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HomeMy WebLinkAbout1998-0383.Policy.98-08-19EMPLOY& DE LA COURONNE DE L’OKTARK) COMMISSION DE RiGLEMENT DES GRIEFS 180 DUNDAS S7REET WEST; SUITE 600, TORONTO ON M5G fZ8 180, RUE DUNDAS OUEST; BUREAU 800, TORONTO (OM M5G 1ZB TELEPHONEfliLiPHONE : (416) 326- 7388 FACSIMILE/7kkOPIE : (416) 326-7396 GSB # 0383198 CUPE 1750 # 98-10 aa IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THX GRIIZVANCE SETTLEMENT BOARD BETWEEN CUPE 1750 (Policy Grievance) BEFORE B. Kirkwood FOR TFIE UNION FOR THE EMPLOYER HEARING - and - The Crown in Right of Ontario (Workplace Safety & Insurance Board) Vice-Chair Linda Paddison, National Representative Paul Simourd, President Paul Pynkoski, Vice-President Gary Kelly, Chief Steward Elizabeth Kosmidis Solicitor Legal Services Division . July 9, 1998 Grievor Employer Page 2 DECISION The Union claimed that the position of Nurse Case Manager is a new position, covered by the collective agreement. The Union asked that the position be posted as a bargaining unit position and that the Board be responsible for any union dues that ought to have been paid since the creation of the Nurse Case i Manager position. The Board claimed that the Nurse Case Manager position is the same as the Nurse Specialist position, and that the position merely changed its name during the reorganization of the workplace. The Board agreed that the Nurse Specialist position should have been in the bargaining unit, but as the Board treated the Nurse Specialist position as a non bargaining unit position since it was created in 1992, and the Union did not,challenge the Board's decision, the Union had acquiesced, and could not now challenge the status of the Nurse Case Manager position as a bargaining unit position. Accordingly it raised a preliminary issue that the Union had abandoned its right to claim the Nurse Case Manager position as a bargaining unit position. The Union then submitted that if the Nurse Case Manager position is not a new position, but a continuation of the former non bargaining unit Nurse Specialist position, that it has not abandoned its bargaining rights as the status of the Nurse Specialist position is still a live issue between the parties. The Union further submitted that the status of the new position has always been challenged by the Union. . The parties agreed that the Nurse Case Manager position does not fall within the exception of Article 1.3 of the collective agreement, and therefore under normal circumstances Page 3 would be in the bargaining unit. Issues Simply put, the issue of abandonment, and the evidence on the Uniofi's activity or inactivity, flows from a determination whether the Nurse Case Manager was a new position, or merely a name change for the former position of Nurse Specialist. Facts The Board developed the job description for the Nurse Specialist in February 5, 1992. The thrust of the Nurse Specialist was to act as a facilitator to actively manage the injured employee's file to insure that the employee obtains proper medical care, and to answer the employee's medical issues. It also had a coordinating role facilitating the passage of information between other members of the Board and between the employee and the Board. In 1995, as a result of the amendments to Crown Employees' Collective Bargaining Act 1993, ("CECBA") the Union grieved that certain employees should be considered "employees" under CECBA and should be included in the bargaining unit. In April 12, 1995, Counsel for the Board forwarded a letter to Counsel for the Union enclosing a list of all non bargaining unit positions, which included the Nurse Specialist position and showed 30 persons in that position. It also stated that it categorized the position as a non bargaining unit position as the position had been abandoned by the Union since certification. In May 31, 1995, the parties came to an understanding and agreed to meet and discuss these contentious positions-. The parties agreed that the status of these contentious positions, including that of the Nurse Specialist, would be discussed in the next round of Page 4 bargaining. The parties also agreed that the Ontario Labour Relations Board would resolve the issue if the positions continued to be excluded. The parties, however, agreed that the Board still had the right to argue that the Union had abandoned its bargaining rights. The. parties also agreed that the inclusion or the exclusion of the positions that the Board had classified as bargaining unit positions, would be dealt with by the Grievance Settlement Board. As the Nurse Specialist was considered by the Board as a non bargaining unit position, it would not be dealt with by the Grievance Settlement Board. As a result of a decision of Vice-Chair Kaufman of the Grievance Settlement Board, (GSB #1029/94; CUPE #94-40 CUPE 1750 and The Crown in right of Ontario (Workers' Compensation Board) (S. Kaufman)(May 13, 1996)) 1250 employees were brought into the bargaining unit in May 1996. The decision was upheld in judicial review (October 16, 1997). Subsequently, the Board underwent a reorganization to 'improve the delivery of its health care services. Paul Simourd, a Union Staff Representative, testified that he first learned of the Board's intention to reorganize in February 1997, when he met with the President of the Worker's Compensation Board, Michael