Title: Anaconda Community Hospital and Nursing Home
and Teamsters Local No. 2
ARBITRATION PROCEEDINGS PURSUANT TO
BETWEEN THE PARTIES
Local No. 2
OPINION AND AWARD
Community Hospital and
Home of Anaconda
January 5, 2000
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.
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.
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
For the Hospital
John N. Radonich
Attorney at Law
P.O. Box 667
Building - Suite 622
108 East Park Ave.
Anaconda, Montana 59711
Falls, Montana 59403
Union framed the issue as:
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?
Employer framed the issue as:
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
PROVISONS OF THE CONTRACT
Article IX, Seniority
The EMPLOYER shall post a seniority list on July 1st 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
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.
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.
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
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.
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.
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.
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.
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,
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
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.
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.
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.
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.
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.
C. ALLEN POOL
 Low occupancy is synonymous with the term Low Census used by the parties and refers to the number of persons admitted as in-patients.
 It should be noted that the act of creating a new, 4th CNA position was a unilateral action by the Employer and that the Union was not a party in its creation.