In this case, the Hospital opened a new unit that would have resulted in the transfer of one employee, RF, from the day shift to an evening shift. In an apparent attempt to avoid what arguably would have amounted to a layoff of RF, the employer imposed a new Master Schedule and invited employees in the affected unit to select new shifts and work locations based on seniority. In the result, the schedules of all employees were changed but no employee was changed from days to evenings or nights, or vice versa. The Union argued that what the Hospital had effectively done, by changing employee schedules in order to avoid a layoff, was to lay off all the affected employees and to create new positions. Arguably then, the Hospital violated Article 9.08(A) by failing to provide notice of layoff, and Article 9.05 by failing to post the new positions.
A majority of the board of arbitration denied the grievance. It held that for a layoff to occur, an employee must suffer the loss of a critical job interest, such as those outlined in Article 9.08(A)(b) (reassignment). Since most employees were found to have been transferred to the same or a “substantially similar shift or shift rotation” within the meaning of 9.08(A)(b)(v), no critical job interest had been affected and no layoff had occurred. While one employee had been changed from a day to a night shift, the majority found it relevant that that particular employee wanted to work that shift and had exercised his seniority to bid on that shift.
The result of this case is obviously disappointing. The majority’s willingness to consider individual employee preferences in the determination of whether a layoff did or did not occur is especially troubling and, if taken further, would have the potential to undermine critical job security protections and the integrity of the bargaining process. On the positive side, this case furthers a promising trend of interpreting the definition of layoff in accordance with the preconditions in Article 9.08(A)(b) (reassignment). The panel in this case accepts that the criteria in Article 9.08(A)(b) offer a guide to whether or not a layoff has occurred. Thus, this case, like the Ross Memorial Hospital case, could be relied on to support an argument that a relocation to a job site that is not “nearby” within the meaning of Article 9.08(A)(iv) or a shift change that is not “substantially similar” within the meaning of Article 9.08(A)(v) qualifies as a layoff.
