HomeMy WebLinkAboutUnion 04-08-18
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IN THE MATTER OF AN ARBITRA nON
Bet wee n: Ò3,;;;?trb71e
North Wellington Health Care Corporation
(the "Hospital")
- and -
Ontario Public Service Employees Union, Local 226
(the "Union")
and in the matter of a policy grievance relating to a job posting for two part-time
switchboard/admitting clerks.
Russell Goodfellow ~ Sole Arbitrator
APPEARANCES FOR THE HOSPITAL:
Brian D. Mulroney) Counsel
Pam Murray
APPEARANCES FOR THE UNION:
Ed Holmes, Counsel
Terri Marre
Wendy Freeman
Barbara Sampson
Sandra Lloyd
A hearing was held in this matter in Guelph on May 27,2004.
pC- iu ~ 0
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AWARD
Backg1'ound
This is a job-posting !:,rrievance. The issue is whether the Hospital
breached the job-posting provision of the collective agreement by posting and filling two
part-time switchboard/admitting clerk positions rather than a single full-time
switchboard/admitting clerk position.
There are conflicting cases on point. The most reCtnt case i~ City of
Fernie and Canadian Union of Public Employees, Local 2093 (1999), 80 LAc. (4th)
289 (N,M. Glass), in which a Briti:3h Columbia arbitrator found that the typical job.
posting provision of a collective agreement requires the employer to posr and fill a
position as full-time if it is a full-time position that ha£ fallen vacant. In coming to this
conclusion the arbitrator expressly rejected an earlier award of Arbitrator Richard Brown
in Ontario, dealing with precisely the same issue: see Corpora/ion of the City of Timmins
andCanlldicm Union (~fPublic Employees, Local 1140 (1990),14 LAC. (4'(h) 23 (R.M.
Brown).
The last time that the is:3ue appears to have surfaced in an arbitral award
was before the undersigned in Hamilton Health SÒ,mces CorporCition and D.P.SE. U.
Local 273, dated March 28, 2003, unreported (Goodfellow). In that case, I found it
unnecessary to decide the issue because the position that remained following the
departure of the fhll-time employee was not the same position that had existed previously
and it was only the previous position that the union was seeking 10 have posted as full-
time. In the present case, however, as noted by Union counsel (who was also union
counsel in the Hamilton case) the facts are different. Here, the paJ1ies are agreed that, to
borrow Hospital counsel's phrase, it was the "self-same" position that fell vacant that the
Hospital converted into two part-time positions.
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Facts
The case was argued on the basis of the following agreed statement of
facts:
1. GENERAL BACKGROUND
1. North Wellington Health Can~ CorporaÚon (the "Hospital") was created
as a result of the amalgamation, on Sepœmb\.:f 1. 200 I. of Louise
Marshall Hospital, located in Mount Forest, Ontario and Pallllerstoll and
Disrrict Hospital, located in Palmerston, Ontario.
2. The Hospital continues to operate from the Mount Forest and Palmerston
sites. It is a regional hospital with slightly morc than tifty beds, It
provides ambulatory and in-patient care.
3. By Order of the Ontario Labour Relations Board dated February 5,2002,
the Onrario Public Service Employees' Union ("OPSEU") was declared
to be the bargaining agent for ~ consolidated full-time and pan-.ime unit
of clerical and service employees encompassing both sites, pur~uam to
sections 22 and 23 of the Public Service Laho/Jr Relations Transition
Act, 1997 (the "PSLRTA").
4. The Hospit!:ìl and OPSEU then commenced bargaining for a collective
agreement That agrcèment Was t;vcntually arrived at following an
inteœs[ award of a Board of Arbitration under the l-lo.spiral Labour
Disputc:.\' ArbiTraTion Act chaired by Brian Keller on Or about November
24, 2003. Between February 5, 2002 and Novcmber 24, 2003, the
colkctive agreement, attached at Tab 2 hereto, conrinu<:;d to operaœ
pursuant to subsections 24(2) and 24(3) of the PLSRTA.
5. A copy of the gri\.:vance is attached at Tab 1, hereto.
6. The parties agree that the Arbitralor has jurisdiction to hear and decide
this case and request that the Arbitrator remain seized wirh respect to the
issue of remedy.
II. THE MERITS
7, Thii; arbitration relates to the position of Switchboard! Admitting Clerk at
.he Palmers ton site.
8. Prior to July 2002, the SwitchboardiAdmitti.ng position was filled by om:
full-time incumbcm, Ms. Hl>lcn Mçf'è~dz(;an. Ms, McPadzc~ll1':; hO~I(5 of
work were Monday to Friday, g:OO am to 4:00 pm.
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9. [n or about June 2002, the Hospital posted a temporary thll-time vacancy
in Medical Recordg, Ms. McFadzean applied Succ(;s~fnlly for that
vacancy.
10. During the period in which Ms. McFadzean tilled the temporary Medical
Records vacancy, the Switchboard! Admitting position was posted and
temporarily fined by one intemal ¡;mployee. Although the individual in
question, Ms. Sandra. Lloyd. had previously been a part-time employee.
her hours of work in the Switchboard! AdmitÜng position continued to be
tht.: game as previously, namely Monday to Friday, ¡LOO am TO 4:00 pm.
I I. At ~he Mount Forest site, tl1c Switchboard/ Admitting position is filled by
three Regular part-time employees and One casual employee.
SwiTchboard/Admitting at Mount forest is open for longer hours than at
Palmerston and is also open weekends.
12. During the period when Ms. Lloyd was remporarily filling the
Switchboard! Admitting position, she required a medical leave of absence
of approximately six weeks. Ms. Angela Claussen filled thl,: majority of
the Switchboard! Admitting position while Mg. Lloyd was absent:. Shifts
that Ms. Claossen was unable to fill were worked by Ms. JI;a.nnie Fisk.
13. Tn The spring of 2003, the Ho$pita! creat(:d three additional full-time
positions, within me Medical Rccords deparuTIcnr. Ms. McFadzcan. the
original incumbent in the Palmerston Switchbo<¡.rd/ Admitting position,
guccessfhlly applied for om; of the new ful1~tirne permanent Medical
Records positions.
]4. Once M.s. McFadzean obtained the Medical Record:) position, the
Hospital reviewed d1t: question of how best to staff the
Switchboard/Admitting at Palmerston.
