HomeMy WebLinkAboutUnion 10-05-22
IN THE MATTER OF AN ARBITRATION
BETWEEN
THE CORPORATION OF THE COUNTY OF NORTHUMBERLAND
(The "Employer")
ANI>
ONTAIUO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 344
(The "Union")
RE: POLICY GIUEV ANCE RE HIRING PRACTICES
ARBITRA TOR
Loretta Mikus
AI>PEARANCES FOR THE EMPLOYER
Mr. Mark Mason, Counsel
Ms. Lisa Ainsworth, Director, Human Resources
Mr. Dan Collins, Director EMS
APPEARANCES FOR THE UNION
Mr. UorisBollUslawsly, Counsel
Mr. Chl'is Lake, Union Steward
Mr. ,Joel Usher, Witness
DATES OF HEARING
January 27, March 23, April 20, 2009
DATE OF AWARD
May 22, 2009
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The Union filed a grievance dated April 21 ,2008 \:vhich alleged a violation of Article
15.01 (c) which reads as f()Jlows:
ARTICLE 15 - JOB POSTINGS, CLASSIFICATION/RECLASSIFICATION
(c) Job Postings
When a vacancy occurs or a new position is created, the Employer shall,
within thirty (30) days of the position becoming vacant or a new position is
created, post notice of the position at all bases, for a minimum of ten (10) days so
that all members will know about the vacancy or new position. Such notice shall
contain the following information: nature of position, qualifications, required
knowledge and education, skills and wage range.
Prior to anyone outside the bargaining unit being considered, the Employer will
consider internal applicants. The most senior qualified intemaI applicant will be
awarded the position.
The remedy requested was as foHows:
We request the contract be adhered to regarding all hiring practices. Qualified PT
employees are to be promoted from within prior to external applicants being
hired. The new FT hirees should NOT commence employment. Qualified
employees are being overlooked.
Other relevant provisions ofthe collective agreement read as follows:
ARTICLE 3 - MANAGEMENT RIGHTS
3.01 The Union recognizes and acknowledges that the management of the
stations and direction of the working force are fixed exclusively in the
Employer and without restricting the generality of the foregoing, the
Union acknowledges that it is the exclusive function of the Employer to:
(a) maintain order and efficiency
(b) hire, promote, classify, transfer, suspend and retire employees and
to discipline or discharge any employee for just cause provided
that a claim by an employee who has acquired seniority that he has
been discharged or disciplined without just cause may be the
subject of a grievance and dealt with as hereinafter provided.
(c) Determine the nature and kind of business conducted by the
Company, the kinds and locations of stations, equipment and
materials to be used, the control of materials and parts, the
methods and techniques of work, the content of jobs, the work
schedules, the number of employees to be employed, the extension,
limitations, cwtailments or cessation of operations or any part
thereof: and to determine and exercise all other functions and
prerogatives which shall remain solely with the Company, except
as specifically limited by the express provisions of this Agreement.
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(d) rn1C right to formulate policies, Rules and Regulations as set out in
the Employer's Policy and Procedure Handbook.
ARTICLE 14.- SENIORITY
14.01 Seniority is defined as the length of service with the Employer ancl shall
be used in accordance with the terms of this Aliicle to determine
preference for promotion, layoff and recall. The Employer shall maintain
a seniority list showing the date on which each employee's service
commenced and shall post such list at all bases not later than May] s[ of
each year.
ARTICLE 15 -.. JOB POSTINGS CLASSIFICATION/RECLASSIFICATION
] 5.e)J (a) In the case of promotion (other than promotions outside of the
bargaining unit) and demotions (other than disciplinary demotions) the
following facts shall be considered:
(i) skill, competence, efficiency and ability
(ii) seniority
Where, in the judgement of the Employer, the factors in (i) are relatively
equal, factor (ii) shall govern, provided that this judgment shall not be
exercised in an arbitrary or discriminatory fashion.
(b) In all cases oflayoffand recall, the last person hired shall be the
first laid off and the last laid ofT shall be the first recalled.
15.02 It is fUlther agreed that for the purposes of part time applicants and
determining their seniority, ranking will be based on their actual regular
and replacement hours worked.
