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HomeMy WebLinkAboutUNION-1990-29-01 , - IN THE MATTER OF AN ARBITRATION BET WEE N: THE 'SALVATION ARMY GRACE GENERAL HOSPITAL - OTTAWA - and - THE ASSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARIO POLICY GRIEVANCE RE RESPONSIBILITY PAY BOARD OF ARBITRATION: JANE H. DEVLIN CHAIRMAN RICHARD H. STANSEL HOSPITAL NOMINEE DAINA Z. GREEN ASSOCIATION NOMINEE APPEARANCES: FOR THE HOSPITAL: D.A. PEARLMAN FOR THE ASSOCATION: DIANNE NICHOLAS o:-\-_r-" :r-O r~" ....l-l,-.I'.,.. -,-,~ i\i- ''"- '1_ l t-v 3 ..;."':J)t'l !.:;~u 1 The grievance which was filed by the Association involves a claim for responsibility pay pursuant to Article 18.9 of the Collective Agreement which is as follows: 18.9 RESPONSIBILITY PAY An employee who is required to accept the responsibility and carry out the duties of a Department Head for a minimum period of five (5) consecutive scheduled working days will be paid a responsibility allowance of one dollar and seventy-five ($1.75) per hour for all hours worked in such capacity. In this case, responsibility pay is claimed for a period of approximately four months during which Susan Head performed the duties of the position of Assistant Director of Physiotherapy. Prior to this appointment, Ms. Head was a member of the bargaining unit working as a part-time Physiotherapist. The issues raised in the grievance are twofold; firstly, did Ms. Head remain in the bargaining unit during the period in which she temporarily performed the duties of the Assistant Director of Physiotherapy and secondly, was Ms. Head entitled to responsibility pay in accordance with Article 18.9. Although the Hospital did not take issue with the Board's jurisdiction to deal with the initial issue, the Hospital submitted that the second issue was not the proper subject of an Association grievance as Ms. Head elected not pursue an individual claim for relief. 2 The evidence in this case consisted of an agreed statement of fact which was supplemented by oral evidence introduced by the Association. This evidence included extrinsic evidence in support of the Association's position that Article 18.9 of the Collective Agreement is ambiguous. The Board ruled that it would hear this evidence and reserve on the issue of ambiguity. The agreed statement of fact is as follows: 1. The Salvation Army Grace General Hospital is a 202 bed general community Hospital located in the city of ottawa. 2. The Association of Allied Health Professionals: ontario represents approximately 34 employees in the classifications of Health Record Administrators, Master of Social Work, Pharmacy Technicians, Pharmacists, Dietitians, and Physiotherapists. There are 8 full time, part time and casual Physiotherapists employed at the Hospital as of this date. 3. The Collective Agreement covering the period 1 April 1987 through 31 March 1988 (with wage re-opener for an additional 12 months) signed December 8, 1987 following a memorandum of agreement 17 September 1987. 4. The grievance relates to a change in status involving a Physiotherapist named Susan Head. Ms. Head was removed from the bargaining unit on November 30, 1987. Her salary was amended to one outside that in the Collective Agreement and specifically she did not receive her Physiotherapy rate of pay plus $1.75 per hour as per article 18.9 of the Collective Agreement. 5. A policy grievance dated December 4, 1987 was received by the Hospital December 14, 1987. The matter was heard by the Hospital January 6, 1988 and the Executive Director of the Hospital responded by letter January 12, 1988. (Grievance - Exhibit "B", 3rd stage response - Exhibit "C"). 3 6. It is agreed that the position of Assistant Director - Physiotherapy is one excluded from the bargaining unit and that this was resolved after discussions with an officer of the ontario Labour Relations Board 30 October 1986. Negotiations for the renewal of the Collective Agreement commenced May 11, 1987 and were resolved by the parties as noted. No issue was raised regarding article 18.9. 7. Ms. Kathleen O'Neill, the Assistant Director of Physiotherapy applied for a leave of absence for sickness and left the Hospital on November 27, 1987. Her maternity leave commenced on February 2, 1988. 8. The Hospital posted for a temporary Non Union vacancy, Assistant Director of Physiotherapy on 16 September 1987. (Exhibit "D" - job posting). Two bargaining unit employees, Ms. Mary Paterson and Ms. Susan Head applied for the position. Ms. Head applied September 17,1987. (Exhibit "E" - application). 9. Ms. Kathleen O'Neill terminated her employment at the Hospital on March 9, 1988. The position was posted as a permanent position on March 11, 1988. The union agrees that their claim for responsibility pay ceases when the position was filled on a permanent basis. Ms. S. Head was transferred to the permanent full-time Assistant Director position in the Physiotherapy Department effective April 4, 1988. 