of Public Emplovees, Local 476 (2001) 96 L.A.C. (4th) 411 (Moore);
Re British Columbia Telephone Co. and Telecommunication Workers
Union (1989) 7 L.A.C. (4th) 75 (Kelleher); Clinton Public Hospital and
Service Emplovees' International Union, Local 210 (unreported decision
dated April 4, 1997) (Kilgour); Re Weiland County General Hospital and
Service Emplovees International Union, Local 204 (1988), 73 L.A.C.
(4th)438 (Carrier). These cases deal with the issue of causation in the
context of layoffs and the question of what constitutes a sufficient causal
link. In the Mitchell Press Ltd., Powell River and the British Columbia
Telephone Co. cases, the issue was whether the layoffs in issue were
caused by technological change. In Mitchell Press, while technological
changes were found to have an impact, the immediate cause of the
layoffs was determined to be the reduction of work. Similarly, in Powell
13
River, it was determined that a staff reduction was as a result of
budgetary issues and unrelated to a change to the purchasing system.
In British Columbia Telephone, it was determined that while technology
allowed the employer to close an office and maintain service, the Board
concluded that the loss of employment was as a result of the company's
failure to achieve forecasted growth. In the Clinton Public Hospital and
the Weiland County General Hospital cases the issue was whether the
layoffs were caused by assignment of work to part-time employees.
Those awards deal with identical language, which precluded the layoff of
a full-time employee "by reason of' his or her duties being assigned to
one or more part-time employees. In the Clinton Public Hospital case it
was determined that the reason for the layoff of a full-time employee was
that there was not enough work in the department for a full-time
employee and that the decision to have the position filled by a part-time
employee was entirely a function of the amount of work available and not
by reason of the duties of a full-time employee being assigned to a part-
time employee. Reference was made to the employer's right to determine
employee complement. The reasoning in that case was adopted and
applied in WeIland County General Hospital.
In considering this matter, it is necessary to commence with the
specific language of the Collective Agreement before me. It is clear that
Article 17 is intended to encompass the ordinary circumstances giving
14
rise to layoffs while Article 6, entitled "Job Security" with its greater
benefits, is triggered by the circumstances specifically contemplated in
that provision. In interpreting this provision I agree with Ms. Gallop that
the word "reorganization" must be interpreted in the context of an
exception, as it is possible to view any decision of an employer to layoff
an employee as a reorganization. I also agree with Ms. Gallop that the
Union bears the onus in this matter. In this context then, I turn to the
issue of whether there were redundancies in this instance that were "as a
result of' a reorganization.
As the evidence of Ms. Lipton made clear, the existing deployment
of human resources in Toronto meant that the Employer was faced with
the payment for hours not worked on an ongoing basis. The responsible
use of resources is fundamental to the management of any enterprise
and the payment for hours not worked on a continuing basis is a matter
that understandably compels a managerial response. The boundary
change had no real effect and thus must be set aside in the analysis.
There was, as Ms. Gallop emphasized, a proposal from the Employer that
would have avoided the need to layoff the clinic assistants, a proposal
that depended on voluntary transfers to Metro West. However, there was
no obligation on the part of the employees or the Union to accept that
proposal. The Employer ultimately chose, as was its right, to deal with
the matter by laying off all of the full-time clinic assistants in Toronto.
15
The effect of the Employer's decision was that the full-time clinic
assistant positions were redundant. Hence the layoff notices were
issueda Ms. Gallop is clearly correct in her assertion that the Employer's
actions in this instance are within the Employer's management rights as
contemplated by Article 4 of the Collective Agreement. However, the
validity of the right and its good faith exercise does not preclude the
operation of another provision of the Collective Agreement if it is
applicable on its terms. With respect to the authorities that were
referred to me, I found the awards dealing with technological change to
be of limited assistance, given the different nature of the criteria that I
am dealing with here. The awards dealing with displacement are also of
limited assistance, for the same reason. The decisions are of value,
however, in relation to the issue of causation in general. It is
unnecessary, in my view, to comment on the general characterization of
the relative rights under these provisions that Mra Blair urged upon me.
While not determinative, there is, in my view, some significance to the
fact that the Employer refers to the matter as a "restructuring" in the
January, 2004 memo to all employees. It is apparent from Ms. Fenn's
testimony that similar phrases were utilized by the Employer in its
presentation of the issue. I am unable to accept Ms. Gallop's submission
that the lack of full-time work in Toronto or the unwillingness of the
clinic assistants to transfer to Metro West was the cause of the layoffs
and thus that they cannot be said to result from a reorganization as
16
contemplated by Article 6.02 of the Collective Agreement. While the
decision of the Employer was as a result of the lack of full-time work in
Toronto and the layoffs could have been avoided by voluntary transfers,
the cause of the layoffs was the Employer's decision that it would deliver
its services utilizing a different human resources model. It was a
substantive and fundamental change in its operations, eliminating a
significant number of full-time positions. Were the redundancies of the
full-time clinic assistant positions as a result of a reorganization, such
that the job security provisions providing enhanced benefits under
Article 6 are triggered and the layoff provisions in Article 1 7 do not
apply? Implicit in the concept of reorganization in this context is a
managerial restructuring in response to a particular set of
circumstances. While the decision was a valid and rational exercise of
management rights, in my view, the events giving rise to the
redundancies of the full-time clinic assistant positions in Toronto were
clearly as a result of a reorganization, which brings the events within the
ambit of Article 6.02 of the Collective Agreement. Given this conclusion
there is no need to address the question of whether there was also a
reassignment in this case. In this instance, the Employer ultimately
determined that it would reorganize its human resources to obtain
substantial ongoing cost savings with the result that the positions of the
full-time clinic assistants in Toronto became redundant. Whatever the
precise limitations on the application of Article 6, it is my view that the
17
facts before me establish that there was a reorganization which resulted
in the redundancies in this instance.
In summary, for the foregoing reasons it is my conclusion that the
layoffs that are the subject of the grievances before me are governed by
Article 6 of the Collective Agreement and I so declare. In accordance with
the agreement of counsel, I leave the matter of remedy in the hands of
the parties and retain jurisdiction to deal with any difficulties the parties
may experience in this regard.
Dated at Toronto, this 21st day of September, 2006