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HomeMy WebLinkAboutUnion 23-03-16IN THE MATTER OF AN ARBITRATION brought pursuant to the Ontario Labour Relations Act, 1995, as amended, (Individual Grievances #2021-0402-0001; 0002; 0006; 0007-0012 inclusive; and Policy Grievance #2021-0402-0013) BETWEEN: CORNWALL COMMUNITY HOSPITAL (the “Employer”) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the “Union”) AWARD Arbitrator: Marilyn A. Nairn Hearing held & written representations received: June 6, July 29, August 22, September 7, 2022 Further oral representations received on February 21, 2023 APPEARANCES For the Union: Farnaz Talebpour and Laura Johnson For the Employer: Porter Heffernan and Negeen Yazdani AWARD [1] These ten grievances each challenge the decision of Cornwall Community Hospital (the “Employer” or the “Hospital”) not to post a full-time Pharmacy Technician position. Nine grievances were filed by individuals. The tenth is a policy grievance filed by the Ontario Public Service Employees Union (the “Union”). There is no dispute as to my jurisdiction to hear and determine these grievances. [2] The parties were able to reach an Agreed Statement of Fact (“ASF”), with accompanying documentary exhibits. That statement provides: WHEREAS the Union filed the Policy Grievance identified above on February 26, 2021, alleging that the Hospital had breached the Collective Agreement between the Parties by failing to post a full-time Pharmacy Technician position following the departure of the prior incumbent in the position; AND WHEREAS the Union filed the Individual Grievances on February 27, 2021 (Gauthier and Kingsley), and March 3, 2021 (Tessier, Snyder, Celone, Derouchie, Sabourin, Snyder), and March 4, 2021 (Marcil), alleging the same breach of the Collective Agreement between the Parties; AND WHEREAS the Employer denied the Policy and Individual Grievances; AND WHEREAS the Parties wish to proceed with a hearing of the Grievance on the basis of certain agreed facts; NOW THEREFORE the Parties agree to the following facts, solely for the purpose of this proceeding; 1) The Parties agree that Arbitrator Marilyn Nairn has jurisdiction in this matter and there are no preliminary issues in dispute. 2) The Employer and the Union are parties to a Collective Agreement, expiring March 31, 2022, a copy of which is attached as Exhibit 1 (the “Collective Agreement”). The Collective Agreement includes both centrally-negotiated provisions and an Appendix of Local Issues. Collective Agreement Provisions 3) Article 13.01(a) of the Collective Agreement reads as follows: 13.01 (a) Where a vacancy exists, or where the Hospital creates a new position in the bargaining unit, such vacancy shall be posted for a period of seven (7) calendar days. Applications for such vacancies shall be made in writing within the seven (7) day period referenced herein. 4) Article 2 of the Appendix of Local Issues speaks to Management Rights, and reads as follows: 2.01 The Union acknowledges that it is the exclusive function of the Hospital subject to the terms of this Agreement to: a) Maintain order, discipline and efficiency; b) Hire, discharge, direct, classify, transfer, promote, demote, layoff and suspend or otherwise discipline employees for just cause provided that a claim of discriminatory classification, promotion, demotion or transfer or a claim that an employee has been unjustly discharged or disciplined may be the subject of a grievance and dealt with in accordance with the grievance procedure; c) Establish and enforce rules and regulations to be observed by the employees provided that they are not inconsistent with the provisions of this Agreement; d) Generally to manage and operate the Hospital in all respects in accordance with its obligations and without restricting the generality of the foregoing, to determine the kinds and locations of machines, equipment to be used, the allocation and number of employees required from time to time, the standards of performance for all employees and all other matters concerning the Hospital's operation, not otherwise specifically dealt with elsewhere in this Agreement. 5) Article 5.5 of the Appendix of Local Issues speaks to Part-Time Scheduling and reads as follows: The Employer will endeavor to schedule a regular part- time employee to work at least twenty- four (24) hours per week. Any hours beyond 24 hours shall be offered equitably to regular part- time employees up to 37. 