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HomeMy WebLinkAboutFourney et al 18-01-31 In the matter of an Arbitration Between: Ontario Public Service Employees Union - Local 439 and Brockville Mental Health Centre (Member of the Royal Ottawa Health Care Group) Grievances of Fourney, Mayer, Gleason, Whiteland, Colville, Adams-Palmer, Roes, Berry, Birtch, McDougall, Baird, Carr, Lynch, Melendy, and Kloosterman Andrew Tremayne, Arbitrator Appearances Jessica Greenwood, Kevin Hudson, and Sherri Haley for the union Marie-Pierre T. Pilon, Alicia Bouchard, Emma McEachran, Alana Bissionette, and Robert McDonnell for the employer Hearing held in Brockville, Ontario on October 12, 2017; argued by way of written submissions on December 1, 2017 Award issued on January 31, 2018 at Ottawa, Ontario 1 Background and Introduction 1. On January 18, 2017 the employer notified the union that it was going to change the practice by which vacant shifts for regular part-time RPNs are filled. A few days later, the union filed 15 grievances on behalf of individual employees who would be affected by this change. The employer’s January 18, 2017 letter says that the practice would change effective February 18, 2017, but the parties agree that it was not implemented until May 14, 2017. 2. The union says that the employer’s decision to change the practice by which it fills vacant shifts for regular part-time RPNs is contrary to the parties’ Collective Agreement. The new practice also goes against an award dated June 13, 2014 by Arbitrator Paula Knopf (hereinafter referred to as the “Knopf award”). Although the grievances are not about the implementation of that award and Arbitrator Knopf is functus officio and no longer seized, argues the union, the employer should not be permitted to contravene the Knopf award. 3. The employer disagrees, and says that if the Knopf award is binding on the parties, then she remains seized and the 15 grievances should be remitted to her. In the alternative and in any event, submits the employer, the employer is permitted to change the practice by which it fills vacant shifts for regular part-time RPNs, and if the grievances are properly before me, I should dismiss them on the merits. 4. I have carefully reviewed the evidence and considered the parties' submissions, and for all of the reasons set out below, I find that Arbitrator Knopf is functus officio. I also find that the parties’ Collective Agreement speaks to the manner in which these vacant shifts are to be filled, namely on the basis of hospital-wide seniority. The employer has not established a basis on which it is entitled to depart unilaterally from that practice. Finally, the recent Knopf award addresses the same issue, and I see no reason to issue an award that departs from that analysis of the Collective Agreement. As a result, the grievances are upheld. Evidence and Submissions 5. The Knopf award is brief, and because it is central to the issues before me, it is set out below in its entirety: This case involves a Union and individual grievance concerning the seniority list and assignment of work. The rights of the Union and the Grievor depend upon the wording of the Collective Agreement and the past practice of the parties. The purpose of this Award is to bring clarity to the parties' respective rights and to assist them in the future. Having considered the evidence and the submissions of the parties, I hereby declare and award as follows: 2 1. The Employer shall continue to implement its past practice of staffing vacant shifts and temporary positions by using the causal and part-time seniority list for the RPNs on a bi-weekly basis. The bi-weekly seniority list shall be delivered to the local Union President as of the next following the release of this Award. 2. Effective September 21, 2014 the Employer shall implement the same practice as set out in para. 1 for the rest of the Service and Clerical Unit. This bi-weekly seniority list shall be delivered to the Local Union President thereafter. 3. As of September 21, 2014, the Employer will cease providing the Local Union President with a quarterly seniority list for the bargaining unit. 4. For purposes of accumulating seniority during pregnancy and parental leave, a casual or part-time employee shall be deemed to accumulate seniority hours based on the average hours worked by that employee in the ten pay periods preceding the leave. 5. The Employer shall credit Kelly Adams with 410 hours as of next bi-weekly seniority list following the release of this Award. I remain seized with regard to implementation. Dated at Brockville this 13th day of June, 2014 6. Sometime after the award was issued, the union became concerned that the employer was not complying with it. The parties reconvened before Arbitrator Knopf on April 23, 2015 in a mediation session to address this concern. A number of other grievances were dealt with in that session and Arbitrator Knopf summarized the results in a memo to the parties of the same date. The section relevant to the June 13, 2014 award is as follows: Re: Adherence to the Minutes of Settlement dated June 13, 2014 Grievances 2014-0439-59 and 2014-0439-08 It was affirmed by the parties that vacant shifts and temporary positions will be staffed by using the casual and part-time seniority list for RPNs on a bi- weekly basis. For clarity, the scheduling will be done on a "real time" basis, which equates to the bi-weekly seniority list. If the Union believes that there have been any specific violations of this commitment, the Union shall identify those situations to the Employer. indicating the employee's name and the relevant time/date(s). The Employer shall then give the Union access to the relevant records so that 3 the parties can determine whether there has been compliance with the terms of the June 13, 2014 Settlement. 