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HomeMy WebLinkAboutBradley 09-05-22In the Matter of an Arbitration Pursuant to the Labour Relations Act, S.O. 1990 Between: BROCKVILLE MENTAL HEALTH CENTRE (MEMBER OF THE ROYAL OTTAWA HEALTH CARE GROUP) (The Hospital /Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 439 (The Union) Re: Grievance of Kathy Bradley - Overtime Paula Knopf - Arbitrator Appearances: For the Employer: Daphne Fedoruk For the Union: Wendy Chow The hearing of this matter was held in Brockville on May 12, 2009. This is a grievance claiming for the loss of an overtime opportunity. The critical and interesting issue that divides the parties in this case is the identification of when the overtime opportunity actually arose. The Employer asserts it was the point that a shift had to be filled with someone who was available on an overtime basis, that being July 25th. The Union asserts that an overtime opportunity ought to have been created by cancelling the last shift of the junior employee who took the overtime shift and thereby creating an overtime opportunity for the Grievor on July 31St. The basic background of the case was presented by way of the following agreed facts: The Hospital and Local 439 are bound by the Collective Agreement between the Brockville Mental Health Centre (Member of the Royal Ottawa Health Care Group) and Ontario Public Service Employees Union and its Local 439, Service, Office and Clerical Unit, effective April 1, 2006 — March 31, 2010 (the "Collective Agreement "). 2. On August 15, 2008, Ms. Bradley, "the Grievor", grieved a violation of the overtime provisions of the Collective Agreement. 3. The Grievor is a full time Registered Practical Nurse ( "R.P.N. ") who, at the time of the grievance and presently, works on the Hospital's B3 Forensic Treatment Unit. 4. Ms. Bradley grieves that she was not offered an overtime day shift on the B3 Forensic Treatment Unit on July 31, 2008. 5. The July 31, 2008, shift was worked by Shirley Avery, a casual employee. 6. By agreement of the Union, in the spring of each year, the Hospital pre - schedules casual employees for the summer months. The Summer Scheduling Process for the summer of 2008 took place in April, 2008. 7. Ms. Avery was assigned to work the July 31, 2008, shift on the B3 Forensic Treatment Unit during the Summer Scheduling Process in April. N 8. During the period of July 20, 2008, to August 2, 2008, Ms. Avery was pre - scheduled to work on the B3 Forensic Treatment Unit on July 21, 22, 24, 26, 27, 30 and 31. 9. On July 25, 2008, there was a sick call on Ward B, Rehab. 10. The Grievor was not available to work the July 25, 2008, day shift because she had worked the previous night shift. The parties also presented some additional evidence through their witnesses. The Grievor testified that she has 25 years' seniority and was available to work a shift on an overtime basis on July 31St. She agrees that she would not have been available to have worked the July 25th shift because she had worked the night before. However, she clearly felt that the seniority provisions of the Collective Agreement were not being honoured because a casual employee received an overtime shift before completing her prescheduled hours. The Grievor believes that this resulted in the loss of a potential overtime opportunity for more senior employees. The Grievor believes that the casual R.P.N.'s last scheduled shift of the week (July 31s) should have been cancelled, resulting in that shift being made available to the Grievor on an overtime basis. Kevin Hudson, the Union's steward, also testified. He indicated that the Union thought that overtime was only being offered to casual employees once they had worked their normal, prescheduled or full 80 hours in the two -week pay period. It is his understanding that this is the practice in some departments. Therefore, if a casual employee picks up an extra shift outside of their pre - scheduled ones, the Union understood that the casual's remaining shift(s) would be cancelled so that s /he does not work beyond the 80 hours. Further, Mr. Hudson questioned how a casual employee could have been called to an overtime shift on July 25th when the Collective Agreement requires full -time and part-time employees to be called first. Accordingly, the Employer was put to the proof of compliance with the overtime call -in protocol. 