HomeMy WebLinkAboutUnion 10-02-03
IN THE MATTER OF AN ARBITRATION
BETWEEN
ONTARIO PUBLIC SERVICE EMPLOYEES UNION ON BEHALF OF ITS LOCAL 210
-and-
CANADIAN BLOOD SERVICES
AND IN THE MATTER OF A POLICY GRIEVANCE regarding the posting ofa full time
position
Kevin Whitaker, Sole Arbitrator
Appearances for the Employer
Sarah A. Eves, Counsel and others
Appearances for the Union
J. Alick Ryder, Counsel and others
Hearings were held in Hamilton on April 8, September 1 and 2, 2009
1
The union grieves that the employer breached the collective agreement by
failing to post a full time vacancy for a driver position.
When a full time position becomes vacant, the collective agreement obliges
the employer to post the vacancy as a full time position where "operationally
feasible". The parties disagree as to whether the posting was operationally feasible.
For reasons which follow, the grievance is allowed.
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The employer collects, stores and provides blood products for a broad range
of medical purposes. This activity includes the running of blood donor clinics and all
of the work involved in setting up such clinics and in transporting collected blood
from clinics to storage facilities.
While the employer operates nationally, the bargaining unit covers
employees based in Hamilton who work throughout southern Ontario.
The bargaining unit includes drivers employed both on a full and part time
basis. Full time drivers are scheduled for 75 hours over a two week period. Hours
left after these assignments are divided up amongst part time drivers. Drivers are
used to transport blood products collected, and mobile clinic equipment used,
throughout the southern Ontario catchment area.
2
In February of 2008, the employer introduced nationally, a new technology
for the purposes of preserving blood during the collection and transportation
process. This new technology is called the "Buffy Coat" process. One of the
consequences of the introduction of the new process was that it permitted the
employer to reduce the number of transportation runs necessary to support the
mobile blood donor clinics. This meant that fewer overall driver hours were
required after the introduction of the new process.
Before and after the introduction of the Buffy Coat process, the employer
used 10 full time and 19 part time drivers.
On June 13, 2008, Ken Henderson resigned as a full time driver
Following Henderson's resignation, the Local Union President, Brenda
Thompson, met with Andy McNicol the manager of logistics for southern Ontario, to
talk about posting the full time driver vacancy created by the departure of
Henderson.
Both Thompson and McNicol testified about a meeting that they had
concerning this issue on July 9, 2008. Thompson maintains that McNicol expressed
reservations about posting the full time vacancy because he did not wish to promote
a particular individual who was at that point working as a part time driver. McNicol
disputes that the employer was concerned about - and wished to avoid - the
promotion of this particular part time driver to full time status.
The employer called Jeff Stirling as a witness. Mr. Stirling was the transport
supervisor who was responsible for scheduling drivers. A former driver himself, Mr.
Stirling reported to Mr. McNicol.
Mr. Stirling explained that the reason for not posting the full time driver
vacancy was that the employer was "not sure about the impact of the Buffy Coat". In
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other words, Mr. Stirling understood that the new process would alter the
employer's requirements for drivers and at the point of the vacancy, the precise
impact or outcome of the new process was uncertain. Mr. Stirling anticipated that
there would be fewer runs required in support of the mobile clinics.
During cross examination, Mr.Stirling confirmed that it was about a year after
the introduction of the Buffy Coat process that the impact of the change became
apparent for the employer's operation. He also acknowledged that there were no
practical problems occurring in the summer of 2008 as a result of the reduction of
hours.
Mr. McNicol testified that there were two principal reasons for not posting
the full time driver position in June of 2008 when the vacancy arose. Firstly, it was
anticipated that the number of required driver hours would decline under the Buffy
Coat regime and the employer wished to retain a reasonable number of hours for
part time drivers. Secondly, that there would be a combination of production
facilities as between Hamilton, London and Toronto so that there would at some
point in the future, be one central processing location rather than the three that
existed in 2008. The employer did not know exactly what the impact of this was to
be so it was prudent to retain some flexibility around the scheduling of runs.