10. The Hospital advised the Association that they had reserved the right to raise a number of preliminary objections in their letter of January 30, 1988 appointing Mr. Stansel to this board (Exhibit "F"). And more specifically by correspondence January 17 and January 28, 1989. (Exhibit "G" & "H"). The evidence called by the Association was as follows: Susan Head began her employment with the Hospital in 1975 and in the fall of 1987 was working as a part-time Physiotherapist. At that time and, in accordance with the Collective Agreement, she was being paid $18.01 per hour and 14% in lieu of fringe 4 benefits. Ms. Head was also a bargaining unit representative and a member of the Association's negotiating committee. The posting to which Ms. Head responded on September 17, 1987 was for a temporary full-time vacancy in the position of Assistant Director of Physiotherapy. The posting indicated that the position was non-union and that the successful applicant would be replacing an employee on maternity leave. Ms. Head was interviewed for the position by Ann Gordon, the Director of the Physiotherapy Department, Kathleen O'Neill, the incumbent Assistant Director of Physiotherapy and Janet Clermont, a Personnel Officer. Ms. Head was the successful applicant for the temporary position and testified that shortly before she began work in the position, she was advised by Mrs. Gordon and Ms. O'Neill that she would be paid her hourly rate of $18.01 and an additional $.75 per hour. She was also to continue to receive 14% in lieu of fringe benefits. Ms. Head testified that at the time of her application for the temporary vacancy, she did not turn her mind to her continued status as a member of the bargaining unit. While occupying the temporary position, however, Ms. Head assumed that she would be entitled to certain benefits of the Collective Agreement. In particular, she believed that she would continue to accumulate seniority and that, if necessary, she would be laid off in accordance with the Agreement. Ms. Head also understood 5 that when the temporary position came to an end, she would return to her duties as a part-time Physiotherapist. As indicated in the agreed statement of fact, however, this is not what occurred. Instead, Ms. O'Neill resigned her employment with the Hospital in the spring of 1988 and Ms. Head was the successful applicant in the job competition for the permanent vacancy in the position of Assistant Director of Physiotherapy. Ms. Head was appointed to the position effective April 4, 1988. Thereafter, she was paid in accordance with the management salary scale and she began to receive health and welfare benefits rather than a percentage in lieu of fringe benefits. There was, however, no change in her job duties from those of the temporary position. Ms. Head testified that in both the temporary and permanent position of Assistant Director of Physiotherapy, she rotated responsibility for in-patient and out-patient services with the Director, Mrs. Gordon and that there was no difference in their duties in this regard. In addition, Ms. Head performed traditional management functions such as hiring staff, imposing discipline and conducting performance appraisals. She also performed or was of the opinion that she had authority to perform the duties of a "Supervisor" and a "Department Head" as described in the Collective Agreement. These duties include matters such as extending an employee's probationary period, granting or extending maternity or adoption leave, authorizing overtime and granting emergency leave. 6 When Ms. Head began performing the duties of Assistant Director of Physiotherapy on a temporary basis in late November of 1987, she contacted Susan McColloch, a Labour Relations Officer with the Association, to resign her position as a bargaining unit representative. Ms. McCulloch explained that it is the policy of the Association not to permit employees performing management duties on an acting or temporary basis to be involved in union activities although they are entitled to vote on ratification of the Collective Agreement. In any event, during the conversation, Ms. Head advised Ms. McCulloch that in the temporary position, she would be receiving her hourly rate of $18.01 with the addition of $.75 per hour. Ms. McCulloch indicated that in her view this was not appropriate and that Ms. Head was entitled to be paid in accordance with Article 18.9 of the Collective Agreement. Ms. McCulloch urged Ms. Head to raise the matter with Mrs. Gordon arid, if necessary, to file a grievance. In fact, Ms. Head did raise the matter with Mrs. Gordon who expressed the view that Ms. Head was no longer a member of the bargaining unit and, therefore, was not entitled to be paid in accordance with the Collective Agreement. Ms. Head testified that she considered her discussion with Mrs. Gordon to constitute the complaint stage of the grievance procedure but that she did not pursue the matter further or file an individual grievance. 