7. The relevant provision of the parties’ Collective Agreement are as follows: ARTICLE 5 - MANAGEMENT RIGHTS 5.01 Except as specifically abridged, delegated, granted or modified by this Agreement, all the rights, powers and authority of management are retained by the Hospital and remain exclusively and without limitation within the rights of the Hospital. 5.02 Without limiting the generality of the foregoing, management's rights include: (a) The right to maintain order, discipline and efficiency, and in connection therewith to make, alter and enforce from time to time, reasonable rules and regulations, policies and practices, to be observed by its employees, and the right to discipline or dismiss employees for just cause. (b) The direction of the working forces; the right to plan, direct and control the operation of the Hospital; the right to introduce new and improved methods, facilities and equipment; the right to determine the amount of supervision necessary; the right to combine or split departments; the right to establish work schedules; the right to establish standards and quality of care; and the right to determine the extent to which the Hospital will be operated including any increase or decrease in employment. . . . . ARTICLE 13 – SENIORITY 13.03 Seniority Lists Seniority lists will be updated every six (6) months and a copy of each list shall be provided to the Local Union President or his designate. In the event of a lay-off, an updated seniority list will be provided to the Local Union President or his designate. 13.04 Accumulation of Seniority (a) Seniority will operate on a bargaining unit wide basis. 4 8. Kevin Hudson gave evidence on behalf of the union. He has worked at the Brockville Mental Health Centre (hereinafter referred to as the “hospital”) since 1983. Mr. Hudson has held various positions with Local 439, including Staff Representative, Chief Steward, and Vice-President. He has been the President for the last 6 years. 9. Mr. Hudson says that the grievances that led to the Knopf award were filed in May 2013. Full-time staff had already selected their vacation dates, and in May of each year, the regular part-time and casual employees in the bargaining unit would select shifts to fill the vacancies that had been created when full-time staff would be on leave. The process was done based on seniority, says Mr. Hudson, on a hospital-wide basis, by classification, with regular part-time staff selecting first and then casual employees. In May 2013 there were problems with the selection process when the union realized that the seniority list that the employer was using was not the same as the union’s list, Mr. Hudson says. An individual grievance was filed on behalf of an employee who claimed that she had lost the opportunity to fill some vacant shifts because her seniority was not fully reflected on the list that the employer was using. The union also filed a policy grievance that the employer was not using the correct seniority list. The grievances were referred Arbitrator Knopf and a hearing date was set for June 13, 2014, says Mr. Hudson. 10. When the parties met on that day, Mr. Hudson says, there were settlement discussions. It was proposed that the parties agree to use seniority lists that would be updated every 2 weeks. The union had some concerns about this, Mr. Hudson says, because he was not sure that 2 weeks would be enough time for the union to review a new seniority list, raise any concerns about it, and ask for changes to be made before the next list came out. It could also create problems with the union’s ability to file grievances in a timely manner, he says. Mr. Hudson says that he wanted to be confident that if he agreed that the parties would use bi-weekly seniority lists, at least the vacancy-filling process not change, and vacancies would continue to be filled based on seniority, on a hospital-wide basis, by classification, with regular part-time staff selecting first and then casual employees. He was assured that this would be the case, and the Knopf award makes this clear, he says, because it refers to the parties’ past practice. 11. Mr. Hudson says that after the Knopf award was released, there was a time when he did not receive the bi-weekly lists in a timely fashion. The employer was also using a new system that updated the seniority list on a “real time” basis, he says, and this was also causing concerns. The matter was raised before Arbitrator Knopf in a mediation session where other grievances were also on the agenda, he says, and there was an agreement that the parties would follow the Knopf award. The vacancy-filling process did not change after that, says Mr. Hudson. The hospital continued to fill these vacancies on the basis of hospital-wide 5 seniority, by classification, with regular part-time staff selecting first and then casual employees. 