IS. The Admitting position had been a full-time One for at least twenty-five
years.
l6. A chronology of relevant dates is as follows:
Mid- to late-ZOO 1 Switchboard duties transfened from Hcalth
Records to Admitting
Mid- to late-20a 1 Remodelling of Palmerston site
September 1, 2001 Amalgarnation of Louise Marshall HospìtaJ and
Palmcrston and District Hospital
March, 2002 Introduction of new telc;;phone system
July, 2002 HeJen McFadzean obtains t¡;mporary assiglIDlcnt
in Medical Record:;. Sandra Lloyd temporarily
a:)signed to Switchboard/Admitting. Because of
"chain reaction" posting to tlll Angela Claussen
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position. Ms. Lloyd cominl1~d to work
primarily full-time hours until January, 2004,
with Ms. Claussen working intermittent parc-
time hours in Switchboard/Admitting.
17. D\,¡ring th<;: course of itS deliberations, the Hospital considered that: prior
to late-2001, the duties of the position had been primarily admitting. It is
[he Hospital'S position that in Iate-2001, due to a remodeling of the
Hospital's Palmerston site with a physical relocation of the patiem flow,
physical relocation of reception, switchbonrd, and the introduction of a
new telephone system, the position had changed.
[R. Then; are a number of duties of the Swirchboard/Admining position that
are unique to th~ position and that require oriemation. These include the
following:
(a) Accurate registration of various visit types to alJow for
assignment to appropriate MIS funcrional centn:;
(b) Booking appointments for five visiting specialist MDs;
preparation of documentation required by physicians for elective
surgery;
(c) Booking appointments for staff specialists and c1 inics (eg.
Diabetic Education. "Heart to Heart");
(d) Acting as the main communications centre during fire alanlls
and other cmörgency situation~;
(c) DetemÜning when patients presenTing with a respiratory illnçss
should bt: asked to wear a mask;
(t) The ability to recognize, and treat willi discretion, potential
patients who have religious objections to provincial medical
il1.surance;
(g) An understanding of notification requirements under the
WorkplC1c:e Saji!ty and Im'wance Ac:t;
(h) Ability to process certain types of accounts receivables; ability to
proC¡;SS self pay accounts;
(í) Supplementary filing of information regarding
electrocardiograms;
(j) Ability to operate a mulri-line telephone system extending to
both sites; overhead paging of staff and physicians as r~qui red;
(k) Receiving and distributing incoming mail and faxc.:s;
(1) Responding 10 general public inquiries;
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(m) Procc::ssing of tdevision r~l1tals,
19. Typically, staff receive approximately five: days' oriemarion to the duties
of this position.
20. It is the Hospital's position that it had a fundam~mal responsibility to
ensure tlmt the position had fully competent personnel performing the
duties at all times; therefore, n.:quiring the;: training of more than One
person. This was already the case at the Mount Forest site.
21. The parties discu$sed the maner at Labour-Managcm~nt meeTings held
on May 1, June and July 8,2003 (Tabs 4,6 and 3, r~speçtively).
22. On or about May 23, 2003, the Hospital posted two permanent part-time
positions for Switchboard/Admitting clerks at the Palmerston site (Tab
5). Ms. Lloyd and Ms. Claussen were the successful applicants. (That
process itself gave rise to a grievance. number 03 226 078, from Ms.
Clara Stevens. an unsuccessful applicant for the position.)
23. The incumbents each work five (5) shifts in a two-week period,
altemating between Monday to Wednesday, 8:00 a.m. to 4:00 pm. one
we~k and Thursday and Friday, 8:00 a.m. to 4:00 p.m. the next,
Su bmissiol1s
The Union
The Union submits that the issue is wbether the Hospital, following the
departure of a full-time employee from a particular position, can take that position and re-
post it as two part-time positions doing essentially the same work over the same hours.
Reviewing the facts. the Union points out that the switchboard/admitting
clerk position has been in existence for more than 25 years. Prior to the events in
question, and over the course of the last quarter-centUlY, the posirion had been occupied
by a single full-time incumbent working 8:00 a.m. to 4:00 p.m., Monday to Friday. In
Jam1ary 2002, when the incumbent moved ¡mo a temporary positlon, the HospitaJ posted
the switchboard/admitting clerk position as a temporary full-rime vacancy for the same
hours and days of the week. Then, when the position being occupied temporarily by the
former incumbent of the n\ll-time switchboard/admitting clerk po$ition was itself posό
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as a permanent position and the incumbent was successful in obtaining iT, the Hospital
posted the switchboard/admitting clerk position as two regular part-time positions, again
covering exactly the same hours and days of the week.
The Union submits that the Ho3pital' s failure to post the
swítcllboard/admittíng clerk position as a single fuJI-time position consciruted a breach of
Article 11.0S(a) of the collective agreement, which states:
11.05 Job Posting
(a) The Hospital shall post notices of all pcm1anèfit vacanciès,
including new jobs or classificaTion openings on the bulletin
board(s) for a period of seven (7) working days. Employees
may m:1.ke written application tor snch job vacancies within
such seven (7) day period.
According to the Union, the application of thís provision depends on the
answer to l:WO quesrions. FirSt, is there a permanent vacancy? Second, in what
classification is the vacancy? The Union submits that the answer to the first question
depends on the answer to the further question, "is There a job of work to be done." On the
facts of this case, the Union submits that the answer to the first question is clearly "yes".
As for the second question, the Union submits that if there are no substantial changes in
the nature or quantity of work to be performed following the departure of the full-time
incumbent, then it is a full-time vacancy that remains, [n this case, the Union notes that
although there have been a' num~er of changes to the way in which the work of the
switchboard/admitting clerk has been done over the years, the }c)b of
switchboard/admitting clerk remains es$entially the same. And, of course, it is being
performed for precisely the same number of hours and at precisely the same times of the
day and week as before. On that basis, the Union submits that it was in a filII-time
position that the vacancy remained.