5 hours on the basis of seniority, it being understood that the Employer may schedule the most junior qualified employee on a rotational basis for required hours if there are insufficient volunteers. Casual employees, if available, will be asked to fill the shift prior to the scheduling of the most junior qualified part-time employee. Circumstances Giving Rise to Grievances 6). Immediately prior to February 26, 2021, the Hospital employed eight (8) full-time pharmacy technicians. On or about February 26, 2021, the incumbent of one of these eight (8) positions, Jessica Emerey (“Ms. Emerey”), left her position in order to accept an alternate position with the Employer. 7) Emilie Lalonde, Supervisor, Pharmacy Services (“Ms. Lalonde”) held a recurring, and general staff meeting, on or about February 16, 2021. That was prior to the departure of Ms. Emerey. The discussion that occurred was to inform staff that the full-time position was eliminated. Prior to the general staff meeting of February 16, 2021, on or about a week prior, Ms. Lalonde held impromptu individual conversations with approximately 3 of the 7 part-time pharmacy technician staff and asked them to comment on how many shifts per week they would need to be comfortable. The only part-time pharmacy technicians that Ms. Lalonde spoke to were Natalie Gauthier (“Ms. Gauthier”), Tyler Snyder (“Mr. Snyder”), and Lisa Kingsley (“Ms. Kingsley”). Ms. Lalonde did not speak to any other part-time or full- time staff about this issue. 8) Ms. Lalonde did not advise Ms. Gauthier, Mr. Snyder or Ms. Kingsley of the reason for her question. When asked the question regarding their scheduling by Ms. Lalonde, Mr. Snyder advised Ms. Lalonde that he would like as many shifts as possible, Ms. Kingsley advised Ms. Lalonde that she would prefer eight (8) or more shifts, while Ms. Gauthier answered that she would like to have seven (7) or eight (8) shifts scheduled during the two week pay-period. Ms. Gauthier was under the impression that Ms. Lalonde’s line of questioning was related to the maternity leave of Shirlene Smelley (“Ms. Smelley”), and that they would likely be required to cover her absence. Ms. Smelley was a part-time pharmacy technician. Subsequent to this meeting, Ms. Gauthier asked Ms. Lalonde whether the question was in relation to coverage for Ms. Smelley’s maternity leave. Ms. Lalonde indicated that it was not. 9) As noted above, at the general staff meeting that took place on February 16, 2021, Ms. Lalonde advised staff of the departure of Ms. Emerey and the elimination of the position she occupied. Ms. Lalonde wrote in an email to all full-time and part- time staff on February 16, 2021, as follows: Hi all, For those of you who did not attend today’s meeting, I shared the news that Jessica was the successful candidate for a position as a CI Analyst in which she has accepted. In terms of staffing, I did an analysis of the number of shift[s] we have and the number of staff we have. I also consulted with PT staff and decided to go in the direction of not filling Jessica’s FTE. We’re currently 1 too many, we are currently 8 FTE staff for 7 day- time shifts. PT staff would have on average 4-5 shifts per pay (and at times even less). No shifts will be cut, Jessica’s shifts will be filled, but by PT staff, to allow PT staff to get more hours. We will have the same amount of shifts daily since as mentioned, no shifts are being cut. PT staff were having less and less shifts as Jessica was being integrated solely into Pharmacy shifts. More information coming soon in regards to Jessica’s last day up here. Congratulations, Jess. We are very excited for you, although we will miss you. A copy of Ms. Lalonde’s email is attached hereto as Exhibit 2. 10) As set out in Ms. Lalonde’s email, upon the departure of Ms. Emerey on February 26, 2021, the Hospital eliminated her position and did not post a full-time vacancy. The shifts which Ms. Emerey had previously worked were not eliminated. Instead, part-time pharmacy technicians were scheduled to work these shifts. A copy of the first schedule for the department following the elimination of the shift previously occupied by Ms. Emerey is attached at Exhibit 3 (as posted) and as Exhibit 4 (as modified following posting). A copy of the last schedule in effect prior to the departure of Ms. Emerey and the elimination of the position which she previously occupied is attached as Exhibit 5. 11) Following the elimination of the position previously held by Ms. Emerey, the Union filed a number of grievances, as follows (all together hereinafter, the “Grievances”): Policy Grievance No. 2021-0402-0013 Individual Grievance Nos: 2021-0402-0001 (Gauthier) 2021-0402-0002 (Kingsley) 2021-0402-0006 (Marcil) 2021-0402-0007 (M. Snyder) 2021-0402-0008 (Derouchie) 2021-0402-0009 (Celone) 2021-0402-0010 (T. Snyder) 2021-0402-0011 (Tessier) 2021-0402-0012 (Sabourin) 12) Copies of the Grievances are attached hereto as Exhibit 6. The grievances were submitted by a combination of full-time and part-time pharmacy technicians following the February 16, 2021, general staff meeting. 