O'Keefe. He understood from the discussions that the Board intended to remodel the organization on an American model. Three positions were to be created, a Consolidated Adjudicator, Customer Service and the Nurse Case Manager. The Nurse Case Manager would involve managing the medical aspects of the claim file, determining the level of disability, providing information to those who were injured, and taking some of duties that had been performed by claim adjudicators, health and safety work, - and on site work with the workers. Page 5 Mr. Simourd testified that from the time he was notified of the Board's intention to reorganize, he had discussions with Mr. O'Keefe, Mr. Clay Appleton, Vice President of Human Resources, and Ms. ,Marilyn Latchford, Executive Assistant to the Vice- President Human Resources. Th"e Union was concerned that in the reorganization that 500 vocational workers would lose their jobs and the Union thought that some of the functions of the vocational rehabilitation workers would be taken over. The Union was concerned whether positions would be bargaining unit or non bargaining unit positions and how the positions .would be filled. The Board, without input from the Union, prepared a document, Workers Compensation Board Reorganization Questions and Answers to respond to some of the concerns of the employees in March 12, 1997. The document was prepared by Communications and approved by Senior Management to be then delivered to all staff at the Board. It referred to the new positions including that of Nurse Case Manager. It recognized that as a result of the 1996 Grievance Settlement Board decision, that is the Kaufman decision, referred to above, that the new position of Nurse Case Manager would be included in the bargaining unit unless it had managerial responsibilities or unless the Grievance Settlement Board decision was reversed on judicial review. On April 4, 1997, Minutes of a Joint meeting between the Board and the Union indicated that the Board had not yet determined if the Nurse Case Manager position was in the bargaining unit, but would be in a better position to determine its status once a job description had been prepared. On April 29, 1997 the Board issued a Policy Communique on the ‘new system. It stated that the Board was contemplating having Nurse Case Managers and a Nurse Case Manager Project Page 6 Manager, but it was uncertain if it would continue to have Nurse Specialists. The Board did not continue to have the Nurse Specialist position, but had Nurse Case Managers. As of September 1997, the Nurse Case Managers reported to Margaret Keating, whose responsibility it was to oversee the Nurse Case Managers and determine their roles and functions. The Board created $wo job descriptions for the Nurse Case Manager. One was more focussed on diseases, and the other on occupational aspects. The job descriptions were ultimately created for the Nurse Case Manager in November 21, 1997 and for the Nurse Case Manager (SI/D) (Serious Injuries and Diseases) in January 9, 1998. The Nurse Case Manager position had a different rate of pay from the Nurse Specialist. The Nurse Specialist salary grade had been 672 and the salary ranged from $39,665 to a maximum of $55,725. The Nurse Case Manager salary grade was 799 and the salary ranged from $46,600 to $53,000. The 27 Nurse Specialists became Nurse Case Managers without applying for the position and undergoing a competition. There was no evidence on any other Nurse Specialists. In addition seven General Duty Nurses competed successfully for the position of Nurse Case Manager. It is the intention of the Board to have a complement of 240 Nurse Case Managers by January 1999. Paul Pynkoski, the Vice-President at large for local 1750 testified that he had not been involved directly with the reorganization in 1997. However, since October 1997 he had been directly involved in a joint project with the Board, "Project Placement" which was trying to develop a process to move people from older jobs to the new and changin'g jobs, while remaining consistent with the collective agreement. The Project as seen by the Union was directed to those jobs that were in the bargaining unit and were changing. As part of the project, Questions and Page 7 Answers were prepared and dated February 6, 1998. They had the approval of the Vice-President of Operations, the Vice-President Human ReSOUrCeS and the President of CUPE, before they were issued. The intent was-to have timely and effective responses to the questions that the hundreds of people had about the changes. In those questions and answers the joint document stated that the Nurse Case'Manager was not part of Project Placement, and acknowledged that there had been preliminary discussions between the Board and the Union as to its status. The Nurse Case Manager position was not involved as it had not been identified as a union position. On April 21, 1998 the Union applied to the Ontario Labour Relations Board for a declaration that the Nurse Case Managers were employees under the Labour Relations Act. In Minutes of Settlement executed on June 11, 1998, the parties agreed that the Nurse Case Managers were "employees" under the Labour Relations Act, and agreed that the Grievance Settlement Board would determine if they were included or excluded from the bargaining unit. Argument Board's counsel argued that it is possible for a