7 Ms. McCulloch prepared the policy grievance which is before the Board in early December of 1987. She testified that the grievance raised a matter in which the Association had an interest and that she did not believe that the Association's right to grieve was affected by whether or not an individual grievance had also been filed. In fact, Ms. McCulloch believed that Ms. Head had filed such a grievance and it was not until the third step meeting that she realized this was not the case. Apart from evidence of the events leading up to the filing of the grievance, the Association also introduced evidence of the practice at other Hospitals where the Association is a party to Collective Agreements which contain provisions similar to Article 18.9. In this regard, Ms. McCulloch testified that she was aware of one instance at the ottawa civic Hospital where an employee was compensated in accordance with such a provision when replacing the Assistant Director of Occupational Therapy during a period of maternity leave. certain Physiotherapists at the Hospital were also compensated on this basis when acting temporarily in a management capacity. A Speech Language Pathologist at St. vincent Hospital who replaced the Director was similarly compensated as was a Psychologist at the Queensway Carleton Hospital who assumed the duties of the Manager. Ms. McCulloch testified that, in each case, the employee remained a member of the bargaining unit and at least at the Ottawa civic 8 Hospital, employees were required to perform all of the duties of the management position. In this case, Article 18.9 of the Collective Agreement provides for the payment of responsibility pay when an employee is required to accept the, responsibility and carry out the duties of a Department Head for a minimum period of five consecutive scheduled working days. While there is some dispute between the parties, concerning the meaning to be attributed to the term "Department Head", there is no dispute that this is intended to refer to a position outside the bargaining unit. Article 18.9, therefore, specifically contemplates that employees may perform the duties of a managerial position and yet remain members of the unit entitled to the rate of pay provided for in the Collective Agreement. Article 18.9 is also not restricted to instances in which employees perform some but not all of the duties of a Department Head. Instead, the Article applies when an employee is required to accept "the responsibility and carry out the duties" of the position. In the result, we do not accept the submission of the Hospital that Article 18.9 has no application because Ms. Head performed all of the duties of the Assistant Director of Physiotherapy which included certain traditional ~anagement functions. 9 We are also unable to accept the submission of the Hospital that Article 18.9 has no application because Ms. Head voluntarily responded to a job posting and was not simply assigned the duties of the position. If this were the case, the Hospital could avoid its obligation under Article 18.9 merely by posting a temporary vacancy rather than by assigning the duties directly. This is not to say that there is any requirement for the Hospital to offer such temporary assignments to members of the bargaining unit. In the event that the Hospital does so, however, it must comply with the requirements of Article 18.9. It was the evidence of Ms. Head that while in the temporary position, she believed that she remained entitled to certain benefits of the Collective Agreement and that when the temporary position came to an end, she would return to her former position as a part-time Physiotherapist. Although the Hospital took the position that Ms. Head was excluded from the bargaining unit during the period of the temporary assignment, it is noteworthy that it was not until Ms. Head's appointment to the position on a permanent basis that she was actually paid in accordance with the management salary scale. In any event, in our view, the parties did not intend that employees would cease to be membars of the bargaining unit ~ when performing the duties of a maI~agement position on a temporary basis for a leave of absence such as the maternity 10 leave in this case. For this reason, they undoubtedly included a provision such as Article 18.9. Although this provision applies only when an employee performs the duties of a Department Head, it seems inconceivable that the parties intended an employee to remain a member of the bargaining unit in these circumstances and yet be excluded from the unit when performing the duties of another and perhaps less senior management position. In the result, we find that Ms. Head remained a member of the bargaining unit while temporarily assigned to the position of Assistant Director of Physiotherapy. The next issue to be determined is whether the duties and responsibilities exercised by Ms. Head were those of a "Department Head" within the meaning of Article 18.9. In this regard, the evidence indicates that there is no position of "Department Head" either in the Physiotherapy Department or in any other Department of the Hospital in which the Association represents employees. Instead, there are Directors in all Departments and in the Physiotherapy Department, there is also an Assistant Director. It was not seriously suggested that the absence of the position title "Department Head" is fatal to the Association's claim in this case. The parties clearly intended Article 18.9 to have some application and, therefore, it is appropriate to determine the nature of the duties which give rise to the payment 11 responsibility pay in accordance with Article 18.9. In this regard, the term "Department Head" is generally understood to refer to the position with overall responsibility for a Department. In Departments other than Physiotherapy, such responsibility resides with the Director. It was the submission of the Hospital, however, that in the