13) In the Grievances, the Union alleged that the Hospital had breached Art. 13.01 and the Management Rights provisions of the Collective Agreement by failing to post a full-time vacancy upon the departure of Ms. Emerey from the position she had previously held. 14) The Hospital provided a single Step 2 response to all the Grievances on or about March 16, 2021, in which it denied the Grievances, noting that the Hospital has the right to determine whether or not a vacancy exists before Art. 13.01 is engaged, and that as a result of the elimination of the position previously held by Ms. Emerey, the Hospital determined that no vacancy existed and Art. 13.01 was not engaged. A copy of the Hospital’s Step 2 response is attached hereto as Exhibit 7. 15) The Union referred the Grievances to arbitration, and Arbitrator Marilyn Nairn was appointed as sole Arbitrator to hear and determine the Grievances. Issues to be Determined: The Parties agree that the issue to be determined by Arbitrator Nairn is whether the Hospital violated Art. 13.01(a) of the Collective Agreement and/or Article 2 of the Appendix of Local Issues by eliminating the position previously occupied by Ms. Emerey rather than posting it as a vacancy. [3] Based on a 6-week schedule, an average of 24 hours per week would equate to 3 scheduled shifts per week or 18 scheduled shifts over the period. Prior to Ms. Emerey’s departure, it appears that one regular part-time employee was scheduled for 18 shifts over 6 weeks. The remaining regular part-time employees were scheduled for less than an average of 24 hours per week. After Ms. Emerey’s departure, a number of regular part-time employees were scheduled additional shifts. Only one regular part-time employee appears to have been scheduled in excess of an average of 24 hours per week, for 19 shifts over the period. It is the case that a number of these regular part-time employees ultimately worked more than an average of 24 hours per week, as additional shifts became available and were assigned for various reasons during the operation of that posted schedule. [4] The bargaining unit includes both full-time and part-time employees. In filling posted vacancies, Article 13.06 of the collective agreement requires that the selection be made based on skill, ability, experience, and relevant qualifications of the applicant and, where those attributes are relatively equal, bargaining unit seniority governs. [5] Although not referred to in the grievances or the ASF, Article 10.2 of the Local Appendix of the collective agreement defines a Regular Part-Time employee as follows: A regular part time employee is one who makes a commitment to be available on a regular predetermined basis and as scheduled. A regular part time employee may be scheduled to work more than 24 hours per week and remain classified as a regular part time employee. This provision will not be used to avoid employing employees on a full time basis. * * * [6] The parties filed detailed written submissions. In the course of reviewing the parties’ evidence and submissions, a question arose with respect to the relevance of Article 10.2 of the Local Appendix of the collective agreement. Oral submissions on that point were heard on February 21, 2023. [7] In very brief summary, it was the position of the Union that when the full-time employee resigned, a “vacancy” existed. The work done by the full-time employee continued to be required. Further to Article 13.01 of the collective agreement, the Union argued, the Employer was required to post and fill that full-time vacancy. It was the position of the Employer that no vacancy existed. It argued that, for sound business reasons and in accordance with the terms of the collective agreement regarding part-time hours of work, it was within the Employer’s management rights to redistribute the available hours to existing part-time employees, leaving no vacancy requiring a posting. [8] The Union subsequently argued that Article 10.2 of the Local Appendix reflected the priority that the parties had given to full-time employment over part-time employment and/or that part-time employment was not to undermine the employment of full-time staff. That, it argued, was consistent with the Union’s asserted obligation on the Employer’s part to post the full-time vacancy. Read together with Article 5.5 of the Local Appendix, the Union argued that these provisions allowed the Employer to schedule regular part-time staff for up to 37.5 hours per week except when doing so would avoid the employment of staff on a full-time basis. [9] The Employer noted that Article 10.2 was found within “Article 10 - Definitions” and that the definition of regular part-time was unusual because of its permissiveness – it expressly