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HomeMy WebLinkAboutUnion 03-03-28 IN THE MATTERt)F AN ARBITRATION Bet wee n: HANITLTONHEALTH SCffiNCES CORPORATION (the "Hospital") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 273 (the "Union") and in the matter of a policy grievance concerning the posting of two part-time general - duty technologist positions. . Russell Goodfellow - Sole Arbitrator APPEARANCES FOR THE HOSPITAL: Mark Zega, Counsel Sue Freshwater John Korver Kim Farrington APPEARANCES FOR THE UNION: Ed Holmes, Counsel Jim Pearce INCUMBENTS: Carol Farronato Linda Tweedle Hearings were held in this mailer in HiHnilfon on September 10, 2002 and January 20. 2003. . (" --~ AWARD Introduction This award deals with the question of whether the Hospital was entitled to post vacancies for two part~time "general duty" technologist positions upon the voluntary departure of an employee from her position as a full-time senior medical laboratory technologist. The Union submits that the job~posting provision of the coHective agreement required the Hospital to post and fill the position that had been vacated, not the two positions that the Hospital chose to create and fill. In the alternative, the Union . . submits that the Hospital's decision to post the two part-time general duty positions constituted an arbitrary exercise of its management rights. The Hospital responds that the job-posting provision does Hot supply the kind of restriction suggested by the Union and that there is no evidence of arbitrary decision-making. Facts On January 3, 2002 the Hospital issued a posting for two part-time medical laboratory technologist positions in the microbiology lab at the Hwnilton General site. Both positions were half-time, with the ((scheduled working hours" being shown as ((days, evenings, nights, weekends and holidays". The posting was prompted by the voluntary departure of a senior fuJJ~time medical laboratory technologist, Barb Shea, from her position. The laboratory manager is John Korver. Mr. Korver was the only witness to testify in these proceedings. Mr. Korver explained why he decided to post the two part-time general duty positions rather than the senior fuB-time position. 2 .. '~F Mr. Korver testified that he has generally been opposed to the creation of part~time employment, except when it has been necessary to save jobs. However, in the context ofa recent, and ongoing, consolidation of laboratory functions he decided to take another look at the issue. The work of the bargaining unit is performed by senior technologists, general duty technologists and laboratory assistants. Among other things, Mr.. Korver noted, there has' been a reduction over the years in the relative number of general duty positions to senior positions. Mr. Korver testified that this has created difficulties from a scheduling point. of view because the seniors do not work aU shifts and because they perform less hands~on work. Mr. Korver also pointed out that, prior to Ms. Shea's departure, the workload had become "extremely heavy", with Mondays, Tuesdays and Wednesdays being the busiest days. Mr. Korver explained that this was due to an increase in the amount of screening and surveillance work required to deal with antibiotic resistant organisms. With Ms. Shea's impending departure, Mr. Korver spoke to the other two senior technologists working in the lab and determined that it would be possible to hand~ off the exclusively "senior" aspects of Ms. Shea's functions to them. The idea was that this would enable him to create two new part-time general duty positions to perform more of the direct hands-on work and to be scheduled on the busiest days. As Mr. Korver put it, "I decided to defer the administrative aspects and enhance the technical aspects based upon' what I decided was needed for better patient care". This, Mr. Korver believed, would help generate a "faster turn-around time" in the infection control work - an "extremely important" factor when dealing with.antibiotic resistant organisms. Mr. Korver also spoke with the Discipline Director for Microbiology and between them it was agreed that an increased emphasis on service, over administration, would be beneficial. Mr. Korver testified that concerns about workload and infection control had been raised by bargaining unit members at regular staff meetings. However, Mr. Korver's response had always been that he did not have a solution to the problem 3 _'-;r- because he did not have the ability to "increase resource dollars or the number of hours that can be worked". Although staff members had suggested "splitting-up a position if one becomes availableH, Mr. Korver testified that he had not seen it as "a benefit in the past and even though staff asked for it, I never really entertained it." Finally, Mr. Korver noted that he consulted with Human Resources and with the Administrative Director