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HomeMy WebLinkAboutWonnennberg 00-12-18 qq -"c; 00 5/0 L. r9fo() ,,; IN THE MATTER OF AN ARBITRATION BETWEEN GREY BRUCE HEALTH SERVICES (MEAFORD SITE) (Hereinafter referred to as the "Hospital) AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 250 (Hereinafter referred to as the ""Union") BEFORE LORETTA MIKUS, SOLE ARBITRATOR RE: SCHEDULING GillE VANCE OF WONNENNBERG APPEARANCES FOR THE EMPLOYER Mr. Robert Hich:man, Counsel Ms. Jennifer Kierinldewiez, Corporate Manager, H.R. Ms. Kim Bowes, H.R. Officer Mr. Poul Robson, Manager Ambulance Services APPEARANCES FOR THE UNION Ms. Irit Kelman, Counsel DOllnell Wonnenberg, Grievor DATE OF HEAillNG Octobel' 18, 2000 DATE OF AWARD December 18, 2000 ~ ~" The grievor, Donnel Wonnenberg is a non- EMCA ambulance attendant at the Grey Bruce Health Services (Meaford). He has grieved an unequal distribution of scheduled shifts in the months of September and October of 1999 and asks to be compensated for a1110st wages and benefits as a result of the lost shifts during that period. He relies on Schedule "B", subsection 10 of the collective agreement which reads as follows: 1 O. Subject to a part time employee's availability and efficient operation of the Hospital, the Hospital will endeavour to equitably distribute available shifts, scheduled and unscheduled, to employees within a department and classification based on seniority which will not result in overtime or premium payment by the Hospital. The Employer takes the position that the grievance, which is dated October 25, 1999, was filed outside of the time limits with respect to the September scheduling but agreed that the October grievance was properly before me. As well, it takes the position that the scheduling of the grievor during that time period was subject to several limitations, namely his request for time off and the restrictions on scheduling non-EMCA's more that 24 hours pel' week under the Ambulance Act. In any event, it submitted that the time schedule will show that the grievor was scheduled more shifts than many of the part time employees. Mr. Paul Robson is the Manager of Ambulance Services at the Meaford site of Grey Bruce Health Services. He does the scheduling for the department. It was his evidence that in August of 1999 the grievor requested vacation from September 24 to October 4, 1999 and September 18 and 19 as days off. This request was submitted after the time schedule for the period had been prepared but Mr. Robson made the necessary changes to allow for the vacation time requested. The [mal posted time schedule showed the grievor was unavailable from September 24 to September 30 and that he was scheduled to work six day shifts and one evening shift prior to that. In total he was booked to work 7 days in September. As well he changed shifts with a co-worker on September 17 and 23rd. In October he was marked as unavailable from October 1 to October 4th, and scheduled to work five evening shifts, one day shift and one training shift for which he was paid. In total he was scheduled for 7 shifts in October. Normally, the pmi time attendants are scheduled to work most of the back- up shifts, particularly on Salmdays, Sundays and Mondays. TIle days offrequested by the grievor 2 on Septem~er 18 And 19 and September 24, 25 and 26 were weekend shifts which meant that he was unavailable for the time he would have been offered the most shifts. The grievor was also unavailable for the weekend shifts at the beginning of October as well as a weekend shift on October 24th. In cross examination Mr. Robson acknowledged he did not consider seniority when scheduling part time shifts. He considered availability, classification and qualifications. All of the paramedics except for the grievor are qualified to defibrillate and provide symptom relief drugs. The grievor can not do either of those tasks and, in addition, does not possess a valid basis life support certificate. In scheduling the ambulance attendants, Mr, Robson testified that he tries to put together the most qualified team on an ambulance. He also must schedule according to the Ambu]ance Act which l'esh'icts non-EMCA's fi'om working in excess of24 ,hours a week, although he agreed that it is not a strict prohibition but that the Act states they will not nOffilally be scheduled more that 24 hours per week. He also tries to schedule people to work in the teams they prefer, when possible. Although he did not have regard to the seniority list, he did try to schedule part time employees equally. The grievor testified on his own behalf. It was his opinion that he has not been getting an equal number of shifts for years and, after seeing his September and October schedules, he decided to grieve. He had complained to Mr. Robson-in the past, to no avail. It was his view that the collective agreement granted the part time employees an equal number of shifts each month and that, as a senior employee, he was entitled to any extra shifts that occun'ed before any less senior employee. Mr. Hickman, counsel for the Employer, took the position that the Union has failed to show that there has been a violation of the collective agreement. Mr. Robson, the person who does the scheduling, considers the best interest of the patients when he decides who should work on a given shift. He considers a number of factors, including classification, qualifications and ability to work together, He cannot be said to be arbitrary, discriminatory 01' unreasonable in his choices. There has been no suggestion that he acted improperly in scheduling the grievor. 