HomeMy WebLinkAboutSAMSON, UNION-1994-14-10
IN THE MATTER OF AN ARBITRATION
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BETWEEN:
TORONTO EAST GENERAL AND ORTHOPAEDIC HOSPITAL
the Hospital
AND:
ASSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARIO
the Association
Grievances Concerning the Classification of
Intermediate Technologist
BOARD OF ARBITRATION:
Jane E. Emrich
Wl11i~m S. Cook
Sandra Nicholson
Chair
Hospital Nominee
Association Nominee
APPEARANCES:
For the Hospital:
C.G. Riggs
Counsel
Hicks, Morley, Hamllton,
Stewart & Storie
For the Association:
C.J. Wilkey
Counsel
Cornish Advocates
Hearlng held at Toronto, Ontario on May 6, December 3, 1992
March 12, June 7, 14 and 25, 1993.
I INTRODUCTION
The parties placed before the Board for determination four policy grievances
and one individual grievance illed during the period from December 1990 through
October 1991. In the policy grievances, the Association claims that the Hospital
had Violated the collective agreement by its refusal or omission to post and illl
various vacancies in the Intermediate Technologist (Technologist 11) classification.
In the individual grievance illed on behalf of Rolando Samson, the Association
claims that the grievor, although classified and paid as a Registered Technologist
(Technologist n, was required to perform the work and assume the responsibilities
of an Intermediate Technologist and therefore ought to be classified as a
Technologist II. In substance, the Association alleges that the Hospital acted in
bad faith for the improper purpose of subverting the express terms of the interest
arbitration award which had continued a three tier classification structure for
Registered Technologists at junior, intermediate and senior levels. Even in the
absence of bad faith, the Association contends that the Hospital's failure to post
vacancies in the Intermediate Technologist classification as they arose and the
Hospital's payment of a responsibility allowance to Registered Technologists
assuming the duties of Intermediate Technologists constituted a violation of the
seniority and wage grid provisions of the collective agreement.
The collective agreement provisions relevant to the dispute are the following:
ARTICLE 3 - MANAGEMENT RIGHTS AND RESPONSIBILITIES
3.01 The Association recognizes that the management of the
Hospital and the direction of working forces are fixed
exclusively in the Hospital and shall remain solely with the
Hospital, except as specifically limited by the express
provisions of this Agreement, and without restricting the
1
generality of the foregOing, the Association acknowledges that
it is the exclusive function of the Hospital to:
a) maintain order, discipline and efficiency;
b) hire, assign, retire, discharge, direct, promote, demote,
classifY, transfer, layoff, recall and suspend or otherwise
diScipline employees, provided that a claim by an
employee who has completed her probationary period,
for discharge or discipline without cause, may be subject
of a grievance and dealt with as hereinafter provided;
c) determine in the interest of efficient operation and
highest standard of service, job rating or classification,
the hours of work, the working establishment for any
service, tours of duties, working schedules, and the
location of work;
d) generally to manage the operation that the Hospital is
engaged in and without restricting the generality of the
foregOing to determine the standard of performance, the
number of personnel required, the services to be
performed and the methods, procedures and equipment
in connection therewith;
e) generally to operate the Hospital in a manner consistent
with the obligations of the Hospital to the general public:
f) make, enforce and alter, from time to time, reasonable
rules and regulations to be observed by the employees
not inconsistent with the provisions of this Agreement.
3.02 The Hospital agrees that the above rights shall not be exercised
in a manner that is inconsistent with the terms of this
Agreement.
3.03 Each new employee shall receive, at the time of hire, a letter
stating salary, classification, the salary range for the
classification in accordance with Schedule "A", and credit
granted for recent related experience, if any, in the
determination of salary.
3.04 The Hospital agrees to provide each employee with a copy of
the Collective Agreement. The Association and the Hospital
shall share equally in the cost of printing the Collective
Agreement. The Hospital also agrees to provide new
employees, at the time of orientation, with an information sheet
supplied by the Association.
2
3.05 When a new classification (which is covered by the terms of
this Agreement) is established by the Hospital, the Hospital
shall notifY the Association in Writing of the salary and job
description before the position is posted. If the Association
challenges the rate, it shall have the right to request a meeting
with the Hospital to endeavour to negotiate a mutually
satisfactory rate. Such request will be made within ten (10)
days after the receipt of notice from the Hospital. When
determining the appropriate rate, it is understood and agreed
that internal equity must be a prime factor and such relativity
should be maintained. Neither the meetings between the
Association and the Hospital nor referral to Arbitration shall
delay the implementation of the wage rate.
ARTICLE 14 - PROMOTIONS
14.01
An. appointment to a new position constitutes a promotion
where:
14.02
i) the maximum rate of pay applicable to a new position to
which the appointment is made exceeds the maximum
rate of pay applicable to the position held immediately
prior to the appointment, and additionally:
ii) the position to which the employee is appointed requires
additional responsibilities.
An employee who is promoted to a higher rated classification
within the bargaining unit will be placed on the grid of the
higher rated classification so that she shall receive no less an
increase in salary than the equivalent of one step on the salary
rate of her previous classification (provided that such increase
does not exceed the salary range of the classification to which
she has been promoted).
14.03
a)
Prior to an appointment to a new or vacant position in
the bargaining unit, the Hospital shall post a notice of
the vacant or new position, including temporarily vacant
positions for a period in excess of six (6) months, on the
bulletin board provided for that purpose by the Hospital
for a period of five (5) working days, exclusive of
Saturday, Sunday and statutory holidays. (A vacancy
shall be defined as a permanent opening, a temporarily
vacant position for more than six (6) months, or where
the number required by the Hospital in the classification
exceeds the number in the classification.) Applicants
may make Written application for such job vacancy
within the period specified in the posting. In the event
3
14.04
14.05
14.06
14.07
14.08
14.09
that a posted position is illled by a member of the
bargaining unit, the newly created vacancy need only be
posted for two (2) working days, exclusive of Saturday,
Sunday and statutory holidays.
b) This posting procedure desCribed in a) above may be
altered or eliminated by mutual consent of the Hospital
and the Association.
ln cases where qualifications, performance, ability and
experience are relatively equal, seniOrity shall be the deciding
factor when decisions are made with regard to promotions to
the above-mentioned positions. Intemal applicants who apply
in response to a general advertisement of the job will be given
preference in consideration of their seniority with the Employer
if all other matters of qualifications are relatively equal to those
of an outside applicant.
An employee may make a written request for transfer or
promotion by filing a Request for Transfer Form with the
Personnel Office, indicating her name, qualifications,
experience, present area of assignment, seniOrity and
requested area(s) of assignment. A Request for Transfer or
Promotion shall become active as of the date it is received by
the Hospital and shall remain so until December 31 follOwing.
Such requests will be considered as applications for posted
vacancies.
At the request of the employee, the Hospital will discuss with
the unsuccessful applicants ways in which they can improve
their qualifications for future postings.
No employee shall be transferred to a position outside this
bargaining unit without her consent.
If, follOwing an intemal job posting, no persons apply or no
applicants have the necessary qualifications, performance,
ability and experience, in the opinion of the Hospital, then the
Hospital may illl the job in its discretion.