of Laboratory Programs before making his decision. In cross-examination, Mr. Korver agreed that the posting of the two part- time general-duty positions was in direct response to the departure of I? arb Shea and that all of the work fonnerJy performed by Ms. Shea continues to be performed within the bargaining unit. "However, Mr. Korver denied the suggestion that the purpose of the exercise was "to get rid of a senior position". He said that he saw the departure of a senior technologist as creating an "opportunity to provide better and quicker service in the patient-care part of the lab". When asked whether this was because he "wanted more people working on Monday, Tuesday and Wednesday", Mr. Korver replied ((essentially, yes". When asked why he couldn't accommodate that objective with the pre-existing configuration of personnel, Mr. Korver respond.ed that part-timers give greater flexibility for nights, evenings, and weekend work \Vhen asked why he could not have directed the existing complement of personnel to perform more Monday to Wednesday shifts, Mr. Korver responded that it was not just a ((scheduling" issue, it was also a "workload" issue. Mr. Korver added that "infection control is only 25% of our operation" and that there is still the "routine stuff to be done". Mr. Korver reiterated that the subject of workload kept coming up at staff meetings and that the bargaining unit members were looking for help from Monday to Wednesday. Mr. Korver noted that he had already reviewed the existing distribution of personnel across the various shifts and felt that it was "fair and equitable". That being the case, and having made repeated, but unsuccessful, attempts at budget time to secure more staff, Mr. Korver believed that there was still a need to "create extra bodies" out of the same resources. He reiterated that this was becoming an increasing problem as the staff became more senior and the alllollnt of vacation time grew. 4 ~ ~.:;"- Mr. Korver testified that the "role of the seniors)' and what "use could be made of that position)) occupied "much of [his] thought process)'. While agreeing that there is a substantial overlap in the duties performed by senior and general duty technologists, he felt that his needs were better met by filling two part-time general duty positions rather than one senior full-time position. Finally, Mr. Korver was challenged as to his evidence that infection control involves more work by technologists on Monday, Tuesday and Wednesday. Suffice it to say that Union counsel was able to establish that a substantial amount of the work related to infection control that is performed in the lab at the beginning of the week is laboratory assistant work rather than technologist work. However, Mr. Korver disagreed with the suggestion that this meant that there was not a greater demand for technologist services over the course of those three days than over the rest of the week. First) he noted that although the infection control work that is performed on Mondays - which involves the "plating of samples)) - is done primarily by assistants, technologists help if it is a "heavy" day. Second, he noted that wlnle some of the plated samples need to incubate for two days, the majority (approximately 60%) are ready for identification on the second day (ie. Tuesday). And) while some of that work may carry over into Wednesday) by then there is also the identification work to be carried out in relation to the samples that have incubated for two days, albeit work which may continue into Thursday. That work is technologist work, not technician work. Submissions The Union submits that the HospitaPs decision to post two part-time general duty positions rather than a senior full-time position contravened Article 13.0] of . . the "Common Provisions AgreemeI,1t)) - the agreement that was negotiated between the Hospital and the Union following the creation of the Hamilton Health Sciences Corporation out of a number of previously separate entities and the resulting consolidation of bargaining units. The material pOIiion of Article 13.01 states: 5 5 ARTICLE 13 - JOB POSTING. PROMOTION AND TRANSFER 13.01 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. (emphasis added) The Union submits that Article 13.01 requires that a "vacancy" be identified and that "such vacancy' be posted. The issue, according to th~ Union, is "what is the vacancy that existed". Referring to the evidence, the Union submits that the vacancy that existed was for a full~time senior medical laboratory technologist. It was Barb Shea's departure that prompted the posting and all of Ms. Shea's duties contjQue to, be perfonned within the bargaining unit. The Umon points out that it is concerned about bargaining unit erosion- albeit of a particular type: the loss of senior full-time positions. Senior positions form a separate classification in the collective agreement, attract a higher rate of pay and enjoy superior hours of work. The continued existence ofthese positions - as opportunities for other employees - is an important collective bargaining benefit. In support of its argument that the "vacancy" that existed after Barb Shea's departure was that of a full-time senior technologist (and, hence,' that it was "such vacancy" that was required to be posted), the Union refers to Article 9.08 of the former C.u.P.E., Local 794 Collective Agreement that continues to apply alongside the Common Provisions Agreement. Article 9.08 states: .