contemplated that regular part-time staff could be scheduled in excess of 24 hours per week while retaining regular part-time status. The last sentence, relied on by the Union, could not be read as a limit on management rights for purposes of determining whether there was a vacancy, it argued. That sentence, argued the Employer, was intended to maintain the distinction between regular part-time and full-time employment in circumstances where this definition would otherwise allow an employee to be scheduled for full-time hours, yet be treated as a regular part- time employee. [10] In reply, the Union acknowledged that if the volume of work decreased nothing prevented the Employer from assigning that work to part-time employees. However, it argued that when there was enough work to justify full-time hours, the Employer ought to retain and post the full- time position in accordance with Article 10.2. By dividing up this work and assigning it to more than one regular part-time employee the Employer was avoiding full-time employment contrary to Article 10.2 and thereby doing indirectly what it could not do directly, argued the Union. [11] Both parties referred me to the following decisions: Re Oil, Chemical & Atomic Workers, Local 9-599, and Tidewater Oil Co, (Canada) Ltd, 1963 CarswellOnt 377, 14 LAC 233 (Reville, CCJ); Re Horton Steel Work Ltd. and United Steel Workers, Local 3598, 1973 CarswellOnt 1518, [1973] OLAA No 102, 3 L.A.C. (2d) 54 (Rayner); Re Caressant Care Nursing Home (Listowel) v UFCW, Local 175, 1988 CarswellOnt 3816, [1988] OLAA No 47, 3 LAC (4th) 236 (Jolliffe); Re Maplewood Nursing Home Ltd Tilsonburg (Maple Manor) and London & District Service Workers Union, Loc 220, [1989] OLAA No. 105, 9 LAC (4th) 115 (Hunter); Re Fernie (City) and Canadian Union of Public Employees, Local 2093, [1999] BCCAAA No 210, 80 LAC (4th) 289 (Glass); Re CUPE, Local 805 v Provincial Health Services Authority, 2003 CarswellPEI 137, 125 LAC (4th) 163, 76 CLAS 329 (Christie); Cambridge Memorial Hospital v Ontario Public Service Employees Union, Local 239, 2017 CanLII 95367 (ON LA) (Marcotte); and Re Elgin (County) and SEIU, Local 1, 2015 CarswellOnt 208, 249 LAC (4th) 127 (MacDowell). [12] The Union also referred me to Marine v Ontario Nurses’ Association, 2013 CanLII 84904 (ON LA) (Stout); Brown & Beatty, Canadian Labour Arbitration, 5th Edition, chapter 4:22; Mitchnick & Etherington, Labour Arbitration in Canada, 3rd Ed., Lancaster House, 2018 at c. 17.6.3; and Re Toronto Hydro and CUPE, Local 1 (2012-106), 2015 CarswellOnt 13288 (Howe). [13] In addition, the Employer referred me to: Brown & Beatty, supra, chapter 5:33; Lincoln (Town) v. CUPE, Local 1287 (Switchboard Grievance), [2000] O.L.A.A. No. 15 (Verity); C.U.P.E., Local 107 v. Ingersoll (Town), 2001 CarswellOnt 4693 (Hunter); Fort Frances-Rainy River Board of Education and CUPE, Local 65, Re, 1990 CarswellOnt 4813 (Solomatenko); Humpty Dumpty Foods Ltd. v. Teamsters, Local 647, 1990 CarswellOnt 4155 (Dissanayake); and Eastern Ontario Regional Laboratory Association and OPSEU, 2021 CarswellOnt 14828 (Tremayne). DECISION [14] Historically, there has been debate regarding the nature of the obligation on an employer arising from the posting language in various collective agreements. The caselaw cited above evidences that discussion and is perhaps best summarized by comparing the analysis in Maplewood with that in Re Elgin County, both supra, and the cases cited within those decisions. I do not intend to repeat that review and will assume its familiarity. [15] At the outset, I note that it is incumbent upon me to interpret and apply the terms of this collective agreement; to ascertain the intention of the parties by virtue of the words used in their collective agreement. [16] This bargaining unit is comprised of both full-time and part-time employees. They accumulate bargaining unit seniority. Posting opportunities require that bargaining unit seniority govern should applicants otherwise be relatively equal in terms of the attributes identified in Article 13.06 of the collective agreement. [17] Having carefully reviewed the caselaw filed, I am of the view that the analysis undertaken in Elgin County and Cambridge Memorial Hospital is to be preferred over that in Maplewood, supra, particularly given the structure of this bargaining unit and the language of Article 13.01(a) of this collective agreement. In summary terms, the language of Article 13.01(a) does not define “vacancy”. Whether a vacancy exists is a matter for the Employer to determine pursuant to the exercise of its management rights under Article 2 of the Local Appendix of the collective agreement. Only once a vacancy is determined to exist, is it required to be posted pursuant to Article 13.01(a) of