Status of an employee who is promoted pursuant to the
provisions of this clause is probationary for a period of three (3)
consecutive months. In the event that the employee proves
unsatisfactory in the opinion of the Hospital, or the employee
is not satisfied with the position, during this period, she will be
returned to her former position and salary without loss of
seniority and any other employee promoted or transferred
because of the initial promotion shall also be returned to her
former position and salary without loss of seniority.
4
ARTICLE 23 - SALARIES AND ALLOWANCES
23.01
23.05
The employees who work the maximum hours provided by this
Agreement (not including overtime) whether received by
monetary" or lieu time compensation, shall receive the monthly
salaries set out in Schedule "A". Employees working less than
their regular hours (3731,) will have their salary pro rated.
Responsibilitv Allowance
Where an employee is assigned temporarily to perform the
duties and assumes the responsibilities of a higher-paying
classification for a period in excess of half (31,) a shift, she shall
be paid responsibility allowance of $3.00 per seven and one-
half (731,) hour shift worked in such capacity and $4.50 per
twelve (12) hour shift worked in such capacity.
. MONTHLY SALARY SCHEDULES
REGISTERED TECHNOLOGIST (TECHNOLOGIST n
Current
Apr. 1/88
Apr. 1/89
oct. 1/89
Apr. 1/90
2 3 456 7 8 9
2525 2581 2637 2692 2747 2802
2576 2673 2715 2764 2826 2882 2944 3014
2627 2767 2810 2860 2932 2990 3055 3127
2627 2767 2810 2860 2932 2990 3055 3127 3174
10
1
2732 2878 2922 2975 3049 3109 3177 3252 3301 3350
INTERMEDIATE TECHNOLOGIST (TECHNOLOGIST II)
Current
Apr. 1/88
Apr. 1/89
Oct. 1/89
Apr. 1/90
1
3
5
10
6
7
8
9
2
4
2692 2752 2811 2871 2931 2990
2723 2849 2894 2946 3013 3072 3140 3216
2800 2950 2995 3049 3125 3187 3260 3336
2800 2950 2995 3049 3125 3187 3260 3336 3387
2912 3068 3115 3171 3250 3314 3387 3467 3522 3574
5
SENIOR TECHNOLOGIST (TECHNOLOGIST III)
1 2 3 4 5 6 7 8 9 10
Current 2871 2935 3000 3063 3127 3191
Apr. 1/88 2929 3039 3087 3143 3213 3277 3347 3433
Apr. 1/89 2987 3146 3195 3252 3334 3400 3474 3562
Oct. 1/89 2987 3146 3195 3252 3334 3400 3474 3562 3615
Apr. 1/90 3106 3272 3322 3382 3467 3535 3612 3697 3753 3814
II FACTS
Evidence on behalf of the Association was tendered through the
Association's Executive Director, Ms. Catherine Bowman, as well as through Lois
Bishop, Erica Herrera and Paula Alves-Wilson, each of whom were or had been
classified as Technologists II, also known as Intermediate Technologists. Two
registered technologists classified as Technologist I, Ramon Ombao and Rolando
Samson, also testified conCerning their job duties and changes to those duties as
a result of the reassignment of duties formerly carried out by the Technologist II
classification. No witnesses were called on behalf of the Hospital.
Ms. Bowman testified that there had been a three tier classification system
in place for Registered Technologists at the Hospital even prior to AAH.P.O:s
displacement certification in 1981. Progression between levels is through
promotion, rather than automatic progression and is governed by Article 14.04,
a competitive seniority provision. The evidence adduced pertains to the
bargaining history leading up to the events which culminated in the illing of the
grievances, as well as events pertaining to vacancies which the Association alleges
should have been posted and illled. Evidence was adduced pertaining to the
6
Association's claim t.l1at responsibility pay was being applied in breach of the
collective agreement rather than the posting and promotion provisions of the
collective agreement.
ill BARGAINING HISTORY
In the 1988-91 round of bargaining, the Hospital proposed that the
classification structure of O.P.S.E.U. bargaining units be adopted. The Hospital
submitted that most registered technologists in Toronto and throughout Ontario
are represented by 0.P.S.E.U. and the centrally bargained O.P.S.E.U. rates
constitute a normative standard for pay. In its brief before the interest arbitration
board chaired by Arbitrator Gorsky for the 1988-91 round, the Hospital submitted
that adoption of the O.P.S.E.U. classification structure and wage grid would
proVide equitable treatment. The Hospital further submitted that the history of
the parties' negotiations demonstrated that the parties desired to mirror the
results of central bargaining between the Participating Hospitals and O.P.S.E.U.
The central O.P.S.E.U. classification structure is three-tiered and is compromised
of registered technologists (also called general duty technologists), senior
technologists and charge technologists. In converting to the O.P.S.E.U. system,
the Hospital took the position that Technologists II (Intermediate Technologists)
would fall within the standardized definition of registered technologists in the
O.P.S.E.U. system. The Hospital also took the position that the O.P.S.E.U.
def"mitlon of charge technologist corresponded to the excluded position of Chief
Technologist at the Hospital. The effect of the Hospital's proposal would be to
collapse the three tier structure to two categories of technologists falling within the
7
scope of the bargaining unit. In making its proposal to convert the parties' system
of classifYing registered technologists to the O.P.S.E.U. system, the Hospital
proposed to apply the defmitions and allocation criteria developed for the
O.P.S.E.U. system without modification. The Association opposed assimilation to
the O.P.S.E.U. system, contending that the O.P.S.E.U. definitions and criteria
were not related to the functional needs of the Hospital.
The Association opposed the Hospital's proposal not only on substantive
grounds, but also because of the process the Hospital took to advance its position
prior to interest arbitration. Filed before us was the brief presented by the
Association to the interest board of arbitration chaired by Professor Morley Gorsky
to determine outstanding issues for the 1988-91 round. The hearing took place
on August 8, 1989. In respect to the issue of classification restructuring, which
included the issue of eliminating the classification ofIntermediate Technologist,
the Association detailed its position at pp.63-64:
The Association does not want this Board to think that it is totally
opposed to change just because it means a deviation from the status
quo, It is opposed to this move because it will not in any way
improve the operation of the Hospital or the services it provides.
This is not an OPSEU unit and the current classification structure
has been developed to meet the functional needs of this Hospital.
Nothing has been presented by the Hospital to show that it is no
longer appropriate.
The AsSOciation is also opposed to the Hospital proposal because of
the way in which the Hospital has tried to implement this change. It
was presented across the table as an ultimatum and there was
absolutely no willingness on the part of the Hospital to discuss
criteria which the parties might use to jointly examine the
present structure and the individual Intermediate jobs to see
what changes might be appropriate.
8
The Association disagrees with the criteria developed, following the
Pyle Arbitration Award, by OPSEU and the participating hospitals, to
decide whether or not their Technologist Irs should be integrated into
the General Duty Technologist classification. The criteria were too
narrowly def"med and only looked at regular supervisory
responsibilities. The Association, and the technologists it
represents, believe that additional skills, duties and
responsibilities (including the exercise of supervisory
responsibilities on an interim basis) must be considered too.
Not only did the Hospital not want the Association to have a role in
this re-structuring process, there was never any thought of allowing
employees to grieve if they disagreed with the decision (as happened
with OPSEU which had 40 grievances filed). Even the decision to
promote some of the Intermediate Technologists to Senior positions,
instead of moving them down to the Registered Technologist level,
was to be done completely unilaterally by the Hospital with no
opportunity for input by the Association nor for the other
Intermediates to compete for the new positions.
