Title: Anaconda Community Hospital and Nursing Home and Teamsters Local No. 2
Date: January 5, 2000
Arbitrator: Allen Pool
Citation: 2000 NAC 130

IN ARBITRATION PROCEEDINGS PURSUANT TO

AGREEMENT BETWEEN THE PARTIES

Teamsters Local No. 2                                )

                                                                        )                       ARBITRATOR'S

- and -                                                             )

                                                                        )                 OPINION AND AWARD           

Anaconda Community Hospital and           )

Nursing Home of Anaconda                        )

                                                                        )                       January 5, 2000

Involving Breach of Contract Issue              )

________________________________)

            This Arbitration arose pursuant to Agreement between the Teamsters Local No. 2, hereinafter referred to as the "Union", and the Community Hospital and Nursing Home of Anaconda, hereinafter referred to as the "Employer", under which C. ALLEN POOL was selected to serve as Arbitrator through procedures of the MONTANA BOARD OF PERSONNEL APPEALS.  The Parties stipulated that the matter was properly before the Arbitrator and that his decision would be final and binding.

            The Hearing was held in Anaconda, Montana on November 17, 1999 at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross- examine witnesses and to introduce relevant evidence, exhibits, and arguments.  The witnesses were duly sworn.  The Parties submitted posthearing briefs which were provided to the Arbitrator in a timely manner and copies were exchanged between the parties.

            The Parties stipulated that the Arbitrator retain jurisdiction if his decision is in favor of the Union to resolve any disputes that may arise over implementation of the remedy.

APPEARANCES

For the Union                                                                           For the Hospital

D. Patrick McKittrick                                                                   John N. Radonich

Attorney at Law                                                                 Attorney at Law

McKittrick Law Firm                                                                     P.O. Box 667

Strain Building - Suite 622                                                       108 East Park Ave.

410 Central Avenue                                                            Anaconda, Montana 59711

P.O. Box 1184                                                                         (406) 563-3438

Great Falls, Montana 59403

(406) 727-4041

ISSUE

The Union framed the issue as:

            "Did the Employer violate the Collective Bargaining Contract by not posting vacant unit positions (CNA) and not filling or scheduling those positions pursuant to the terms of the Collective Bargaining Contract?  If so, what is the remedy?

The Employer framed the issue as:

            "Is the Employer required to post and fill a vacant position if there is No need to fill the position because of low census and low occupancy of the Hospital?"

            Unable to agree on the framing of the issue, the Parties stipulated that the Arbitrator shall have the authority to frame the issue as he understands it from the evidence record.  After studying the record, the Arbitrator framed the issue as:

            Did the Employer violate the Collective Bargaining Contract when it did not post and fill vacant full-time and part-time Certificated Nursing Assistant positions?  If so, what shall be the remedy?

RELEVANT PROVISONS OF THE CONTRACT

Article IX, Seniority

3.                  The EMPLOYER shall post a seniority list on July 1^st of each year…….. When a vacancy or new position occurs, concurrent employees or employees on layoff may apply for new openings or vacancies in the nit.  The EMPLOYER shall have the final decision to fill such openings or vacancies based upon ability, education, training, experience and seniority…………

10.              Whenever low census occurs, the employees regularly scheduled for work in the Hospital shall not be entitled to bump employees who are regularly scheduled in the Nursing Home.  Whenever low census occurs, an employee who has been issued an involuntary low-census day off shall be allowed to exercise his/her seniority to bump the least senior employee, if any, in the same classification, on the same shift, before being issued a low-census day off at the Nursing Home.  This privilege may be exercised three (3) times and then the senior employee must take a low-census day.  Senior employees may voluntary (sic) for low-census days off.

11.        When a full-time or part-time vacancy occurs, such vacancies shall be posted within   thirty (30) days.

Article XI, Management Rights

            The EMPLOYER has the exclusive duty and right to determine the quality and quantity of patient care, to manage the business and schedule work……….the EMPLOYER shall not exercise these rights in violation of the provisions of this Agreement.

FACTUAL BACKGROUND

            The issue in this dispute concerns the Certificated Nursing Assistants (CNAs) who are working under Contract (Joint Ex. 1) at the hospital and nursing home in Anaconda, Montana.  To find the origins of this dispute, one needs only to go back to June and July of 1998. With a continuing loss of revenue stemming from the low numbers of “in-patients” on an average daily basis at the hospital, the Employer initiated some “tightening up” measures (Employer Ex No. 8 & 9).  The Employer and the Union used the term “Low Census” to denote a situation where there was a lower than normal number of patients in the hospital on a particular shift.  A Low Census situation would then require that some employees previously scheduled for a particular shift be called and told that they would not be needed for the upcoming shift

            The Contract covers the usual wages, terms, and conditions of employment.  The CNA employees, working under the supervision of a Nurse, perform such tasks as cleaning rooms, changing bedding, bathing patients, etc.  The Contract expressly defines three CNA positions: Full-time employees, Part-time employees, and Relief employees.  Full-time CNA employees are those who regularly work 40 hours a week.  Part-time CNA employees are those who regularly work at least 20 hours a week.  Relief CNA employees fill in for Full-time and Part-time employees when they are unable to work because of illness, on vacation, etc.

