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HomeMy WebLinkAboutUnion 02-02-25 Ma(-07~2002 03:43pm From-RWSD 4la3409250 T-633 P.006/015 F-010 o (~d r S -Vo ~ IN THE MATTER OF AN ARBITRA nON BETWEEN: NIAGARA HEALTH SYSTEM (the "Employer) M and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") AND IN THE MATTER OF A GRIEV ANC~ RE VIOLATION OF THE CONTRACTING OUT PROVISIONS OF THE COLLECTIVE AGREEMEMT PAULA KNOPF ~ SOLE ARBJTRATOR , , APPEARANCES For the Employer Brian O'Byrne, Counsel Victor Dycik, Senior Consultant, Human Resources Albert Lee, ~anager, Greater Niagara f-!ospital Rfchard Blair, Counsel For the Union . Hearing in this matter was he'd on October 17~ 2001 and February 6.2002 Mar'-07-Z00Z .03 :43pln From~RWSD 416340aZ50 T-633 P.007/015 F-OIO AWARD The Union alleges that the Employer has violated the "contractlng out" provisions of the collective agreement. The relevant provisIon of the collective agreement is as follows: 22.01 Contracting Out The Hospital shall not contract out work currently performed by members of this bargaIning unit if, as a result of such contracting out, a layoff of any bargainIng unit employees occurs', This clause will not apply in c:ircumstances where the Hospital no longer provides particular services as a result of the rationalization or sharing of services between Hospitals in a particular geographic district, or as a result of the withdrawal of the Hospital's license to perform such services. There is no dispute over the relevant facts. Prior to 1996, the Greater Niagara General Hospital provided microbiology laboratory services on site. In the summer of 1996, the Hospital contracted that microbiology work out to the Hamilton Health Sciences Centre. The Union did not challenge this because, ufor the purposes of these proceedings," that contracting out was recognized as fplllng within the IIrationaJization or sharing of services" exception under Article 22.02. The reason for the contracting out was simply to achIeve cost savings. No notices of layoff were issued in 1996 concerning this contracting out. In 1996. the senfor technologist doing the microbiology work at the Greater Niagara General Hospital had been George Barclay. After the contracting, out of the microbiology work, his job duties changed. From the summer of 1996 to February 1997 he performed a combination of services Involving qo-ordlnating of microbiology referrals, receiving reports from the Hamilton Health Sciences Centre laboratory as well as working in the Core lab. From February 1997 until the events triggering this grievance. Mr. Barclay divided his working day equally between Mar-07-Z00t 03:~3pm From-RWBD ~1f3~09Z60 T-633 P.009/016 F-010 2 Infection Control and the Core lab, He also continued to perform some duties relating to the co~ordination of referrals to the Hamilton Health Sciences Centre, but he was unable to estimate the amount of time involved, In his absence during the evening shifts and on weekends or holidays, other technologists did the co- ordination work of the microbiology reports. In March 2000, a number of county hospitals amalgamated into the Niagara Health System. This process Included the Greater Niagara General Hospital site. The 8ill136 process rationalized the bargaining units and OPSEU achieved the bargai~ing rig.hts for the paramedical employees, which includes the technologists. In December 2000 it was announced that the microbiology services which had been provided by the Hamilton Health Sciences Centre would be transferred to a private lab, MOS, Again, the reason for this was simply economic. MDS could provide the same servIces for a considerably lower cost. When MDS took over the microbiology work in January 2001, tv'lr. Barclay noticed changes in his duties. MDS installed new equipment to facilitate reporting, The effect of this was to "diminish quite significantly" Mr. Barclay's co-ordinatIon of the microbiology reports to and f(om the outside lab. However, he still retained some duties with respect to reporting to ensu(e the (eports reached the proper wards and doctors. In and around January 2001 there weTe also organizational changes taking place In the Niaga(a Health System, Prior to this there had been an Infection Control position on each hospital site. However, a decision was made to create two non-union Infectfon Control Co-ordinator positions for the whole of the Niagara Health System. These positions were posted. Mr, Barclay applied, but was not selected, The effect of establishing the two Infection Control COaordlnator positions Mar-OT-Z002 03:43pm From-RWBD 410$409-Z50 T-a33 P.009/Ol~ F-Ol0 3 was that Mr. Barclayts Infection Control responsibili'lies at the Greater Niagara General Hospital site disappeared as of April 2001. On April 23, 2001 Mr. Barclay was Issued a notice of layoff effective September 23, 2001. Despite thIs noUce, Mr. Barclay was assured by the Employer that there was suff~cient work remaining in the system to ensure Mr. Barclay's continued employment. The notice of layoff was issued to trigger Mr. Barclay's access to options under the collective agreement. Mr. Barclay considered these options, Including bumping, and was well aware thEit he would be able to continue to work In the Core lab ,on a full time basis" But his area of expertise and interest was microbiology. Because there was no microbiology work left in the system, he decided to retire. He' explained that he would not have opted to retire Uat that time" If he had not received a notice of layoff. He acknowledges that he is qualified and certified to do far more than microbiology work in the laboratory. However, he chose not to return