HomeMy WebLinkAboutSmith Group 23-02-21IN THE MATTER OF AN ARBITRATION
B E T W E E N
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 5103
(“Union”)
and
CANADIAN BLOOD SERVICES
(“Employer”)
Re: OPSEU File # 2019-5103-0003
(Audrey Smith, Magda Leszkiewicz, Jennifer Johnson)
BEFORE
James Hayes, Sole Arbitrator
APPEARANCES
For the Union
Adam Veenendaal, Counsel
For the Employer
Sarah Eves, Counsel
Quinn Brown, Counsel
A hearing was held by videoconference on January 26 and February 16, 2023
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AWARD
1. Following mediation on January 26, 2023, the parties agreed to a form of expedited
arbitration pursuant to Section 50 of the Labour Relations Act.
2. The agreed-upon process entailed the following elements: an exchange of will-says and
documents; the arbitrator to meet with the parties separately to receive any further
comment/explanations re will-says and brief submissions from counsel; waiver of any
right to cross-examinations/submissions made in the presence of both parties; a
bottom-line decision to issue with few or no reasons at all; decision to be without
precedential value; decision to issue as soon as possible.
3. The Grievors are Donor Care Associates who wish to continue their primary assignment
at a permanent clinic (supplemented by work at mobile clinics). The grievance
challenges an Employer decision relayed to them on July 17, 2019: “This will confirm
your assignment of being primarily scheduled at the Heartland Permanent Donor Centre
will end on 2019-09-15”. The Grievors explained the negative impact of this change
upon them, entirely credibly, at the hearing
.
4. Article 1.09 is the key provision at issue that reads:
A permanent clinic employee is one who is hired to work at a permanent clinic site (as defined by
Article 1.10) within the boundaries of the Toronto, London, Brampton, Hamilton and Ottawa Blood
Centre as described in Article 26.01 of the existing Agreement. Such employees may be scheduled to
mobile clinics if they agree to such assigmment.
5. That this grievance was filed remains understandable. The Grievors were members of
the Local Union executive. They take strong exception to the reasons provided for the
contested change; they see them as pretextual and retaliatory having regard to the
surrounding circumstances. They see fire not smoke. In response, the Employer flatly
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rejects this allegation. It points to the earlier withdrawal of a previous related
grievance. Regardless, the Employer asserts its Article 4, Management Rights, to
manage and control its operations.
6. The Union emphasizes: the following: the Grievors’ long continuous service at
Heartland; an earlier MOS (Antoniak) said to apply to Ms. Leszkiewicz; a November 13,
2014, Memorandum that provided for an opportunity to fill openings at the Heartland
permanent clinic; and evidence and findings from a previous arbitration award
(Abramsky). The Union asserts that these elements demonstrate that the Grievors had
become “permanent clinic employees” within the meaning of Article 1.09 of the
Collective Agreement -- with the concomitant right to decline assignment to mobile
clinics.
7. My conclusions may be briefly stated as the parties have requested.
8. With respect, the evidence does not permit me to safely accept the Union submission
that the 2019 scheduling change was improperly motivated. The Grievors’ conclusion is
unalterable but the will-say of Nancy Banning is, at very least, sufficiently responsive.
9. Further, while the Grievors may be ‘right’ (or not) as to the most appropriate way to
staff the permanent Heartland clinic, Article 4.02 makes very clear that the Collective
Agreement does not invite an Arbitrator to evaluate competing opinions.
10. What is certain is that, for the grievance to succeed, the Grievors must bring themselves
clearly within the “permanent clinic employee” Article 1.09 definition. And that is not
accomplished by, solely, proving that the Grievors had worked for a long time at such a
clinic – however counter intuitive that may appear to a bystander or employees
generally. It need be remembered that the Collective Agreement at Article 1.08 also
defines “regional employees” hired to work at mobile and/or permanent clinics.
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11. Stated summarily, there is little or no support in the documentary record for the core
Union position. First, while there is no dispute that Heartland is a “permanent clinic
site”, the Union does not assert that the Grievors were “hired to work at a specific
permanent clinic” in the first place. Second, Ms. Leszkiewicz cannot identify a letter
indicating that she would not be required to work at mobile clinics without her consent
(Antoniak MOS). Third, the important 2014 Memorandum, which applied to the
Grievors, contained the following unequivocal stipulation: “These assignments are not a
guarantee that the employee will be scheduled to work only at Heartland Town Centre.
Employees may be scheduled at other permanent or mobile clinics depending on
operational needs.” And, finally, however construed, the Abramsky Award may not be
plainly read as conferring “permanent clinic employee” status upon these Grievors or
confirming Employer acceptance of any such status.
12. As no violation of the Collective Agreement has been established, the Grievance must
be dismissed.
February 21, 2023, West Vancouver, British Columbia
James Hayes