the collective agreement. [18] The initial proposition from Tidewater, supra, is the general statement on which all likely agree – a vacancy means “a vacant position for which there is adequate work in the opinion of the company to justify the filling of that position” (para. 18). In Horton, supra, it was stated that the company's opinion “must be exercised on the basis of a reasonable view of the objective facts as they exist at the time the vacancy is alleged to exist”. (para. 7). [19] Even while accepting that original commentary, the words “in the opinion of the company” and “reasonable view” appear to have been somewhat lost in the line of cases, including Maplewood, supra, that focus on interpreting the posting provision. That approach can arguably be read as one where the decision as to whether a vacancy existed was based on the arbitrator’s opinion, rather than an arbitral review of the employer’s decision. As stated in Elgin County, supra, that line of cases interprets the posting provisions in those collective agreements with little or no regard to the management rights clause. [20] The 1979 decision in Re Toronto Harbour Com'n and C.U.P.E., Loc. 186 (Teplitsky), cited in Caressant Care, supra, at para. 14 is not cited in Maplewood. In that case a retiree's job was not posted. Rather, his duties were redistributed in a company reorganization amongst other employees. In dismissing the grievance, Arbitrator Teplitsky commented (at page 58) as follows: …Arbitrators have been alert to prevent an employer from depriving the employees of their right to compete by avoiding the posting whenever there is in fact a job to be filled. On the other hand, the jurisprudence notes that the requirement of posting is not a job security provision, or one which prevents in itself the employer's reorganization of its work-force. [21] The language of the collective agreement in this case is markedly different from that found in Maplewood. In many of the earlier cases, including Maplewood, the collective agreements referred to the posting of a “position”, or a “job”. instead, this collective agreement states “where a vacancy exists…such vacancy shall be posted”. I would go so far as to surmise that the use of the words “where a vacancy exists” in this and other collective agreements became more broadly utilized in response to, and in distinction from the development of some of the earlier caselaw such as Maplewood, that put significant weight on the use of the word “position” or “job” in the posting language. Those decisions had the effect of freezing or continuing pre-existing positions. That result can stymie operational or organizational changes legitimately required or considered by an employer (see the discussion at paragraphs 112-117 of Elgin County). [22] Article 2.01 d) of the Local Appendix of this collective agreement provides that the Employer’s operations are the “exclusive” function of management unless otherwise “specifically dealt with … in this Agreement”. And it goes further, expressly stating that it is the Employer’s right to “manage and operate the Hospital, including…to determine...the allocation and number of employees required from time to time…” (emphasis added). The “allocation” of employees is not defined and is certainly broad enough to include the respective allocation in numbers of full- time and part-time employees within the bargaining unit, an allocation that would generally correlate to the number of full-time and part-time positions from time to time. [23] The union in Elgin County, supra, made essentially the same argument as here, that a vacancy was created when a full-time employee left her position. The facts are also similar except that there were separate full-time and part-time bargaining units in that case. Even so, Arbitrator MacDowell determined that the employer was not required to post a full-time position following the departure of a full-time employee and that the employer was within its management rights to redistribute that work among part-time employees. His comments are apposite and I adopt the reasoning behind them (emphasis added in bold; italics in original): 133 …according to the Union, a "vacancy" is automatically created when the former incumbent leaves her position… The existence of the job posting provision guarantees the continuation of that full-time job … 134 This is, to say the least, a pretty fundamental qualification on the Employer's power to organize and allocate work; and it goes without saying that there is nothing in the Collective Agreement that specifically says that. It is something that the Union argues should flow from the facts and from the use of the word "vacancy" in Article 26, and from the asserted "purpose" of the job posting provision. Because