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HomeMy WebLinkAboutThompson Group 08-04-17IN THE MATTER OF AN ARBITRATION BETWEEN: MUSKOKA ALGONQUIN HEALTHCARE -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Employer ") (the "Union ") AND IN THE MATTER OF A GROUP GRIEVANCE REGARDING WAGE RATES (OPSEU # 2007 - 0305 -0002) Louisa M. Davie — Sole Arbitrator Appearances: For the Union: Val Patrick Barbara Barry Michelle Thompson David Graham For the Employer: Robert Hughes Les Foreman Kelly Pender 2 Award The crux of this grievance is that, for several years, the grievors were paid an hourly rate that was more than the hourly rate established for their classification in the collective agreement between Muskoka Algonquin Healthcare ( "the Employer ") and the Ontario Public Service Employees Union ( "the Union "). The Employer discovered the error and, in January 2007, advised the grievors, and the Union, as follows: "As you know, the Collective Agreement... has a specific rate established for employees in Diagnostic Imaging who have licenses in both Ultrasound and Radiography. This rate is higher than the Registered Technologist rate for Ultrasonographers and equal to the. Senior Technologist rate for Lab Technologists. We have recently discovered that the Hospital has been paying dual licensed Technologists incorrectly at the Senior Technologists — Ultrasonographer rate. We regret that this error has taken place. We have decided not to seek retroactive repayment... as a result of this overpayment. However, in order to bring [the] rate of pay into the appropriate pay range, the Hospital will change [that] wage... effective April 1, 2007." The effect of this change was that, although their wage rates were not reduced, the grievors received only minimal wage increases effective April 1, 2007. This group grievance was filed on January 24, 2007 and states "We grieve the Employer has violated the past practice but not exclusively relative to the agreed wage grid. As such the Employer is estopped from altering the wage grid till the expiration of the current central collective agreement on March 31/09." 3 As remedial relief the grievors seek an order that the Employer continue to pay them at the higher rate. The matter proceeded to arbitration. The parties agreed I was properly seized and filed the following statement of agreed facts. The following statement of facts is submitted without prejudice. The Muskoka Algonquin Healthcare is an organization that resulted from the amalgamation of two legacy organizations known as South Muskoka Memorial Hospital in Bracebridge with a satellite operation in Gravenhurst and Algonquin Health Services located in Huntsville with a satellite operation in Burk's Falls. The amalgamation took place in August of 2005. 2. OPSEU and its local 366 was the bargaining agent for full -time paramedical employees at Algonquin Health Services for over twenty years. The parties had participated in central negotiations for most of that period of time. Part- time paramedical employees at Algonquin Health Services were not represented by a bargaining agent until March 30, 2006. 3. At South Muskoka Memorial Hospital full -time and part-time paramedical employees were part of the local OPSEU bargaining unit until March 31, 2006. 4. On or about August 30, 2005, OPSEU made an application to the Ontario Labour Relations Board pursuant to the Public Sector Labour Relations Transition Act seeking determinations respecting bargaining rights at the Employer. By a decision dated March 30, 2006, the board declared OPSEU to be the bargaining agent for all paramedical employees. 5. When MAHC was created as a result of the amalgamation of SMMH and AHS in the summer of 2005, the paramedical employees voted to have OPSEU represent all the employees in both locations in a single bargaining unit. The parties agreed to participate in central bargaining for the collective agreement that would become effective April 1, 2006. 6. All paramedical employees, including part-time and full -time, are now included in the new bargaining unit. There is now a single bargaining unit, and the Union determined that the new merged local will be numbered 380. M 7. Both grievors (Michelle Thompson and David Graham) hold qualifications as "Registered Diagnostic Medical Sonographer" and as "Medical Radiation Technologist ". 8. Michelle Thompson was hired by the hospital on May 31, 1990 as a Part Time X -Ray Technologist, and at the time of hire was registered as both a Radiation Technologist and a Medical Sonographer. On October 1, 1990 Michelle Thompson's status changed from a Part Time X -Ray Technologist to a Full Time X- Ray /Ultrasound Technologist. 