-:~ 7 In the alternative, the Union submits that the Hospital's decision to create the two part-time general duty positions out of the single full-time senior position constitutes an arbitrary exercise of its management rights. According to the Union, the evidence does not support the need for the front~end loading of the work-week suggested by Mr, Korver. The samples come in on Monday and Tuesday, with the bulk of the technologist work being carried out on Wednesday and Thursday, As a result there is no need for the kind of flexibility referred to in Mr. Korver's evidence. By way of remedy, the Union asks for a declaration that the Hospital breached Article 13.01 and an order that it be required to post and fill a senior full-time position. The Hospital relies on its management's rights to assign and reassign work, to establish hours of work, and to determine the jobs that need to be done. The Hospital refers to the following provisions of the C.D.P,E. Collective Agreement: ARTICLE 1 - PREAMBLE 1.01 - Preamble It is recognized that the employees wish to work efficiently together with the Hospital to secure the best possible care and health protection for patients. ARTICLE 14-HOURS OF WORK 14,01 - Daily and Weekly Hours of Work The hours of work in Schedules 'A' and 'B' are stated solely for the purpose ,of computing ove~e and shall not be construed as a guarantee of any minimum or as a restriction on any maximum number of hours to be worked. ' 8 .~I" ARTICLE 26 - MANAGEMENTS' [sic] RIGHTS I. Except as specifically abridged, delegated, granted or modified by this Agreement, all the rights, powers and authority of Management are retained by Management and remain exclusively and without limitation within the rights of Management. 2. Without . limiting the generality of the foregoing,. Management's rights include: 2.1 The direction of the working forces, the right to plan, direct and control the operation of the Hospital; the right to introduce new and improved methods, facilities, equipment, the amount of supervision necessary; combining" or splitting up departments, work schedules, establishment of standards of care and quality, the determination of the extent to which the Hospital will be operated and the increase or decrease in employment. 2.2 The sole and exclusive jurisdiction over all. operations, buildings, machinery and equipment vested in the Hospital. 3. In addition, Management's rights include: 3.1 The right to maintain order, discipline and efficiency and in connection therewith, to make, alter and enforce, from th-ne to time, rules and regulations, policies and practices, to be observed by its employees and the right to discipline or dismiss employees for just cause. 3.2 The right to select, hire, discipline, dismiss, transfer, assign to shifts, promote, demote, classify, lay- off, recall and suspend employee and select employees for positions not covered by the Agreement. According to the Hospital, these provisions reinforce its inherent right to determine the way in which the work is accomplished, and the number and types of positions required to do it. The Hospital submits that any restrictions on that right must be expressly spelled out in the language of the agreement and that no such restriction can be found in the job~posting provision. ~ "";;; 9 As a factual matter, the Hospital notes that both management and staff identified the need for more flexible working hours and the performance of more direct hands-on work. This was a concern that applied not only in respect of the handling of samples at thebegipning of the week but generally. This concern was refleCted in the posting, which contained the requirement that the successful candidates be available to work evenings, nights and weekends - shifts that are not worked by seniors. Management responded to this need by taking advantage ofa situation of voluntary attrition to: (i) reallocate the exclusively "senior" aspects of the position formerly occupied by Ms. Shea to other senior technologists; and (ii) create ~wo new half-time general duty positions. The Hospital submits that even if it was wrong in its belief that more flexibility was required - a notion which it flatly rejects - it has the right to be wrong. There is certainly no evidence that Mr. Korver acted "arbitrarily". The HospitRI adds