HomeMy WebLinkAboutMcBlain et al 08-09-29
IN THE MATTER OF AN ARBITRATION
BETWEEN:
NORTHEAST MENTAL HEALTH CENTRE
(the "Centre")
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 636
(the "Union")
Hours of Work Grievances: OPSEU Grievance Nos: 2008-0636-0047; 2008-
0636-0048; 2008-0636-0049; 2008~0636~0050; 2008-0636-0051; 2008-0636~
0052; 2008~0636-0053; 2008-0636-0054; 2008-0636-0055; 2008-0636-0058;
2008-0636-0060; 2008-0636-0061; 2008-0636-0062; 2008-0636-0063; 2008-
0636-0064; 2008-0636-0065; 2008-0636-0067; 2008-0636-0068, dated 28 May,
2008 to 21 June, 2008
Hearing held in North Bay, Ontario, on September 25, 2008.
AWARD
Geoff Jeffery, Counsel, Weaver Simmons, and Alison Robinson, Manager Human
Resources, for the Employer
Muneeza Sheikh, Counsel, Jackie Smythe, Interim President, Brett Nesbitt, Grievor,
for the Union
I have been appointed lUlder section 49 of the Labaur Relatians Act, 1995 (the "Ad')
to hear this matter. The parties agree that I have been properly appointed and have
jurisdiction to decide this matter.
This matter concerns eighteen grievances, all dated after April 1. 2008 and filed by
individual members of the Union. Each grievance alleges tbat the Centre imjJroperly
limited the Grievor's hours of work to 75 hours of work in a two-week period, despite
each Grievor being available and preferring to work 80 hours in a two-week period.
At the commencement of the hearing, Counsel for each party made brief submissions
regarding the grievances. I was also provided with a copy of an interest arbitration
award dated February 26th 2008 (the "Award"). The Award was issued by a board of
arbitration chaired by Arbitrator Kevin Burkett pursuant to the provisions of the
Hospital Labour Disputes Arbitration Act ("HLDAA").
The parties agreed that the facts were not in dispute and that no oral evidence would
be required to decide the matter. The parties further agreed that I could deal with the
grievances in a summary fashion, based upon the collective agreement, the Award
and the submissions made by Counsel. Accordingly, the parties have agreed that I
may issue this award on consent.
Bacl{ground
The Centre operates inpatient and outpatient mental health services in the City of
North Bay and elsewhere in Northeastern Ontario. The facility where the Grievors
work was formerly known as the North Bay psychiatric Hospital and was operated by
the Ontario government. It was divested to the Centre in November 2005.
After divestment, the parties conunenced negotiations for a first collective agreement.
The parties were able to agree upon most ofthe provisions of the Collective
Agreement. However, in August, 2007 a Board of Arbitration chaired by Arbitrator
Burkett was appointed to resolve the matters remaining in dispute.
The Board issued the Award on 26 February 2008. The Award, in part, indicates:
... it is our award that the parties enter into a collective agreement in the form
attached as AppendiX "A" to this award, that reflects the Minutes of Settlement
attached as Appendix "B" to this award, with thefollowingfurther
incorporations ..,
Included in Appendix "B" and attached to the Award was a document entitled
"parties' Agreement on Wage Issues". Items 1 and 2 of that document read as
follows:
1. 37.5 hour work week to be implemented 1 April, 2008.
2. The Hospital will make a lump sum payment to those employees whose
work week will be reducedfrom 40 to 37.5 per week on the basis of$l,OOO
for each full-time employee and $500.00 for each part-time employee.
The Collective Agreement
The applicable language of the Collective Agreement is as follows:
12.01 ~
a) The normal bonrs of work for fnll-time employees shall consist of an average of
seventy-five (75) or eighty (80) honrs in any two (2) week pay period, depending
on the schedule assigned, The normal shift shall be composed of seven and one-
half (7 V,) or cight (8) consecutive hours, exclusive of meal times,
12.14 ~
a) Flexible hours of work or flextime, is a system designed to accommodate tbe
individual preferences and needs of employees while at the same time ensuring
the efficient operation of tbe Employer's services, In this article, flextime refers
to flexible starting and finishing times.
b) Flexihle hours will be implemented only after mutual agreement is secured
between tbe Local Union and the employee who wishes flexible hours of work
and the Employer. operational requirements will be a determining factor in the
decision to enter into flexible hours arrangements. Tbe terms of the flextin1e
arrangements shall be in writing and ean be discontinued by either party witb
thirty days notice.