            The Contract specifies that Full-time CNA employees shall receive such benefits as vacation pay, holiday pay, and sick pay.  Part-time CNA employees receive some benefits but the amount for which they are eligible is based on a minimum number of hours worked per year.  If the number of hours worked exceeds a threshold number (1040 hours in most cases) some of the benefits are retroactive.  Relief CNA employees, however, receive vacation on a pro rata basis but only if they work more than 1040 hours per year. If they exceed the 1040 hours, other fringe benefits are not retroactive.

            The Employer’s Chief Executive Officer, Sam Allen, targeted three areas wherein costs would be monitored and reduced.  The areas targeted were Overtime, outside education, and a hiring freeze.  The hiring freeze was an effort to reduce labor costs through attrition by not filling positions when vacated by employees.  The Union became involved when the Employer extended the hiring freeze to vacated Full-time and Part-time positions within the bargaining unit of Certificated Nursing Assistants.

            The Employer, according to the testimony of Chief Nurse Vicki Quirk, began the practice of not posting and filling Full-time and Part-time CNA positions in December of 1998.  When a position became vacant through attrition, the position was simply not posted for the taking of applications.  The Employer also began the practice of using Relief CNA employees when extra personnel were required on a shift. When the Union became aware of this, a complaint was made to the Employer charging that failure to post vacant positions was a violation of the Contract.  The Employer responded with the assertion that they were not in violation of the Contract.  A grievance was filed which subsequently proceeded to this Arbitration.

            In addition to the instant grievance, the Union has filed unfair labor practice charges with the National Labor Relations Board concerning the factual situation giving rise to this arbitration.  Pursuant to the Collyer Doctrine, the NLRB has deferred action on the unfair labor practice charges pending the Arbitrator’s award in this case.  A copy of the Arbitrator’s opinion and award will be sent to the National Labor Relations Board pursuant to its Directive.

POSITION OF THE UNION

            The Employer violated the Contract when it did not to post the Full-time and Part-time CNA positions that had been vacated in the Hospital and the Nursing Home.  The Contract requires that Full-time and Part-time CNA positions shall be posted as they become vacant.  This was not done.  The Employer's failure to post the vacant positions denied and continues to deny CNA employees an opportunity to bid on vacant positions.  The Employer's practice of using CNA relief workers to perform work that would normally be assigned to persons holding Full-time or Part-time positions is also in violation of the Contract.  The Employer is clearly in violation of the Contract and the intent of the Parties.  The grievance should be sustained.

POSITION OF THE EMPLOYER

            The Employer has not violated the Contract.  The Contract gives the Employer the right to manage the business and to schedule the work.  The positions were not posted when they became vacant because of the low number of occupants in the hospital and the nursing home, a condition known as "low census".  The Employer should not be required to fill positions if there is no need to fill the positions. It is not cost effective to fill vacant positions when the patient occupancy is down.  As the patient occupancy numbers increase, the Employer will fill the positions as needed. The grievance should be denied.

DISCUSSION

            The core question in this matter is whether the Employer violated the Contract when, as acknowledged, the Employer did not post and fill full-time and part-time CNA positions as they became vacant.  The prime directive for the arbitrator when handling questions like this is to come to an understanding of the intent of the language the parties agreed on and memorialized in the Collective Bargaining Agreement.  And, when the language in question is plain and clear and readily conveys a distinct idea, the Arbitrator need go no further.

            The parties, at their last negotiation, added Paragraph 11 to Article IX of the Seniority provision of the Contract.  The paragraph read: “When a full-time or part-time vacancy occurs, such vacancies shall be posted within thirty (30) days.” (Emphasis added)  This language is plain, clear, and conveys a distinct idea; that is, it unambiguously reflects the parties intent.  Support that this was the mutual intent of the parties can be found in previously negotiated language appearing in the same article covering Seniority.  Paragraph 3 of the Article IX contains the following sentence: “When a vacancy or new position occurs, concurrent employees or employees on layoff status may apply for new openings or vacancies in the unit” (Emphasis added).  There is no doubt as to the intent of the parties when Paragraph 11 was added to the Contract.  Vacant full-time and part-time positions shall be posted.

            Before advancing to the merits of the case, it’s necessary to address the Union’s objection to the admission Employer Exhibits 3-12 into the evidence record.  The Union objected to their admission on the basis that the documents were earlier requested by the Union and then appeared for the first time at the Hearing.  After considering the matter, the Arbitrator’s decision is to overrule the Union’s objection.  If the Union, after presentation of the exhibits by the Employer at the Hearing, had expressed a need for time to review and study the documents before proceeding, the Union could have requested a continuance.  No such request was made. 