Before turning to the case law, the Union notes that full-time and part-time
employees have diftèrent rights under the collective agreement. WithoUt reviewing those
differences in detail, the Union notes that they can be found in Article IS (dealing with
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Sick Leave, Injury and Disability), Article 19.04 (dealing with lllness during Vacation)
and Aniele 20 (dealing with Health and Welfare Benefits), While the Union dOé;S not
suggest that the Hospital was motivated by these differences when making its decision or
that iT was acting in bad faith, it relies on these differences to underscore the imponance
of the issue fron! its point of view,
The Union submits that the competing arbitral approaches to the issue are
best represented by the awards in Fernie, supra, and Timmins. ."uPJ'Cl. Fernie comes later
and explains why Timmins ought not to be followed. In finding the employer to have
breached the collective agreement in Fernie, Arbitrator Glass relied on a number of
earlier arbitral awards including: City of Surrey and Canadian Union (l Public
Employees, Local 402, dated November 18, 1997, unreported (M, Jackson) (hereinafter
"Surrey"); Reel Lake Margaret Cochenour Memorial Ho~pilClI and Canadian Union of
Public }.:mployees, Local 1758, dated June 27, 19&3, unrepot1ed, (R.H. McLaren)
(hereinafter "Red Lake") and Mapfewood Nursing Horne Ltd. Tillsonburg (Maple lvlanor)
and London & Dis/ricl Service Workers Union, Local 220 (1989),9 LAc. (4th) 115
(Hunter) (hereínafter .. 'lv!ctp Ie wood No.2"),
After quoting extemively from the Surrey award, the arbitrator in fernie
addressed the employer's assertion that it had met irs posting obligations by posting the
two pan-time positions, as follows:
It is implicit from the Board's decision in ~he Surrey caS~ "that the
pOS1Íng of one or more pan-time positions would not have b~cn
sufficient compliance with the collective elgreemenL The Arbitration
Board stated at page 12 as I have already indicated, that seniori~y rights
could be defeated "when full-rim<=: positions are not postèd but instüad
the work is redistributed to other employc.:cs"
It follows from the reasoning in this awe¡rd, that rhç fëdisuibmion of
the work of a full-timc position to pan:~t:ime employçc;:=; ',-"auld be a
breach of the coll<=:ctive agreement posting provisions, even if the parr-
time positions which were thereby creaœd wen;; themselves postüd.
There arc oth~r arbitration awards which S'lJpport this view, some of
which I wiH refer to later. Implicitly rather than expressly, they support
the view that it is the oblígalion of the ümployer under a typical posting
provision, to post/he position whi,:h has beC'Ome W/(:(¡fJl, It is a breach of
the posting provisions in most agreements, to carve up or reassign a ntll-
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Üm¡; position, rather ihan post such a full-tim<.: position, wh~[hcr or not
management follows the posting procedure (if any) for rhe pan-time or
reassigned work. (eIl1phasis in original) (p,299)
Some of the "implicit", rather than "express", SUPpO¡1 tor the view identified in the
preceding paragraph is summarized in the following paragraphs:
There í~ a body of arbitral authority, which extends back for many
years. in which arbitration boards examine the question of whether there
is a. real vacancy or not, in the context of posting dispUtes. These
authorities arc typified by Tidewarer Oil Co. (Ccmada) Ltd. and Oil,
ChC1mical, & Atomic Worker:}, Loc, 9-599 (1963), 14 L,A.C. 233n
(Reville); and Horton Sleet Work Ltd and Us' W. Lm:. 3598 (1973), 3
LA.c. (2d) 54 (Rayner).
The factual analysis carried ot}! in cases of this kind, is 10 determine if
in tàct there is still a full-time job of work to be clone, after a position has
been vacated and a purported reorganization has taken place. The whok
purpose of thè analysis carrkd out in cases of this namre is to
ul1scrarnble the reor!;!;anizing or real1ocaÜng of work which the employer
has carried out, after the position became vacant, in order to ascertain
whether there was in fact a real vacant position which should have been
posted. If there continues to be a job of work for a full shift each day
then the posting requirement is triggered. and that full job of work or
position is what must be posted. (pp.301-302)
After quoting from HoruHl Steel Work and u.S. W, Loca!3598 (1973), 3
LAC. (2d) (Rayner) (hereinafter "Horton Steer') and Mctplewood No.2, supra, the
arbitrator returned to the question of whether the employer satisfìed its co1lective
agreement obligations by posting the two part-time positions, as follows:
In light of the reasoning in the long line of cases typified by those r
have rderred to, it seems to me, with the greatest of respect to
Arbitrators R.M. Brown [in Timmins] and Diebolt lin Dis(rir.:( (!fMaple
Ridge and Canadian Union of Public Employees, Lo,:,,! 662, dated July
15, 1997, unrepoI1cd], i~ does not matter iftàllowing a fuJl-tÏTne position
b¡;corning vacant, the employer reorganizes the work of tha[ position so
as to avoid the posting provisions at all, or reorganizes so as to be in a
positíon to post two or more different jobs than [he one which feU vacant.
The objection in tenns of breach of the posting provisions, is dlat in
either case, the employer has. when faced wid1 a fulHime vacancy, faikd
to post the full-time position which feU vaC(l11t. This appr;ars also to be
the view of Arbitrator Palmer, in R~ Care.'>~]ant Care Nursing Home of
ecmada Ltd. (ST. 1'homCl,~' and London & Di:>tricl Service WCirkus Union,
inc, 220, unreported, 27 Decembr;:r 1990 (E.E. Palmer), I-hving stated
(at page 17) that the Board sided with the views c:xprès:>:ecl in Horton
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SteeL. Maplewood (Hunter) and Red Lake ('Jupra). the Palmer Board goes
on at page 19 to say this:
In conclusion, this Board HUlst st.H.C ~har we disagree with one corrunem
made by R. M. Brown in ~he Timmins award. He suggests thm the
Hunter and McLaren decisions were based on the fact that 110 posLings
whatsoever were madc, Wð only cornmem that a rc¡;¡ding of these cases
does not suggest such a result. Both, in our opinion, stress the positive
obligation of the employer to post vacandes.
It is clear &0111 the context of this observZ1tion. thm Arbitrator Palmer
does not consider the Hunter or McLaren decisions to be distinguishable
on the groltnds suggested by Mr. Brown. While 110t fully anic~¡la¡ing his
r~asons why this is so, it is implicit in his observation which r have just
quoted, that the Hunter and McLaren cases which he followed, and the
reasoning which he himself applied in the case in qut:stion, recognize an
obligaúon on the part of the employer to post a full-time position if it is a
full-time position which has fallen vacant. (pp,302-303)
Finally, after reviewing a number of ,¡dditional awards, the arbitrator
revisited the Timmins award, setting out what may be described as the crux of his thesis
in the following passages:
Remming to the TÏmmins case for a moment, Arbitrator R.M. Brown
asserts that while seniority rights may be negated when an employer
carves up a full-time position and thereby bypasses the posting
provisions altogt:thct, they arc not negated when an employer carves up
or reassigns a full-time position and permits employees to apply for
mmcated ponions of the vacated position. He says that seniority rights
which are protected by the posting provisions of a collective agreement
which allows for the posting of part-timc as well as full-IÏme positions,
and the application by part-time as wen as full-time employees for .cùl
positions, are merely -<devalued" when they can only be exercised by
way of applying for a part-time position, whcre a full-time position hM
previously existed, howl.:ver, those rights arè not "negated". This
approach seems to overlook the fact thm the negotiated benetìt
represented by most posting provisions, including those identified in this
case, has sc:vcral parts to it. These ar~:
1. The right to be notified when a position becomes vacant,
2. The right {O apply for thç actUal position which has become
vacant, and not a diluted, reduced or truncated version of it.