Although the Association had told the Hospital that it was prepared
to work with it to review the Intermediate jobs on an individual basis,
the Hospital chose instead (even before the parties had the
opportunity to present their cases before this Arbitration Board) to
unilaterally re-write the job descriptions for the technologists,
incorporating the changes that it had presented at the table. At the
same time, however, the Hospital told the employees that they would
see no change in their actual jobs. It also kept the Intermediate
Technologist job title, as if the positions were merely a matter of
status and not of substance.
Any attempts on the part of the Association to initiate discussion on
the prinCiples or rationale behind the change, have met with failure
so this Board is asked to rule on the issue.
(emphasis added)
The board of interest arbitration chaired by Arbitrator Gorsky determined
that the three tier classification structure comprised of Registered Technologists,
Intermediate Technologists and Senior Technologists, should be continued. The
rationale of the Board is contained at p.14 in respect to Intermediate
Technologists:
9
Intermediate Technolo~ists
The Hospital urges the elimination of this classification, and suggests
that its current occupants be moved into the Registered Technologist
category, and be placed in appropriate positions on the grid.
POinting to the trend in OPSEU agreements, the Hospital wants to
emulate the contraction of the 3 tier system for Technologists.
However, the evidence is not clear that OPSEU agreements have
only 2 technologist categories, and the negotiation history
establishes the importance of the Intermediate category in the
mind of the Association. The top salary of the Intermediate
Technologist is cUITently 6.']0.10 higher than that of the Registered
Technologist I. and greater skills and experience seem to be
characteristic of the Intermediate position. The board orders the
continuation of the Intermediate Technolo~ist classification and
sets its monthly salary rates as follows:
At p.15, the Board orders continuation of the three tier system, without
assimilating Senior Technologists within the O.P.S.E.U. Senior Technologist
classification and wage grid:
Senior Technololt:ists
The Hospital, in pursuing panty with the OPSEU agreement, has
simply suggested the same scale for senior technologists as OPSEU
bargained for. Apparently, the designation "senior" is not understood
in the OPSEU agreement in the same manner as the parties have
regarded the word in their own negotiations. The evidence indicates
that the maximum current rate of an Intermediate Technologist is
5~% higher than the April 1, 1988 start rate of an OPSEU senior.
(See page 63, Association brief.) Descriptions such as "charge"
technologist do not appear in the collective agreement; whereas they
form part of the OPSEU agreement. Generic deSCriptions are not
meant to convey precision: here, the senior description does not have
common meaning in the two agreements.
The board has determined to continue the 3 tier system, and
awards the Senior Technologists a monthly salary scale as
follows:
Ms. Bowman testified that in tandem with negotiations for renewal, the
parties began negotiating pay equity in late 1988 and early 1989. The Hospital
10
and the Association decided to undertake a joint job evaluation as a step toward
development of a gender neutral job comparison system for pay equity. This job
evaluation was to occur in May 1989. Furthermore, in late April 1989, the parties
met in bargaining in a final effort to resolve issues prior to interest arbitration in
August 1989.
In late April 1989, the Hospital issued reVised job descriptions for the three
classes of Technologists in the departments of Microbiology, Histology-Cytology,
Haematology, Laboratory Medicine, and Clinical Chemistry. The former job
descriptions together with the revised job descriptions of April 1989 and a further
revision in November 1990 for Microbiology were filed before us. The effect of the
reVisions was to delete distinctions in duties, responsibilities and qualifications
between the intermediate and junior levels. The evidence of Ms. Bowman,
Ms. Bishop, Ms. Herrera and Ms. Alves-Wilson supports a finding that the job
descriptions were rewritten to eliminate distinctions between the Technologist I
and II levels. The new job descriptions were announced to the Registered
Technologists by the Chief Technologist in the respective departments, but the
technologists were told that there would be no change to their duties and
responsibilities at that time. The Hospital gave no prior notice to the Association
that it was intending to revise and issue the job descriptions, despite the fact that
the classification structure and job content was an issue in pay equity and in
negotiations for renewal.
Furthermore, it did not come to the Association's attention until a joint
meeting with the Hospital was held in December 1990 that the Hospital was not
intending to post and illl Intermediate Technologist positions vacated via
promotion or attrition. The evidence of the Association witnesses supports a
11
:finding that between 1988 and 1992, there were seven positions formerly held by
Intermediate Technologists that were not posted and illled in accordance with
Article 14.
The evidence indicates that although the job descriptions for Intermediate
and Junior Technologists were revised in April 1989, few changes were effected in
the actual duties and responsibilities of Intermediate Technologists at that time.
Ms. Bowman indicated in her evidence that it was after the Step 3 meeting in
respect to the policy grievance dated December 13, 1990 that the Hospital began
to implement changes to the duties and responsibilities of Intermediate
Technologists through reassignment of duties to Junior Technologists.
When Ms. Bowman was asked in chief why the Association has pursued the
issues raised in the grievances, Ms. Bowman responded that "Our concern is that
there is no difference in the Hospital"s mind between a junior and an intermediate
technologist and the Association's belief is that what the Hospital was unable to
achieve at interest arbitration before Gorsky, the Hospital is now trying to impose
in another fashion. This issue has created great tension in the labour relations
between the Association and the Hospital and created bad employee morale. From
the employees' perspective, that's why we went to arbitration: we won, but the
Hospital is ignoring that and doing a two tier system anyway. We think that
subverts AAH.P.O:s position as bargaining agent and undermines the whole
collective bargaining process." Ms. Bowman was not cross-examined on her
evidence.
12
IV EVIDENCE RE: FAILURE TO POST VACANCIES IN INTERMEDIATE
TECHNOLOGIST CLASSIFICATION AND REORGANIZATION OF WORK
Ms. Bowman indicated that from review of seniority lists from January 1988
to January 1992 and from other information concerning promotion dates and a
problem concerning retroactive pay as well as from payment of responsibility
allowance to Rolly Samson, Ms. Bowman was able to construct and detail
Intermediate Technologist positions which had been vacated, but not posted and
illled. The seniority lists from which she had worked and her analysis were illed
in evidence as Exhibits 6 and 7. Exhibit 7 indicates the following:
FILENAME: C:\D\123\TEGTECHS (May 1992)
ANALYSIS OF TORONTO EAST GENERAL HOSPITAL SENIORI1Y LISTS
DMSIONIDEPr POS JAN JAN JUL JAN JAN JUL JAN CHANGE
1988 1989 1989 1990 1991 1991 1992 1988-92
CHEMISTRY SR 2 2 2 2 2 3 2 0
!NT 2 2 2 2 2 1 2 0
RT 4 4 5 4 5 6 6 2
CYTOjHISTOjPATH SR 2 2 2 2 1 1 1 -1
!NT 1 -1
RT 2 3 4 3 3 3 3 1
HAEMATOLOGY SR 3 3 3 4 3 3 3 0
!NT 7 7 7 6 6 6 6 -1
RT 5 5 7 6 7 7 7 2
IMMUNOHAEM SR 4 4 4 4 4 4 4 0
!NT 3 3 3 3 3 3 3 0
RT 6 7 8 7 7 7 7 1
MICROBIOLOGY SR 2 2 2 2 2 2 1 -1
!NT 4 3 3 2 2 2 1 -3
RT 5 2 3 4 3 4 5 0
NUCLEARMED SR 1 1 1 1 1 1
!NT 2 0
RT 2 1 1 2 2 2 2 0
RIA SR 1 1 1 1 1 1 1 0
!NT 1 1 1 1 1 1 1 0
RT 1 1 1 2 2 2 2 1
13
To summarize, by 1992 there were five fewer Intermediate Technologist
positions in the various departments, than in 1988, however the number of
Registered Technologists had increased or remained the same. In her testimony,
Ms. Bowman described staffing changes which had occurred in the Intermediate
Technologist classification during the time frame relevant to the grievance. In the
Chemistry Department, Cora Donely was temporarily assigned to act as a Senior
Technologist in July 1991. By January 1992 she had returned to her regular
classification as Intermediate TechnologiSt.
