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HomeMy WebLinkAboutUNION-1986-22-05 rY(tto ! <i;G ,;"-'''t,/ 'v' '-" ilO'__- p'lf) /'. '- _ , '-""i. t 614 252I-85-U The Association of Allied Health Professionals: Ontario, Complainant, v. Etobicoke General Hospital, Respondent Change in Working Conditions - Hospital Labour Disputes Arbitration Act - Unfair Labour Practice - History of incorrect payment for statutory holidays under collective agreement - Employer correcting error during freeze period - History constituting privilege and prevailing over term in agreement BEFORE: Judge R. S. Abella, Chairman, and Board Members W. G. Donnelly and K. Rogers. APPEARANCES: Sandra Nicholson on behalf of the applicant; Paula M. Rusak, John Walker, and H. Issac for the respondents. DECISION OF THE BOARD; May 22, 1986 1. This is a complaint that the grievors have been dealt with by the respondent contrary to section 13 of the Hospital Labour Disputes Arbitration Act. 2. The parties have had a collective bargaining relationship since 1975. The last collective agreement between the parties terminated on December 31, 1983. The parties were unable to conclude a renewal of the collective agreement. They met with a Conciliation Officer as a result of which a "no collective agreement" report was issued on June 14, 1985. The matter was referred to a Board of Arbitration and heard in October, 1985. No award had issued as of the hearing of this complaint. 3. The four grievors work in the Crisis Intervention Centre of the Etobicoke General Hospital. Two work part-time and two work full-time. The Centre operates 7 days per week on rotating shifts. 4. Each of these employees since their hirings in 1984 and 1985 has been paid for designated holidays in a manner at variance with Article 16 of the Collective Agreement. When hired, this manner of payment was expressed to be part of their employment. In the latter part of 1985, after the Board of Arbitration hearing was concluded, these employees were advised that they would no longer be paid for designated holidays, that there would be a change in policy in how these days would be paid for, and that section 16.03 of the Collective Agreement does not require the Hospital to pay for these holidays. Each employee was asked to take days off without pay before the end of March, 1986 to compensate the Hospital for having paid them for Christmas and Boxing Days. 5. Section 13 of the Hospital Labour Disputes Arbitration Act states: Notwithstanding subsection 79(1) of the lLlbour Relations Act. where notice has been given under section 14 or 53 of that Act by or to a trade union that is the bargaining agcnt for a bargaining unit of hospital employees to which this Act applies to or by the employer of such employees and no collective agreement is in operation. no such employer shall. except with the consent of the trade union. alter the rates of wages or any other term or condition of employment or any right. privilege or duty of the employer. the trade union or the employees. and no such trade union shall. except with the consent of the employer. alter any 615 tenn or condition of employment or any right. privilege or duty of the employer. the trade union or the employees. until the right of the trade union to represent the employees has been terminated. R.S.O. 1970. c.208. s.10. 6. John Walker, the Assistant Administrator in charge of professional services at Etobicoke General Hospital stated that to the best of his knowledge, the practice of paying employees in the Crisis Intervention Centre for statutory holidays has been ongoing for at least the 2 1/2 years he has been in his position. In July or August, 1985, he discovered to his surprise when investigating a "large and growing variance" between the actual expenses and the budget in the salary line of the Crisis Intervention Team's Salary Statements, that employees were being paid for statutory holidays improperly. Because this, in his view, was contrary to Article 16.03 of the collective agreement, in late November or early December he informed the union of the situation and instructed the Department Head to inform the employees that in future the terms of the collective agreement would be applied. 7. Article 16.03 of the expired collective agreement states: 16.03 An employee who is required to work on a designated holiday will be given an unpaid day off at a time that is mutually acceptable to the Hospital and the employee. No more than three (3) such days ma:f be accumulated. The respondent argues that the section 13 "freeze" provision ensures that the pre-existing rights of an employer and union are frozen. Since the employer had the right, prior to the freeze, to correct the error that resulted in overpayment, that right continues during the '''freeze'' provisions. 8. As previous Board jurisprudence has shown, the purpose of "freeze" provisions such as section 13 is to maintain a "pattern of business" between the employer and union, requiring the employer to continue to operate its workplace in accordance with its pattern prior to the "freeze". Although the specific terms of a pre-existing collective agreement are instructive in ascertaining what constitutes a prior pattern, they are not necessarily determinative. Where, as in this case, both during the subsistence and after the expiration of the collective agreement, employees enjoy the benefit of a term of employment and where, moreover, they are hired on the express understanding that this term exists, it is not open to an employer to change this term during the "freeze" period simply because it discovers and wishes to correct an oversight. 1n these circumstances, where there is a conflict between a provision in the collective agreement and an historic pattern of payment, the pattern prevails during the "freeze". The reasonable expectations of the employees, based on their being hired on the express understanding that the term of employment in question existed and based on the practice of the Hospital to pay them this way, created a "privilege". This privilege is preserved by section 13 and prevails over the Hospital's right to correct an oversight in the enforcement of an expired collective agreement. 9. For all of the above reasons, we find that the respondent violated section 13 of the Hospital Labour Disputes Arbitration Act in the manner described above. The respondent is hereby directed to compensate the grievors for all losses sustained as a result of that violation and reinstate its previous payment and scheduling practices regarding statutory holidays. In making its decision, the Board reviewed the following cases: The Metropolitan Toronto Civic Employees' Union Local 43, Canadian Union of Public Employees v. The Municipality of Metropolitan Toronto, M. Teplitsky, Q.c., Murray Tate and M. Patrick Moran, (1985), 50 - ... - 616 O.R. (2d) 618; Local 304 Canadian Union of United Brewery Flour, Cereal, Soft Drink and Distillery Workers v. Molson's Brewery (Ontario) Limited, Toronto, [1977] OLRB Rep. Aug 526; Ontario Public Service Employees Union v. Oshawa General Hospital, York-Finch General Hospital, [1985] OLRB Rep. Jan. 98; A.N. Shaw Restoration Ltd. v. Operative Plasterers and Cement Masons International Association of the United States and Canada Local Union No. /27, [1978] OLRB Rep. June 479; Re Domglas Ltd. and United Glass and Ceramic Workers, Local 203, (1980), 26 L.A.C. (2d) 94 (Burkett); Ontario Nurses' Association v. Women's College Hospital, [1981] OLRB Rep. May 597; Re United Electrical Workers, Local 5/2 and Standard Oil Products (Canada) Ltd. (1971), 22 L.A.C. 377 (Weiler). 10. The Board will remain seized of this matter in the event that a dispute arises conceming the interpretation, implementation or quantification of the Board's order. DISSENT OF BOARD MEMBER W. G. DONNELLY; 1. I accept the view expressed in the decision in the case of the Ontario Nurses' Association and Women's College Hospital, Board File 2703-80-U dated May 4, 1981. At page 600 paragraph 9 which states in part, "Accordingly it would be wrong to conclude that management is precluded from making changes. of any sort during the freeze period because the Board has held that, at the very least, it can continue to exercise it's specific rights under the collective agreement". 2. The Board added in paragraph 11 thereof "There is an express right to do something in the collective agreement and that right may be exercised in the freeze period to the same extent that it could be exercised before the freeze period set in." 3. These statements are clear and unequivocal. 4. The majority decision of the Board in the instant case recognizes, in paragraph 8 thereof, "The Hospital's right to correct an oversight in the enforcement of an expired collective agreement."