3 Viki MacMurdo testified for the Employer. She is the Operations Coordinator of Nursing Administration. Her duties include scheduling, and she had specific responsibilities regarding the scheduling of summer staffing for the nursing department. This encompasses full -time, part -time and casual R.N.s and R.P.N.s. She explained that casual nursing staff, including the R.P.N.s, are engaged in April of each year after the full -time staff has been given an opportunity to select their preferred vacation times. The casuals are then pre - scheduled so that they have a routine and predictability for the summer period. This assists the Employer with recruitment and retention of the casuals and enables the full -time staff to enjoy their preferred vacation times. Turning to the situation that gave rise to this case, Ms. MacMurdo explained that on July 25th, an R.P.N. called in sick and had to be replaced. The Hospital then looked at which R.P.N.s were available for the shift. The first attempt was to fill the shift with a casual on a straight time basis. When that failed, the Employer decided to fill it on an overtime basis. She said that the full -time R.P.N.s on the affected unit were first offered the overtime opportunity. When none accepted, the offers went out in the following order: part- timers from the unit, hospital -wide full- timers and then part- timers. When no one from those categories accepted, the casual pool was canvassed and Ms. Avery accepted. Turning to July 31St, that was the last day of Ms. Avery's pre - scheduled shifts for that pay period. The Hospital did not consider cancelling Ms. Avery's pre - scheduled shift for that day because there is no practice of cancelling pre- arranged shifts, for casuals or anyone else. It was felt that this would lead to problems with retention of casuals. This is a concern to the Employer because it competes with other hospitals in the area for the services of these professionals. Further, Ms. MacMurdo testified that even if the Employer had cancelled Ms, Avery's shift, this would not have resulted in an overtime opportunity for the Grievor or any other full -time R.P.N. because several other casuals were available that day and they could /would have been offered the shift on a straight M time basis. Their schedules were entered in evidence to corroborate this assertion. Finally, Ms. MacMurdo explained that there are administrative and operative considerations to the issue of overtime. She pointed out that overtime shifts are costed and charged out to the department where and when the need arises. Therefore, she was concerned that the overtime reports and department budgets would be "skewed" if the Union succeeds with this grievance. The relevant provisions of the Collective Agreement are: ARTICLE 5 — MANAGEMENT RIGHTS 5.01 Except as specifically abridged, delegated, granted or modified by this Agreement, all the rights, powers and authority of management are retained by the Hospital and remain exclusively and without limitation within the rights of the Hospital. 5.02 Without limiting the generality of the foregoing, management's rights include: (b) 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 and equipment; the right to determine the amount of supervision necessary; the right to combine or split up departments; the right to establish work schedules; the right to establish standards and quality of care; and the right to determine the extent to which the Hospital will be operated including any increase or decrease in employment. ARTICLE 18 — HOURS OF WORK AND OVERTIME 18.01 Work Week and Work Day /Overtime The normal or standard work day will be eight (8) or seven and one - quarter (7.25) hours as determined by the Hospital. The normal or standard work week will be forty (40) or thirty- 9 six and one - quarter (36.25) hours as determined by the Hospital. 18.03 Overtime Definition Overtime shall be defined as being all hours authorized by the Hospital that are worked in excess of the normal or standard work day or in excess of the normal or standard work week. The length of time over which hours of work per week are to be averaged is one pay period. The overtime rate shall be one - and - one -half (1 %) times the regular straight time hourly rate of pay. 19.10 Change of Schedule (a) Where a full -time employee's schedule is changed by the Hospital with less than forty -eight (48) hours' notice she shall receive time and one -half (1 %2) of her regular straight time rate for all hours worked on her next shift. (b) Where a part -time employee's schedule is changed by the Hospital with less than twenty -four (24) hours' notice, she shall receive time and one -half (1 %2) of her regular straight time rate for all hours worked on her next shift. MEMORANDUM OF UNDERSTANDING RE: ASSIGNMENT OF OVERTIME The parties recognize patient care and safety as a priority and in accordance with Article 18 of the Collective Agreement. The parties agree to the following terms and conditions regarding assignment of overtime: 1. (a) All employees will be included on the Overtime Availability List unless they provide written notification to their Manager or Scheduling Office that they wish to have their name removed from the list. (b) Employees may request to be added or deleted from the list by providing written notice to their Manager or Scheduling Office C throughout the year. The Overtime Availability List will be updated twice a year (January and June). 2. All overtime hours will be offered on the basis of seniority. 