In the departments of Cytology, Histology and Pathology the only
Intermediate TechnologiSt, Sharon Girdler, was promoted to Senior Technologist
around January 1989. By January 1991, she was assigned responsibility as
Acting Chief Technologist. Her former position as Intermediate Technologist was
not posted or illled. Ramon Ombao testified concerning his duties as a general
duty technolOgist (Rr-1) in surgical pathology. He confirmed that four other full-
time registered technologists work in this area, two of whom job-share. All the
registered technologists work on day shift, with most working 8 am. to 4 p.m., the
same hours as the Acting Chief TechnologiSt. In addition there is a Senior
Technologist whose expertise is in the area of Cytology. Mr. Ombao indicated that
since February 1991 he has received payment of a responsibility allowance for
times when Ms. Girdler, the Acting Chief TechnologiSt, was absent (ie., sick, on
vacation, at a conference). On those occasions, Mr. Ombao would serve as a
resource person for the other technologists and would troubleshoot problems with
equipment and techniques. On a regular basis, he oversees work flow of other
technologists to ensure that the 2:30 p.m. daily deadline is met for the preparation
of slides. Ms. Girdler has assigned other additional duties to particular registered
14
technologists. For instance, one registered technologist is assigned to order
supplies, another is assigned to look after WHMIS matters.
In the Haematology Department, Erica Herrera was classified as an
Intermediate Technologist from 1982 to 1989 when she was promoted through a
competition to Senior Technologist in October 1989. Her position in the
Intermediate Technologist classification was not posted and illled follOwing her
promotion. Around the same time as her promotion to Senior TechnologiSt,
Ms. Herrera was assigned to be Acting Chief TechnologiSt. At some point in the
relevant time frame, another Intermediate Technologist in this department, Bemo
Abuyuan, fell ill and went on disability leave. Shortly afterwards, :Mr. Samson
began to receive responsibility pay. :Mr. Abuyuan's position was not posted and
filled. The number of registered technologists in the department increased from
five in 1988 to seven in 1992. The number of intermediate technologists was
reduced from seven to six in the same time period. In the Microbiology
Department, aside from a transfer out of the bargaining unit to a part-time
position by one Intermediate Technologist, two other Intermediate Technologist
positions were vacated between July 1989 and January 1990, when Sharon
Schueler left and when Baljit Dosanjh was promoted to Senior Technologist.
There is one Intermediate Technologist remaining in the department, Lois Bishop.
In the department of Nuclear Medicine, in January 1989 there were two
Intermediate Technologists and one Registered Technologist working. In May
1989, one Intermediate Technologist, Paula Alves-Wilson, was promoted to Senior
Technologist. Shortly thereafter, the other Intermediate Technologist, Catherine
Harvie-Conway, left the Hospital. Neither of these positions in the Intermediate
Technologist classification were posted or illled. Ms. Alves-Wilson confirmed in
15
her testimony that prior to May 1989, the staff complement in the department
consisted of one Chief Technologist, one Senior Technologist, two Intermediate
Technologists, and one Registered TechnologiSt. After her promotion and up to
1992, the complement consisted of one Chief Technologist, one Senior, and two
Registered Technologists.
In Municioalitv of Metrooolitan Toronto and C.U.P.E. Local 43 (1975) 10
LAC. (2d) 247 (Adams), the point is made that management is not obliged to illl
a va=cy in a particular classification unless there is a sufficient volume of the
kind of work distinctive of that classification:
A review of the arbitral jurisprudence reveals a n:umber of
accepted principles in determining when a vacancy exists. It has
been said that, absent specific prOvisions to the contrary, the
determination of the size of the work force and the work to be done
is a matter for the employer: see Loblaw Groceterfas Co. Ltd., supra.
And because the requirement that a job be posted impacts this
principle, it follows that posting proviSions = only be operative
when the employer is of the opinion that there is adequate work to
justify the illling of a position; see Tidewater Oil Co. (Canada) Ltd.,
supro.. Or elaborated by Judge Reville in the TIdewater award: "there
must be a job or work to be done, and the company is not called
upon merely to illl a classification for which no work is available."
But an employer's judgment in this regard is not unreviewable. For
example, the mere assertion that a vacancy does not exist is an
insufficient answer to a grievance of this kind. Boards of
arbitration have asserted their right to examine the deeds of the
employer as well as his words. And if the employer is requiring
work to be done that is the same nature as that performed in the
classification in which a vacancy is denied a board may be
justified in concluding that a vacancy in fact exists despite the
denial. This approach is clearly illustrated in Toronto Hydro Electric
System., supra, and in Toronto Electric Commissioners, supra, relied
upon by the trade union. In both of these cases the employer's
actions in assigning work revealed that sufficient work was available
to constitute ajob vacancy.
However, the fact that work is being performed that is of the
same nature as that performed in the classification for which a
vacancy is claimed cannot conclusively determine the existence of a
job vacancy. This must be so for at least two reasons. First, there
may be some overlap between the job duties of different job
16
classifications; see Re V.S.W. and Dunham Bush (Cana.dci) Ltd. (1969)
20 LAC. 419 (Weiler); Re Int'L Nickel Co. of Canada Ltd. and V.S. W.,
Local 6500 (1974), 5 LAC. (2d) 263 (Johnston); and of course, Re
V.S.W a.ndAlgomaSteelCorp. (1968),19 LAC. 236 (Weiler). And as
a result of this overlap the core functions of one classification may be
incidental to those of another classification. If this is the case, and
8SSmning good faith on the part of the employer, an increase in
the incidental duties of the latter classification at the expense
of the former is unlikely to be characterized as a failure to
recognize the existence of a job vacancy. Secondly, while work
may be continuously assigned that is similar to work in the
classification for which a vacancy is claimed the work may not
be in sufficient daily quantity to justify the creation or
maintenance of a position and it is this principle that is relevant in
the instant case.
(emphasis added)
Thus, the evidence establishes that positions in the Intermediate
Technologist classifications were vacated in several departments during the time
frame relevant to the grievances. However, whether such positions were required
to be posted and illled pursuant to Article 14 of the collective agreement demands
an examination of the manner in which the work of the classifications was
reorganized. Furthermore, as pointed out in the Metropolitan Toronto decision,
the legitimacy of such reorganizations is predicated upon an assumption that the
reorganization was carried out in good faith, for valid business reasons.
ill respect to the Chemistry Department, it was conceded by counsel for the
Association in argument that the temporary assignment of Cora Donely as acting
Senior Technologist fell within the exemption from posting requirements contained
in Article 14.03(a) of the collective agreement for temporary vacancies of less than
six months. Accordingly, the Association withdrew grievance l(c) at the hearing.