3 In any event, it was said, the grievor was the third highest in scheduled shifts in the department. In September he made himself unavailable for ten shifts, many of them over the weekend when the most shifts are available, and still worked a total of7 shifts. Only two of the seven other part time employees worked more than him and five worked fewer shifts. In October he was scheduled for seven shifts: two others worked more than him (8 and 10), one worked seven shifts and four worked fewer shifts. The figures themselves disprove the grievor's allegations. The Employer submitted that the grievance should be dismissed. Ms. Kelman, counsel for the Union, took the position that the issue before this Board is whether the Employer has failed to endeavolU' to schedule available shifts according to the collective agreement. The Union is not alleging incompetence on Mr. Robson's part, nor is it alleging there was any improper motive in his actions. The collective agreement requires the Employer to distribute shifts on an equitable basis within a department and classification. If the parties had intended to include qualifications in the criteria for scheduling shifts, they would have said so in the collective agreement. The fact they did not indicates they did not intend it to be a factor in the distribution of shifts. It was submitted that Mr. Robson clearly did not consider one of the factors expressly stated in Schedule "Bn. He had never seen the seniority list and did not know the grievor's position on it relative to the other employees. The grievor's placement on that list should have entitled him to as many or more shifts than less senior employees. In support of its position the Union relied on the following cases: Re United Electrical Worlrers, Local 512 and Tung-sol of Canada Ltd. (1964), 15 L.A.C. 161 (Reville); Re Sherwood Co- operative Association Ltd. And Retail, Wholesale & Department Store Union, Local 539 (1995),49 L.A.C. (4th) 419 (Ish); Re Government oiNova Scotia and Nova Scotia Government Employees Association (1983). II L.A.C. (3d) 181 (Christie) and Re Intcl'craft Industrics of CalHHla Ltd. And Brotherhood of Curpentcrs and Joincrs of America, Local 2679 (1985), 22 L.A.C. (3d) ?Rl (Solomatenko) 4 REASONS FOR DECISION The allegation before me is that the Employer has violated Schedule HBH by failing to distribute the available part time shifts on an equitable basis according to seniority. The grievor believes that he, as one of the more senior part time employees, is entitled to the same number of shifts as the other part time employees and, in addition, to any or most of the additional shifts that occur during that pay period. His interpretation of his rights under Schedule "B" ignores, however, the restrictions or limitations on that scheduling that are found in that provision. The grievor reads Schedule "B" as requiring the Employer to distribute the shifts equally amongst the part time employees so that they all work the same number of shifts. The collective agreement requires the Employer to endeavour to equitably distribute the available shifts. That means that the Employer must make a genuine effort to arrange the schedule to provide equal opportunity for the shifts. However, it is not a strict requirement that it do so. Ifits efforts to do so fall somewhat short of equal distribution but meet its obligations under the collective agreement, an unequal scheduling of shifts is not prohibited. Additionally the word equitable does not mean equal but rather Hjust" or "fall"', It means that the Employer must make genuine efforts to be fair and just in the distribution of part time shifts. The grievol"s interpretation is too rigid and, in any event, is not supported by the express provisions of Schedule "BH, The equitable distribution of shifts in Schedule "BH is subject to the availability of the part time employees and the efficient operation of the Hospital. In the first instance, the employees availability is to be considered, The grievor took himself out of the schedule for a period of time in September and October. A review of the schedule for September shows that the majority of part time shifts occur on Friday, Saturday anci Sunday. There are occasional Mondays shifts but very few Tuesday, Wednesday or Thursday part time shifts. The grievor, by absenting himself fro111 the workphH'r-' on ihr-' wl-'r-'kf'nd of Sl-'p1!-'m !-)[-'I' 18 rJ!ld 19 mK! flg[lin em September 15 [1m! 26, reduccd his 5 opportunio/ to obtain shifts during that pay period. Even so, he was scheduled for 7 shifts, more than five out of the eight part time employees. A similar result is found in the October schedule. In the circumstances it can hardly be said he was unfairly denied shifts. Additionally, the evidence has shown that Mr. Robson had legitimate concerns about the efficient operation of his service when he prepared his time schedules. The grievor, because he lacks some of the qualifications and skills required in the position, is not as versatile an employee as the other ambulance attendants. The Employer's concerns about scheduling him with the appropriate team members are understandable in the circumstances. If, in his opinion, the grievor is not the appropriate person to work a pmticular shift because of his professional limitations, that is for Mr. Robson to determine. In the absence of any allegations of bad faith, there is simply no reason for me to second guess his choices. DECISION For all of the above reasons, the grievance is denied. Because the grievance is denied there is no reason for me to consider the Employer's objection on timeliness regarding the September time schedule. Dated this 18th day of December, 2000. .~ h L 0"M&f- 1j/d,IZ~ Loretta Mikus Sole Arbitrator