12. The employer notified the union that it was going to change the process for the RPNs in the bargaining unit in a letter dated January 18, 2017. Instead of filling vacancies on the basis of hospital-wide seniority, employees would be scheduled first by individual unit (ward) seniority, then program (FTU/STU) seniority, then hospital-wide seniority. Mr. Hudson says that this would mean that the most senior employee in a unit (ward) would get the first opportunity to fill vacant shifts in that unit regardless of that employee’s hospital- wide seniority. This would be a very significant change to the way that RPNs access these work opportunities, he says, and the employees who would be affected by this were upset. It would also be much less transparent, because once the employer departs from the hospital- wide seniority list, it would be difficult for the union to confirm that the employee who works a shift is entitled to it, he says. 13. The employer says that there is nothing in the parties’ Collective Agreement that prevents it from changing its scheduling practices or the process by which vacancies are filled. Scheduling in particular is a management right, argues the employer, and it provided the union with notice of its intention to change its practice. The January 18, 2017 letter gave the union notice of 1 month, and then the implementation was delayed until May 14, 2017, which meant that the union received nearly 5 months’ notice. The employer is free to change a practice in this manner, the employer submits, and the union simply erred in assuming that scheduling would always remain the same. 14. The employer also says that it has very good reasons for changing the practice, namely continuity of patient care and workplace safety. Patient outcomes improve when staff changes are minimized, submits the employer. Some patients present a greater risk of harm to themselves and others, and the risk of an incident is reduced when RPNs who are more familiar with the patients in their units work replacement shifts. 15. The employer relies on Amhill Enterprises v. Workers United Ontario Council (Slotnick) 2012 CanLII 30632 On LA; and on Sears Canada Inc. v. United Steelworkers (Knopf) 213 L.A.C. (4th) 106, 108 C.L.A.S. 192 [2011]. Both cases involve policy grievances that arose when the employers made changes to the work schedules of large numbers of employees, and in both cases the grievances were dismissed. Arbitrator Slotnick found that there was no language in the collective agreement that prevented the company from implementing a schedule that included weekend work for full-time employees. There was insufficient evidence to support the union’s assertion that the employer had assured the union that it would not vary the schedule, so the doctrine of estoppel did not prohibit the company’s actions. In the Sears Canada case, there was a lengthy work stoppage, and prior 6 to that the employer had allowed part-time employees to be scheduled individually and according to their personal availability. In that case, Arbitrator Knopf found that there was no language in the collective agreement to support the union’s position that the employer could not require part-time employees to attend prescribed shifts. The evidence in that award also supported a finding that the employer had insisted on maintaining its ability to be flexible about its scheduling during the negotiations that led to the settlement of the work stoppage and the current collective agreement. Analysis 16. The doctrine of functus officio provides that once an arbitrator has issued a final award, his or her jurisdiction is exhausted and the award cannot be altered, except to correct a clerical error. It is also open to an arbitrator to remain seized with respect to the implementation of an award, which is precisely what the Knopf award says. In fact, the parties reconvened before her in 2015 in order to address the union’s concerns that it was not receiving the bi-weekly seniority lists in accordance with the award, which is clearly in implementation issue. No other issues have been raised by either party with respect to the implementation of the Knopf award since that time. 17. The grievances that are before are not about correcting a clerical error, nor do they seek to resolve an issue relating to the remedy that was ordered in the Knopf award. Having issued a final written decision which included an unambiguous and enforceable order, I find that Arbitrator Knopf is functus officio. Instead, the union has filed 15 grievances alleging that after the Knopf award was issued, the employer changed its practice in violation of the Collective Agreement as it was interpreted and applied by Arbitrator Knopf. These grievances are therefore new matters. 18. Turning to the parties’ Collective Agreement, I find that it addresses the matter in dispute, because Article 13.04 (a) says that “seniority will operate on a bargaining unit wide basis”. This language strongly suggests that when seniority is used as the basis for the assignment of work (which would include the staffing of vacant shifts), “bargaining unit wide” seniority is to be applied. In other words, when seniority “operates” it does so on a bargaining unit wide basis. Conversely, it is very difficult to see how scheduling employees first by individual unit (ward) seniority, then program (FTU/STU) seniority, and only then by hospital-wide seniority, does not conflict with language which states that “seniority will operate on a bargaining unit wide basis”. 