15.03 Qualified part time employees will be considered ahead of new
employees, in accordance with Article 15.01.
The County of Northumberland employs Primary Care Paramedics (PCP) and Advanced
Care Paramedics (ACP) in its delivery of ambulance emergency services to the citizens
of Port Hope, Cobourg, Colborne, Brighton, Campbellford and Roseneath. In April of
2005 there were 44 paramedics, including 6 ACP's. In .Tune of2009 there are 44
paramedics but now there are 14 ACP's with a corresponding drop in PCP's. There are
additional future changes planned in the service until the Employer's goal of increased
numbers of ACP's is achieved. The grievance arises from this long term plan to replace
Primary Care Paramedics (PCP) with Advanced Care Paramedics (Aep) whenever a
vacancy occurs in either classification. The Union does not take issue with the
Employer's decision to hire more ACP's or with the projected ACP/PCP ratio itself. It
does, however, assert that the Employer's method of achieving its goal is contrary to the
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seniority and job posting provisions of the collective agreement. It submits that in
balancing management's right to classify, hire, demote and promote cmployees and to
organize its work force with the seniority rights of bargaining unit members under the
collective agreement, the Employer must act in a fair and reasonable manner. It has
failed to do so. Since the inception of its future plan, there has been no postings for a full
time PCP position. '1'hat is not a fair and reasonable cxercise of its authority and is
contrary to the collective agreement.
Mr. Chris Barclay is the last of the newly hired ACP's and, since his employment might
be affected by the outcome of these proceedings, he was given proper notice of his rights,
attended at the hearing and made submissions on his own behalf.
Mr. Joel Usher, a part time PCP with the County, testified about the past and present
composition of the work force and his inability to achieve full time status as a PCP. There
was no dispute about his evidence conceming the qualifications and job expectations of a
PCP and an ACP. A PCP must attend a 2 year college course in which they are taught
bal,ic life support and basic trauma support as weIl as the provincial legislation and
regulations regarding ambulance services. They undergo 500 hours of a preceptorship
which includes riding with a paramedic team. Once hired as a PCP they must complete an
advanced emergency care course. ACP's must complete a further 3 semesters at college.
The first semester is composed of a clinical period on theory with a practicum in the
hospital. They work in a controlIed environment in the intensive care unit, the
emergency department, the paediatric floor and with anaesthesiologists. The third
semester involves ride-out experience of 500 hours of competency based trials until all
necessary competencies have been completed. A written examination is required at the
completion of the course and, if successful, a consolidation is completed with one other
ACP f()r experience.
In addition to the duties a PCP can perfOlID, an ACP can perform manual defibrillation
using electrical cunent on the myocardium, synchronized cardia-version, transcutaneous
pacing, advanced airway management using a laryngoscope, removal of foreign bodies
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from an airway using forceps, administration of intravenous medication, including drugs
like atropine, lidocaine, sodium bicarbonate, ephinedrine, morphine and anti-seizure
drugs.
There is also no dispute that while there are two paramedics in each ambulance, it can be
two PCP's or one PCP and one ACP. Presently there are no crews with two ACP's.
When an ACP is absent on a scheduled work day, he/she could be replaced by another
ACP or by a PCP. There is no provincial statute or regulation requiring the County to
staff each ambulance with an ACP. A PCP can perf<mn all the necessary duties of a
paramedic but not to the full extent of an ACP. In fact, Mr. Usher directed the Board to a
December 2008 memo in which all PCP crews were instmcted not to call for ACP
backup during a call but rather to proceed as quickly as possible to the nearest hospital.
The expectation is that a PCP is qualified to provide whatever emergency care is
necessary for the well being and safety of the patient. Mr. Usher also described in detail
the staff complement and the call out procedures for ACP's and PCP's at each base. It is
not necessary to set out those details. Suffice it to say, the evidence is proof of the
County's future plans and the reason for the Union's concerns. There has been an
obvious decline in the number of PCP's and a conesponding increase in the number of
ACP's. It was the Union's position that at least one of the last four ACP poStillgS should
have been a PCP posting. There is enough work available and suitable for a PCP to
justify a posting and there are 110 compelling operational reasons to prefer an ACP.
