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HomeMy WebLinkAboutWiddis 02-01-09 ,. IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 5103 - and - I CANADIAN BLOOD SERVICES GRIEVANCE OF LORNA WIDDIS JANE H. DEVLIN SOLE ARBITRATOR IRIT KELMAN, FOR THE UNION FRANCES R. GALLOP, FOR THE EMPLOYER 1 The grievance, which was filed by Lorna Widdis, arose as a result of the Employer's decision to select Barb Sauve to attend an Instructional Student Training Program ("ISTP") training course in the spring of 2000, following which she was assigned from time to time to carry out training duties. In these circumstances, the Grievor claimed that ISTP Trainer is a position, which was improperly awarded to an employee with less seniority. In this regard, the grievance, which is dated March 20, 2000, includes the following: I am grieving this decision based on Article 16.02a in that I have the same skill and ability as Barb Sauve with at least 5 yrs more seniority. Cheryl Snodden's personal reasons given to me over the phone, of requiring a Trainer that works on the mobile clinics and that she needs me at the PERM clinic are not valid. These reasons should not interfere with my opportunity to receive the ISTP Trainer position. This position (ISTP Trainer) should be given to the CA with more seniority than Barb Sauve as we are all on equal ground in skill and ability. Ms. Sauve attended the hearing and was provided with an opportunity to participate in the proceedings. Article 16.02(a) of the collective agreement, to which reference is made in the grievance, together with the introductory paragraph of Article 16.02, provide as follows: 16.02 Promotions For the purpose of this Agreement, a promotion shall mean a change from one position to another position, within the bargaining unit, with a higher scale. 2 a) In cases of promotion, the following factors shall be considered: i) skill, ability; ii) seniority. It is understood that where the qualifications referred to in factor i) above are relatively equal, factor ii) will govern. It was the submission of Ms. Kelman, on behalf of the Union, that the i Employer breached Article 16.02(a) of the collective agreement by promoting Ms. Sauve to the ISTP Trainer position without regard to the criteria set out in that Article. In the alternative, Ms. Kelman contended that ISTP Trainer is a new position and that, in accordance with Article 16.01, the selection of employees to fill new positions is governed by the criteria set out in Article 16.02(a). In the further alternative, it was submitted that Ms. Sauve's assignment to the ISTP Trainer position involved a permanent transfer in respect of wh ich the criteria set out in Article 16 .02( a) also ap ply. However, in the event I were to find that Article 16 has no application, Ms. Kelman contended that in assigning Ms. Sauve to perform training duties, the Employer exercised its management rights and, in particular, its right to assign work, in a manner which adversely affected the rights of employees under other provisions of the agreement. In this regard, it was contended that employees selected for ISTP training acquire additional skills and knowledge and that only those who attend the training course are assigned to carry out training duties. Moreover, as such duties may be 3 assigned when employees are not otherwise scheduled to work, they could accrue seniority as seniority for part-time employees is based on hours worked. Moreover, Ms. Kelman contended that in view of their additional skills, knowledge and seniority, employees who perform training duties may have greater opportunities for promotion or transfer and could be retained in preference to other , employees in the event of layoff. As well, Ms. Kelman submitted that the reasons given for the Employer's decision to select Ms. Sauve for ISTP training were arbitrary and unreasonable and, in this respect, the Employer also violated the management rights clause contained in Article 4. In support of these various submissions, Ms. Kelman relied on the following provisions of the agreement ARTICLE 4 - MANAGEMENT RIGHTS 4.02 The parties further acknowledge that it is the exclusive function of the Employer, subject to the provisions of this Agreement, to manage and control its operations, and without limited the generality of the foregoing, to: b) hire, transfer, promote, classify, demote, layoff, assign work, and suspend or discharge employees for just cause, and introduce new and improved methods or facilities; 4.04 These management rights shall not be exercised in a manner inconsistent with the provisions of this Agreement. 12.08 b) Work Schedules Part-Time 4 *ji) The Employer shall endeavour to schedule available work within classification on an equitable basis, separately at each Blood Centre, Region and permanent clinic. iii) In the event hours become available following the posting of the schedule, the Employer will endeavour to assign them on the basis of seniority within the Blood Centre, Region or permanent location. Where there is insufficient staff at the affected location the extra hours will be offered to the most senior available employee in the classification at the next closest location. , 15.02 b) Part-time and temporary employees shall accrue seniority from.the date of last hire based on all regular hours worked, excluding overtime hours. 