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HomeMy WebLinkAboutAndrade et al 16-02-17In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act Between: NORTH WELLINGTON HEALTH CARE -and- ONTARIO PUBLIC SERVICE EMPLOYEES' UNION LOCAL 226 Arbitrator: Appearances For the Union: For the Employer: Grievances of Andrade et al. OPSEU File Nos. 2013-0¢26-004, 005, and 006 Randi H. Abramsky Mitch Bevan Michael Allen Hearing: October 8, 2015 Regional Grievance Officer Counsel SUPPLEMENTAL AWARD On 3anuary 19, 2015, l issued an Award in this matter. In that Award, I reached the following conclusions: 1. The Employer, under the collective agreement, has the right to assign lead hand duties without posting that assignment. 2. The Employer, however, violated the posting provision of the collective agreement under Article 11.05(a), when it added ten hours per week of lead hand work to an existing regular part-time Switchboard/Registration Clerk position, thereby creating a full-time position without posting, and I so declare. 3. Whether a posting is now required depends on what the Employer chooses to do, as set out above in the "Remedy" section. 4. 1. shall remain seized. In the "Remedy" section of the Award, I determined that "the remedy depends on what the Employer decides to do" and outlined three potential options, noting that there might be "additional ones that I have not considered." The first option was to create a full-time Switchboard/Registration Clerk position, post it, and then assign lead hand responsibilities to that person. The second option was to create a new classification under Article 23.01 of full-time Lead Switchboard/Registration Clerk, negotiate the wage rate with the Union and then post it. The "third option" was to revert the position back to regular part-time status and then assign lead hand duties to one of the switchboard/registration staff, provided that the total hours were "not normally for more than twenty-four (24) regular and continuing hours per week", as set out in Article 4.02(a). I continued: "If, as a result of the lead hand responsibilities, there was a need for additional switchboard/registration clerk work, that could be done by casual part-time staff, or the creation of another regular part-time position." I concluded: "Consequently, at this point, I find it appropriate to make a declaration only..." The Employer selected the "third option." It reverted the full-time lead hand Switchboard/Registration Clerk position to regular part-time status, including the 10 hours per week of lead -hand duties. It then hired a fifth regular part-time Switchboard/ Registration Clerk, and equalized the available hours among all of the regular part-time Switchboard/Registration Clerks. This had the effect of reducing the hours of the grievors. They have lost two shifts per month. The Employer did not consider using casual part-time staff to handle the additional switchboard/registration clerk duties. The Union, following this action, asserted that the Employer acted improperly in regard to the implementation of "option three." It asserts that the Employer improperly reduced the hours of the original regular part-time staff, and that it could not have been contemplated, in the Award, that the grievors would lose hours as a result of "option 2 three." It also asserts that the grievors are entitled to a monetary remedy for the Employer's violation of the posting provision of the collective agreement. Where there is a breach of the collective agreement, it submits, there must be a remedy. Otherwise, it asserts that an employer can violate the collective agreement with impunity. It submits that the Employer's action is similar to the abolishment of the position, and that the grievors are entitled to a remedy for the breach of the collective agreement. In addition, it submits that the actual lead hand duties that have been assigned are beyond those contemplated under the collective agreement. The Employer asserts that I am functus and without jurisdiction to address any of the remedies sought by the Union. In regard to compensation, it argues that the Union did not request that remedy originally and only sought to have the position posted. In terms of the duties, it submits that the Union failed to object and could have raised that issue but did not, and cannot raise it now. In terms of a reduction in the regular part-time hours, the Employer submits that it could not have added the ten hours of switchboard/registration clerk work to the existing staff without making one or more of the incumbents a "full-time" position., and that the Award contemplated the addition of another regular part-time clerk. It submits that it has the right to assign work, and any complaint about that is a new matter which would need to be grieved. In the alternative, the Employer asserts that evidence would need to be led on these issues. Reasons for Decision A. Monetary remedy for breach of the collective agreement. I conclude that I am not functus in regard. to the issues raised by the Union. In the original Award, I "remained seized" as the remedy depended on the option selected by the Employer. I did find, however, that the Employer violated the collective agreement when it failed to post the creation of the full-time position. It is also a basic principle that where there is a