In cross examination, Mr. McNicol acknowledged that from January to June of
2008 which is after the Buffy Coat system was introduced and until the vacancy
arose, there were "no operating concerns" with ten scheduled full time drivers. He
testified that operating with ten drivers on a full time basis was working "fine".
Finally, Mr. McNicol stated that there was no report or analysis conducted by
the employer into the operational feasibility of using either 9 or 10 drivers on a full
time basis after the introduction of the Buffy Coat system.
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It was Mr. McNicol's own opinion that the use of ten drivers rather than nine,
after the vacancy arose was operationally unfeasible.
Driver hours declined over the course of 2008.
The collective agreement in article 12 contemplates that full time employees
are to be paid for 1800 hours of work (scheduled 75 hours biweekly) and where the
hours of a part time employee exceed 1800, the parties shall meet to discuss the
creation of a full time position.
The management rights provision in article 4 typically preserves to
management the exclusive right to manage and control its operations, including
hiring, the assignment of work, the determination of numbers of employees and
scheduling.
Article 16.01 provides:
When the Employer determines that a vacancy is to be filled, or a new
position is created within the bargaining unit, it shall be posted on the
Union bulletin board for a period of seven (7) working days. When a full
time position becomes vacant and where operationally feasible, the
Employer shall post the vacancy as a full-time position.
5
III
I am not persuaded that the employer's decision not to post a full time driver
position in June of 2008 was motivated by an attempt to avoid the hiring of a
particular part time driver into a full time position. Rather, I accept that the
employer's reasons were that it was uncertain about the future number of driver
hours that would be available as a result of the Buffy Coat process and the pending
reorganization of the production locations.
Undoubtedly, the employer retains the rights pursuant to its management
rights provisions to determine whether to post a vacancy. These rights however are
clearly constrained to the extent that language elsewhere in the collective
agreement creates additional obligations and responsibilities.
The language of article 16.01 (a) obliges through the use of the word "shall",
the employer to post a full time position that becomes vacant, where it is
"operationally feasible". This is an employer obligation and "a union entitlement
which alters the scope of the management prerogative to decide what to post.
The plain language meaning of the term "operationally feasible" must mean
something more than just in the opinion of the employer. This phrase connotes
some element of objective and practicable utility - having regard to the "operation".
The Buffy Coat process was introduced in January of 2008 and from that date
until the occurrence of the vacancy in June of 2008, the employer operated without
any apparent difficulty or concerns, with a complement of ten full time drivers.
Messrs. Stirling and McNicol both agreed in cross-examination to this proposition.
The only thing that happened in June of 2008 was that one full time driver
resigned.
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. .
Accepting that the union has the onus of persuading me that the posting of
the full time vacancy was operationally feasible, I find this burden has been met. It
may very well be that the employer would be advantaged by the greater flexibility of
having only nine as opposed to ten full time drivers after June of 2008; however, the
obligation to post applies if it is "operationally feasible" and not what the employer
simply wishes.
To reiterate, the employer operated without any practical difficulty for eight
months from January to June of 2008 with ten full time drivers. The question here is
whether it was" operationally feasible" at the point of the occurrence of the vacancy
in June of 2008 for the employer to post the vacant full time driver position. Other
than the employer's desire to increase its scheduling flexibility on a going forward
basis, it appears that the posting would simply have continued the existing status
quo, under which the employer was able to appropriately and effectively operate.
The employer's operation by all appearances, continued to be feasible during the 8
month period beginning in January 2008.
IV
The grievance is allowed. The vacancy created by the resignation of Mr.
Henderson should have been posted in June of 2008.
Given the passage of time, this matter is remitted to the parties to attempt to
come to agreement on remedy.
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.. . . "
I remain seized.
2/' ---------' -~
-~
Kevi itaker, S~le Arbitrator ..
Dated At Toronto this 3rd day of February 2010
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