to Core lab work. The only other relevant facts are that as a result of the contracting out of the microbiology work In 1996, the Greater NIagara General Hospital site no longer has the facilities or the licence to perform microbiology laboratory work. The Arguments of the I'arties The Union argues the evidence establishes that there was a contracting out of work as a result of tho decision to move the miorobiology work from the Hamilton Health Sciences Centre to MOS. It was submItted that this should be viewed as work which was historically done by tnis_ Employer and was then contracted out as part of a shared services arrangement that was entitled to the protections of ArtIcle 22.01 in 1996. However, it was argued that that "protective cloak" was lost when the work was contracted away to a private lab in 2001. It was II Mar-07-Z00Z '03:43pm From-RWBD 41f340~ZoO T-633 P.Ol0/015 F-Ol0 4 submitted that the effect this had on Mr, Barclay was lithe coming to fruition of the incremental loss of the la~t vestiges of the microbiology work." Union counsel asked this arbitrator to I'connect the dots" from the ellmln~tion of the microbiology work in 1996 to the notice of layoff issued, to Mr. Barclay in 2001, The Union argues that Article 22.01 creates signlffcanllirnits on the Employer's right to contract out. Therefore It Is argued that the onus Is on management to show that It has brought itself within the exceptions contained In that article. The Union submits that as long as it Is able to establish a Uconsequent refatJonshiplJ betwee,n the contracting out of work and the notice of layoff, then It has established a violation of Article 22.01. The Union relies heavily on the decision of arbItrator Richard Verity in the Weiland County General Hospital v. OPSEU Looal 214 case, unreported, Issued September 13, 1999. The Union IR Rp.p.krng a declaration that there has been a violation of the Collective Agreement. The parties agreed that in light of the absence of the microbiology facilities and license, I should retain jurisdIction over the issues of whether any other remedial order(s) should flow in .the event that the grIevance is allowed. Counsel for the Employer agues that no violation of the collective agreement has been established. First, It was argued that unless an actual layoff results from the contracting outt there can be no violation of Article 22.01. The Employer relies on the decision of afbitrator Robert Howe In Mount Sinai Hospital and OPSEU, unreported, April 20, 2000 to argue that unless the Union can show that a layoff resufted from a contracting out, there would be no violation. While acknowledging that Mr. Barclay received a notice of layoff, It was stressed that he opted to tal<e early retirement before the layoff would take effect. Therefore, it was argued that he was never laid off. Essentially, trle Employer asks that a "notice of Mar-0,7-Z00Z -03:44pm From-RWBD 4 fB34U9"250 T-633 P.Oll/OI5 F-Ol0 5 layoffl be given different significance than an actual layoff. Further, it was stressed that Mr. Barclay was given assurances that he could continue his employment but instead chose to retire. Therefore, it was argued that it should not be considered that he was laid off, The Employer also argues that the notice of layoff was Issued because of the removal of the Infeotion Control duties from this bargaining unit, not the transfer of the microbiology contract to MOS. Accordingly. it was argued that the Union had not established the evidentiary prerequisites of a violation of Article 28.04. In addition, the Employer, relied on the following cases: East Prinoe Regional Authon"ty and Canadian Union of Public Employees, Loca/1779 (1995),47 L.AC (4th) 327 (Bruce) and Rookwell/ntemat/ona/ of Canada Ltd. and United Automobile Workers, Loca/127 (1982), 6 L.AC. (3d) 304 (Rayner). In replYI counsel for the Union argues that the Employer's position with regard to the notice of layoff IImakes no sense, II It was submitted the effect of the Employer's position Would be that the validity of the contracting out would be determined by an emp/oyee1s option to retire or exercIse his rights under the layoff provision. It was argued that the parties should not be deemed to have intended that the validity of the contracting out would be determined by the exercise of choice of an employee, The Decision It is helpful to deal with the simple issues first. The Employer's main position ;s that no violati~n of the collective agreement has occurred because no one was actually laid off at the relevant times. Essentially the HospItal is arguing that because Mr. Barclay chose to retire rather than exe~cise his collective agreement Mar-07-200Z -03:44pm Frorn-RWBD 4163409Z50 T-633 P.01Z/015 F-010 6 options triggered by the notice of layoff, no layoff has In fact happened, This argument cannot succeed. First of aliI the case cited by the Employer does not support this I proposition. But most importantly, the argument is not sound in law or as a matter of labour relations. A notice of layoff has a signifIcant Impac..1 OIl lilt::' individual who receives it and the bargainIng unit as a whole. The notIce of layoff triggers whatever rights a collective agreement provides regarding bumping, noticej recall'rightsl transfers, or the like. If the legal effect of the notice of layoff could be determined by the choices selected by the reCipient, this would leEld to the absurd result pointed out by the Union that the validity of contractIng out could be determined by the recipient of a layoff notice. Can it really be saId in the case at hand that the propriety of the decision to contract work to MDS would be