3. The right to be considçred for the pashiol), for valying degrees
of prefenmce based on seniority depending on the specific
collective agreement language.
The ,;¡ccond benefit :;¡.Ú"eö: from the straiHhtforward language of most
posting provisions in collective agreements which speak of "filling a
position which has become 'Vacant", and from the many arbitral
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aUthorities which over the years have defined, affinncd and applied that
right, by asking the question (1) has a full-time job fallen vacant, and
docs it actually, practically exist?, or (2) is the all~gc(j vacancy in fact
purely theoretical, or a non vacancy, for variO.Ls legitil1l3t<.: rça~on,,?
Timmim' and Maple Ridge fail to acknowledge this second b~nèfit
implicit in most posting provisions. (pp.305-306)
The Union endorses the Fernie analysis ¿md, in particular, it~ emphasis on
the importance of seniority rights, According to the Union, in the Context of a job-
posting. provision, seniority rights include more than the mere right [0 bid on a job, they
include the right to bid on ajull-lime job, if it is a full-tirne job which has fallen vacant, to
which other superior rights often attach,
Finally, while submitting that the Timmins and Fernie analy:;es simply
cannot stand tOgether, the Union notes that Arbitraror Brown in 'lïmmins also appears to
have been troubled by the fact that the two part-time positions in that case did not include
all of the hours worked in the single fbll-time position. Hence, it may be possible to
understand the Timmins award On the basis that there was no longer a fi..lll-time job of
work to be done.
On the basis of the foregoing, the Union ask~ that the gríevance be upheld
and that the Hospital be required to post and fill the switchboard/admitting clerk position
as a single full-time position.
The Hospital
The Hospital begins its submissions by noting one area of agreement with
the Union: the factual differences between this case and Timmins and Fernie are not
significant. Having said that, the Hospital nevertheless makes twO factual observations.
First, nOt only does the present case, like Timmins and Fernie, involve a combined fhll-
time/part-time bargaining unit, but there is an actual history of part-time employment in
this workplace. In Fernie there appears to have been no such history. Second, the duties
and requirements of the switchboard/admitting clerk position have changed over the
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years. However, the Hospital properly concedes that those changes are best described as
evolutionary or incremental rather than as fundamental to the nature of the position.
Turning to the collective agreement, the Hospital nOtes [hat there are three
categories of part-time employees in the bargaining unit: "regular part-time", "casual
part-time" and "students" (Article 4.02). The posting here was for two "regular pan-
time" positions. More importantly, ITom the Hospital's point of view, the management
rights clause provides:
ARTICLE 3 - MANAGEMENT RIGHTS
3.01 The union recognizes thar the management of the hospital and the
direction of the employeès are fixed ,..:xclusively in the hospitalllild shall
n;main solely with thè hospital except as specitìc<111y limited by the
provisions of this agreement, and witham iestricti ng the generaliTy of the
foregoing, the union acknowledges that ir is [he çxclùsive function of the
hospiral to:
a. maintain ordc;;r, discipline and efficiency;
b. hire, assign, retire, promote, demote, classify, transtèr, lay-
off, recall, and to suspend or discipline employ\~es or
disch..qrge seniority-rated employees for jllst cause provided
mat a claim by any employee that he/she has been discipline
without just cause or a claim by a seniority-rated employee
that he/she has been discharged without juS[ cause may be
the subject of a grievance and dealt with as hereinafter
provided;
c. de"termine in the interest of efficient opcrarion and high
standards of service;, tilt; hours of work, work assignments,
methods of doing the work and the working es!abli:;lmìcnt
for the servic¡,:;
d. generally to manage The operation that rhe hospital is
engaged in, and without restricting the generali[y of Ù1e
foregoing, to determine the number of personnel required,
methods, procedures and equipment in connec[jon ther~with,
The Hospital submits that the Union's argument must be evaluated in the light of this
clause and the express requirement that any restriction on the inherent right of
management to direct the working forces and organize the way in which the work gets
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done must be spelled-out in specific language in the agreement. According to the
Hospital, Article 11,O5(a) does not supply the restriction asserted by the Union.
Lookíng further at the collective agreement, and making some preliminmy
references to the cases, the Hospital notes that Article 11. 05(a) applies to both full-time
and part-time positions, Hence, employees have the right to utilìze their seniority to bid
on both types of jobs, The Hospital submits that this distinguishes the present collective
agreement tì-om that which was considered in Maph:wood No.2, supra, and, perhaps,
Surrey, supra, cases which were relied on by the arbitreJ.tor in Fernir:. The Hospital also
notes that included within the posting obligation created by Article 11 ,O5(a) are "new
jobs or classification openings". Since, as the Hospital submits, there is a long ltne of
arbitral authority that says if an employer wants to add a position working 40 hour:, per
week, Monday to Friday, it is free to post the duties of that position as two or more part-
rime positions, the inclusion of "new jobs or classification openings" within the same
posting obligation supports a similar result here. Further, the Hospital notes that Article
11 ,O9(i) provides that "no full-time employee sh~ll be h'Úd off by reason of his/her duties
being assigned to one or more part-time employees." The Hospital submits that by
placing a limitation on the circumstances in which the Hospital can assign the work of
full-time employees to part-time employees - a limitation which was not exceeded on the
facts of rhis case - this provision stands as implicit recognition of the Hospital's ability to
make the kind of change that it did here. Indeed, a virrually identical provision was relied
011 by the arbitrator in Clinton Public: Hospital and Service Employees' InJernalional
Union, Local 210, dated September 5, 1995, unreported (Rayner) (hereinafter "Clinton")
to support the very same concl1..l:>ion.
Addressing the case law more fully, the Hospital submits that it is trite, but
critical, to observe that the specific facts and collective agreement provisions must be
examined in each case in order to understand precisely what it was that was being
dedded. According to the Hospital, two separate questions are addressed in the case law.