            The Employer argued there was no violation of the Contract.  In making its argument the Employer (1) relied on language in the Management Rights clause, (2) argued there was no need to fill the positions, and (3) argued a necessity to control costs.  The Management Rights provision of the Contract, Article XI states, in part, that the Employer has the exclusive right to “manage the business and schedule work”.  In its argument, the Employer specifically referred several times to its right to “schedule work”.  The Employer’s argument was not persuasive.  Scheduling work is not analogous to posting and filling a vacant position.  As any standard dictionary will show, the verb “to schedule” means to “appoint, assign, or designate to do or receive something at a fixed time in the future”.  Posting and filling the vacant positions would not impede the Employer’s right to schedule work on the shifts at the hospital and the nursing home.  Since CNA employees, whether full-time or part-time, have no guarantee of a minimum number of hours of work per week, the Employer is free to schedule only the necessary number of Aides per shift as long as it is done in accordance with the provisions of the Contract.

            Additional wording in the latter part of the Management Rights clause puts forth a caveat where it states that “ the Employer shall not exercise these rights in violation of the provisions of this Agreement”.  To accept the Employer’s argument would violate Paragraph 11 of the Seniority provision, Article IX.  It would also be an abuse of the Arbitrator’s authority in that it would be a modification of the Contract. 

            The Employer also argued there was no need to fill the vacant positions.  The low occupancy,[1] particularly in the hospital, obviated the need to fill the positions.  The patients were not there so the positions were not needed.  The Employer should not be forced hire persons to positions where not needed.  Again, the Employer was not persuasive because CNA relief employees were scheduled in place of where full-time and part-time employees would have been scheduled.  The Employer even created a new position called a “non-scheduled part-time” person.[2]  How this worked, in practice, was explained like this: “A person would not be scheduled on the regular schedule, but would be called out on an as-need basis.  This practice allowed the Aides to get more work and created more stability in the employment” (Employer Brief p 2). 

            In his response to the Union’s query, the Employer’s CEO, in his July 26, 1999 letter, explained the practice as follows:  “Because of the way we have been doing this, the Relief C.N.A.’s are able to work more hours, because they are not scheduled and doing low census.  They are available for more shifts and able to work more hours” (Union Ex. 2).  The Employer also asserted that “The cost savings to the Hospital was that it did not have to continually hire new people and spend the money required to train them for some three (3) months” (Employer Brief, p. 2).  In short, the evidence record did not support the Employer’s no-need assertion.  The need, though perhaps diminished, was still there.  It is the Arbitrator’s conclusion that the Employer, for reasons other than no-need, elected not to post and fill the vacant positions.

            The Employer further argued the necessity to control costs and that controlling costs means, among other things, controlling the number of persons in the work force.  The evidence record, supported, as fact, that the Employer’s organization has some very real financial problems.  The testimony of the Employer’s Chief Financial Officer, Laura Austin, provided a good understanding of the financial problems and their sources.  She testified, however, that there are numerous factors contributing the Employer’s financial problems and that the Collective Bargaining Agreement is but one of the contributing factors. She also testified that no one came to her and requested a cost analysis of not filling the vacant positions. More to the issue, she testified that posting and filling the vacant positions would not “adversely” affect the Employer’s financial situation (Emphasis added).  Again, the Employer’s argument that the vacant positions were not posted and filled because of the necessity to control costs was not supported by the evidence record.

            For the reasons discussed above, it is the Arbitrator’s finding and conclusion that the Employer violated the Contract when the vacant full-time and part-time Certificated Nursing Assistant positions were not posted and filled.  The grievance is sustained.

AWARD

            The Grievance is sustained.  The Employer violated the Collective Bargaining Contract when it did not post and fill vacant full-time and part-time Certificated Nursing Assistant positions.

THE REMEDY

            Unit employees who were wrongfully prohibited from bidding on vacant positions and wrongfully deprived of doing the work pursuant to the position bid procedure shall be made whole, less other income earned, for lost wages and benefits.  The Employer is also directed to cease and desist its action of not posting vacant positions as required by Article IX, Paragraph 11, Seniority. 

            At the request of the Union and so stipulated to by the Employer, implementation of the remedy is remanded to the parties with the Arbitrator retaining jurisdiction in the event the parties cannot reach an agreement. 

Date: ________________________                                                ______________________________

                                                                                                C. ALLEN POOL

                                                                                                Arbitrator

[1] Low occupancy is synonymous with the term Low Census used by the parties and refers to the number of persons admitted as in-patients.

[2]  It should be noted that the act of creating a new, 4^th CNA position was a unilateral action by the Employer and that the Union was not a party in its creation.

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