16.01 Vacancies a) 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. d) Applications for permanent vacancies and new positions shall be made in writing within the seven (7) working day posting period. The employee shall include in such application her updated resume. Selection shall be made based on the criteria outlined in Article 16.02a). 16.04 Permanent Transfers For the purpose of this Agreement, a permanent transfer at the request of an employee is a change from one position to another within the bargaining unit which does not constitute a "promotion" as defined in Article 16.02 above. 17.02*c) In the event of a layoff, the Employer shall reduce staff in the reverse order of classification seniority in the Blood Centre, Region or permanent clinic site where the layoff is to occur, provided that those employees who remain on the job have the qualifications and ability to perform the work. 5 It was the submission of Ms. Gallop, on behalf of the Employer, that at most, Ms. Sauve was offered an opportunity to attend a training course which resulted in her performing training duties on an occasional basis. In some instances, she was paid a premium for the performance of these duties. Ms. Gallop further submitted that in the circumstances, no promotion was involved and, accordingly, Article 16.02(a), to which reference is made in the grievance, has no application. Moreover, Ms. Gallop i contended that it was not until shortly before the hearing that the Union advised of its intention to rely on other provisions of the collective agreement. Ms. Gallop pointed out, however, that the agreement requires that the grievance specify the Article which is alleged to have been violated and, .accordingly, she maintained that any attempt on the part of the Union to rely on provisions of the agreement, other than Article 16.02(a), involves an improper expansion of the grievance. As well, she submitted that claims relating to articles of the agreement, other than Article 16.02(a), have not been processed through the grievance procedure and, therefore, may not be dealt with at arbitration. In support of her submissions regarding the scope of the grievance, Ms. Gallop referred to the following provisions of the agreement: ARTICLE 7 - GRIEVANCE PROCEDURE 7.01 A grievance is any difference that arises between the parties related to the interpretation, application or administration of this Agreement, or where an allegation is made that this Agreement has been violated. In processing grievances, the following procedures will be adhered to: a) Grievance forms shall be supplied by the Union. The grievance must contain reference to the article and specific section of the agreement. 6 which is alleged to have been violated, provide a brief explanation of the nature of the grievance and the redress sought. e) It is the mutual desire of the parties hereto that complaints of employees be adjusted as quickly as possible, and it is understood that an employee has no grievance until she has first given her immediate supervisor the opportunity of adjusting her complaint. Such complaint shall be discussed with her immediate supervisor within eighteen (18) days after the circumstances giving rise to it have occurred. In cases where the employee has been absent from the work place at the time the circumstances have occurred, the 18 day period s~all commence on the date of her return. Failing settlement within five (5) days, it may then be taken up as a grievance by the employee as 9utlined in Step 1 within ten (10) days following the expiry of the five (5) day period. ARTICLE 8 - ARBITRATION 8.01 a) Both parties to this Agreement agree that any dispute or grievance concerning the interpretation or alleged violation of this Agreement, which has been properly carried through the grievance procedure outlined in Article 7 above, and which has not been settled, will be referred to a Board of Arbitration at the written request of either of the parties hereto. 8.06 The Board of Arbitration shall not have any power to after or change any of the provisions of this Agreement or to substitute any new provisions for any existing provisions, or to give any decision inconsistent with the terms and provisions of this Agreement. At this juncture, the parties agreed to confine their submissions to two issues, the first of which concerns the proper scope of the grievance and the second, whether or not in the circumstances of this case, a promotion was involved. For purposes of dealing with these issues, the parties also agreed to certain facts, which are as follows: The Employer is responsible for the collection and distribution of blood and is a party to collective agreements with both the Ontario Public Service Employees' 7 Union (OPSEU) and the Ontario