The tìrst is whether there is a position that needs to be posted? Hospital counsel
dcsoribo;; thí$ as the "threshold" -question. The an..WCT' to thif: 'lue>:tion, 'v\rhich is provided
by the case law, depends on whether there is a "job of work" (0 be done. The second
AuH4-2004 12: 1 0 From-RWBD 4163409250 T-505 P.018/029 F-381
13
question is whether there has been a proper posting? Based on Hospital cOllOsel' s
reasoning, This may be described as the "ultimate" question, The Hospital submits that
the answer to the threshold question is of no assistance il1 answering the ultimate question
and that it was in the collapsing of the two questions that Fernie went wrong.
According to the Hospital, the following are the critical points to be drawn
from the cases. First, all of the cases involve combined full~Time/pan-time bargaining
units. Hence, any inconsistent results cannot be explained on the basis of a concern for
the movement of jobs outside of the bargaining unit. III this case, as in all of the cases
referred to by the parties, the posted jobs remain within the purview of the Union and the
scope of the collective agreement.
Second, the Hospital submits that The following cases deal exclusively
with the threshold question: Hor/on Sleel, supra, Oil, Chemical and AlOmic W(),.ker.s~
Local 9-599 and Tidewater Oil Co. (1963), 14 LAC. 233n (hereinafter "Tid(;~ater
Oir), R~d Lake, SUp'f'G. Maplewood Nursing Home J.ld. and London and DistricT Service
Workers, dated August 22, 1988, unreported (B.B. Jolliffe) (hereinafter "Maplew()od No-
J "J, Maplew()od No.2, supra, and, perhaps, Surrey, supra. In all of these cases, the
Hospital submits, it was possible to tìnd a violation because there was no posting
whatsoever.
Third, the following cases deal with the ultimate question: Timmins,
supm, Hofd-Djeu Grace Ho.spital and SerVice Emplo.vees' InTernational Union, Local
2 J 0, dated March 6, 1 995, unreported (McLaren) (hereinafter "Hotel-Dietl"), Clinton,
s'upra, DisTrict of Maple Ridge and Canadian Union of Public Employees, Local 662,
dated July] 5 1997, unrepol1ed (Diebolt) (hereinafter <'Maple Ridge"), Fernie, supm, and,
perhaps, Surrey, supra. Of these, two - Hozel-Dieu and Clinton - were not referred to in
Fernie and both reach the opposite conclusion. Not incidentally, the I-Iospìtal notes, both
Ho/el-Dieu and Clinton were decided by arbìtrators - McLaren and Rayner, respectively
~ who had previously decided the threshold question in favour of the position taken by
the Union hen; (:>~e R~d LClk~, supra nnd Horton Staal, supra).
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14
F ounh, to the extent that the arbitrator in Fernie relies on the existence of
greater benefits attaching to full-rime positions over part-time positions - a tàcwr which,
the Hospital submits, is entirely irrelevant - the Hospital notes that this was expressly
rejected as a basis for decision by the arbÍIrator in Maple Ridge, .\'upra, and in Timmins.
Fifth, the Hospital poinB out that not only does the arbitrator in J1't!rnie
rely on cases that deal with the threshold question to answer the ultimate queStion but he
refers to two 1ùrther cases - Deitassi'sl Community Services S()c:i~ty and I.e.1: u" LoG, I,
dated December 20, 1996, unreported (Germaine) and Caressanr Care Nursing Home,
Lis/owe! and UFCw., Loc. 175 (1988), 3 LAC. (4th) 236 (Jolliffe) - which, in the
Hospital's submission, have no bearing on the i::;sue at all.
Sixth, the Hospital notes that Arbitrator .Brown in Timmins: (i) nows that
he sees no evidence of an intention, in the job-posting provision before him, to freeze the
ratio of parr-time to full-time employees; (ii) in finding Red Lake, supra, to be unhelpful,
implicitly recognizes the distinction between the threshold and ultimate questions; (iii)
leaves open the possibility that a different result may obtain if the part-time postings were
to be the product of an involuntary departure by the fuJI-time employee. Taking the firs!
point a ;;tep fhrther, the Hospital notes that various fom1s of provisions seeking to
preserve a specific or relative number of fhll-time positions can be found in other
collective agreements (eg. ratio provisions) and that sLlch language could havE; been
inc1uded here if that had been the parties' intention. Alternatively, the Hospital submits,
simple "thou shalt not" language could have been utilized.
Seventh, while noting its agreement with the first and third of the three
benefits that Fernie suggests emerge from the typical job-posting provision (see the final
excerpt from the award quoted above), the Hospital submits that the arbitrator made the
second benefit up out of whole cloth and contrary to the weight of the case law.
Eighth, while recognizing that it was decided on other grounds, the
Ho:spititl :submit,:> that my own i1wMd in H~ìm¡lton l!lgllth ScÙ:nc:es Corp(~ralit'm, supra,
necessarily proceeds ft-om a similar premise to that which formed the basis of the
""II-"'-'UU" ,,; I U r rOm-i':lVtHJ 4163409250 T-505 P.020/029 F-381
15
Timmins' decision If, as Ferni~ states, it is inherent in the typical job-posting provision
that an employer must pOST the self-same position that fell vacant provided the work
remains, then it should not matter whether the employer has chosen to parcel-out certain
aspects of the work to other positions before deciding what position(s) it will post. If one
is precluded then so must be the other, and if one is permitted then so must be the other.
Finally, out of an apparent abundance of caution. the Hospital refers to the
following Letter of Understanding to the collective agreement:
LETTER OF UNDERSTANDING #2
Distribution of Hours to Part-Time Employees
It is agreed that when extra shifts arÇ added in classificarion beyond the
current number of shifts or a pan-time employee leaves the employ of
the hospiIal, the employer shall meet with the union to discuss the rc-
distribution of the newly available hours among the current part-time
employees, beginning with the n:guJar pal1-time employc.;:çs who lost
hours in the cutback of April 1992 based on seniority. The procedure set
out in Article]) with regard to layoff and recall takes precedence over
rhe procedures in this letter.
It is agreed that the number of pcm1anent parr-time employees in each
classification shall not be increased OVl:r current levels without the
agreement of the union.
It is further agreed that before any shifts arC assigned to casual parr-time
employees, the hospital will endeavour to offer regular pan-time
employees in that classification shifts totaling twenty-two and one-half
(22-1/2) hours per week.
It is understood that, for the purpose of thi~ letter, a shift is of ::¡t least
three (3) hours duration for parHime admining clerks, at least four (4)
hours duration in the case of par1-time employees under the service
agreement; however, in the case of part-time studr;;Jlts a shift is of at least
two (2) haul's duration.