that this is not a case of bargaining unit erosion or of a frustration of seniority rights. As pointed out by the Union, all of the work continues to be performed within the bargaining unit and there is no dispute that the two new part- time positions were awarded to the two most senior employees who applied for them. The Hospital submits that Article 9.08 is of no assistance to the Union's case and, further, constitutes an improper expansion of the grievance. Article 9.08 deals with situations of involuntary attrition, not voluntary attrition, and just as it was agreed by the Hospital that it did not foHow Article 9.08, so too it was agreed by the Union that no reference was made to Article 9.08 in the grievance procedure or at any time prior to the hearing. In support of the assertion that the Union cannot now rely on Article 9.08, the Hospital refers to St. Joseph's Hospital and service Employees International Union, Local 204 (1997),65 L.A.C. (4th) 160 (Solomatenko) and Cold Springs and Cold Springs Farms Employees' Association, Lpcal 100 (2000),88 L.A.C. (4th) 213 (Goodfellow). 10 '" The Hospital disagrees with the cases referred to by the l,Inion that hold that an employer is precluded by a job-posting provision from converting a full~time position into two or more part-time positions but asserts that they are distinguishable in any event. The Fernie case, in particular, is distinguishable on the basis that it was exactly the same job that had been divided into two part-time jobs. Here, two general duty positions were created out of what remained after the duties that were exclusive to the senior technologist classification were assigned to two other senior technologists. For its part, the Hospital refers to: The Corporation of the City of Timmins and Canadian Union of Public Employees, Local 1140 (1990), 14 L.A.C. (4th) 23 (R,M, Brown); District of Maple Ridge and Canadian Union of Public Employees, Local 622, unreported, July 15, 1997. (Diebolt); MaplewoodNursing Home Ltd., Tilsonburg (Maple Manor) dated August 22, 1988, unreported (T.A.B. Jolliffe) (also known as "Maplewood . . No.1"); Toronto Harbour Commission and Canadian Union of Public Employees, Local 186 (1979),22 L.AC, (2d) 56 (TepIitsky); Metropolitan Separate School Board and Canadian Union of Public Employees (1997),68 L.AC. (4th) 265 (H,D. Brown); and B. C. Rail and United Association of Journeymen and Apprentice~~ Local 170 (1999), 85 L,AC. (4th) 191 (N.M. Glass). The Hospital asks that the grievance be dismissed. The Union responds that its reference to Article 9.08 does not constitute an expansion or alteration of the grievance. The Union is not suggesting that the Hospital breached Article 9,08 and it is not seeking any reliefin respect of that provision. The Union is simply relying on the Hospital's failure to apply Article 9.08 as evidence of the fact that the senior position still exists and, hence, that it was that position that constituted' the vacancy that was required to be posted, As for the impact of the job-posting provision itself, the Union concedes that there are two lines ,of authority on poil)t. However, the Union submits that the case law has evolved to the position set out in the City of Fernie and, hence, it is that position that should be adopted here. The Union rejects the distinction relied on by the Hospital as to the difference between the work that was performed in the position that was vacated fUlll the work thai j~ nerfonned hv the IWO nHrt~tirne teehnolopists on the footinQ that all J- ...... ........ ",--,' 11 ()fthe work continues to be performed within the bargaining unit. In addition, as the Fernie case suggests, the breach subsists in the failure to post the position which fell vacant and that breach cannot be "cured". by parcelling out the duties to other employees and by posting other position(s). Discussion (i) The Alleged Breach of Management's Rights This assertion can be disposed of quite quickly. In my view, the evidence does not establish anything resembling arbitrary decision~making. On the contrary, on the evidence given by him - and there was no.other ....: Mr. Korver appears to have undertaken a thoughtful and reasoned evaluation of the objective facts and to have come to a conclusion that was fully supportable in the circumstances. The overarching concern was for increased scheduling flexibility and for the performance of more direct hands~on work. The creation of the two new part-time general duty positions was intended to respond, and clearly would respond, to both of those objectives. Whether or not the need for the objectives to be met was as great as Mr. Korver and, indeed, others, appeared to believe, is irrelevant. The evidence establishes that there was clearly some need and this, in my view, is sufficient to overcome any suggestion that the Hospital acted "arbitrarily". Further, lest there be any doubt on the point, I note that the Union (to its credit) did not suggest that Mr. Korver's actions were motivated by "bad~faith". In essence, its assertion was that Mr. Korver C<got it wrong" and that the decision was therefore C<arbitrary". ~or the reasons giv~n, I disagree. There was no breach of management's rights. 