Mr. Chris Lake is the LocallJnion Steward and an ACP with the County. He was hired
as a PCP but was the successful applicant under Article 18.01 of the collective agreement
for a training opp0l1unity and subsequent promotion to the position of ACP. Article
18.01 reads as follows:
OPALS/ALS TRAINING
18.01 In the event that an employee is the successful applicant for pmiicipation
in OP ALS/ ALS training, such employee will be required to take a leave of
absence from his employer for the duration of his full training program.
For each week during this leave of absence, the Employer will continue to
pay to the employee his basic straight time hourly rate for the normal
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weekly hours of work assigned to such employee. Service will continue to
accumulate for the purposes of seniority.
18.02 It is understood that the collective agreement continues to apply except for
hours of work and overtime provisions. Notwithstanding, it is fUliher
understood that any actions of the base hospital, certifying agencies, or
their representatives do not come under the jurisdiction of the collective
agreement and, therefore, cannot constitute a difference or dispute or
grievable action under the collective agreement. This understanding does
not limit the employee's right to grieve actions of his employer including
disciplinary action up to and including dismissal from employment which
may occur during the period of leave of absence.
18.03 Should the employee successfully achieve certification, the Paramedic 2
(Land Ambulance) rate of pay will apply.
18.04 All OPALS/ALS trained employees will be required to maintain
certification in all delegated acts which arc required by the employer.
18.05 Any employee who loses his OP ALS/ ALS certification will be eligible to
displace the junior employee in a lower rated classification on the basis of
his seniority and qualifications.
18.06 An employee who voluntarily leaves the training program, or who is
involuntarily removed from the program, wiII be returned to his/her home
position.
18.07 Any other OPALS/ALS related issues can be raised at the Local EERC
level.
This training opportunity was a provincial initiative to examine life support procedures in
a hospital environment. It was funded entirely by the province, including tuition, books,
and pay while absent from work. Internal applicants within the County had to be
approved by Durham ColIege. In the spring of2007, six PCP's applied for the program,
three were accepted by the County but only two passed the test for Durham College,
including Mr. Lake. Since 2007 there have been no similar programs offered by the
Employer.
Mr. Dan Collins has been the Director of Emergency Services since 2003 when the
County became responsible for the delivery of those services. It is his responsibility to
develop polic.ies and procedures for ambulance services in the County, oversee the day to
day delivery of the service and scheduling of a 24/7 operation invol ving 46 filII time and
20 part time employees, one clerical support staff person, 3 Shift Managers, and one
Manager of Quality Assurance and Education. That staff roster presently includes 14 full
time and 8 part time ACP's. When the County took over the service, it inherited 6
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ACP's', some full time and some part time, and those ACP's were restricted to the
Cobourg and POti Hope bases. When the OPALS training program began Mr. Collins
advocated with the County to take advantage of the opportunity to increase its ACP
component but was unsuccessful until 2007. In the first year the County approved a
budget for the training but the Union and the Employer were unable to agree on the terms
of the program and it was not until the next year that Mr. Lake was accepted. In the
meantime, Mr. Collins began to implement his long term plan to increase the number of
ACP's. He posted intemaUy for qualified ACP's but was forced to look externally when
no qualified applicants were found.
In cross~examination he acknowledged that he had not posted a full time PCP job for
some time and could not speculated when he would in the future. It depended on how
quickly he achieved his target.
SUBMISSIONS OF THE PARTIES
Mr. Bohuslawsky, counsel for the Union, submitted there are two material facts that this
Board must consider. First, there have been two po stings for a ful! time PCP position,
one in 2006, another in 2007. Since then, all 6 or 7 ful! time postings have asked for an
ACP. Secondly, there is no provincial or county legislative or regulatory mandate to
staff ambulances with ACP's. The Union asserts that the Re Council (~r Printing
Jndustries of Canada and Toronto Printing Pressmen and Assistants Union, No. J() et al
149 D.L.R. (3d) 53 (Ontario Court of Appeal) has applied a standard of reasonableness in
the administration of a collective agreement. It stated that promotion and lay-off
decisions of employers are subject to a standard of reasonableness with or without any
express limitation. The case law (Re St. Augustine's S'eminary at Toronto and Canadian
Union (?lOperating Engineers and General Workers (1996), 45 C. L.A.S. 251 (Tims)
requires that an employer exercise its discretion reasonably if the effect of not doing so
would render the seniority provisions under the collective agreement meaningless.