3. All overtime hours will be offered to staff on the Overtime Availability List as follows: For Nursing Staff: For Staff in all other services: - full time by Nursing program/ - full time service - regular part -time by Nursing - regular part -time program /service - full time hospital wide - casual - regular part -time hospital wide - casuals For clarity purposes "nursing program /service" includes all wards within the service. For example: Forensic services includes B3 — Pineview, B4 — Riverview; STU includes 2E, 2W, 3E and 3W. Float pool staff will identify one area they wish to be called for and will be added to the list for that area. The practice for Overtime distribution in all other services shall be — casual staff given shifts up to eighty hours, remainder of shift would go to the most senior full time staff from the seniority list from top to bottom before starting at the top again. R.P.N.s and staff in all other services on vacation would be called after all other staff not on vacation have been called. Shifts accepted during vacation will be paid at premium rate. The Submissions of the Parties The Submissions of the Union The Union stressed that the Employer's budgetary and administrative concerns about the management of overtime cannot override the provisions of the Collective Agreement. The Union is looking for an interpretation of the Collective Agreement that will establish when and if overtime opportunities are available for G casual staff under this Collective Agreement. The Union asserts that no overtime should be offered to the casuals unless and until they have completed their pre- arranged hours and, even then, only when no full or part -time staff is available. The Union takes the position that once the casual employee undertook the extra shift on July 25th, her last shift of that pay period ought to have been cancelled so that it could be offered as an overtime opportunity to the Grievor on July 31St. It was said that this would be the way to respect the seniority and overtime provisions of the Collective Agreement. It was argued that casual employees must work 80 hours before they can be considered for overtime because of the words "in excess" in Article 18.03. The Union also expressed grave concern over the fact that this hearing revealed that casual employees were being offered straight time in circumstances where senior employees could have been given overtime opportunities. The Union argued that since the Grievor was available to work the July 31St shift and is the only one who grieved, she ought to be awarded compensation for the lost opportunity. The Submissions of the Employer The Employer argued that the Hospital's administrative and operational concerns about budgeting overtime and retaining staff are relevant to determining a reasonable interpretation of the Collective Agreement. However, it stressed that the agreed facts are sufficient to decide this case and that they reveal that the overtime arose on July 25th when an R.P.N. called in sick. It was said that this created the only relevant overtime opportunity. The Employer argues that the management rights provisions give the Hospital the license to schedule and identify overtime. Further, it was said that nothing in the Collective Agreement restricts management's right to fill a shift on a straight time basis whenever possible. It was said that the only restriction on the use of casuals is found in the Memorandum of Agreement's reference to distribution to "other services ", but that this does not apply to the "nursing staff" because of the context of the language. Further, it was stressed that nothing in the Collective Agreement M suggests that the Employer is obligated to cancel parts of the casuals' pre - scheduled shifts if they pick up work outside of their already scheduled hours. It was suggested that if that were the case, the same consequence could flow to full -time and part -time staff as long as they achieved their normal total of hours of work by the end of their pay period. The Employer also relied on the following cases to establish that, absent language to the contrary, overtime is something that falls within management's right to schedule: St. Michael's Hospital v. Ontario Nurses'Assn., [1998] O.L.A.A. No. 575 (M. R. Newman); Cargill Foods and U. F. C. W., Local 633 (2006), 151 L.A.C. (4th) 54 (0. B. Shime, Q. C.); Surrey Memorial Hospital and B. C. N. U. N. (1988), 75 L.A.C. (4th) 314 (S. Kelleher, Q.C.); Chrysler Canada Ltd. and Canadian Union of Operating Engineers, Local 102 (1.976), 13 L.A.C. (2d) 52 (G.G. Brent); and Dominion Bridge Co. Ltd. and United Steelworkers, Local 3390 (1980), 27 L.A.C. (2d) 399 (G.W. Adams). Further, in determining when overtime arises, it was said that the words "in excess of have been interpreted as meaning "in addition to" or "outside of" normal or regularly scheduled hours, rather than only "after "; see Oil, Chemical & Atomic Workers, Local 9 -670, and Canadian Industries Ltd. (1966), 17 L.A.C. 106 (W. Little); Labatt's Ltd. and Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Local 304 (1980), 24 L.A.C. (2d) 312 (K.M. Burkett); and St. Joseph's General Hospital, Elliot Lake and Ontario Nurses'Association (1982), 4 L.A.C. (3d) 378 (G.G. Brent). Finally, the