In the department of Histology-Cytology, the evidence shows that certain
duties and responsibilities were distinctive of the Intermediate Technologist
classification, such as troubleshooting equipment failures, investigating new
17
methods and products for the purpose of making recommendations, quality
control, ordering supplies, W.H.M.I.S. compliance, ensuring work flow to meet
deadlines, and acting as a resource to junior technologists. Most of these duties
are specifically mentioned in the October 1988 job description for that
department. In 1989-90, the department became a division of the Pathology
Department and most of these duties were reassigned to particular Junior
Technologists. This redistribution of tasks had been accomplished by the time
Ramon Ombao was hired as a Technologist I in October 1990. In cross-
examination, Mr. On:bao explained that one Junior Technologist was assigned
responsibility for ordering supplies, another was assigned responsibility for
W.H.M.I.S. compliance, and Mr. Ombao was assigned responsibility for ensuring
completion of slides by 2:30 p.m. daily. Ms. Girdler had been promoted from
Intermediate Technologist to Senior Technologist around January 1989,
apparently without a competition being held. Eileen MacDonald maintained her
position as a Senior Lab Technologist when Ms. Girdler was promoted again to
Acting Chief Technologist. Mr. Ombao indicated that he could refer administrative
problems to Eileen MacDonald, the Senior Technologist in Cytology, if he was
unable to resolve it in the absence of Ms. Girdler. Furthermore, Mr. Ombao has
a subject-specific registration in histology, rather than a general registration. The
implication is that he would not be able to rotate through all benches or be able
to assume all the Senior Technologist's duties, as was expected of an Intermediate
TechnologiSt. He indicated that when the Senior Technologist and the Chief
Technologist were absent from work, he was assigned responsibility to act as a
resource to other Junior Technologists and supervisory authority. In recognition,
he was paid responsibility pay during these times commencing in February 1991.
18
The reorgaruzation of work coincided with the promotion of Sharon Girdler
from Intermediate Technologist to Senior Technologist around January 1989,
apparently without competition, and her appointment as Acting Chief Technologist
in 1990. Ms. Eileen MacDonald, remained as Senior TechnologiSt, but her
expertise was primarily as a cytotechnologiSt. For this reason, when Ms. Girdler
was absent from work, Mr. Ombao's expertise in histotechnology was an
important resource to Junior Technologists. Mr. Ombao's registration is subject
-specific in Canada as a histotechnologist. The implication is that he would not
be able to process, record and report cytology specimens in the absence of the
cytotechnologist, as set forth in the October 1988 job description for Intermediate
Technologists.
On review of the evidence, we would draw the follOwing conclusions:
(1) There is considerable overlap in the duties between all three classes of
technologists, particularly in respect to benchwork, which is the most time-
consuming aspect of the work. (2) There are distinctive duties associated with the
Intermediate Technologist classification which have been redistributed to the
Junior classification. These duties were not as time-consuming as the core
benchwork performed by an Intermediate Technologist and would not occupy an
Intermediate Technologist on a full-time basis. (3) The duties redistributed did not
entail extensive cross-training of Junior Technologists prior to assumption.
(4) Mr. Ombao is paid responsibility allowance for assuming some of the duties of
the Intermediate classification when the Acting Chief Technologist is absent from
work. This application of responsibility allowance appears to be in accordance
with Article 23.05. (5) Mr. Ombao is not required to assume and perform all the
duties and responsibilities of an Intermediate Technologist on an ongoing basis.
19
The seniOrity lists illed show that prior to the reorganization in the Cyto and
Histo-Pathology Department, there was one Chief TechnologiSt, two Senior
Technologists, one Intermediate TechnologiSt, and two Registered Technologists.
The reorganization allowed for a more efficient delegation of responsibility
downward and distribution of tasks among the four Junior Technologists, two of
whom job-share. On the surface, /"x::lmin.ed in isolation, the reorganization
effected in the Department of Cytology and Histo-Pathology seems to be a valid
redistribution of duties formerly performed by Intermediate Technologists across
the Registered Technologist classification for the purpose of improving efficiency
in what had been a top-heavy department. Looked at in context, the timing of the
reorganization coincided with negotiations and job evaluations being conducted
for pay equity, as well as negotiations for the 1988-91 contract renewal. It was in
this rolllld that the Hospital was seeking to eliminate the Intermediate
Technologist classification as a bargaining objective. Furthermore, the
reorganization was effected at least in part by promotion of an Intermediate
Technologist to a Senior Technologist position apparently without application of
the posting and competition provisions.
In the Haematology Department, Ms. Herrera's position as Intermediate
Technologist was vacated when she was promoted through a competition to Senior
Technologist in October 1989. Up to that time, the Department of Haematology
was organized into three divisions: routine, special, and coagulation. In the
routine haematology division, work was organized into five different benches:
blood smears; complete blood counts (C.B.C.)jadults; C.B.C. (babies); stat tests;
and set-up. In special haematology, work was organized into two benches: serum
protein and haemoglobin. In coagulation, work was organized into four benches:
20
P.D.T.; factor assays: bone marrows: subSidiary tests. Ms. Herrera testified that
up to October 1989, technologists were assigned to a particular division and
worked on benches within that division. Intermediate Technologists rotated
through the benches within a division, as did Registered Technologists, but they
were also expected to perform the more specialized or difficult tests associated
with some benches in a division. Intermediate Technologists were assigned
responsibility for monitoring quality control, for preventative maintenance of
equipment, and troubleshooting equipment malfunctions. Other additional duties
which distinguished Intermediate Technologists from Registered Technologists
were the follOwing: preparation of solutions; ordering supplies and reagents:
Co-op student teaching, in-service training required for W.H.M.I.S.: organizing lab
manuals; and arranging teleconferences. In March 1990, Mr. F. Chan was
appointed Chief Technologist for Haematology. Under his direction, Junior
Technologists began to be cross-trained to work on all benches within their
division, as well as across divisions. This cross-training had the effect of redUCing
or eliminating any distinction in the benchwork performed by Intermediate and
Junior Technologists, other than in respect to a few highly-specialized, costly, and
rarely.performed tests which continued to be performed by certain Intermediate
or Senior Technologists who had formerly performed them. Additional duties,
such as the preparation of solutions and ordering supplies tied to a bench were
reassigned to both Junior and Intermediate Technologists, rather than being
assigned to the Intermediate Technologist regularly working on that bench in a
particular division.
21
The reorganization effected in this department was more extensive since up
to 1990, work within each division of the department had been highly specialized
and more complex tests and procedures were assigned to Intermediate
Technologists. In April 1989 new job descriptions were issued eliminating such
distinctions, although it was not until March 1990 that a concerted program of
cross-training began to broaden and upgrade the skills and knowledge of Junior
Technologists to enable them to perform the work formerly carried out by
Intermediate Technologists. It is clear upon the evidence that benchwork is the
major function for each classification and the type of bench work performed by the
two classifications had been distinct in type and complexity, despite some overlap.
Other speda1ized tasks, such as student training, and ordering supplies were less
time consuming, but were distinctive of the Intermediate Technologist
classification, as is apparent from the pre-April 1989 job description and the
testimony. We would conclude that this is not a situation of redistribution of
minor tasks, but the transfer of a substantial and distinctive volume of more
responsible work to a lower-rated classification. Furthermore, the volume of work
transferred was sufficient to occupy an Intermediate Technologist on a full-time
basis._ Even if one were to characterize what occurred as the elimination of an
existing classification and the creation of a new classification with blended duties
and responsibilities, the evidence shows that management did not so characterize
its actions, but was insisting that the work fell within the purview of the existing
classification of Technologist I.