violation, there must be a remedy. If not, as the Union asserts, an employer could violate the collective agreement with impunity. In this regard, I agree with the Union that this situation, because the Employer opted not to post a full-time position but revert the position back to regular part-time status, is similar to the abolishment of the position. Where an employer does that, the union would be entitled to monetary relief for the period of time. that the collective agreement was violated. I find the same relief warranted here. I am not persuaded by the Employer's contention that the Union did not seek a monetary remedy at the original hearing, andonly argued that the position be posted. The Union's focus, at the original hearing, was to have the position posted, but the grievances requested "full redress." I do not find, however, that the remedy should directly flow to any of the individual grievors because it is not clear to me who would have been selected, and now we will never know that. In my view, given the Employer's selection of "option three" instead of posting a full-time position, that remedy for the breach of the collective agreement should go to the Union. 3 B. The Lead Hand Duties In regard to this issue, I agree with the Employer that the Union did not raise this issue in the original grievance or at the hearing. It is a new issue. I make no finding as to whether a new grievance may be filed about it, or if additional duties were added subsequently which exceed lead hand tasks set out in the collective agreement which might also be grieved. C. Reduction in Hours of Existing Staff. This is the most troubling issue. It was not my intention or expectation that the grievors would lose hours because of my Award and "option three." I expected that the incumbent might be returned to regular part-time work and that could result in a need for additional switchboard/registration clerk work "that could be done by casual part-time staff, or the creation of another regular part-time position." I never envisioned, however, that, as a result, the Employer would reduce the grievors' regular hours of work. I do not see this as a "new" issue arising after the Award. I see it as an issue arising directly out of the implementation of my Award. In my view, having remained "seized" in respect to remedy, I clearly have jurisdiction over the Employer's implementation of ``option three". The collective agreement addresses the scheduling of regular part-time hours in Article 16.06 (b)(1). That provision reads: (b) Part-time Hours of Work Distribution and Scheduling Rules (1) The Posted Schedule (i) Hours on the posted schedule are to be assigned first to RPTs in order of seniority up to twenty-four (24) hours (or the three shift equivalent in the case of 7.5 hour shifts) per week. All RPTS would be assigned one shift before anyone is assigned tow, then all RPTs would be assigned two shifts before anyone was assigned three and so on ("shift by shift basis"). (ii) After all RPTs are at twenty-four (24) hours per week, or the three shift equivalent in the case of 7.5 hours shifts, casual part-timers (CPTs) can be scheduled up to one shift per week. (iii) Additional regular and continuing hours that are available to be assigned on the posted schedule are to be assigned to RPTs in declining order of seniority (on a shift by shift basis) and then to CPTs in declining order of seniority (on a shift by shift basis). This provision clearly contemplates scheduling in seniority order, on a shift by shift basis - not equalizing the hours among all RPTs regardless of seniority. 4 I find no issue with the Employer's hiring of the fifth regular part-time clerk. It had a valid concern that adding the ten switchboard/registration clerk hours to the existing staff would result in one or more of them becoming full-time is legitimate. There is no provision in the collective agreement, however, allowing the Employer to equalize the available hours among the clerks. The collective agreement requires that hours be scheduled, on a shift by shift basis, by seniority. The Employer did not argue or claim estoppel. Consequently, this was an improper implementation of "option three" of the earlier Award. In terms of the Employer's alternative argument — that evidence would need to b led in regard to these issues — I see no basis to conclude that additional evidence is required. There was no suggestion that the facts regarding the implementation of "option three" are in dispute, and, as noted, no claim of estoppel was raised. D. Conclusion 1. The Employer is ordered to compensate the Union for the breach of Article 11.05(a) for the period of the breach. That would include the difference in salary and benefits for the duration of the period in which the position was full-time without posting. 2. The Union may not raise the issue of the duties of the lead hand as part of this grievance. 3. The Employer has improperly implemented "option three" of my earlier Award by equalizing hours arnong the five regular part-time switchboard/registration clerks. The Employer is to cease that practice and follow the collective agreement in terms of scheduling. Any lost hours are to be paid to the affected employees. 4. 1 shall remain seized. Issued this 17th day of February, 2016. /s/ Randi H. Abramsky Randi H. Abramsky, Arbitrator