9. David Graham was hired by the hospital on July 23, 1990 as a Part Time Radiology Technologist. In 1995 David Graham became licensed as Registered Diagnostic Medical Sonographer. On July 19, 1999 David Graham was awarded the position of Full Time Ultrasound /Radiology Technologist. 10. On June 28, 2000 the parties reached agreement on a first collective agreement to cover from July 1, 1999 to March 31, 2002. The parties agreed a Technologist licensed as both Ultrasonographer and Registered Technologist Radiology would be paid the Senior Technologist wage rate. Both grievors were paid at the Senior Technologist wage rate. 11. The wage rate for a Senior Technologist and a Senior Ultrasound Technologist was identical during the term of the contract expiring March 31, 2002. 12. During negotiations for the Collective Agreement from April 1, 2003 to March 31, 2004 the wage rate for the Senior Ultrasound Technologist was increased more than the wage rate for the Senior Technologist. This was consistent with the Central negotiations which created a Senior Technologist wage rate and a Senior Technologist plus rate. 13. Michelle Thompson was paid the wage rate of a Senior Ultrasound Technologist effective April 1, 2003. There is no evidence that the Hospital administration or that the Human Resources Department was aware that she was being paid at the higher rate. There is no evidence that Ms. Thompson made the Hospital aware that she was paid at the Senior Ultrasound Technologist rate instead of the Senior Technologist rate. She continued to be paid at [sic] the Senior Ultrasound Technologist up to March 31, 2007. 14. David Graham was the charge Technologist from November 9, 2002 to December 5, 2005 when he voluntarily gave up that position in the fall of 2005. When he returned to regular full -time Ultrasound /Radiology 5 Technologist duties in December 2005 he was paid at the same level as Ms. Thompson, i.e. the wage rate of Senior Ultrasound Technologist from December 5, 2005 to March 31, 2007. 15. In January 2007 one of the employees of the payroll department brought the fact that Ms. Thompson and Mr. Graham were being paid at the higher Senior Ultrasound Technologist rate instead of the Senior Technologist rate to the attention of Ms. Kim Rose in the Human Resources Department. Ms. Rose then notified the grievors and the Local Union president that an error had been made in their wage grid and that they would, in effect, be redcircled until the wage rate for the Senior Technologist caught up with their wage rate. So they were redcircled from January 2007 until April 2007. The Hospital did not seek to roll back their wages nor did it seek to recover the overpayment of wages for the two individuals. 16. The negotiations on local issues, while concluding at the end of February 2007, had commenced on April 11, 2006. 17. The parties were unable to come to an agreement on a number of issues and as such were referred to conciliation, which took place on February 27, 2007. 18. The parties sent outstanding issues to arbitration which was presented to a board of arbitrators on May 28, 2007. 19. Article 33.07 "Dual Modality Registration" was an outstanding issue during local negotiations and was presented to the board of arbitrators on May 28, 2007. 20. Michelle Thompson was a member of the OPSEU Local Negotiating Committee for the Local Collective Agreements expiring March 31, 2002 and March 31, 2009. 21. The Collective Agreement expiring March 31, 2002 states the following: "Employees who are licensed in both X -Ray technology and Ultrasound Technology will be on the Senior Technologist grid ". 22. The collective agreement expiring March 31, 2004 introduces a new wage grid for Senior Technologists, Ultrasound, RRCP (Respiratory Ther.), MRI Tech. The "Senior Technologist" wage rate and the "Senior Technologist, Ultrasound, RRCP, MRI Tech" wage rate are identical for April 1, 2001 and April 1, 2002. The wage rate for these two classifications are no longer identical on April 1, 2003, instead the wage rate is 33.09 for "Senior Technologist" and 34.08 for "Senior Technologists, Ultrasound, RRCP, MRI Tech ". el 23. The Collective Agreement expiring March 31, 2006 states employees who are licensed in both X -Ray Technology and Ultrasound Technology will be on the Senior Technologist grid. 24. On or about January 24, 2007 the Employer advised each of these individuals that, effective April 1, 2007 they would each be paid based on the pay rate of Senior Technologist. The effect of this notification was that their rate of pay would only increase by one cent per hour when the negotiated pay increase took effect on that date. 25. The grievors both perform duties as X -ray Technologists as well as performing ultra -sound duties in their employment. Submissions It is the position of the Union that, by its conduct in paying the grievors at