The evidence of Rolando Samson reinforces our conclusions as to what
transpired in this department. Mr. Samson is classified as a Technologist I and
since 1980 he has worked permanent evening shifts in the Haematology
22
Department performing routine benchwork:. The Chief Technologist works only
day shifts and there is no Senior Technologist assigned to the evening shift.
Mr. Bemo Abuyuan, who was classified as a Technologist II, worked the same shift
with Mr. Samson. In 1990, Mr. Abuyuan fell ill and Mr. Samson began performing
duties which had been distinctive of Mr. Abuyuan's position, such as the training
of new technologists on shift, troubleshooting equipment malfunctions, monitoring
quality control, carrying out preventative maintenance of equipment, acting as a
resource to Junior Technologists concerning problems with technique or skill.
However, it is clear that on the evening shift, the more complex work associated
with various divisions and benches was not performed. Aside from the distinctive
duties noted above, the benchwork performed by Mr. Samson was the same as
that performed by Mr. Abuyuan. Mr. Samson began to receive responsibility
allowance on a permanent basis within three months of Mr. Abuyuan leaving
active work by reason of illness. On the evening shift, there is not the broad range
of highly specialized and complex benchwork performed for which the other
Technologists I required extensive cross-training to learn to perform. Thus, it may
well be concluded that while some of the distinctive duties associated with the
Technologist II classification were assigned to Mr. Samson, the specialized and
complex benchwork requiring additional expertise and knowledge, was not.
Article 23.05, the responsibility allowance provision, does not contemplate the
permanent assignment of the duties and responsibilities of a higher rated
classification, since promotions are governed by the posting provisions and the
establishment of a new classification is governed by Article 3.05.
23
Arbitrators have long recognized that management may add to the job
content of job classifications, may eliminate classifications and create new ones,
or distribute the duties across a number of existing classifications, but always
subject to the caveat that such changes must be made in good faith, for the
purpose of business efficiency and with due regard for the language and purpose
of the collective agreement. The case law in this area was reviewed, analyzed
thoroughly, and the principles most clearly stated in Re Windsor Public Utilities
COmmission and LB.E.W. Local 911, (1974) 7 LAC. (2d) 381 (Adams). While this
case was decided so:ne time ago, the prinCiples as stated continue to have
application, as is evidenced by the cases cited by the parties. In Re Rolland Paper
Co. and Canadian Paperworkers Union (1981) 28 LAC. (2d) 321 (Adams),
management took the initiative to combine the duties of two classifications into
a single position to which a number of employees were assigned on a rotating shift
basis. The Board held that this change was carried out in good faith, for reasons
of business efficiency. The Union had been notified of the proposed change in
advance and joint discussions were held prior to implementation of the change.
Article 7.02 of the collective agreement provided as follows:
7.02 Management rights as set out in this collective agreement must
be exercised fairly without discrimination, and in accordance
with the collective agreement.
At p.329, the Board articulates the issue, reviews the applicable principles
at p.330, and at p.321 concludes that the collective agreement was violated by the
initiative:
24
Therefore, the issue before us is whether or not the employer was and
is entitled, on the wording of this agreement, to group existing jobs
together and rotate encumbent employees through the jobs so
grouped as if they constituted duties falling within a single
classification. Was the purported reclassification proper from this
perspective or did it violate art. 7.02?
It has been held that the purpose of a wage schedule that sets out
different job classifications is to ensure that equal work will attract
equal pay and that relevant differences in skill, complexity and
difficulty will be reflected in monetary awards: see Re U.S. W. and
Dunham Bush (Canada) Ltd. (1969) 20 LAC. 419 (Weiler). Job
classifications, therefore, do not freeze either the job structure of a
company or the job content and structure of existing classifications
for the period of the contract. Existing classifications can be
eliminated and the job duties distributed over a number of surviving
classifications: see Re Windsor Public Utilities Com'n and Int'l
Brotherhood of Electrical Workers, Local 911 (1974) 7 LAC. (2d) 380
(Adams), and Re Sudbwy General Workers, Local 101, and Domin.ion
Stores Ltd. (1963) 14 L.AC. 106 (Little). But management cannot
arbitrarily reclassifY someone and, therefore, arbitrators have looked
for substantial changes in the job duties and responsibilities of the
people "reclassified" to ensure that the old job is not merely
masquerading under another new name; see Re In:t'l Assoc. of
Mad7inists, Local 1740, and John Bertram & Sons Co. Ltd. (1967) 18
LAC. 362 (Weiler), and Re UA W., Local 199, and Anthes-Imperial Co.
Ltd. (1962) 12 LAC. 243 (Schwenger). And to establish whether an
employee is performing a job f"'lling within a classification as
claimed where the collective agreement does not contain
descriptions of the jobs or their classifications, arbitrators have
looked to evidence establishing the work commonly performed
by employees working within the subject classifications: see Re
U.S.W. and Outboard Marine Corp. (1968) 19 LAC. 62 (Weiler).
Finally, the integrity of a job classification system may relate
-not only to proper payment but as well to the proper application
of seniority and job posting rights: see Re U.S. W. and Algoma Steel
Corp. (1968) 19 LAC. 236 (Weiler), and Re Air Canada and Canadian
Air Line Employees' Assoc. (1974) 7 LAC. (2d) 420 (Huband).
On the evidence before us, we are unable to find that the occupations
or classifications of rawstock inspector and quality control technician
have in fact been abolished or that their duties have been distributed
over other existing classifications. These jobs consisted of a discrete
set of job duties occupying an employee on a regular basis for the
better part of a day and these duties continue to exist in identical
form. The only difference is that employees are now rotated through
these jobs on a weekly basis and, therefore, we would find that the
attempt to "reclassify" the two jobs on a temporal basis, i.e., over the
25
course of a month, violates the job posting, Seniority, wage and
management rights provisions of the collective agreement.
In our view, an occupation or job is generally understood to
constitute a discrete and related set of job duties performed on
a regular basis over the course of a day. Not all of the job duties
may be performed in a single day but it is understood that the
duties functionally relate to each other and, as a whole, deserve
the full attention of an employee. Related arbitral jurisprudence
to this effect can be found in those cases dealing with what
constitutes a job vacancy: see for example Re Metropolitan Toronto
and C.U.P.E., LocaL 43 (1975) 10 LAC. (2d) 247 (Adams), and the
cases cited therein. Collective agreements are structured on this
understanding of what ajob entails with wage rates specified for
groups of tasks and the jobs, so identified. are usually allocated
by job posting procedures which test competing employees'
claims on the basis of ability and seniority. This collective
agreement is n0 exception. Appendix "A" sets out the occupations
and arts. 14.08 and 21 make it clear the non-temporary promotions
and transfers to jobs are to be based on seniority provided the skill
and ability of the employee is sufficient.
ln effect, there has been no reorganization of work (i.e., job duties)
but rather a reassignment of employees and the reassignment has
19nored the job posting provisions of the collective agreement and the
seniority claims of the encumbent employees.