12 --", (if) The A lleged Breach of Article 13.01 The real issue in this case is whether the Hospital was required by the job- posting provision, perhaps interpreted inlight of the non~application of the re-deployment provision, to post a vacancy for the sernor fidlHtime position fonnerly occupied by Barb Shea. In my view, it was not. I agree with Union counsel's submission that there are conflicting lines of authority on the question of whether a "typical" job-posting provision prevents an employer from sub-dividing a full-time job into two or more part-time jobs whether or not the part-time jobs are themselves posted. The cases relied on by the Union - Fernie, \ ~urrey, "Maplelf/ood No.2" and Red Lake - lend varying degrees of support to the view that it does. The cases relied on by the Hospital - Timmins, Maple Ridge, and "Maplewood No. 1 n - take the opposite approach. In my view, the final word has yet to be written on this subject. However, it will not be written here. I agree with Hospital counsel that the present case is to be distinguished from those relied on by the Union and that Article 13.01 did not require the Hospital to post a senior medical laboratory technologist position. Article 13.01 requires the Hospital to post Cla vacancy" where "such)' exists. The questions that arise, therefore, are whether there is a vacancy and, if so, for what position. Although the Collective Agreement provides little assistance in answering the first question, the case law relied on by the Union suggests that a vacancy exists where.there is a '10b of work to be done": see ego City of Fernie, supra, at pp. 302~303 and Horton Steel Work Ltd and U.S. W, Local 3598 (1973),3 L.A.C. (2d) 54 (Rayner). Accepting the merits of this test, there is no doubt (indeed, there appears to be no "dispute) that it was satisfied in this case; that is, there was clearly a job of work (indeed, a full- time job of technologist work) to be done. The next question, however, is in what position or classification did that "job of work" exist. .'~ 13 Although, read in isolation, much of the discussion in Fernie might be taken as suggesting that this is a question that is to be answered exclusively by reference to the position that was vacated, that was not the issue before the arbitrator. The issue before the arbitrator in Fernie, and in the other cases on which the Union relies, was whether there was a requirement to post afu//-time vacancy or any vacancy at aU. If there was~ there was no dispute as to the type ofposition that was required to ~e posted. That is not the issue here. In this case, the principal issue is whether the Hospital was required to post a vacancy for a senior technologist position. Only if that question were to be answered in the affirmative might there be any issue as to whether that position was required to be 'posted as full-time. The reason that that is the issue is because of the position taken by the Union in this case which, in turn, appears to have been framed by the grievance. The Union's central concern, as noted above, was for the preservation of the senior technologist job. The fact that a full-time job had been converted into two part-time jobs was decidedly secondary if, indeed, at least in th~ context of this grievance, it was any issue at all. Certainly, the Union indicated that it was not seeking a determination or declaration of a breach on that basis or an order that the Hospital be required to post a full-time general duty position. Instead, the Union was expressly and exclusively seeking the posting of the full-time senior job that had been vacated by Barb Shea. However, as clearly indicated by the evidence, there is no longer a need for that position. As a result of the reorganization undertaken by the Hospital, the job has effectively disappeared. And, unlike all'ofthe cases relied on by the Union, it has disappeared in a fashion which, apart from any possible argument (which does not appear to have been available). concerning a breach of Article 9.08, did not offend the requirements of the C.U.P.E. Collective Agreement or the Common Provisions Agreement. All of the work that supported the continued existence of that position, as distinct from the general duty positions that were created, was absorbed, apparently seAmlessly And without, so far AS T was made aware, any increase in the hours ofwark of 15 -";>> . Conclusion For all of these reasons, the grievance is dismissed. DATED at Oakville this 28th day of March, 2003. YJ ~.~.---,~.- --- ---. -.............. / " /// , - Russell Goodfellow - Sole Arbitrator