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In the instant case, it was said, the patties have agreed to give internal applicants
preference in job postings and part time employees preference over newly hired
employees for full time vacancies. The Employer's practice of converting all full time
vacancies to the classification of ACP has effectively rendered those rights to preferential
treatment meaningless. Additionally, it has convelied the relatively equal test in Aliicle
15.01 to a 1110re rigid test of sufficient ability, one that most PCP's will be unable to meet.
The c.ollective agreement allows PCP's to accumulate seniority in their part time status in
calculating their seniority status when applying for a position under Article 15.01. Again,
the Employer's action forestalls that since they are never given an oppOIiunity to compete
for a vacant position.
The Employer has also acted unreasonably in the actual posting of the vacant positions.
It has posted them externally tor a longer period of time than the collective agreement
allows and has left positions vacant long after the po stings were to be completed under
the collective agreement, all in its attempts to hire ACP's instead of PCP's. Mr. Collins
never told this Board what his goal \vas with respect to ACP's. It is unreasonable for him
to establish some arbitrary limit without regard to the tenus of the collective agreement.
It was submitted that the Employer's right to reorganize the work force is limited by the
terms of the collective agreement. A restructuring ofthe work and the qualifications of
the employees doing the work cannot have the effect of negating the seniority rights the
patties have agreed to in bargaining. It must act in a fair atld reasonable matmer when
assessing the actual work done and the future goals of the organization.
The Employer's actions, it was said, are also inconsistent with Article 18 of the collective
agreement. The parties clearly intended the Employer to fund and provide for training
and upgrading opportunities for PCP's. There is evidence before this Board that the
County has refused to fund any more applicants and instead has decided to hire ACP's
fi-om outside the service. There is no rationale for the change in practice and it is an
unreasonable act intended to defeat seniority rights under the collective agreement.
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The Union also alleged that the Employer must determine whether a vacancy exists by
objectively viewing the facts at the time when the vacancy exists. The Company must
not act on irrelevant considerations, but must consider the existence of a vacancy based
on the availability of sufficient work on a continuous basis to comprise a full time
permanent assignment. Article 15.01 imposes an obligation on the Employer to post a
vacancy in two circumstances; when a vacancy occurs and when a new position is
created. In this case, the Union stated the o~jective facts show there is a continuing need
Jar \.vork, the work at issue is work a PCP can and does perform, a PCP can and does
replace an ACP, there have been no PCP postings since 2007 and all of the postings since
that date have been for ACP's. The County has not asked itself whether there is work for
a PCP but has obscured the question by insisting that all vacancies be filled by an ACP,
It has paid no regard to the underlying nature of the work to be perfonned.
In addition to the cases referred to above, the Union relied on the following in support of
its position: Re City (~fToronto and CUPE, Local 79 (1994), 42 L.A.C. (4th) 411
(Abbott); Re Pioneer Coal L71) and US T'V.A , Local 6551 (2002), 70 c.L.A.S. 165
(MacDonald); Re Regional Municipality (~lWalerloo and London and District Servh~e
Union, Local 220 (I 990), 22 C.L.A.S. 101 (Davis) and Toronto District School Board
and CUPE, Local 4400 (2004), C.L.A.S. 169 (Tacon).
Mr. Mark Mason, counsel for the Employer, took the position that it is an undisputed fact
that ACP'sprovides a more comprehensive level of care and can perfhrm medical
treatments that a PCP cannot. The Union also does not dispute the Employer's light to
hire ACP's or PCP's to provide ambulance service, What it is asking this Board to do is
tell the Employer how many PCP and ACP's it can hire and what the composition of its
work force should be..