The Hospital submits that LO.v. #2 deals only with the distribmion of
I
work among the various types of part-time employees; it doeg not dea] with the
distribution of work as between part~time and fullwtime employee.s. The L.O.U. refers to
an event which took place in 1992 and says, in effect, that existing part-time employees
have "first dibs" on additional part-time hours betbn~ any new pan-time empJoy~es are
hired. It does not seek to freeze any form of absolute or relative number offull~time jobs.
'AulI'-24-2004 12: 11 From-RWBD 4163409250 T-505 P.021/029 F-381
16
On the basis of the foregoing the Hospital asks that the grievance be
dismissed.
The Union
In reply, the Union notes the apparent Concern of the Hospital for the
context of L. O. U. #2 ~ a concern which, it submits, goes missing when the Hospítal
addresses the application of Article II,O5(a). Here, l:he context is that of a full-time
position which has been in existence for more than 25 years, which has fallen vacant, and
which has been converted by the Hospital into two part-time positions working pr~cisely
the same hours and days of the week. According to the Union, it is this context which
should govern the application of Article 11.O5(a). ln a related vein, lÌle Union submits
that if there is no need for explicit "thou shall not" language in L. O. U. #2, then neither
should there be in Anic1e II.O5(a). Finally, with respec;t to the collective agreement, the
Union submits that the fact that "new positions" and "classification openings" are
included within the same posting provision does not affect the nature of the obligations
owed in respect of existing positions,
As for the case law, the Union disagrees with the assertion that Red Lake
and Surrey are "threshold" cases. A close reading of bath cases put:' them squarely in the
Fernie camp. So also, part-time positions appear to have been included in the bargaining
unit and subject to the posting obligation in Surrey, With respect to Holel-Dieu, supra,
the Union notes that Arbitrator McLaren does not appear to have been referred to his
earlier award in Red Lake. According to the Union, This limits [he weight which can be
attached to the Hotel-Dieu case. As for Climon, supra, the evidence appeared to disclose
50111.e parceling-out of duties after the position fell vacant. Hence, it may be possible to
explain that decision, at least in part, on That basis,
Finally, with respect to Timmins and Fernie, the Union notes that the
"tÌ'c~cÚng" ÍjjUt i:tppi;;t1,1'6 W htl,vc been identified by ,A..r'bitrator Brown entirely 011 his own
and without the benefit of any submissions from the parties, l'vfc¡lcing at least some of
AUi-Z4-2004 12: 11 Frcm-RWBD 4163409250 T-505 P.022/029 F-381 .
17
those submissions here, the Union describe:> the "freezing" or '-ratio" concerns as
misplaced. An employer is always free to alter the mix of full-time and part-time work if
it makes real change$ to the nature of the position (se:e ego HamilTOn HealTh Sçfences
Corporation, supra), if it creates new positions, or as the result of negotiations with the
UnIon. Returning to Fernie, the Union notes that the absence of any history of part-time
usage was nOT a significant factor in the decision. At m~st) it was relied on by Arbitrator
Glass as an '"even ifl'm wrong" kind ofpoinr.
Quite apart from the cases, the Union submits [hat it is necessmy to
consider how far the Hospital's argument would go - where would it stop? If the
Hospital were free to post full-time positions as pal1~time positions, what wOllld prevent
it, over time, from convening the entire bargaining unit into a pan-time workforce?
The key to the case, according to the Union, is that it was the same
position, consisting of the same work and the same hours of work that existed afi:er the
vacancy as before. Hence, it was thelul/-time position that constítuted the vacancy and it
was the full-rime position that was required to have been posted.
Reasons
As noted at the outset of this award. the issue in this case is whether the
Hospital breached the job-posting provision of the collective agreement by posting two
parr-time switchboard/admitting clerk positions rather than a single full~time
switchboard/admitting clerk position. The i~sue may be approached from a number of
different perspectives. The first is the language of the collective agreement.
I agree with Hospital counsel that the right to determine the way in which
the work gets done - including the number and types of positions to be filled and whether
those positions will be fiIJed on a full-time or pan-time basis - falls squarely within the
usual rights of management reflected in most management rights clauses. Ankle 3,01 is
no dítfefcnt. It t\rtículates a lcl1,b':thy, but expressly non-exhaustive, list of management
rights which clearly incJudes the right in question. The Article then goes on to provide
'AUi-24-2004 12: 11 Frcm-RWBD 4163409250 T-505 P.023/029 F-381
18
that any limitations on those rights must be specifically spelled out in the language of the
agreement. The question, therefore, is whether ArIicle Il.O5(a) supplies [he necessary
limitation.
To repeat, Article 11.05(a) stateS;
J 1.05 Job Posting
(a) The Hospital shall post notices of all permall~nt vacancies,
including new jobs or classification openings on the bl;¡}letio
board(s) for a period of seven (7) working days. Employ~c;$
may make wrirren application for such job vacancies within
such seven (7) day period.
In requiring the Hospital to "post notices of all permanent vacancies", Article 1] ,O5(a)
does not define what is meant by a "vacancy". However, there are cases to indicate that a
vacancy exists where there is a 'job of work to be done": see ~g. lvlaplewood No.2,
Sllprct, relied on by the Union here. In my view, however, whether there is a job of work
to be done and, therefore, enough work to constitute a vacancy says nothing 'at all about
whether that vacancy must be posted either as a full~time position or as two or mOH: part-
time position:>.
A "vacancy" is nothing more than a position to be filled. A position may
have a number of elements, íncluding a set of duties, a classification, a wage rate, fllll-
time or part-time gtatUS, and designated hours ofworlc. The question is how these various
elements are determined. The answer - supplied by Article 3.01 - is that they are
determined by the Hospital, unless the collective agreement says otherwise.
Generally speaking, employers are free to establish the duties of positions.
However, the classitìcations and wage rates associated with those duties will typically be
regulated by the language of the collective agreement - in this case by the classification
provision (Al1ic1e 22) and the wage rate appendix (Appendix 1). Similarly, under this
agreement, the hours of work component of positions W111 be subject to the "normal hours
or work" provIsIon: Al1icle 1 ù. (But nere 1 pau~t: lO n<.,;,lt: lI1aL AniCle 1 () expressly states
that the hours of work referred to therein "$hall not be construed to be a guarantee of
AUi-24-2004 12: 11 Frcm-RWBD 4163409250 T-505 P.024/029 F-381 '
19
hours of work to be performed on each tour or during each [30 day] schedule.) There is,
however, no provision in the agreement - outside of the possible effect of the job-posting
language itself - that would appear to restrict the Hospital'~ ability to post a position as
either full-time or part-time.