Union relied upon Teamsters, Local 91 v. National Grocers Co. (Ryan Grievance), [1998] O.L.A.A. No. 552 (M.G. Mitchnick) to argue that it does not have to deal with a staffing need by creating another overtime opportunity. The Union's Reply Submissions The Union argued that the case law does not negate the clear language of this Collective Agreement. It was said that this contract should be interpreted and 0, applied so that casuals have no opportunity for overtime unless and until they have worked a 40 -hour work week and an 80 -hour pay period. The Decision There is an intuitive attractiveness to the Union's argument that casual employees should not be receiving overtime opportunities that are not available to full- timers. The facts reveal that an employee with over 25 years of seniority and all the rest of the full -time and part -time bargaining unit did not get an overtime shift in a pay period when a casual employee got that opportunity. This Collective Agreement's Memorandum of Understanding clearly dictates that overtime is to be offered to the Nursing Staff in a prescribed order, beginning with the full- timers and ending with the casuals. So it is easy to see why the Grievor and the Union would be frustrated to discover that a casual employee got overtime when a full -time person with considerable seniority did not. However, there is much more to this scenario that must be considered and this leads to the conclusion that the grievance must fail for several reasons. The first problem with the grievance is that the Union's theory of the case is based on the mistaken assumption that there was an overtime possibility /opportunity on July 31St. The reality is that the real and only overtime opportunity revealed by these facts arose on July 25tH It must be recognized that an R.P.N. called in sick on July 25th and that shift had to be filled. The uncontradicted evidence of the Employer is that it first tried to fill the shift on a straight time basis and, failing that, offered the shift to those listed on the overtime availability list in accordance with the status and seniority prescribed in the Memorandum of Understanding. While the Union was not in a realistic position to challenge this evidence at the hearing, there is also no reason to doubt this evidence. The "Availability" sheets were produced. It was also clear from Ms. MacMurdo's evidence that the Employer acknowledges and 10 respects the requirements in the Overtime Memorandum protocol and goes to the effort of calling those who are available in accordance with its requirements. Further, the Memorandum does allow for the use of a casual employee when no one else is available. That is what happened for the July 25th shift. Only when no full or part -time R.P.N.s were available, or willing to take the shift, was Ms. Avery utilized outside of her prearranged or pre -set hours and paid on an overtime basis. Therefore, the July 25th shift was an additional shift that the Employer created and scheduled on an emergency basis and then filled on an overtime basis because no one was available on a straight time basis. There are many reasons why this arrangement cannot be said to have offended the Collective Agreement. First, the management rights clause does give the Employer the right to schedule and designate a shift as overtime. Nothing in the Collective Agreement takes away from the Employer's right to determine when and if an overtime shift is required. Therefore, the Employer had the right to offer that shift on a straight time basis if someone was available or to offer it as an overtime opportunity if it had to be filled. This is well established in the cases such as St. Michael's Hospital and Cargill Foods, supra. Further, it is critical to understand that the shift of July 25th was an appropriate overtime opportunity, even for a casual. While the parties have placed restrictions on the distribution of overtime to casuals in "other services ", it has not done so for the Nursing Staff. The reference to casual staff in "other services" being given shifts "up to eighty hours" is placed after specific references to the "nursing program /service ". This is not the only distinction made in the Memorandum between Nursing and "other services ". Therefore, the Memorandum must be read as indicating a distinction between the Nursing Staff and "other services" with regard to casual staff being given shifts "up to eighty hours ". Therefore, it cannot be concluded that casual nursing staff must work 80 hours before they are offered overtime. 