HomeMy WebLinkAboutUnion 11-06-07
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BARRY FISHER
IN THE MATTER OF ARBITRATION
, BETWEEN:
HAMILTON HEALTH SCIENCES
-and~
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(the "Hospital") .
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, LOCAL 273
(the "Union")
Policy Grievance regarding Layoffs
Arbitrator: Barry B. Fisher
Counsel for the Hospital : Mark Zega
Counsel for the Union: Tim Hannigan
Hearing held in Hamilton 011 March 8, 2011
AWARD
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This is a policy grievance regarding the process to be followed before a layoff may occur.
The parties bave agreed on the following facts :
A. THE PARTIES
1. Hamilton Health Sciences (hereinafter "HHS" or "the Hospital") is an independently
owned academic health science organization funded primarily through transfer payments
from the Province. HHS is governed by one Board and has one management structure.
2. HHS operates at a number of locations including Chedoke Hospital, Hamilton General
Hospital, McMaster Children's Hospital, McMaster University Medical Centre,
St. Peter's Hospital and the Juravinski Hospital and Cancer Centre. HHS provides
tertiaxy, secondary and ambulatory care services to Hamilton as well as central south and
central west Ontario.
3. The relationship between the Hospital and the Union is governed by a Collective
Agreement. The last two collective agreements are attached. (See Tab 2)
4. The Ontario Public Service Employees' Union, Local 273 (hereinafter "OPSEU" or '"the
Union) is the exclusive bargaining agent fot' a1~ employees employed at HIlS in a
technologist or technician capacity in its Biomedical Engineering Department, Medical
Laboratories, Diagnostic Imaging Department, MDU Department and Nuclear Medicine
Department (See Article 1.02 for the full recognition clause).
5. The Employer maintains separate seniority listS for full-time and regular part-time
employees. (Tabs 3 and 4)
B. GRIEVANCES
6. Arbitrator Barry Fisher has jurisdiction to determine the merits of Policy Grievance
(#2010~0273-001) (Tab 5). Evidence will be presented in respect of the any estoppel
asserted by the Employer, and any individual grievances if necessary fol1owin~ the
Arbitrator's interpretation of the collective agreement for issues ~sed by Policy
Grievance #2010-0273-0001.
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C. MATERIAL FACTS.
7. HHS programs including staffing requirements were evaluated for cost-reduction
initiatives as a result of budgetary issues and funding deficiencies. The Union takes no
issue with the legitimacy of the Hospital's initiative.
8. Two (2) Regular Part-Time (18.75 hours per week) Registered Medical Laboratory
Technologists positions in the Core Lab at the MUMC site were identified by the
Employer as surplus to the Hospital's operational requirements. Ms. Rhonda Snowdy and
Ms. Rosemarie Spilak held the surplus positions which were identified by the Employer
(the "affected employees"). The surplus positions filled by the two employees rotated
through three shifts (7 to 3; 3 to 11; 11 to 7) operating 24 hours per day seven days per
week. (See Tab 6)
9. On January 14~ 2010, notice ofilie elimination of positions was provided to Ms. Marilyn
Bello Crispo, President of OPSEU Local 273. Article 11.OI(a)(i) of the Collective
Agreement provides the Union will receive no less than five (5) months written notice of
proposed layoff of positions for classifications listed in Appendix A. (See Tab 7)
10. On the same day, January 14,2010, a. meeting to initiate the redeployment process is held
which included Hospital representatives and. two Union rep'lesentati:ves. The Union raised
concerns about the Employer's decision to only send ER and VB letters to part"time staff.
(Tab 8)