The closest that the remaining provisions of the agreement come to
regulating this question is in Article 11.O9(i) - relied on by the Hospital here - and
LO.D, #2 - referred to by the Hospital here. Article 11 ,O9(i) prohibits the Hospital from
laying off any full-time employee "by reason of his/her duties being assigned to one or
more part-time employees". Although there is no suggestion that Article 11,O9(ì) was
engaged on the facts of this case, its very existence, as submitted by the Hospital, appears
to reflect some recognition by the panies of management's inherent ability to do
precisely what it did here. It will only be where such assignments of duties result in a
lay-off that they will be prohibited. Further, although L.O. U. #2 appears to contain
language which is intended to preclude an increase in the number of permanent part-time
employees in any given classification, the Union does not submit that LO,u. #2 was
breached on the facts of this case. (This, one supposes, was as the result of a shared
understanding between the parties that the purpose of LO.V. 1+2 was to regulate the
distribution of hours of work between pan-time employees rather than as between full-
time allct pan-time employees.) Thus, while the agreement reflects some concern for the
preservation of full-time employment, that concern - again apart from the possible effect
of the posting language itself - has not been manifested in the kind of protection a:;serted
by the Union here.
The situation in Fernie, !i'ùpro, was much the same, The collective
agreement in that case contained a rather peculiarly worded posting provision but no
other provision that appeared to restrict the employer's ability to designate a position as
either full-time or pan-time. However, in concluding that the employer breached the
collective agreement when it posted two part-time positions rather than a single fì.JlI-time
position, the arbitrator relíed on the right of employee:~ "to apply for the actual position
which ho.5 bççome vacant, and not ~ diluted, l"G:duccd or tnmcated V8J'!::ian of it".
'Au¡-24-2004 12: 12 Frcm-RWBD 4163409250 T-505 P.025/029 F-381
20
According to the arbitrator, this right - which was said to attach to the fuJI-time position
- arose from:
... the.: straightforward language of most posting provisions in coJlective
agreC:..'1l1èots which speak of "filling a position which has become vacant",
and from the many arbitral authorities which over the years have defined,
aft1mled and applied that right, by asking the question (I) has a fuB-time
job fallen vacant, and does it actually, practically exist?, or (2) is the
alleged vacancy in tact purely theoretical, 0)[ a non-vacancy, fOf various
kgí"CÍmate reasons?
I regret that 1 am unab1e to accept this reasoning.
First, it is far from clear to me that it is possible to speak of the "typical"
posting provision, as was done by the arbitrator in Fern if:: , at least in respect of this issue.
When ít comes to the question of what must be posted, posting language can vary from
the obscure (Fernie), to the indetiníte (as I would characterize the language here), to the
somewhat more precise (Maplew(Jod No.2), In light of these variations, and despite the
obvious benefits that would be derived in terms of cenainty, to take a blanket approach to
this issue may be to disregard the imentions of the parries as expressed in the language of
individual agreements.
Having said that, and taking a step filrther back, it is fair to say that
posting provisions have both procedural and substanrive elements. Perhaps subject to the
initial obligatíon to identifY the need for a posting (which, on the approach noted above,
is a fÜnction of whether there is a 'job of work to be done"), the oblìgation to "post...
vacancie$", as set out in the words of Article I LOSCa), appears to perform a primarily
procedural function. The obligation to fill those vacancies in accordance with the
prescribed test performs the substantive function. (Under this collective agreement,
Ankle 11. 05( c) establishes a relative equality test for t.he selection process, ie. where the
"ability, experience and qualifications" of the candidates are "relatively equa1", seniority
governs). As I see it, what the arbitrator in Fr;1mie attempted to do was, in effect, to inject
a particular <;!ement of $ubstantive contant into posting langl.,lage which it did not possess.
(The relevant provision in that case simply required the employer to "notify the union in
I\U¡¡-,q-'UUq ,,; I' r rCm-l':\VtH 4163409250 T-505 P.026/029 F-381 ,
21
writing and post notice of the position" before "tìJIing any staff changes or promotions
covered by the terms of [the] Agreement",) In my view, that approach is not availabJe on
the language of this agreement which, IO repeat, simplY requires the Hospital to "post
notices of all permanel1t vacancies".
Nor, in my view, is it something that is ~upported by the majority of the
case Jaw in this province. I agree with Hospital counsel that it is both possible and
necessary to distinguish between cases which have addressed the question of whether a
vacancy exists which triggers an obligation to post and cases which address the question
of wherher the employer is required to maintain and post a position ,\$ either full-time or
part-time. This distinction is, perhaps, best highlighted by the fact that two of the
arbitrators who had decided cases upon which the arbitrator in Fernie relied to establish
whether a vacancy exists decided, in sLtbsequent case~, that management was free to post
vacancies as either full-time or part-time: see Hotel-Die/.(. supra, and ClinTon, supra. In
my view, these developments bear oUt the earlier analysis of Arbitrator Brown in
Timn"lins. who after a detailed review of the cases, addressed two which could be n~ad as
supporting a different outcome:
The cwo cases in which a grievance oVCr d1C transfer of work from full-
tim~ to part-time empJoyees in the same unit succeeded are Red ¡.ake and
Maplewoud No.2. This case is different from both of those in one important
respect. Here the parr-time assignments in dispute were 111.:1.de pursuant to a job
posting procedure, 111Ìs collective agreement reql1Ìres the employer to post part-
time vacancies as well as full-time vacancies. The two part-time cook positions
were postèd and tílled with due regard to seniority. Accordingly, to allow the
employer to convert ft.lll-time work to part-time work would not bè 1:0 allow the
employer to avoid posting jobs and, 1:hereby, tOmlly negate seniority rights. The
reasoning applied by Professor Hunter in Maplewood No.2 has no applicatio!1.