Turning to the case before us, the testimony and job descriptions filed
indicate that the work of Intermediate Technologists continues to exist but
through extensive cross-training Junior Technologists are being trained and
required to cany out these functions on an ongoing basis in the Haematology
Department. Rolando Samson has been required to cany out many of the
distinctive duties and responsibilities of the higher classification, although no
posting for an Intermediate Technologist was held upon Mr. Abuyuan vacating his
pOSition, nor was the Association notified that a new classification had been
created. Once again these changes occurred in a context where the parties were
negotiating restructuring of the classification system for technologists and upon
26
reaching impasse, had referred the matter to arbitration. Ultimately, the
restructuring sought by the Hospital was not awarded.
Lois Bishop testified concerning changes in the organization of work in the
Microbiology Department. She was promoted to the position of Intermediate
Technologist through a posting and job competition in January 1989. At that
time, there were two other Intermediate Technologist positions in addition to her
own position in the department. Ms. Bishop reviewed the job deSCription for the
Intermediate Technologist classification dated February 1. 1988 and attested to
its accuracy. She indicated that the duties and responsibilities which
distinguished Intermediate Technologists from Junior Technologists included the
following:
1) More autonomy from supervision.
2) Performs and monitors quality control for media, identification
systems and susceptibility methods.
3) Able to perform special tests and assist in investigating and assessing
new methodologies and techniques.
4) Assist with problem solving and identification of unusual organisms.
Consult with senior technologist as required.
-5) Responsible for teaching new procedures and orientation, and
training of new staff to lab procedures.
6) Assist in revision and updating of procedure manual.
7) Order supplies available from internal stores.
8) Will assume the responsibilities of the senior technologist as required
in the absence of senior technologiSt.
27
In addition, the Intermediate Technologist was expected to have a minimum of
three years' past Rr hospital experience in microbiology. In the new job
descriptions issued in May 1989 and January 1990, these distinctive duties and
responsibilities were added to the job description of Technologist I on an "as
assigned" basis, except #3, 4 and 5 were clearly outlined as part of the
Technologist 1lI position. Despite the changes on paper to the job descriptions,
no change in practice occurred until mid January 1991. The pinkjob descriptions
were issued and Junior Technologists began to assume extra responsibilities.
Duties such as ordering and monitoring supplies, taking minutes of lab meetings,
and quality control monitoring, which had been performed by Intermediate
Technologists, were now being distributed among the Junior Technologists. The
pinkjob descriptions, issued in 1990, but not implemented until 1991, show that
such duties would be performed by Junior and Intermediate Technologists as
assigned by senior personnel. Ms. Bishop indicated that as Junior Technologists
were trained to assume such duties, her responsibility for carrying out such work
diminished. Prior to these changes, Ms. Bishop did not receive responsibility pay
for assuming in charge responsibility on weekends; after April 1989, she began to
be paid responsibility pay for being in charge with sign-out authority on lab
reports at night or on weekends. She continued to carry out her responsibility for
staff training and trouble-shooting problems with technique and equipment for
Junior Technologists. Overall, it is apparent that there was a high degree of
overlap between the job functions of Intermediate Technologists with those of
Junior and of Senior Technologists, particularly on the most time-consuming core
function ofbenchwork. Prior to the reorganization, Senior Technologists were not
involved in assessing new methodologies, updating procedure manuals, taking
28
minutes of lab meetings, ordering supplies, or training new staff. After the
changes, Senior Technologists were assigned more responsibility in these areas
and for sign-out oflab reports.
The seniority lists filed indicate that as of January 1989, the staff
complement consisted of a Chief TechnologiSt, two Senior Lab Technologists, three
Intermediate Technologists, and two JuniorTechnologists. By January 1990, one
of the Senior Technologists was promoted to Chief Technologist and one of the
Intermediate Technologists was promoted through a posting and competition to
Senior Technologist. The Intermediate Technologist position was not posted, but
the complement of Junior Technologist increased to four. In the fall of 1991, the
other Intermediate Technologist, Sharon Schueler, left the hospital. Her position
was not posted, but a Junior Technologist position was posted. By this time, the
staff complement consisted of one Lab Assistant, five Junior Technologists, one
Intermediate Technologist, two Senior Technologists, one Chief Technologist and
the Division Head, Dr. Reiter. Both Senior and Intermediate Technologists work
in the lab with Junior Technologists and are available to help with their problems
of technique or with equipment.
.In contrast to the Haematology Department, we would conclude that the
sorts of responsibilities which were distributed to Junior Technologists to perform,
such as supplies ordering and taking minutes of lab meetings were incidental
tasks and not time-conSuming. In any event, there was no need for extensive
cross-training on the core function of benchwork as seemed to be necessary in
Haematology. In January 1991, some extra training for Junior Technologists was
required when they began to assume responsibility for performing and mOnitOring
quality control and sign-out of lab reports on weekends or other times when a
29
Senior Technologist was unavailable. In 1992, a Junior Technologist began to be
trained for assessing new methodologies and one technologist was trained to
troubleshoot computer read-out problems. Once again this was a department
which had become top-heavy and in which there was considerable overlap in the
core functions of the three classifications oftechnologiSts. Looked at in isolation,
the initiatives management took to diVide and distribute some tasks to Junior
Technologists and distribute other tasks requiring greater skill and knowledge to
Senior Technologists would appear to make sense for t.l).e purpose of business
efficiency and produ~1y. Once again. these changes were introduced at a time
when bargaining over reorganization of the classification structure was ongoing,
had reached impasse, and had been referred to arbitration for resolution. Despite
an arbitration award which preserved the existing classification structure,
management continued to take unilateral measures to achieve its objective of
eliminating the job content distinctive of an Intermediate Technologist
classification and the staff complement classified at that level.
As of January 1989, in the Department of Nuclear Scanning, there were two
Intermediate Technologists, and one Junior Technologist as of January 1989. In
May 1@89, Ms. Paula Alves-Wilson was promoted without competition to Senior
Technologist and the other Intermediate Technologist vacated her position.
Neither of these positions were posted, but the Hospital did post and illl a vacancy
in the Junior Technologist classification. Prior to this change, the staff
complement had been one Chief TechnologiSt, two Intermediate and one Junior
TechnologiSt. By mid-1989 the complement was one Chief Technologist, one
Senior and two Junior Technologists. Ms. Alves-Wilson testified that all levels of
TechnolOgiSts, including the Chief Technologist, do the same technical scanning
30
work on a rotating system. These duties occupy the majOrity of work time.
Ms. Alves-Wllson testified that the distinctive duties she would perform as an
Intermediate Technologist included the follOwing: perfOrming bioassays on staff
to test for exposure to radiation; assuming duties of the Chief Technologist in her
absence, such as preparation of time sheets and approval of overtime:'
troubleshooting equipment malfunctions. Upon her promotion to Senior
TechnologiSt, Ms. Alves-Wllson indicated that she continued to perform the
distinctive duties of an Intermediate but she also assumed duties distinctive of the
Senior level, such as responsibllity for tracking radioactive material in and out of
.
the department and ordering pharmaceuticals. The evidence in this department
shows that distinctions between the three levels of Technologists were slight and
the distinctive duties were not time-consummg - occupying an hour each morning
:from 8:30 - 9:30 a.m. on a regular basis and occasionally in the absence of the
Chief TechnologiSt, and a couple of hours per week for tracking
radiopharmaceuticals. Looked at in isolation, it appears that efficiency could be
improved through declaration of a vacancy at the Junior Technologist level since
the distinctive duties which Ms. Alves-Wllson had been performing as an
Inte~ediate Technologist were few, not time consuming, and would not occupy
a full-time position in themselves and could be combined readily with a few other
duties and responsibilities distinctive of the senior level. It is apparent that the
Junior Technologists in this department work with considerable autonomy and
that the bulk of the core scanning functions of the three levels are the same. In
such a context, ample supervision can be accorded by the Senior TechnolOgist and
Chief TechnologiSt. Looking at the evidence concerning this department in
isolation we would conclude that there would be valid business reasons for a more
31
efficient deployment of personnel and resources through the declaration of
vacancy at the Junior level, rather than at the Intermediate Technologist level.