without such inference, the employer could make the "job- posting" obligation redundant by eliminating the job to which the clause might otherwise attach (just as, it seems to me, the Employer could eliminate a full-time job in other situations). … 155 There is certainly nothing in the Collective Agreement that limits the Employer's exercise of management rights simply because that might have some "impact" on jobs and thus indirectly on "seniority" - altering the field of work opportunities to which seniority might be applied. Moreover, as the Employer fairly points out: seniority is only engaged in Article 26 [the posting provision] when it comes to distributing "jobs". It is not a stipulated consideration for their creation or modification — at least not explicitly; while (to repeat) this Collective Agreement requires specific contract language to limit management rights. … 157 There are all kinds of managerial decisions that can have an effect on the volume or distribution of the work in an undertaking (or bargaining unit) and thus have an indirect effect on the exercise of seniority rights; but that has never been regarded as a restriction on the Employer's ability to make those changes in the first place. There is no such implied limitation on management's authority to run the business — effectively freezing the "playing field" of jobs for which employees may wish to compete, because altering the way that business is conducted may affect the range of work opportunities to which seniority might be applied. Indeed, that is why there are (and there have to be) specific protections for "job security" like the ones in Article 31 of the Collective Agreement. Those kinds of clauses are there (and are necessary from the employee's perspective) because the effect on seniority referred to by the Union, does not prevent an employer from reorganizing the workplace. … 169 …there is no contractual guarantee that the number [of] full-time jobs or "hours" will be preserved, or that the full-time or part-time complement will be maintained when employees leave the County's [employ] (via resignation, retirement, or termination for whatever reason); and I am not inclined to imply such restriction or contractual guarantee, or "read it in" as an unexpressed purpose for Article 26… [24] Article 31 of the Elgin County collective agreement, prohibiting the contracting out of work of the bargaining unit, was noted as an example of a specific limitation on the exercise of management rights. It was contrasted to the posting language that contained no prohibition on employer action. The collective agreement before me contains Article 22, which similarly prohibits this Employer from contracting out work if it would result in the layoff of a bargaining unit member. Article 23 also provides similar protection against bargaining unit work being performed by supervisors of managers. As in Elgin County, no specific prohibitive or limiting language exists in Article 13.01 of this collective agreement. It is written in the form of what the Employer ‘must do’ (post where a vacancy exists), not what it ‘must not do’ (contract out if it were to result in a layoff). [25] Arbitrator MacDowell concluded: 188 In my opinion [the posting provision] does not "trump" [the management rights clause]. It is the other way around. Because in my view, in order to create the kind of legal freeze and full-time preference and protection for full-time jobs which the Union proposes in this case, one would need specific restrictive language — language like one finds in Article 31 of the Collective Agreement, but is missing with respect to this business situation. 189 In my view, the obligation to post vacancies and distribute jobs by seniority, does not prevent the Employer from discontinuing the full-time job or eliminating/avoiding the vacancy by transferring work to part-time employees in the part-time bargaining unit. [26] Arbitrator MacDowell also reviewed the decision in North Wellington Heath Care Corporation, cited at para. 104 of Elgin County, which considered a similar posting provision: 104 In arbitrator Goodfellow's view, the job posting clause was a largely procedural provision both in its structure and purpose; there was no intention to irrevocably fix or freeze a body of work as "full-time" or "part-time"; and any concern about seniority rights was fully answered if the employer followed whatever distribution rules were specifically identified in the collective agreement. Those distribution rules did not determine the content of what was being distributed or freeze the existing pattern of work assignments. [27] The decision in Cambridge Memorial Hospital considers the identical posting language as in this collective agreement. The facts