Nurses' Association. The Grievor and Ms. Sauve, who are covered by the OPSEU collective agreement, work as part-time Clinic Assistants II and are based in Barrie, which is part of the Toronto Centre. A number of years ago, the Employer decided that it would'be beneficial to involve employees in training other employees and initially offered training , opportunities to Registered Nurses. Recently, such opportunities have also been offered to Clinic Assistants. In this regard, the facts indicate that the Employer periodically offers a three~day ISTP training course. Upon completion of the course, the employee retains his or her existing classification and may be assigned from time to time to perform training duties. According to the Employer, some of the training duties fall within the employee's job description, in which case no premium is paid for the performance of these duties. However, in circumstances where an employee is assigned to provide classroom training to a group of employees, the employee is paid a premium of 6% above his or her base rate of pay. While there may be a dispute between the parties as to whether the premium is payable only in the event that training takes place in a classroom setting, that issue is not before me. The basis for the payment of a premium of 6% can be found in a Memorandum of Understanding executed by the parties in December, 1999, which provides as follows: The parties agree that the following provisions will apply to any employee who is assigned by the Employer to deliver training to other employees in new processes, new procedures or new technology: 8 1. A premium equivalent to 6.0% of the employee's hourly base rate will be paid for time spent in providing training to other staff in new processes, new procedures or new technology. 2. A premium equivalent to 6.0% of the employee's base rate will be paid for all time spent in preparation for training of other employees in new processes, new procedures or new technology, providing such preparation time has been approved by the employee's supervisor. 4. It is understood that employees who provide on-the-job or buddy training are not entitled to a premium and that this type of training is the normal responsibility of the job. As to the circumstances which gave rise to the grievance, the facts indicate that in February, 2000, the Employer distributed a memorandum regarding an ISTP training course to be conducted in the spring of that year. Staff members who were interested in participating in the course were advised to submit their names to the Collections Site Manager/Co-ordinator by March 6th. It would appear that the Grievor, Ms. Sauve and a number of other employees in Barrie expressed interest in participating in the training course. Thereafter, in mid-March, the Employer distributed a further memorandum advising staff that in view of "tight time lines and scheduling concerns", only a limited number of employees could participate in the course, which was to be held from March 21 st to 23rd. The staff member selected to attend the training course from Barrie was Barb Sauve. The Employer also indicated in the memorandum that it hoped to offer additional courses in the near future and to provide those who had expressed interest with the opportunity to attend, 9 In the period of approximately one year after Ms. Sauve attended the training course in the spring of 2000, she was assigned to perform training duties on six days on which she was not scheduled to work and it is not known whether or not she would otherwise have been offered shifts on those dates. When carrying out training duties, Ms, Sauve signs all documentation signed by the trainee and also signs an evaluation form indicating the trainee has performed the tasks satisfactorily. As well, , the parties agreed that Ms, Sauve has recertified Clinic Assistants on three occasions and, in doing so, she observes the tasks performed by the particular employee and "signs off', indicating successful completion of those tasks. As to new employees, the parties agreed that once an ISTP Trainer "signs off', a new employee may be assigned by the Charge Nurse to perform the particular duties and although the Employer advised that responsibility for "releasing" the new employee to perform these duties rests with an employee excluded from the bargaining unit, the Union had no information with respect to that matter. Finally, the parties agreed that the only employees assigned to provide clinic training are those who have attended the ISTP training course. In addition to the Articles set out above, reference was also made to the following provisions of the agreement: ARTICLE 31 M POSITION DESCRIPTION 31,01 All employees are entitled to have in their possession, a copy of their current Position Description. It is understood that position descriptions as 31.02 31.03 31.04 31.06 a) 10 appended to this contract are current as of the date of signing of this agreement. *8-5a Clinic Assistant II The Position Descriptions shall accurately reflect only those duties which are applicable to all