However, when the evidence is taken as a whole across the Hospital, it is
apparent that management had set as its objective the elimination of the
Intermediate Technologist classification, whether that meant extensive cross-
training of Junior Technologists, perpetual payment of responsibility allowance in
circumstances not contemplated by the collective agreement, omission to post
vacancies at the Intermediate level, promotion of personnel without application of
the job posting and competition provisions, or "demotion" of personnel by removal
of significant functions distinctive of status at the Intermediate level. We heard
no direct evidence from management personnel at the Hospital to elucidate what
the business reasons were for setting this objective, to explain how the means
were decided upon for reaching this objective, nor to elucidate what plan was
instituted. New job descriptions were introduced across the Hospital eliminating
distinctions between the Junior and Intermediate levels of Technologists in April
1989 when the Hospital was still engaged in bargaining with the Association over
classification structure as a significant item, yet the Association was not given
advanee notice of the various steps taken across the departments to achieve the
Hospital's objective, nor were these means discussed at the bargaining table.
Indeed, the Hospital continued to take steps which would have the effect of
emptying the Intermediate Technologist classification of job content and staff
complement at the same time that the matter had been referred jointly to the
Gorsky interest arbitration board for resolution and after the award was issued
which preserved the classification structure. We would agree with the evidence
tendered by Ms. Bowman, Executive Director of the Association, which was not
32
rebutted by evidence from management, that the ultimate effect of this course of
unilateral conduct in these Circumstances was to undermine the classification
structure of the collective agreement, as well as to undermine the Association's
position as bargaining agent, and to undermine the efficacy of the collective
bargaining and interest arbitration process.
Bad faith is never trumpeted by the party that seeks to cloak its real
objectives with ostensible validity. Making a finding of bad faith is ultimately a
matter of inference to be drawn from close examination of the nature, timing, and
context of the measures taken. While recrganization of the classification structure
is a presumptive right of management, and while more efficient deployment of
personnel and resources are valid business objectives, the condition precedent to
valid management initiatives in this area is that the measures be carried out in
good faith and not for the purpose of undermining the collective agreement itself,
the authority of the bargaining agent, or the efficacy of an arbitration award which
is to be :final and binding. While the Gorsky award did not prohibit reorganization
of work within the classification structure, it did order preservation of the
classification structure and noted that the parties were in the midst of discussing
redu~ons in the number of tiers in the technologist series in an effort to emulate
the O.P.S.E.U. system. We have reviewed the relevant legal principles above
which curtail the scope of management discretion and in the circumstances of this
case we find that the necessary element of good faith is missing.
In the result, we declare that the Hospital did not exercise its management
rights in good faith when it took the measures outlined in the evidence to
eliminate the job content and complement of positions in the Intermediate
Technologist classification from April 1989. We conclude that responsibility pay
33
was paid to Rolando Samson in violation of the collective agreement and we order
that he be paid at the level of Intermediate Technologist effective from the date six
months after the departure of Bemo Abuyuan. Promotion to Intermediate
Technologist is governed by a competitive seniority proVision and for this reason
we decline to reclassifY Mr. Samson, but we do order that he be paid at that level
on a quantum meruit basis. We further direct that Lois Bishop be assigned a full
range of duties as she was accustomed to perform as an Intermediate Technologist
prior to the reorga.rn.:a.tion in the department of Microbiology.
The AsSOciation has asked us to order that the Hospital be required to post
a number of vacancies in the Intermediate Technologist classification. In some
departments, such as Nuclear Scanning and Cyto-Histopathology, we concluded
that Intermediate Technologist duties had been broadly distributed as an
ostensibly valid management initiative. In other instances, such as with the
cross-training of Junior Technologists in Haematology, we concluded that the
effect of management's actions could be the creation of a new classification with
blended duties. Ultimately the parties have been compelled through the award of
an interest arbitration board constituted under the same chair for the 1991-93
renewal collective agreement to engage in a process that would result in the
reclassification of registered technologists in a revised classification structure. For
the foregoing reasons, we conclude that the remedy of posting has been
superseded by subsequent events and may not have been appropriate in certain
departments in any event. Accordingly, we decline to require the Hospital to post
vacancies at the Intermediate Technologist level in the various departments
requested. In accordance with the parties' request we remain seised of
jurisdiction to resolve problems arising from the implementation of this award.
34
requested. In accordance with the parties' request we remain seised of
jurisdiction to resolve problems arising from the implementation of this award.
In the result, grievance l(a) and (b) are allowed in part, grievance l(c) is
withdrawn, grievance l(d) is allowed in part, and grievance l(e) is allowed.
(!l~
Dated at Kingston, Ontario, on this ~day of~, 1994.
U", . J f... ;;::... . {'1
JaneE1mrich Chair
~ ~ Co,",CU.r.3Uby-olt- -k:.V-~d ~M""SC.~
Wil1;<>m S. CooK ospital Nominee s.~'^~
~~ \
Q. ~t..t.-c.d
~u-~~, -&n~
Sandra Nicholson Association Nominee
35
'.
requested. In accordance with the parties' request we remain seised of
jurisdiction to resolve problems arising from the implementation of this award.
In the result, grievance l(a) and (b) are allowed in part, grievance l(c) is
withdrawn, grievance l(d) is allowed in part, and grievance l(e) is allowed.
~
Dated at Kingston, Ontario, on this l"l.rlo. day of~, 1994.
~,. E.. ;:;,.':_-1-'1
Jane E. mrtch
Chair
~
Willi<lm S. Cook Hospital Nominee
I concur subject to the attached Addendum
Sandra Nicholson
Association NOminee
35
,
ADDENDUM
I concur with the award that the Hospital should not be
required to post vacancies at the Intermediate Technologist level
in the various departments. I further concur with the resolution
of the various grievances.
I cannot, however, concur with the finding that the Hospital
acted in bad fai~. While I have some concern about the process
undertaken by the Hospital in the reorganization, I do not think a
finding of bad faith is warranted. I would find that the
principles enunciated in Re Windsor Public utilities Commission and
I.B.E.W.. Local 911. and set out on Pages 25 and 26 of this award
were not followed, and the grievances should succeed as set out on
page 34, of this award.
with the Addendum outlined herein, I am concurring with the
award.
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l'leasefu:tdenclos~dthe awardin thisina'tter; together with iny~tateIllentof ..,
a=oot.'l apOlogizt; thatit has taken so long to issue this award.I.have forWarded' .
a copy of the'a~ to yc>ur counsel, Ms. Wilkey, as .w-ell.ltrustthisiSSatisfae1;ory. .
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It liaSilJstbe~brou'ghtto myattention ~t in ptfutfug the final award one;1ille of
.-text was lOst.Plea'sefind attached replacement pages}ortheaw-ard." .. " :
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