are somewhat similar in that a full-time position was eliminated and two part-time positions were created in a combined bargaining unit of full-time and part-time employees. Arbitrator Marcotte also conducted a thorough review of the caselaw. He determined that the words “where a vacancy exists” in the posting provision indicated an employer discretion to determine whether or not there was a vacancy. In dismissing the grievance, he stated: 73 Relevant for our purposes, [the posting provision] sets out a procedure to be followed “where a vacancy exists” namely, that the vacancy is to be posted for 7 calendar days and applicants for it are to apply in writing within that timeframe… there is no express limitation on the type of vacancy or on who in the bargaining unit can apply for a vacancy… … 85 On consideration of the above, I find the language of art. 13.01 does not support the Union...there is no obligation on the Hospital to post a vacant position as occupied at the time it became vacant; the language only requires the Hospital to post that a vacant position exists once it makes that determination. Nor does the language of art. 13.01 address any sort of distinction between full-time and part-time employees and contains no reference to employee's seniority. [28] In PEI Provincial Health Services Authority, relied on by the Union, Arbitrator Christie states at paragraph 55: The point of this extensive review of the arbitral jurisprudence is to demonstrate that the Horton Steel doctrine, that a collective agreement requirement to post a vacancy means what it says, and only if there is in fact no vacancy can the employer not post the job from which a full-time employee has departed… [29] Arbitrator Christie found that the employer was required to post a full-time position rather than posting three part-time positions. (A similar situation arose in Caressant Care, supra.) What is difficult to reconcile in the reasoning is that the decision acknowledges that there may be no vacancy and therefore no requirement to post. As discussed in Elgin County, this results in an employer being able to eliminate work (resulting in no vacancy) but is otherwise restricted from reorganizing or redistributing the work even for legitimate business purposes. [30] At the same time, the decision acknowledges that an employer does have the right to reorganize its work force. That conundrum is resolved in the case by finding that the integrity of the “seniority and vacancy provisions” of the collective agreement (para 56) are to be maintained. Yet it is not at all apparent how the integrity of those provisions is impugned. All members of this bargaining unit accrue seniority, and postings are awarded having regard to bargaining unit seniority. Commenting on a negation of seniority rights in circumstances where a full-time position was vacated and part-time positions were posted, Arbitrator R. Brown in Timmins (City) v. CUPE, (1990) 14 L.A.C. (4th) 23, cited in a number of the cases, stated: …This argument cannot succeed in the context of a collective agreement which covers both full- time and part-time employees and requires that both types of employees [sic] exercise their seniority rights in competing for both types of jobs. Given this circumstance, I do not believe that in negotiating this collective agreement the parties intended to freeze the then current division of work between full-time and part-time jobs. Such a freeze would prevent the conversion of part-time work to full-time as well as preventing the conversion of full-time work to part-time work, something I doubt the parties intended. (page 28) [31] As discussed by Arbitrators MacDowell and Brown, the earlier line of cases results in a freeze on the allocation of positions as between full-time and part-time based solely on the posting language. In interpreting a collective agreement, one is tasked with ascertaining the intention of the parties. I agree with Arbitrator Brown’s comment cited above that any such freeze would operate both ways and results in a measure of inflexibility that neither party likely sees as advantageous. Furthermore, Article 2.01 of this collective agreement specifically recognizes that “allocation” of employees is a management right. Nothing in the posting language of Article 13.01 of this collective agreement speaks to determining or restricting that allocation or any preference for full-time over part-time, or vice versa. Taking the collective agreement as a whole requires that once the Employer has determined that a vacancy exists (Article 2.01), it must be posted (Article 13.01). [32] The Union’s submissions relied on the “sufficiency of work” argument made in the earlier cases. It was not disputed that the work performed by Ms. Emerey