The Union, it was said, has alleged that the Employer's decision to replace PCP's with
ACP's is unreasonable and inconsistent with its obligation under the collective
agreement. The evidence has shown the rationale for the Employer's new direction. The
Union's own evidence was that an ACP has a higher level of education and training than
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a PCP and that their scope of practice is considerably greater than a of a PCP. The
decision to fill vacant positions with the higher functioning ACP's is not only reasonable
in the circumstances but arises from sound assessment of the provision of service in the
future. The decision was not arbitrary or discriminatory. It was made to correct an
existing limit on the availability of ACP's in the County.
The Uniol1.does not take issue with the Employer's right to replace PCP's with ACP's
but rather takes issue with the fact that it has replaced PCP positions with ACP's only and
that the establishment of a target is inconsistent with the coIlective agreement. It is
asking this Board to set that target so that some of the postings wilI be for PCP's while
others can be for ACP's.
It was submitted that the Union's argument that the Employer's actions are designed to
defeat rights under Article 18 is simply wrong. That article simply sets out the obligation
of the Employer once an applicant has been approved for the training program. It does
110t guarantee any funding nor does it obligate the Employer to choose candidates. Mr.
ColI ins testified that he tried to secure funding from the County to continue this program
but was unsuccessful. To suggest this was a deliberate attempt to deny employees their
rights under the collective agreement is not supported by this evidence.
In sUPpoli of its position the Employer relied on the following cases: Re NeH! Brunswick
(Board (~f Management) and Doucet-Jones (2004), 131 L.A.C. (4th) 289 (New Brunswick
Court of Appeal); Re New Brunswick (Department (~f Health and Wellnes.s) and New
Brunswick Nurses' Union (2006), 146 L.A.c. (4th) 143 (McEvoy); Re Town (~lLi17Coln
and CUPE, Local 1287 (2000),85 L.A.c. (4th) 144 (Verity); Hamilton Teachers' ('redit
Union and OPE.l u., Local 343 (1989) 5 L.A.C. (4th) 62 (Verity) Re Liquid Carbonic
('anada LTD and United Steelworkers, Local J 2998 (I876), 12 L.A.c. (2d) 222
(WeatherilI); He Auto Haulaway Inc. and Teamsters Union, Local 927 (1995),47 L.A.C.
(4Ih) 301 (Outhouse) and Re Toronto District School Board and Canadian Union of
Public Employees. Local 4400 (December 3, 2001), unreported (Mikus).
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REASONS FOR DECISION
The issue before me is not whether the Employer has the right to determine what
classification should perfonn the duties of a specific position or whether it has the right to
generally organize the workforce to meet its expectations. The Union concedes that the
Managements Rights clause in this coIJectivc agreement expressly acknowledges those
rights. The issue is whether, in exerc.ising those rights, the Employer has acted in a
manner inconsistent with the collective agreement and/or in an unreasonable manner by
limiting new postings to ACP's. It does not challenge all of the postings. It asselis that
of the six or seven positions posted since 2007, at least one should have been for a PCP.
There is no need for me to review the jurisprudence on management's right to manage
the workplace. Management has the prerogative to make changes in its organization so
long as the changes are made in good faith and for reasons of business efficiency. The
Union has not aIIegcd there was bad faith in the Employer's decision-making, nor does it
claim that the Employer is attempting to interfere with the integrity ofthe bargaining
unit. AJJ of the members of the classifications at issue are members of the bargaining
unit. The real issue is whether the Employer's long range goal of replacing PCP's with
ACP's' until it reaches an unknown target is unreasonable because its effect is to negate
or nullify employees' rights under the collective agreement.
The first inquiry should be to cxamine the Employer's rationale for the change in the
delivery of its service. Mr. Collin's evidence was that when he took over there were only
two bases that had ACP's, Port Hope and Cobourg. In his view there was an obvious
need to increase that complement. The uncontradicted evidence is that ACP's are
certified to perform a wider range of services and it was Mr. Collin '8 view that they
would be "more bang for the buck" For the difference in pay between a PCP and an
ACP, the County could obtain a higher level of service at a reasonable cost. The decision
to increase the number of ACP's was based on an objective assessment of the needs of
the organization. That decision was not based on whim, bias or pr~judice but rather on a
review of the service to be provided.
