Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 May 11, 2015 saying the two new cleaner po- sitions existed under the same classification, as opposed to two, which the county believed it had established. The problem was significant for one Trudy Springer, the in- cumbent part-time cleaner of the library and old gallery. She waas the only employee affect- ed by the change, and it resulted in a six-hour deficit in weekly hours. From the county's view, the unique requirements associated with cleaning the new gallery constituted the need for a new classification — had the em- ployer simply needed to assign an employee to a different work location, it would have done so in Springer's case. Because the collective agree- ment did not restrict the coun- ty's ability to create new clas- sifications, it was well within its management rights to do so. Despite this claim, evidence presented by union counsel in- dicated the employer referred to the gallery cleaning job as a new "position" not "classification" in its initial memo informing Uni- for of the change. At issue is how fill-in hours are distributed to cleaners in the bar- gaining unit pursuant to the col- lective agreement, said Christine Schmidt, the arbitrator presiding over the grievance. By referring to the new job as a "position," the employer did not create a classification — and therefore the issue resolved itself. She also reviewed the specific requirements of the job and de- termined they would not have justified the creation of a classi- fication. "Even had I accepted that the library cleaners and gallery cleaners were different classifi- cations, my view is that the coun- ty would still be required to offer fill-in gallery hours to part-time library cleaners before casual workers," Schmidt said. The grievance was allowed and the county was ordered to create a fill-in list reflecting that the positions fall under one clas- sification, and to distribute the fill-in hours in accordance with the decision. Compensation for employees who may have been deprived of fill-in shifts as a result of the county's incorrect shift distribu- tion process was remitted to the individual parties. reference: Corporation of the County of Lambton and Unifor local 65. Christine Schmidt — arbitrator. Robert Church for the union, Shawn Adkins for the employer. April 24, 2015. employer in hot water over posting for cook position Heart of the Valley Long Term Care Centre in Nova Scotia found itself in hot water after it replaced a full-time cook posi- tion with a number of part-time positions. The long-term care facil- ity posted three permanent part- time positions after a full-time dietary aide/cook position was vacated. The Canadian Union of Public Employees local 3410 grieved the move, alleging the split breached the parties' collec- tive agreement. The employer, however, ar- gued the decision was permis- sible under the agreement's management rights clause. The employer also made a pre- liminary objection, arguing the grievance was filed beyond the time constraints. Sick leave In late 2011, the care facility's full-time non-journeyman cook went off on sick leave. Another employee — employed as a full- time dietary aide/cook — was the successful applicant to replace the non-journeyman cook on a temporary basis. This appoint- ment left the full-time dietary aide/cook position vacant, which the employer posted as two tem- porary part-time positions. The union raised the issue of the employer's decision to create the two temporary part- time positions, but did not grieve the split as it was tempo- rary. In early 2014, however, the employee off on sick leave ad- vised the employer she would not be returning. Her resignation meant the dietary aide/cook's ap- pointment to non-journeyman cook was no longer temporary. The employer advised the union it would be permanently chang- ing the full-time dietary aide/ cook position into three part- time positions to allow for more flexibility in scheduling. The union filed its grievance on Feb. 6, 2014. The union re- quested an order requiring the employer to post the full-time position and any residual part- time positions. According to the employer, the opposition was too little, too late. The full-time position had been split into part-time positions in February 2012. The union was well aware of the em- ployer's actions but did not file a grievance until almost two years later, in February 2014. The union argued it was not disputing the temporary part- time positions created to fill the void left by a full-time employ- ee's sick leave, but the permanent part-time positions created by the employer in 2014 after the former non-journeyman cook resigned. Arbitrator looks at grievance Considering the submissions of both parties, arbitrator Augus- tus Richardson was satisfied the union's grievance was filed with- in the time limits specified by the collective agreement. Addressing the grievance it- self, the union argued the em- ployer was not entitled to avoid a posting requirement by chop- ping a full-time position into a number of part-time positions. If a full-time position was va- cant, that work should be per- formed by a full-time employee. The employer argued there was no clause in the collective agreement that required it to have a set number of full-time or part-time positions, or any ratio of one to the other. Richardson found that the union's interpretation of the posting clause created an ob- ligation on the employer to always fill a vacated full-time position with another full-time position, reading into the col- lective agreement a restriction that does not exist. "It would, in effect, create a fixed number of full-time posi- tions whose hours could never be redistributed — even though the collective agreement itself says nothing about the number of full-time positions, nor provides any ratio of full-time to part-time employees," Richardson said. "To do so would be to restrict the employer to organizing its operations in such a way that it must always have the same num- ber of full-time positions. Had the parties intended that result, they would have said so express- ly. They did not." As a result, the grievance was dismissed. reference: Heart of the Valley Long Term Care Centre and the Canadian Union of Public Employees Local 3410. Augus- tus Richardson — arbitrator. Noella Martin for the employer, Carl Crouse for the union. Feb. 1, 2015. ArbitrAtion AwArds < from pg. 1 collective agreement allows employer to set number of full- and part-time positions.

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