11. No available vacancies were identified for reassignment.
12. On January 15, 2010~ Eady Retirement (ER) interest was sought from six (6) eligible
Regular Part-- Time Registered Lab Technologists. (Tabs 9, 10 and 11)
13. On January 15, 2010~ Voluntary Exit (VE) interest was sought from regular part~time
employees. (Tabs 12, 13 and 14)
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14. On Januaxy 28, 2010. the Union. filed the PoHey Grievance OP4~10-001
Re: "Redeployment". The Union alleged that the Hospital ''has not offered Early
Retirement allowances and Voluntary Exit options in accordance with the provisions of
the Collective Agreement in violation of Article 11.07, 11.08 as well as any other Article,
policy or legislation that is applicable". By way of settlement, the Union seeks:
(1) for the Hospital to comply with the terms of the Collective
Agreement and offer Early Retirement Allowances and Voluntary
Exit options by classification. (Tab 5)
15. From Janumy 28, 2010 to February 5, 2010, the Hospital obtained scheduling information
in respect of the individuals who had expressed interest in receiving an Early Retirement
or Voluntary Exit offer from the Hospital. (Tabs 15 to 25)
16. A Skills Assessment Committee (SAC) met on Febnuu:y 5, 2010 to consider the affected
employees' skills, ability. qualifications and experience in relation to job requirements for
part-time vacancies which could be utilb~ed if the Hospital decided to. accept ER or VB
offers from interested employees. The Hospital confirmed with the SAC it would accept
VEs reoeived from two individuals based upon the infonnation it gathered.
17. Susan Sydiuk (who subsequently grieves) is a regu1~r part-time Registered Lab
Technologist in General Immunology wbo expressed interest in receiving an Early
Retirement offer. Ms. Sydiuk is regularly scheduled three (3) days per wee~ 7.5 hours per
day at the MUMC site.
18. Cathy McKnight (who subsequently grieves) is a regular part-time Registered 'Lab
Technologist in Special Coagulation who expressed interest in receiving an Early
Retirement offer. Ms. McKnight's position is ~ .5 FTB scheduled Mondays through
Fridays, on shifts commencing 8am-4pII4 9am-5pm, IOpm~6am or 12pm-8pm and
8am-4pm on weekends.
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19. The Hospital concluded that employees who ex.pressed interest in Early Retirement did
not meet the Collective Agreement Requirements under Article "11.01(b)(i) and (Hi). Tbe
Hospital asserted that employees interested in an ER were not on the same or
substantially similar shift rotations as those employees identified under the proposed l~y
off and/or they occupied positions required by the Hospital for which the affected
employees did not possess the skills, q~fications and required extensive training to be
reassigned.
20. I Ms. Elaine Davey, a regular part-time Registered Lab Technologist in the Core Lab at
MUMC, expressed interest in a Volunf:aJ:'y Exit. Ms. Da.vey worked five (5) 7.5 hour
shifts per pay period including weekends and stat holidays. Shifts available to Ms. Davey
were between 6am-2pm, 7am-3prn, 8am-4pm, 9am-5pm, Ipm-9pm, 3pm-llpm, lIpm-
7am.
21. Ms. Colleen Koziarski. a regular part-time Registered Lab Technologist in the Core Lab
at MUMC, expressed interest in a Voluntary Exit. Ms. Koziarski worked five (5) 7.5 hour
shifts, per pay period with shifts including days, evenings and weekends, and hours
available ranged from 6atn-2pm, 7am-3p:m.:. 8am-4pm, 9am.-5pm, Ipm-9pm, 3pm-llpm,
Ilpm-7am.
22. The Voluntary Exit AppHcation of Elaine Davey and Colleen Ko~arski were approved as
the Hospital detennined that they were suitable matches based upon hours/week,
scheduling information and the skills/qualifications of the affected staff. As such, Rhonda
Snowdy was assigned to Colleen Koziarski's position and Rosem.arie Spilak. was
reassigned. to Elaine Davey's position.
23. On February 18, 20l0, Ms. Elaine Davey was sent a letter by Ms. Pam Davis, Human
Resources CoOl'dinatot, advising that she had been approved fur a Voluntary Exit Offer as
per Article 11.08 oftlle OPSEU Collective Agreement. (Tab 26)
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24. A letter dated February 18, 2010 was sent to Ms. Rosemme Spilak from Pam Davis.
Human Resources Coordinator, advising that due to financial constraints, Ms. Spilak.'s
current position of Registered Lab Technologist in the Core Lab was being eliminated.
Ms. Spilak is assigned to the sam.e position of Registered Lab Technology, Core Lab.