4.02
The Union further acknowledges the Employer's right to manage The Northeast
Mental Health Centre and all its enterprises in which the Employer is engaged in
all respects and in accordance with its obligations, and in the best interest of
patients in the community, and without restricting the generality of tbe foregoing,
the location and number of employees required from time to time, the
qualifications 0 f employees, the assignment of work and the assignment of
overtime work, ehange in location and scope of operations, schedules of work and
vacationS, standards of perfonnance of all other matters concerning the
Employer'S operation not otherWise speeifleally dealt with clsewhere in this
Agreement.
Decision
The scheduling of work is an ioherent management right. Tbe parties have
acknowledged this right in article 4.02 oftheir Collective Agreement. At the same
time, the parties have agreed to some restrictions relating to the scheduling of work
However, as a whole, the language of tbe Collective Agreement does not restrict the
Centre's right to reduce the hours of work from &0 to 75 in a two week pay period or
froln 40 to 37.5 a week. Article 12.0 I clearly provides tbatthe normal hoUrs of
work shall consist of either 75 or &0 hourS in any two-wcek pay period. The
reduction of the Grievors' hours of work from &0 to 75 hours in a twO-week pay
period is clearly permitted by the language agreed upon by the parties.
It is further my vieW that the "flextime" language in article 12. I 4 is of nO assist,,,ee
to the Union. Thc language of the article makes it clear that sneh arrangements are
onlY to he implemcnted upon mutual agreement of the parties and the employee who
wishes flexible hours of work. This provision does not restrict the Centre's right to
reduce an employee'S normal hours of work from &0 to 75 hours in auy twO-week pay
period.
1n addition to the collective agreement provisions, the parties also entered into aU
agreement dur1tlg negotiations regarding the implementation of a 37 .5-hour
workWeek and compensating those employces whose hours of work would be
reduced from 40 to 37.5 per week. The Award issued by the interest arbitration board
has speciflcallY ordcred that the Co llecti ve Agreement must rell ect Appendix "B",
including thc Parties' Agreement on Wage Issues. Accordingly, it is mY view.tbat the
parties' agreement to reduce the workweek from 40 to 37.5 effective April\' 200&
fonns part of the Collective Agreement between the parties.
] note that, even if! were of the vieW that the ParticS' Agreement on Wage Issues did
not fonn part of the collective Agreement, I would have found that the Union was
bound by the agreement in accordance with the jlrinclple of estoppel. The agreement
was made during negotiations. The agreement is a clear representation that thc Centre
has the right to imjllement a 37.S-hour workweek. The Centre relied upon this
representation and paid monies to affected employees (i.e. acted to their detriment).
It is also my vieW that the parties are bound by the agreement they reached during the
collective bargaining process and by the award issued by the Board chaired by
Arbitrator Burkett. I agree with the comments of Arbitrator Burkett found at page I
of the Award:
During bargaining, the Centre wo.s forthright and advised the Union about its pl'''s to
reduce the normal hours of work from 40 to 37.5 hours. Thc Union was ahle to
negotiate compensation for the bargaining unit enlployees whose hoUrs of work
would be reduced by the Centre's decision. As a result, the parties made a binding
agreement. The agreement ,nakes labour relations sense and is clearly incorporated
in the Award iSSued by the interest arbitration board. The agreement is not onlY
enforccable, but it mnst be respected. It wonld undennine free collective bargaining
to set aside such a settlement reacbed during bargaining.
"Thesc parties arC to be commended for negotiating a resolntion to all but two
of thc myriad of issues that werc initiallY in dispute. Their sncceSS in this
rcgard bodes well for their thture relationshiP."
Wbere a settlement ha.s clearly been reached, neither jlarlY may back away from the
agreemcnt at a later date. The deal that was strUck is clear and must be enforccd.
In all the circumstances, 1 find that tbe reduction in hours implemented by the Centre
on April I. 2008 does not violate the Collective Agreement. The parties are bound by
the agreement set out in the interest arbitration Award. Therefore, the grievances are
dismissed.
Dated this 29.' day of September 2008, in the City of Los Angeles, California.
/1
\. .
J 000 St~' Arbitrator