members of that position. An employee who is not required by her Centre's administration to perform all of the standard duties of her Position Description shall receive no reduction in her weekly rate. , Any employee cannot be required to perform duties which are not contained in his position description. If the Employer creates a new Position Description it shall establish the job description and wage rate and give written notice to the Union of the new wage rate. b) If the Union objects within thirty (30) days of receipt of the written notice from the Employer of the wage rate, such objection shall become the basis of a meeting between a representative of the Union and a representative of the Employer. Should such meeting result in a revision of the wages, the wage rate shall be retroactive to the date of implementation of the new Position Description, unless otherwise mutually ag reed. c) Failing resolution of the objections, the matter shall be determined by arbitration. As noted by both parties, the position description for Clinic Assistant II, which is appended to the collective agreement, provides among other matters, that incumbents "may assist with training of staff'. The wage rates applicable to the position during the term of the agreement are set out Schedule "A", , , 11 The first issue to be determined concerns the proper scope of the grievance. In this regard, although an Arbitrator is bound by the written grievance, it has been held that the grievance should be liberally construed so that the real complaint may be dealt with: see Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters & Joiners of America. Local 2486 (1975),8 O.R.(2d) 103 (Ont. C.A.). Nevertheless, it is not open to one party to unilaterally expand the scope , of the grievance to encompass a matter not grieved: see Re Electrohome Ltd. and International Brotherhood of Electrical Workers. Local 2345 (1984), 16 L.A.C.(3d) 78 (Rayner) and Re Ontario Hydro and Power Workers' Union. Canadian Union of Public Employees. Local 1000 (1996), 53 L.A.C.(4th) 163 (Burkett). In this case, the grievance contests the Employer's decision to select Barb Sauve for the ISTP Trainer position "based on Article 16.02a" as although the Grievor and Ms. Sauve have equal skill and ability, the Grievor has greater seniority. The grievance also suggests that the reasons given by management for selecting Ms. Sauve were not valid and ought not to deprive the Grievor of the position. The Employer maintained, however, that there is no requirement to offer ISTP training duties to staff members based on seniority. As to the collective agreement, Article 7.01 (a) requires that the grievance make reference to the Article and specific section alleged to have been violated and, as well, provide a brief explanation of the nature of the grievance and the redress sought. 12 Article 8.01 (a) provides that any dispute or grievance concerning the interpretation or alleged violation of the agreement which has been properly carried through the grievance procedure will be referred to arbitration at the request of either party. In this case, the grievance alleges a violation of Article 16.02(a), which specifies that in cases of promotion, the following factors are to be considered: (i) skill , and ability and (ii) seniority. The Article further provides that where the qualifications referred to in factor (i) are relatively equal, factor (ii) will govern. As noted by the Union, Article 16.01 of the agreement provides that the criteria set out in Article 16.02(a) also govern the selection of employees to fill new positions and Article 16.04 provides that those criteria also apply to permanent transfers. In these circumstances, therefore, and given the requirement to liberally construe the grievance, I cannot accept the Employer's submission that the grievance is confined to a claim that Ms. Sauve was improperly promoted. In this regard, although the grievance complains about the Employer's failure to apply the criteria set out in Article 16.02(a) in selecting Ms. Sauve for the ISTP Trainer position, there is no reference to promotion on the grievance form, the reply to the grievance or any documentation related to the grievance process. Moreover, while the grievance admittedly makes no reference to Articles 16.01 or 16.04, given that it clearly alleges a violation of Article 16.02(a) and that the criteria set out in that Article apply in cases of promotion, permanent transfer and the selection of 13 employees for new positions, I cannot conclude that the grievance is confined to a claim that Ms. Sauve was improperly promoted. Different considerations, however, apply to the Union's alternative claim that in selecting Ms. Sauve to attend the training course and subsequently assigning her to perform training duties, the Employer violated the management rights clause. , The grievance does not refer to management rights or to Article 4 but instead alleges a breach of Article 16.02(a) and complains about the Employer's decision to select an employee with less seniority than the