determined on the basis of Mr. Barclay deciding to retire or to bump a junior employee? Similarly, one has to wonder what the effect of the Employerts position would be whe(e several notices of layoff woro issued., What IT some employ~es elected to retire and one elected to exercise his/her layoff rights. Would the choIce of that one employee determine the validity of the contracting out for the rest of the unit? The propriety of the contracting out cannot be determined on the basis of employees' exercise of options. The propriety of contracting out must be determined Objectively on the basis of the fClnguage and the facts as a whole. Accordingly, it must be concluded that the notice of layoff Is exactly what it declares itself to be, The notice of layoff is ii1 fact a layoff. Once the Employer decides to issue a layoff notice, it is bound by the contractual consequences that flow from that notice, The Employer cannot escape scrutiny of a contracting out by virtue of an employee's decision to retire once a notice of layoff has been issued, Once the notice of layoff Is Issued, an employee is deemed to be l(;lid off for purposes of Article 22.01, Therefore, I find 2.lS a fact that a layoff occurred Mar-~7-2002 03:44pm Fram-R~~D 4l0340V250 1-033 P.013/015 F-010 .. 7 in April 2001. ThIs stili leaves open the very important question of whether thIs layoff occurred lias a result of' the contracting out of work lCcurrently being performed by members of this bargaining unit." ThIs must be proven in order for the grievance to succeed. See East Prince Regional Authority arid CanadIan Union of Publio Employees} Local 1779 , and Rockwelllntemational of Canada Ltd. and United Automobile Workers} Local 127. supra. The essence of the Union's case is that while the contracting out of microbiology work in 1996 may have been protected by the "sharing of seNiceslr exceptions in Article 22.01, that Ilcloak of protectlonll should be removed by the transfer of that work to a prIvate lab In 2001. The Union asked this arbitrator to see this case In the same light as was seen in the Weiland County General Hospital case, supra, where the facts supported a linkage b'etween a related series of contracts and the layoff notices. The facts In the Weiland County General Hospital case are quite different from the facts in the case at hand. In the latter case, the arbitrator found that the loss of certain laborato'Y work IIwas sufficiently linked from the standpoint of the three grievors as to be two steps in the same contracting out process,11 (Page 12) The facts In this case are similar In that the 1996 contracting out was the first step In a cost~savlng process that followed with another step of contracting out the same work In 2001 to a private h~b. In this way the two cases are sImilar. But the difference in the case at hand is thEtt the facts do not support a finding that Mr, Barclay's layoff was a result of the contracting out to MOS. The facts show that when the microbiology work was contracted out In 1996) Mr. Barclay continued to work and no one else was laid off or received a layoff notice, Further, even when the microbiology work moved from the t-Jamilton Health Sciences Centre to MDS in January 20011 Mr. Barclay continued to work and even continued with some microbiology reporting co-ordination. While hIs co-ordination work was diminished, he did continue with some responsibilities in that area. So the evidence shows that the contract wIth MDS did not have Significant enough Impaot on his Job I f Ii U~r-Q7-2002 03:44pm Fr~m-RWBD 41&a40~250 T-633 P,014/015 F-OIO 8 to be seen as a trigger or a reason for his Jay off. He continued to remain fully utilized in the first few months of 2001. The event which actually gave rise to his layoff was the elimination of the Infection Control work in April 2001. The evidence shows that the decision to remove this work from the Greater Niagara General Hospital site and create the two new non-union Co..ordinator positions triggered the loss of half of Mr. 8a~clay's daily duties and the deoision to issue his notice of layoff. Under these circumstances it cannot be concluded that he was laid off as a result of the contractIng out of work "currently performed by members of the bargaining unit." He was not laid off as a result of the contracting out of work to MOS. He was laid off as a result of the re-organizatlon or restructuring of the Infection Control duties. The Union faces mammoth hurdles in trying to establish that the contracting out of the microbiology work in 2001 taints the proper contracting out of that work 4 % years earlier. But this case can and must be decided on the much simpler and more basic way. The evidence establishes that the contracting out in 2001 to MDS did not involve work "currently performed" by bargaining unit members. And again, the layoff in April 2001 can only be seen as the result of the loss of Mr. Barclay's Infection Control duties. It had little or nothing to do with the transfer of the microbiology work from the Hamilton Health Science Center to MOS.' . It may be true that there may not have been a layoff of Mr. Barclay if the Hospital had retained its microbiology work. But the contracting out of that work in circumstances that did not violate the collective agreement in 1996, cannot now Mar-07-Z00Z D3:45pm From-RWBD 4163409Z50 T-633 P.015/015 F-Ol0 9 be seen as a foundation for a grievance covering a layoff under very different factual circumstances. For all these reasons, the grievance is denied. DATED at Toronto, Ontario this 25th day of February, 2002. /?/ G/~? b!1 Paula Knopf ~ $ole Arbitrator ',,", ~ t~ i , ,. ~, ,. l ! Ii