19. I am supported in this analysis by the first (unnumbered) paragraph of the Knopf award between the parties. It contains 2 important phrases: it says that that the case involves “the seniority list and the assignment of work”; and then notes that “the rights of the Union 7 and the Grievor depend upon the wording of the Collective Agreement and the past practice of the parties” [emphasis added]. 20. The first numbered paragraph of the award begins with another reference to past practice: 1. The Employer shall continue to implement its past practice of staffing vacant shifts and temporary positions by using the causal [sic] and part-time seniority list for the RPNs on a bi-weekly basis. [emphasis added] 21. Paragraph 2 of the award refers to the delivery of the bi-weekly seniority list. Paragraph 3 says that the employer will cease providing the union with a quarterly seniority list. 22. This language aligns with Mr. Hudson’s evidence that the focus of the parties’ discussions on June 13, 2014 was the use of a bi-weekly seniority list instead of the quarterly seniority list that they were supposed to be using. Indeed, it was the parties’ realization that they were not using the same seniority list when the vacancies were being filled in May 2013 which gave rise to the union’s policy grievance. In other words, the issue on June 13, 2014 (aside from the matter of compensation for the individual grievor) was which seniority list would be used when vacant shifts and temporary positions are being staffed. 23. The proposal to use a bi-weekly seniority list instead of the quarterly seniority list was new, and it gained traction with the union when Mr. Hudson received assurances that although the list would change (i.e., it would be updated more frequently), the process by which vacancies were to be filled would not change. That is, the use of a bi-weekly seniority list was a new development which crystallized with the substance of the award, but there was to be no change to how the seniority list would be used. 24. Taken together, this evidence suggests that the “past practice” which is referred to repeatedly in the Knopf award is connected to how the seniority list was being used, and there is no dispute that it was being used to fill vacancies based on seniority, on a hospital- wide basis, by classification, with regular part-time staff selecting first and then casual employees. In other words, going forward, the bi-weekly seniority list would be used in accordance with the employer’s “past practice of staffing vacant shifts and temporary positions”. The employer would cease providing the union with a quarterly seniority list, but nothing else would change. The evidence is that the employer continued to follow this practice until May 14, 2017. 25. While arbitrators are not obliged to follow prior arbitration awards, it is generally accepted that where the parties, issue, and relevant collective agreement language are 8 identical, an earlier arbitration award should be followed for the sake of consistency and predictability. 26. If the employer’s past practice was not consistently in line with Article 13.04 (a), and if this issue had not been directly addressed in the Knopf award, then the employer’s argument that it has the unfettered right to change the process by which vacancies are filled might be more persuasive. And there is no dispute that the reasons cited by the employer for making this change are reasonable. But the employer has not established a basis on which it is can depart unilaterally from the language of the Collective Agreement as interpreted and applied in the Knopf award between these same parties. The employer can bring its reasons for wanting to implement a change to the Collective Agreement to the bargaining table and seek to bargain that change, but it cannot make that change unilaterally, regardless of the amount of notice it gives to the union. Disposition 27. For the reasons set out above, I find that I find that Arbitrator Knopf is functus officio, and the grievances are properly before me. Article 13.04 (a) strongly suggests that when seniority is used as the basis for the assignment of work (which would include the staffing of vacant shifts), “bargaining unit wide” seniority is to be applied. That is, when seniority is used to staff vacant shifts, bargaining unit wide seniority operates. The employer’s decision to schedule employees first by individual unit (ward) seniority, then program (FTU/STU) seniority, and only then by hospital-wide seniority, conflicts with this provision of the Collective Agreement. The recent Knopf award between the parties addresses the same issue, and I see no reason to depart from the analysis in that award. As a result, the grievances are upheld. 28. I remit the matter back to the parties on the understanding that they will attempt to agree on an appropriate remedy. In the event that the parties are unable to do so within 45 days of the date of this award, the parties may make submissions on the appropriate remedy. 29. I remain seized. Signed at Ottawa, Ontario on January 31, 2018 Andrew Tremayne