MUMC site as a result of the V olantaty Exit on her unit. (Tab 27)
25. On FebruaIy 18,2010. a letter is sent to Ms. Colleen Koziarski from Ms. Pam. Davis,
Human Resources Coordinator, advising that Ms. Koziarski bad been approved for
Voluntary Exit Offer as per Article 11.08 of the OPSEU Collective Agreement. (Tab 28)
26. Ms. Pam Davis, Human Resources Coordinator, wrote to Rhonda Snowdy i.n a letter
dated February 18. 2010 advising tbat due to financial restraints, Ms. Snowdy's position
of Registered Lab Technologist in the Core Lab, MUMC site, had been eliminated.
Ms. Snowdy is advi".led that she is assigned to the same position of Registered Lab
Technologist, Core Lab MUMC site as a result of the Voluntary Exit on her unit
(Tab 29)
27. N; a result, the Hospital was not required to lay off the affected employees. Therefore no
individual notices of layoff were issued.
28. The Hospital responded to the policy grievan~ on March 17, 2010. (Tab 30)
Reasons
There are really three issues that require a decision:
a) Is the Hospital required to offer Article 11.07 Retirement Allowances to both full
timers and part timers even when the positions being eliminated at,'e part time?
b) Is the Hospital required to offer Article 11.08 Voluntary Exit Option to both fun
timers and part timers even when the positions being eliminated are part time?
c) Is the Hospital allowed to consider, in relation to.the Retirement Allowances, whether
the retT,laining employees are qualified to perfonn the available work, and if not, to
refuse a request from an employee for a Retirement Allowance?
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a) Is the Hospital required to offer Article 11.07 Retirement AUowances to botb full
time-rs and part timers even when the positions being eliminated are part time?
Article 11.07 reads as follows:
Retirement Allowa12ce
Pl'ior to issuing notice of layoff pursuant to Article 11.01 (a) (ii) in any
classifications(s), ehe Hospital will quer early-retirement allowance to sufficient
number of employees eligible for early retirement under HOOP within the
cla$$ification(s} in order of seniority, to the extent that the maximum number of
employees within a classification who elect early retirement is equi\1alent to the
number of employees within the classificaJion(s) who would otherwise receive notice
of layoff under Article 11. 01 (a)(ii).
An employee who elects an early retirement option shall receive following completion
ojthe last day of work, a retirement allowance of two w~ek'$ salary for each year of
service, plus a prorated account for any additional partial years of service, to a
maximum ceiling of 52 weeks salary.
The Hospitars plan was to eliminate two part time positions equal to one FTE. The
Hospital did not offer the Retirement Allowances to full. timers.
However the Article does not speak ofF'TE's , nor does it make a distinction between
full timers and part timers. Rather it speaks only of "'number of em.ployees". In fact, it
makes reference to offering this Allowance to " the extent that the maximum number
of employees within a classification who elect early retirement is equivalent to the
number of employees within the classification who would otherwise receive notice of
layoff under Article 11-01 (a)(H)."
This can only mean that if the proposal is to layoff two employees, then two
employees are to be offered a Retirement Allowanoe, even if the result is to lose two
FTE's where the intent was only to eliminate one FTE.
In the Hospital's written subtxtissions, Mr. Zega emphasis the fact that Wlder the
Management Rights clause the Hospital alone decides the size of the workforce and
that to follow the Union's logic would result in a situation where the Hospital would
be required to provide Retirement Allowances and lose the services of two PTE' s
when they only wanted to reduce by one prE. Presumably after the reduction in
workforce the Hospital would have to hire one FTE. I agree that not only does this
properly set out tbe consequences of the Union's position but also that the result is not
a necessarily logical labour relations scenario. The Hospital could have at any time
called off the proposed layoffs, however once it decided to proceed with offering
Retirement Allowances and Voluntary Exit Options, it must do within the language of
the Collecti'Ve Agreement
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a
I agree with the U mon's written reply that the article is clear and any change can only
be achieved through collective bargaining or through an interest arbitration.
I therefore find that Article 11.07 requires the Hospitai to make the offer of
Retirement Allowances to all employees within the relevant classification, without
regard as to whether they are full time or part time.
b) Is the Hospital required to offer Article 11.08 Voluntary Exit Option to both fun
timers and part timers even when the positions being eliminated are part time?