continued to be performed and was required. Therefore, it argued, a full-time vacancy existed which was required to be posted. However, prior to ascertaining whether there was a vacancy, the Employer exercised its management right to assign work and to allocate the number of employees required to perform that work following Ms. Emerey’s departure. The Employer determined that it would be more consistent with the collective agreement to distribute those hours among part-time employees. [33] The remaining issue raised by these grievances is whether in making that determination the Employer exercised its discretion reasonably, that is, in a manner that was not arbitrary, discriminatory, or in bad faith. There are two potentially relevant provisions in the Local Appendix of the collective agreement, Articles 5.5 and 10.2, that may speak to the reasonableness of that exercise of discretion. Both provisions speak to hours scheduled, not hours worked, a distinction that must be given meaning. (See also Eastern Ontario Regional Laboratory Assoc., supra.) Hours ultimately worked by employees due to whatever changes that arise in staffing needs following the posting of the schedule are not relevant to the interpretation and application of these provisions of the collective agreement. [34] Article 5.5 of the collective agreement evidences a commitment by the Employer to endeavour to schedule regular part-time employees for at least 24 hours of work per week. Based on the evidence, the Employer was not scheduling these regular part-time employees for at least 24 hours per week prior to Ms. Emerey’s departure. The scheduling of at least 24 hours per week is not required of the Employer, but a commitment to endeavour to schedule regular part-time employees for those hours does exist. In order to support its commitment under Article 5.5, the Employer decided to distribute the work that had been performed by Ms. Emerey to regular part- time employees. The evidence before me indicates that these regular part-time employees were then scheduled for additional hours, with all but one still being scheduled an average of 24 hours per week or less. One employee, scheduled for one additional shift, was scheduled an average of approximately 25.3 hours per week over the posted schedule. [35] Article 10.2 expressly allows the Employer to schedule regular part-time employees in excess of 24 hours per week while still treating them as part-time. Any limitation in the last sentence of Article 10.2 is expressly referable to that provision. That permission is also acknowledged in Article 5.5 which allows that a regular part-time employee may be scheduled up to 37.5 hours per week. On the evidence, even after Ms. Emerey’s departure, the Employer was not, with one very limited exception, scheduling part-time employees in excess of 24 hours per week. Even assuming that the last sentence in Article 10.2 imposes some limitation, any potential relevance only arises when the Employer schedules regular part-time employees in excess of 24 hours per week. That is not supported on the evidence, except for one regular part- time employee being scheduled an average of 25.3 hour per week. I am not persuaded that Article 10.2 specifically limits the operation of Article 2.01 d) in these circumstances, particularly as the Employer is required to also have regard to Article 5.5. [36] Going so far as to interpret the last sentence of Article 10.2 as giving priority to full-time employment, as argued by the Union, would seem to logically require that existing part-time positions be bundled together to create the preferred full-time positions, a result neither party endorsed. I am not persuaded that the language of Article 10.2 guarantees the preservation of existing full-time positions and that, consistent with the reasoning in Elgin County, supra, much clearer language would be required to place such a limitation on the Employer’s right under Article 2.01 d) of the Local Appendix of the collective agreement to “determine the allocation and number of employees required from time to time”. [37] In summary, I find that it was within the Employer’s reasonable exercise of its management rights to consider Article 5.5 of the Local Appendix of the collective agreement and act to re-allocate the number of employees required in support its commitment therein. I also find that, even assuming (without finding) that Article 10.2 imposes some limit on the Employer’s discretion, it has no relevance in the circumstances and on the evidence before me. [38] Having regard to all of the above, these grievances are hereby dismissed. Dated at Toronto, Ontario, this 16th day of March, 2023. “Marilyn A. Nairn” __________________________________________ Marilyn A. Nairn, Arbitrator.