11 Further, Article 18.03 defines overtime as hours worked "in excess of the normal or standard work day" or "week ". For casual employees, during the special summer period at stake in this case, the "normal work week" would be the period of pre - scheduled hours that are set in April of each year. Any hours worked outside of that "norm" or pre - scheduled time would then amount to overtime. There is absolutely nothing in this Collective Agreement that suggests that the overtime can only follow or come at the end of the regular number of hours. Further, the applicable case law directs that as long as the hours are "in addition to" the regular norm, they are overtime hours; see Canadian Industries, Labatt's Ltd., St. Joseph's General Hospital, Elliot Lake and Surrey Memorial Hospital and B.C. N. U.N., supra. Therefore, on the facts of the case at hand, a summer casual R.P.N. who works hours in addition to the pre - scheduled shifts is working overtime. On the specific facts of this case, the shift on the 25th of July became an overtime shift for the casual R.P.N., Ms. Avery, because no one else with a greater entitlement to that shift was available or willing to take it. Nothing in the Collective Agreement prevented it from being offered to her under those circumstances. This leaves the question of whether the Employer was obligated to cancel Ms. Avery's shift on July 31St in order to create an overtime opportunity for full -time staff because she had already achieved 40 hours of work that week. The answer to this must be "no ". First of all, in National Grocers, supra, at para 8, it was said: "... it is somewhat counter - intuitive that it would have been contemplated that the employer would be required to `solve' an overtime problem in a manner which would simply create for it the potential of another overtime situation." This Employer had to fill the overtime shift on July 25th. The Collective Agreement does not dictate that the solution to that situation is the obligation to create another overtime opportunity on another day. Further, as mentioned above, nothing in the contract requires or mandates the Employer to limit casual R.P.N.s to a cap of specific hours per week. The Collective Agreement could dictate that if it had been the intention of the parties, but it does not do so. It is true that the 12 Employer might have the right to cancel the casual's remaining shift(s). The Union pointed out that the notice provisions of Article 19 do not apply to casuals so their shifts could be cancelled on short notice with no financial consequence to the Employer. Further, in this particular case, there was sufficient time to have cancelled the shift with adequate notice to the casual. Nevertheless, that does not translate into a requirement that the Employer create an additional overtime opportunity for a more senior employee and /or that casual shifts must be limited to a certain number of hours under this Collective Agreement. Finally, it must also be said that this grievance must fail because no matter how the Collective Agreement is interpreted, it has not been established that the Grievor had an entitlement to overtime in this case. The parties and the Grievor all agree that she was not available to work the overtime shift on July 25th. So she can lay no claim to that shift opportunity. While she was available on July 31St, the evidence also shows that there were many casual employees who could have taken that shift on a straight time basis. While the casual workforce cannot be used to usurp the specific rights of the full -time and part -time members of the bargaining unit, the Collective Agreement does not prevent this Employer from staffing at straight time rates in these circumstances. The evidence of Ms. MacMurdo made it clear that the shift on July 31St would not have been offered to any full -time staff on an overtime basis. If any one of the available casual staff had accepted that spot, it never would have become available to the Grievor. As a result, the Grievor's claim to that overtime opportunity is far too remote and speculative to be the foundation of a declaratory or compensation award. Finally, it must be said that although the Employer argued that there are administrative and budgetary reasons for interpreting and applying the Collective Agreement the way it does, those factors have not dictated the result in this case. Administrative and /or budgetary concerns do not override language in a collective agreement, especially with regard to seniority rights. Therefore, the Employer's concerns have not influenced the results in this case. Instead, the U9 pure language of the Collective Agreement and the relevant case law lead to the conclusions that: 1. An overtime shift opportunity arose on July 25th. 2. No one was available and willing to fill it on a straight time basis or on an overtime basis from the full -time or part -time R.P.N. pool. 3. The Grievor was not available for the July 25th shift. 4. The Employer was entitled to offer it to a casual R.P.N. on an overtime basis. 5. Nothing in the Collective Agreement required the Employer to cancel the casual employee's remaining shift(s) in order to restrict him /her to 40 hours per week. 6. There was no extra shift created or required to be created on July 31St, and even if there was, there was no requirement to staff it on an overtime basis when casuals were available to fill it on a straight time basis. For all these reasons, the grievance is dismissed. Dated at Toronto this 22nd day of May, 2009. Paula Knopf - Arbitrator