Article 11.08 reads as follows:
VolW'ltarv Exit Ootion
(Applicable to Full Time and PaJ't Time Employees)
.(f after making offers of early retirement (under Article 11.074), indMduallayoffnotices .
are still required, prior to issuing those notices (under 11.01) the Hospital will offer a
voluntary early exit option in accordance with the following conditions:
(i) The Hospital will fl1'st ma~ offers in the classifications within the
department(s) where layoffs would otherwise occur. If more employees
than are required are interested, the. Hospital will make its decision. based
on senio1'ity.
(ii) If in.'tuffident employees in the department qffected accept the offer, the
Hospital will then extend the offer to emplqyees in the same classification
in other departments. If more employees then are required are interested,
the Hospital will make its decision based on seniority.
(iii) In no cases will the Hospital approve an employee's request under (1) and
(it) abel'e for a voluntary exit option, if the employees remaining are not
qualifz.ed to perform the available wor~
(M The number of voluntary exit options the Hospital approves will not
exceed the number of employees in that classification who would
oth2rwise be laid off. The last day of employment for an employee who
accepts a voluntary early exit option will be at the Hospital's discretion
and will be no earlier. then thirty (jO) calendar days immediately following
the employee 's written acceptance of the offir. An employee who elects a
voluntary early exit optio12 shall receive, following completion of the last
day of work, a sepat'atio1'Z allowancefo two (2) weeks salaryJor each year
of service, to a maximum offz.fiy-two (52) we(iks pay.
It should be noted that the clause begins \\oith the clause <r Applicable to Full Time and
Part Time employees:' .
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The first sentence of (iv) is somewhat different to the provision under Retirement
Allowances in that although it also refers. to "number of employees" and not FTE's, when
dealing with the number of employees to be approved for the Voluntary Exit Option it
says that the number" will Dot exceed the number of employees in that classification who
would otherwise be laid off". .
The Retirement Option language is qualitatively different in that in that the number of
employees to be entitled to that payment is to be "equivalent to the number of employees
within the classification who would otherwise receive notice of layoff under Article
1l.01(a)(ii) co
In other words, under the Voluntary Exit Option the Hospital retains the right to approve
a number of employees for the package that is eitlier equal to or less than the number of
employees who otherwise would be laid off. They m.ust still offer the option to all
employees within the classification within that department, be they full time or part time,
but they can approve a lesser number of employees than would otherwise be laid off .
So in this case, had no one taken up the Retirement Option, ( as that must be offered first)
the Hospital could have chosen to approve a V oluntaty Exit Option for only one
employee ( presumably the senior full timer wlio applied) rather than be required to
accept two packages from two senior full timers. Of course the Voluntary Exit OptJ.on is
also subject to the operational requirements of Article 11.08(iii)
c) Is tbe Hospital allowed to consider, in. relation to the Retirement Allowances only,
whether the remaining employees are qualified to perform the available work, and
if not, to refuse a request from an employee for a Retirement Allowance'!
This operational reqtrlrement is noticeably present in the Voluntary Exj.t Option and noticeably
absent in the Retirement Allowance. This is very significant and must m.ean that the parties
agreed to treat these two entitlements very differently.
Furtherm.ore, the Voluntary Exit Option speaks of the Hospital 'approving" this request, whereas
there is no such language in the Retirement Allowance.
Clearly 'the parties negotiated an arrangement that favoured older employees in that:
a) the Retirement Allowance has to be offered before any Voluntary Exit Option
b) the number of employees entitled to take the Retirement Allowance is fixed
c) there is no language that allows the Hospital to take into account operational
requirements, other than the employees entitled for the Retirement Allowance must be
in the same classification and those proposed to be laid off
Presumably the parties understood and agreed that just like when. an employee retires the
Hospital may have to retrain someone else to take. over the role of the retiree, so too when an
employee opts to take Early Retirement under this provision.
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I therefore find that the Hospital is not allowed to consider, in relation to the provision of the
Retirement Allowance, whether the remaining employees are qualified to perform the available
work. and if' not, to refuse a request from an employ'ee for a Retirement Allowance.
I retain jurisdiction over any matter regarding the interpretation or application of this award as
well as remaining seized of a.ny estoppal arguments and "the indhidual grievances arising from
this situation.
Dated at Bala this 7th day of June, 2011.
Barry B Fisher