Grievor for the ISTP Trainer position in circumstances where the skill and ability of the two employees are equal. In my view, it is quite a different matter to suggest that the Employer has exercised its management rights so as to infringe the rights of employees under other provisions of the agreement. Moreover, although the grievance claims that the reasons for the Employer's decision to select Ms. Sauve were invalid, there is nothing to indicate that this claim was intended to involve a separate and distinct breach of the agreement as is now suggested by the Union. In the result, while the grievance must be liberally construed, in this case, I find that claims relating to an alleged violation of the management rights clause are not encompassed by the grievance filed by Ms. Widdis. Moreover, in my view, this case is distinguishable from Re York University af}{L York University Staff Association (1985), 20 L.A.C.(3d) 187 (Devlin) and Re Missi~^sauga Hydro-Electric Commission anq lnt~IngJiQng!6IQ1tH:llhQ9d Of Electrical 14 Workers. Local 636 (1992), 28 L.A.C.(4th) 177 (Springate), which were relied on by the Union. In the former case, the issue concerned whether the Union could include the words "specifically but not limited to" prior to setting out the articles alleged to have been violated on the grievance form. Accordingly, comments regarding the right to refer to articles not mentioned in the grievance must be considered in that context, rather than in the context of a claim relating to an improper expansion of the grievance. , In the Mississauga Hydro-Electric Commission award, the Arbitrator permitted an amendment to the remedy sought and in doing so, noted that the collective agreement did not expressly limit the Union to the remedy requested in the grievance. In this case, however, as indicated previously, the collective agreement requires that the grievance identify the article and section of the agreement alleged to have been violated. Moreover, as the grievance in this case alleges a violation of Article 16.02(a) and complains about the Employer's failure to select the Grievor for the ISTP Tiainer position based on her seniority, I am compelled to conclude that claims relating to the alleged violation of the management rights clause are beyond the scope of the grievance. The next issue to be determined is whether in the circumstances of this case, a promotion was involved. In this regard, Article 16.02 provides that for purposes of the agreement, a promotion involves "a change from one position to another position, within the bargaining unit, with a higher pay scale". Dealing firstly with whether training duties involve work within the bargaining unit, as pointed out by the " 15 Employer, training duties are also carried out by Registered Nurses and employees excluded from the unit. Nevertheless, the fact that training duties are not performed exclusively by members of the OPSEU bargaining unit does not preclude a finding that when performed by such employees, the work falls within the bargaining unit. In this case, it would appear that the training carried out by members of the OPSEU bargaining unit relates to duties performed by employees within the unit. Moreover, the , fact that the Employer and the Union entered into a Memorandum of Understanding providing for the payment of a premium for the performance of these duties suggests that both parties understood that the training duties in issue involved work within the bargaining unit. Accordingly, it is necessary to consider whether Ms. Sauve's assignment to perform training duties involved a change from one position to anothei with a higher pay scale. In this regard, I agree with the Union that whether ISTP training duties involve a "position" within the meaning of the collective agreement must be determined based on the objective facts and is not a matter exclusively for management: see Re Westcoast Energy Inc. and Energy & Chemical Workers' Union. Local 862 (1994),46 LAC.(4th) 88 (Coleman). In this regard, both parties referred to Article 31 of the collective agreement which provides, among other matters, that position descriptions in effect at the date of signing of the agreement are appended to the agreement; that such descriptions shall accurately refiect only those duties which are applicable to all employees in the position; and that employees cannot be required to perform duties 16 which are not set out in their position descriptions. Although ISTP Trainer is not one of the positions listed in Article 31 of the agreement, Article 31.06(a) of the agreement provides a procedure for setting a wage rate in the event that a new position is established. However, no grievance has been filed claiming that the Employer has failed to establish a position description and wage rate for ISTP Trainer. i Instead, the parties entered into a Memorandum of Understanding dated December, 1999 in which they agreed that employees involved in training other employees in new processes, procedures or technology would receive a premium equivalent to 6% above