While seniority rights have not been negated> the union might argue that
thl.: employer has devalued seniority rights by converting full-rime jobs to part-
time jobs. According to this argument, seniority rights which ground a claim to
fhll-time work have greater value than seniority rights which ground a claim to
part -Üme work. The union might contend that a devalua1:ion of seniority rights
contravenes the collective agreem~nt. This al'gllInent cannor succeed in The
context of a collective agreement which covers both full-time and part-time
employees, requires that both full-time and part-time vacancies be posted and
allows both types of employees to exercise their seniority rights in competing for
Dorn [YPrjS 01' joDS. 1 110 not Dc::1Ïc:W maL in l1c:goliaLing Ulis COl1~ÇLlW agœ~mt:11L
the parties intended to freeze the thcn current division of work botwœll flllJ-time
'Au¡¡--24-2004 12: 12 From-RWBD 4163409250 T-505 P.027/029 F-381
22
and part-time jobs, Such a. freeze would prevent the conversion of pan-time
work to full-time as well s preventing the conversion of full-time work to part-
rim!.: work, something I doubt the parties intcnd¡;d. (p.28)
Contrary to the suggestions made by the arbitrator in Fernie, the comments a made at the
outset of the latter paragraph do not appear to have been intended to convey agreemenT
with the idea that seniority rights are "devalued" if full-.time jobs are converted into part-
rime jobs; rather, the point appears to have been that any argument rooted in that possible
theolY cannot succeed where employees have the right to bid on both type~ of jobs.
Fut1her, even allowing for the qualifications added by Union counsel here to the final
observations made by Arbitrator Brown, I share the somewhat more limited view that it
was not likely the intention of the parties when negotiating the posting language in thi~
agreement to fix the format of any given body of work as either fuJI-time or pan-time.
As noted, the two subsequent cases to reach the ~ame resuJt as Iimmíns
were Hotel-Dieu, supra and Clinton, supra, bOIh hospital cases from this province. In
Horel-Dieu, Arbitrator McLaren - the author of Red Lake. supra - decided a case which
was factually on all fours with the present and with Timmins and Fernie. In Hotel-Dieu,
the arbitrator found that the job-posting language did nor prevent the employer from
posting two part-time positions following the departure of an incumbent from a full-time
position. Although Union counsel is correct that the arbitrator made no reference to his
earlier award in Red Lake (in which there had been no posting at all), it may not be too
much to speculate that he was aware of it. When confronted with the specific
circumstances that arise here (which are different from those which arose in Red I.ake),
the arbitrator dismissed the grievance, albeit emphasizing the fact that the job-posting
I<\nguage in that case contained the rather unusual (but, one would have thought,
completely innocuous) qualification that the hospital must first decide whether to "~fin the
vacancy" before it was required to "post the vacancy",
No such quirk of collective agreement language was present in the next
and, $0 tàr as I am aware, final Ontario award to deal with the matter. In ClinTon, supra,
Arbitrator Rayner - the au~hOf of Horton Sœel. s'upra - came to the same conclusion as
was reached in Hotel-Dieu and Timmins, Although Union counsel here is correct that
""I-C't-cuu,+ I"" r r om-roYt:H) 4163409250 T-505 P.028/029 F-381 .
23
there appears to have been some reallocation of hours of work to other employees
alongside the part-time posting in Clinton, the possibility that a full-time job of work may
not have remained after the departure of the incumbent does not appear to have formed
any aspect of the arbitratOr> s reasoning. Rather, the arbttrator concluded that the hospital
was not required to post a full-time position after first noting the existence of the Horton
Steel, supra and Tidewater Oil, supra, awards - one of which he wrote - ane! after
quoting at length from the reasons in Timmins. The arbitrator continued:
Finally, the parties referred me to Re Hord-Dif:u Grm::r:: Ho.l'pifC/l Nov, 4,
1994, McLaren) which perhaps applied the reasoning of the Timmins case, or at
least reached the samü result perhaps by different reasoning. Although the actual
basis for the result is unclear, Professor McLaren felt that because the Collective;:
Agreement provided tbat the Hospital had to post a vacançy "if it determines to
fill such vacancy" it pennitted thc Hospital to reassign work [0 pun-rime
empl oyeçs , Whether the quoted provision of the Collective Agreement can bear
The weight of the analysis may be open to question but the result is that in cases
involving composite units, in two of thl:: 6 CMes the ðmployer was found to have
violated the collective agre<:l11cnt and in 4 of the 6 cases the employer was
pennicred to move work from fbll-time employees (0 part-Time employees when
the filII-time employee resigns. Unfortunately, Timmins apart, the reasoning in
all of the other cases can be distinguished on the fact~,
In my view, the reasoning in Timmins makes some s~nsl.:. Th¡;re is no
provision in the agreement requiring the employer to maintain any existing
compkment of fhll-time positions. Both full and parHime vacancies mLlst be
posted so seniority rights aæ not negated. Finally, there is a Anicle 13: 11 which
preclud~s a lay-off of full-time employees because of an assignment of dmies TO
pan-time employees. The existence of this clause would seem to imply that if no
f-ull~time employee is laid off the Hospital could fin the "vacancy" caused by a
resignation of a full-time employee. No such article was mentionèd in the earlier
awards. Whether one accepts fully the reasoning of the Timmins award or not, in
my opinion, Art:icJè l3, II supports the Hospital's posÜion.
In SlUl1ln..:\ry, I am of the view that the effect of Article 13: II is to tip the
scales in favour of the reasoning in the Ttmmin)' award and th~ failure of Hospital
to post a vacancy for a full-time aide on the retirement of the full-time aide in
June, 1995 was not a violation of the Collective Agreement when it reassigned
the work to part-timç employees even when it had to post an additional part-time
position, The grievance is therefore dismissed. (pp.16-18)
As gently pointed oUt in the first paragraph of this excerpt, although The precise basìs for
the decision in HO1ef-Dieu may be open to question, the result was clear and consistent
with Timmins. Further, and perhaps not wishing to use a sledge-hammer when a tack-
hammer would do, Arbitrator Rayner pointed to a provision in the collective agreement
'AulI'-24-2004 12: 13 From-RWBD 4163409250 T-505 P.O29/029 F-381
.
24
before him, which was identical in all material respects to Aniele 11 .O9(i) here, as tipping
the scales in favour of the Timmins outcome.
In my view, the same result is required by the terms of this agreement. The
obligation to "poSt notices of all permanent vacancies" set out in Article 11.05(a) did not
require the Hospital to post the switchboard/admitting clerk position as a single full-time
position rather than as two parHime positions. Whether a different result would obtain in
the context of other, perhaps more specific, posting language (such as might be said to
have existed in Maplewood No.2, supra) is a question that does nOt arise here. Suffice it
to say that the present provision does not have the effect asserted by the Union.
The grievance is, accordingly, dismissed.
DATED at Oakville this 18th day of August, 2004.
¿;:;::'~1--)
~.
--
Russell GoodfeJlow - Sole Arbitrator
.