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The Union relied in the comments of the Board in the Re Algoma Steel e(1). and United
Sfeehl'orkers(l968), 19 L.A.C. 236 (Weiler) which was, in turn refe11'cd to by the Board
in the Pioneer case (supra). In the AIgoma case the Board found that, absent any
language to the contrary, management can unilaterally create or eliminate job
classifications and create new departments where reasons of efficiency or production
changes are required. Those rights, the Board said at pages 240 and 241 has some
limitations:
However, management must make real changes in the nature of the work
assi.gnment to exclude the operation of the established job classifications. As long
as the same work is being performed, management has 110 right arbitrarily to
reclassify the employees performing it...
In that case the Board went on to state that while job descriptions do not give employees
proprietary rights to a job, an incumbent cannot have his job duties taken away fi'om him
where the effect is that he is regressed out of ajob out of seniority. Boards have looked
at the actual duties of a position to determine whether the changes were real and not
simply an attempt to deny rights under a col1ective agreement.
In the instant case there has been no new classification created by the Employer and the
job duties of each classification have been unaffected by the Employer's posting policies.
No PCP has been demoted or regressed s a result of the postings and no PCP's have been
laid off. The effect o[tlle Employer's new policy is that part time PCP's have been
denied the right to bid for full time positions and may continue to be exc.1uded for some
time in the future.
The Employer provided the Board with cases dealing with the analogous situation of
replacing a registered nurse with a practical nurse and health care attendants with
registered nurses. In both cases the Boards found the work between the two
classifications at issue was not the same but that one consisted of a subset ofthe othe:r. It
found that the employer was exerc.ising its right to organize its workforce and determine
its staffing complement and dismissed the grievances.
In the instant case the Union has acknowledged the Employer's right to organize its work
force, including its right to determine who will do the work. Its argument is that, in doing
so it has acted unreasonably in setting a goal for hiring ACP's that adversely affects the
seniority rights of the PCP's under the collective agreement. In the New Bruns}jJick
Department (~lHealth case (supra), the Board noted that the employer had been less than
f()1thright in disclosing the reasons for the lay-off and that, regrettably, that lack of
openness had created unceltainty and distrust. In the instant case the Employer has
acknowledged it has a target in mind when posting ACP positions but has not discussed
that target with the Union or volunteered that target at the hearing. The Union's concerns
arc no doubt exacerbated by the fact it has no idea how much longer this future plall will
continue to affect the PCP's in the bargaining unit. The fact it does not take issue with all
of the po stings indicates its view that there is a limit to the Employer's unilateral right to
staJT its service. It has asked this Board to set that limit. Boards of Arbitration are
reluctant to take over an Employer's company by making orders concerning the daily
operation of its business. Only if the Employer's action can be seen to breach its
obligation under a collective af,Treement wi11 an arbitrator step in and only to the extent
necessary to COlTcct that breach.
If I have determined that the Employer has the right to decide that the Employer's
decision to replace PCP's with ACP's where possible was made for legitimate business
reaSOllB, the only question for me to detemline is whether the Employer has acted
unreasonably in setting a quota for the PCP/ACP ratio in the workplace. As stated
previously, I do not know what that ratio is and therefore I can only consider the question
based on the information I have been given by the patties.
In my view, the Employer's decision was not unreasonable in the circumstances. In 2005
the County ambulance service consisted of44 paramedics, 6 of whom were ACP's. Only
Cobourg and Port Hope had ACP's in their ambulances. Since then the County has hired
another 6 ACP's at the expense of the PCP's. The decision was alTived at through
consideration of the best delivery of service to its c1i.cnts. It was not made in an arbitrary
fashion but rather out of business considerations concerning cost effective staffing. The
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Employer's actions bave not resulted in lay-offs, telminations or reduced hours for the
part time paramedics. They have limited the availability of full time PCP positions but
the seniority provisions of the collective agreement do not guarantee a position in a
classification or a fuIl time position. The Employer's decision to replace PCP's with
ACP's is n9t inconsistent with its obligation under the collective agreement. .
The grievance is therefore dismissed.
Dated at Toronto this 22nd day of May, 2009\
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