their base rate of pay. In my view, this memorandum supports the conclusion that rather than constituting a "position", training duties involve a work assignment for which employees receive premium pay. In this regard, it would appear that employees who are assigned to perform training duties ietain their existing positions and the premium to which they are entitled is expressed as a percentage of their base rate of pay. Moreover, a premium payment of the kind provided for in the Memorandum of Understanding can be distinguished from a "higher pay scale", which is one of the features of a promotion as that term is defined in Article 16.02 of the collective agreement. In my view, a "higher pay scale" refers to a wage rate or, more precisely, a range of wage rates similar to those set out in Schedule "A" for the positions for which there are job descriptions appended to the agreement. For ISTP training duties, however, there is no wage rate or range of rates but rather a premium, which is expressed as a percentage of an employee's base rate of pay. ,. 17 Although the Union also contended that in determining whether a new position or classification has been established, Arbitrators commonly consider whether there has been a substantial or qualitative change in job duties, the evidence fails to indicate such a change in Ms. Sauve's job duties. Moreover, the test referred to by the Union is generally applied when a grievance is filed under a provision similar to Article 31.06(a) of the collective agreement to establish a wage rate for a new position or I classification. As indicated previously, however, that is not the nature of the grievance filed by Ms. Widdis and the Memorandum of Understanding executed by the parties indicates that employees are entitled to a premium when assigned to perform training duties. In my view, the circumstances of this case are similar to those in Re St. John's Transportation Commission and the Amalgamated Transit Union. Local 1462 February 7, 1993 (Alcock (unreported)), which was relied on by the Employer. In that case the grievor, who was classified as a bus driver, claimed that he had been improperly denied the position of driver/trainer. The Arbitrator, however, upheld a preliminary objection advanced by the employer and found that driver/trainer did not involve a position or classification but rather, a work assignment for which employees were entitled to a premium. The Arbitrator also found that the seniority and job posting provisions of the agreement did not apply to such an assignment. In this regard, he commented as follows: 18 Article 5.6 - Driver-Trainers does not establish such an entitlement. In my view, that Article must be read in conjunction with Article 6.4.2 - premium for Training and Schedule 'jA". The latter makes it perfectly clear that there is no separate classification of Driver-Trainer (or for that matter Lead Hand). Article 5.6 does not create a classification. When Article 6.4.2 is examined, it becomes abundantly clear that the person who does the training is entitled to premium pay in respect of the training duties performed. That is quite different from the standard rate of pay set for a classification whereby an employee would be paid the established rate no matter what combination of duties he performed in his classification. Also, 6.4.2 specifies that those engaged in training will be operators. Therefore, the reference to Driver-Trainers in 5.6 is merely a convenient term used as a substitute for the expression "operators engaged in training new operators." For the same reasons, the Notices required in Article 5.7.1 and the Application Filing required in 5.7.2 do not apply in this case. 80th clauses speak of vacancies. For a vacancy to exist there must be a position. Since operators are the ones who will do the training, and since there was no vacancy for an operator, then there could not be a position. There being no vacancies or positions, there could be no promotion or transfer. In my view, the real issue here is not promotion or transfer. Rather it is assignment of work, Driver~trainer duties are a function of the duties that are assigned to operators i.e. a training aspect of the operator's job. Clearly, one cannot be promoted or transferred to a group of duties which belong to one's own job. But the duties can be assigned to him. Job assignments, however, are not subject to posting requirements or to preference by way of seniority. Similarly, in this case, ISTP training duties do not constitute a position but rather a work assignment for which employees receive premium pay in accordance with the Memorandum of Understanding executed by the parties in December, 1999. In the result, for the reasons set out, I cannot conclude Ms. Sauve was promoted as there was not a change in her position of Clinic Assistant 1/ to another position involving a higher pay scale. 19 I shall remain seized jf there are any other issues which properly arise in connection with this grievance. DATED AT TORONTO, this 7th day of January, 2002. l'Clu'?. H ~L Sole Arbitrator