the higher rate, the Employer made a representation that it would not rely upon its rights as set out in the collective agreement and pay the grievors at the pay rate for their classification. The Employer's conduct represented to them that they would be paid at the higher rate. The grievors, and the Union, relied upon that representation. The detrimental reliance asserted is that the grievors, and the Union, were deprived of the opportunity to negotiate about the rates to be paid to employees, such as the grievors, who hold a dual modality registration. The Union, unaware of the Employer's position that the grievors were being paid improperly, lost the opportunity to raise and address the matter at the bargaining table. The Employer's response is that, in the last round of bargaining leading to the current collective agreement, the parties specifically agreed upon the following collective agreement provision: 0 33.07 A Technologist working within more than one modality and required to be registered in more than one modality will be paid on the Senior Technologist wage grid. The grievors are being paid at the Senior Technologist wage grid and there has not been any violation of the collective agreement. With respect to the Union's estoppel argument, the Employer submits that the Employer notified the Union and the grievors (one of whom was on the Union's bargaining committee) of its mistake, and that it intended to correct its mistake and pay the correct wage rate set out in the collective agreement effective April 1, 2007, before conciliation, and while the parties were still in bargaining. Notice having been given, any estoppel came to an end with the expiration of the predecessor collective agreement. The Union had the opportunity to negotiate about the rate of pay yet, in their collective agreement, the parties agreed, again, that those Technologists holding dual modality registration would be paid the Senior Technologist rate. Decision I do not propose to refer to the various "past practice" and "estoppel" cases and textbook citations to which the parties referred. The legal principles of estoppel and past practice, and their application in labour relations and collective agreement interpretation matters are well established. Past practice as an aid to interpretation is not applicable to these facts. There is no ambiguity in the language of the collective agreement. The rate to be paid to Technologist who are licensed in both x -ray technology and ultrasound technology is clearly set out. They are to be paid "on the Senior Technologist grid." That was the case in the predecessor collective agreements, and is also the case in the current collective agreement. The collective agreement expiring March 31, 2002 provided "Employees who are licensed in both X -ray technology and Ultrasound technology will be on the Senior Technologist grid." The grievors were paid, correctly, at the Senior Technologist rate for the term of that collective agreement. The collective agreement expiring March 31, 2004 contained two "Senior Technologists" classifications — one entitled simply "Senior Technologist" and the other entitled "Senior Technologists, Ultrasound, RRCP (Respiratory Ther.), MRI Tech ". Although the rate for these two "Senior Technologists" classifications was the same for those at less than the maximum seven -year step of the grid, at the seventh year an additional 3% was provided to those at this step of the wage grid who were in the "RRCPs (Respiratory Therapists) Ultrasound and MRI Tech." classification. It is during the term of this collective agreement that the Hospital started to pay the grievors at the "Senior Technologists, Ultrasound, RRCP (Respiratory Ther.), MRI Tech." The collective agreement expiring March 21, 2006 again contains two "Senior Technologists" classifications. In this collective agreement however the former simple "Senior Technologist" classification is further specifically defined as "Laboratory Section Heads & Employees Licensed as both Ultrasonographer and Registered Technologist Radiology ". A further note in this collective agreement also specifically states that 0 "Employees who are licensed in both X -ray technology and Ultrasound technology will be on the Senior Technologist grid." Notwithstanding this, because of the Employer's error, the grievors continued to be paid at the higher "Senior Technologists, Ultrasound, RRCP (Respiratory Ther.), MRI Tech" rate although employed in the other "Senior Technologist" classification. The current collective agreement continues that scheme again. As noted, it also specifically states that a Technologist working within more than one modality and required to be registered in more than one modality will be paid on the Senior Technologist wage grid. Although "past practice" is referred to in the grievance, the notion of past practice as an aid to interpretation is simply not applicable to the facts of this case. There is no dispute between the parties that there is any ambiguity in the classifications. There is also no dispute that the grievors work within the "Senior Technologist Laboratory Section Heads & Employees Licensed as both Ultrasonographer and Registered Technologist Radiology" classification and not within the "Senior Technologists, Ultrasound, RRCP (Respiratory Ther.), MRI Tech" classification. In this regard it is also important to note that the assertion in this grievance is not that the grievors have been improperly classified. At the hearing, in response to a specific question about this issue, the Union stated that in this grievance the Union was not claiming that the grievors are performing 10 the work of the higher classification and therefore should be paid the wage rate of that higher classification. Instead, the Union's assertion is that past practice has created an estoppel. The grievors have been paid at the higher rate for several years and that state of affairs should continue until the end of the current collective agreement because the Employer is estopped from changing its practice until that time. The two key elements for an estoppel are (a) a representation (by words or conduct) which leads one party to suppose that the other will not seek to enforce its strict rights and (b) detrimental reliance by the party to whom that representation has been made. Assuming, without deciding, that here an estoppel arises because the Employer mistakenly pays employees more than it is required to pay under the collective agreement, on the facts of this case it is evident that the estoppel was terminated by notice. The Employer provided timely notice to the affected employees, and to the Union, that it had made a mistake in overpaying the employees. As the notice brought the estoppel to an end the Employer may again reassert its rights under the collective agreement to pay the grievors the proper wage rate for their classification. The Employer is not obliged to perpetuate its mistake indefinitely but can, with proper and timely notice, revert to its strict rights and only pay the employees the rate for their classification as required under the collective agreement. 11 The "detrimental reliance" in the form of a "lost opportunity to negotiate" about the rates to be paid to employees with dual modality registration which the Union asserts is not present in this case. For these parties the wage rate for employees who are registered to work in more than one modality is, and has been, a matter of local negotiation. When the Employer became aware of its mistake and notified the Union and the employees that it intended to correct that mistake effective April 1, 2007, the parties had commenced, but had not yet concluded, their local issues negotiations. They had not yet gone through either conciliation or interest arbitration. In these circumstances the opportunity to negotiate about the terms and conditions of employment for employees with dual modality registration was not lost. Indeed, the parties did negotiate about the terms and conditions of employment for employees with dual modality registration. They agreed on the language of Article 33.07 that a Technologist working within more than one modality and required to be registered in more than one modality should be paid on the Senior Technologist wage grid. In addition they brought to interest arbitration the Union's proposal that the following language be added to Article 33.07 "A Technologist who is registered in more than one modality shall not be required to work in more than one (1) modality unless they agree to do so, and the above re- Senior Technologist pay shall then apply." 12 The Hospital notified the Union and the employees that it intended to revert to its strict legal rights and pay the grievors the classification rate set out in the collective agreement at a time when the parties were still in their local issues negotiations and had not yet met with a conciliation officer. In these circumstances, in addition to negotiating about whether employees registered in two modalities could be required to work in both modalities, the substance of this grievance was also a matter that was open for discussion and negotiation at the bargaining table. The estoppel was properly brought to an end by timely notice during bargaining. Currently the Employer is paying the employees working in more than one modality the rate set out in the collective agreement. It also has not sought to recover its past overpayments. For all of these reasons the grievance is dismissed. Dated at Mississauga this 17th day of April, 2008.