Physiotherapy Department, a distinction must be drawn between the Director and the Assistant Director and that Article 18.9 does not apply to an employee temporarily assigned to this latter position. Despite this submission, however, the Hospital offered no evidence of any distinction in the duties of the Director and Assistant Director of Physiotherapy. The only evidence of the duties of these positions was given by Ms. Head who testified that while in the temporary position, she and Mrs. Gordon rotated responsibility for in-patient and out-patient services and that there was no difference in their duties in this regard. Ms. Head also testified that she either performed the duties of a "Department Head" as set out in the Collective Agreement or was confident that she had authority to do so. In the result and in the absence of any evidence to suggest any distinction between the duties of the Director and the Assistant Director of Physiotherapy, we find that the position of Assistant Director of Physiotherapy is equivalent to that of a Department Head within the meaning of Article 18.9 of the Collective Agreement. 12 The final issue to be determined relates to a submission by the Hospital that the Board is precluded from awarding monetary relief to the Association pursuant to the provisions of Article 18.9. In this regard, the Hospital contended that the Association is estopped from advancing such a claim as Ms. Head abandoned a claim for responsibility pay following the complaint stage. In our view, however, the submission of the Hospital cannot prevail. In this case, no individual grievance was ever filed and the fact that Ms. Head raised the issue of payment with Mrs. Gordon at the complaint stage is not sufficient to bar the Association from claiming similar relief by way of a policy grievance. Not only is it now widely recognized that a policy grievance may give rise to monetary relief but in this Collective Agreement, there is no provision disentitling the Association from advancing a claim which relates to an individual employee. In other words, there is nothing in the Agreement to the effect that individual and Association grievances are mutually exclusive. The claim in this case involves a complaint concerning the interpretation and administration of the Agreement and, therefore satisfies the requirements of an Association grievance as provided in Article 8.4(d). In the result, the grievance is allowed. We find that during the period in which Ms. Head performed the duties of the Assistant Director of Physiotherapy, she remained a member of the 13 bargaining unit. Accordingly, the Association is entitled to union dues as requested in the grievance. We also find the Association entitled to responsibility pay on Ms. Head's behalf in accordance with Article 18.9. For the reasons outlined above, we see no basis for denying this aspect of the relief claimed. The Board shall remain seized for purposes of implementation of this award. DATED AT TORONTO, this 29th day of January, 1990. .10 UL k tfc;;l~ Chairman See dissent attached Hospital Nominee "Daina Z. Green" Association Nominee DISSENT OF R. H. STANSEL I find that I must dissent from the finding of my colleagues on the Board. In my opinion, the wording of Article 18.9 of the collective agreement does not necessarily contemplate a fact situation such as that presented in this case to the extent that the employee would remain a member of the bargaining unit. Contract language reads: "Required to accept". In my mind, this has a connotation of an assignment by management rather than applying to the successful applicant to a temporary position on a job bid. I have no difficulty in the event of an assignment with the employee remaining in the bargaining unit, however, in the event of a job bid for a nonunion posted position I do have some difficulty with the employee remaining in the bargaining unit. Why would the Hospital go to the effort of posting the position if the position was to remain in the bargaining unit? Surely they would simply assign the most senior staff member from within the bargaining unit and avoid the time and effort of going through the posting procedure. It is obvious to me that the Hospital clearly felt this to be a non-bargaining unit position. In fact, there are no restrictions in the collective agreement to prevent the Hospital from advertising the position outside the Hospital entirely, and bypassing the internal posting procedure. In my opinion, the Hospital posted this position internally in order to give present employees preferential treatment and for no other reason. This is quite often done by employers as a matter of policy to foster good employee relations and to bolster morale. I find it quite inconceivable that the Hospital would agree to contract language that would provide to a bargaining unit employee the rights to hire, ~ire and discipline fellow bargaining unit employees. This is simply a ridiculous situation that eradicates well established managerial hierarchy organizational structures. It is clear in my mind that the Assistant Director position is a nonunion position, and when Ms Head was filling this position she in fact was not a member of the bargaining unit. Accordingly, I would deny the grievance in its entirety. ~~><t ~~;d~. Stansel