union to abandon its bargaining rights if it does not actively pursue them (Re Cybermedix Health Services Ltd. and Ontario Public Service Employees' Union, Local 544 1990, 11 L.A.C. (4th) 334 (H-D-Brown), J.S. Mechanical and Local Union 800 of the Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada OLRB Rep. 1677-78-M (February 20, 1979 ). Furthermore Board's counsel submitted that J.S. Mechanical '(supra) set out some of the factors that are relevant in establishing abandonment, "the length of the union's inactivity, whether it has made attempts to negotiate or renew a collective agreement, whether the union has Page 8 sought to administer the collective agreement through the the grievance and arbitration provisions in the collective agreement, whether terms and conditions of employment have been changed by the employer without objection from the union as well as whether there are any extenuating circumstances to explain an apparent failure to assert bargaining rights". Board's counsel submitted that the same factors are present in this case. The Nurse Specialist position was created in 1992 and the Union abandoned its bargaining rights for that position by its inactivity over the following six years. There have been three collective agreements covering the period since its creation. With the exception of this grievance, there have been no grievances filed. The Board has been solely involved in the development of the Nurse Case Manager position and its salary. Board's counsel submitted that as the position of Nurse Case Manager is fundamentally the same as the Nurse Specialist, the Union having acquiesced to the status of the Nurse Specialist cannot now resurrect the issue of status when the Nurse Specialist position is continued in the form of the Nurse Case Manager. Board's counsel argued that there are some issues that have not been raised by either party, such as the seniority of those who were not hired externally but were transferred into the system. She argued that to determine the position of Nurse Case Manager as part of the bargaining unit would be detrimental to those who have transferred into the position. Union's counsel argued that the position of Nurse Case Manager is a new position created by the Board. Since prior to its creation, the Union has been involved in discussions concerning the position and its status. * Union's counsel submitted that if this Board were to find that the Nurse Case Manager position was the same as the Nurse Specialist, the memorandum of May 1995 shows that its status Page 9 was an issue and argued that the Union has not resiled from its position. On the issue of detriment, Union's counsel argued issue of seniority is not an issue in this grievance, but flows from the decision. The Union submitted that this Board could remain seised of this issue. Decision i I find that the two new positions of Nurse Case Manager and Nurse Case Manager(SI/D) have incorporated and expanded the duties of the Nurse Specialist, and the Board has increased the compensation to reflect the increased change in duties and responsibilities evident in the new positions. From their inception, the Union has not accepted the new positions as a non bargaining unit positions, and has not abandoned its bargaining rights for the Nurse Case Manager positions. The Board in its communique to the new nurse case managers of March 4, 1998 statea that the Board had had nurses since 1990 in Toronto, including Nurse Specialists, but the difference with the Nurse Case Managers was in their scope of practice. The increased scope of their practice is borne out by the job descriptions that were ultimately created in November 1997 and January 1998. When comparing the job descriptions of the Nurse Specialist and those of the two Nurse Case Managers, some of the same duties and focus are present but those of the Nurse Case Managers are far more sophisticated and complex. . The difference between the Nurse Specialist and the Nurse Case manager can easily be seen in the objective of each position, from which the nature, scope and responsibilities of the Page 10 positions flow. The object of the Nurse Specialist is: to assist the Board's medical and adjudication staff in collecting and interpreting clinical information and to actively participate in facilitating the provision of health care services in injured workers." (bold print my emphasis) - . The Nurse Specialist does so by collecting clinical information, assisting, by ensuring all clinical documentation is on file, evaluating treatment, discussing treatment with the physician, expediting appointments and facilitating the Adjudicator and the Vocational Rehabilitation Caseworker by providing them with basic clinical training to increase their effectiveness in managing claims. The Nurse Specialist would assist in acquiring medical reports or information and obtaining referrals to clinics that would have a better programs. The position is, as described by Paul Pynkoski, a Claims Adjudicator, and Vice-President at large for Local 1750, a resource person. The Nurse Case Manager is much more proactive in the delivery of health care. The Nurse Case Manager is part of a team. The objective of the Nurse Case manager is: To intervene early and facilitate the provision of appropriate, timely and effective health care to workers throughout the episode of a claim in order to achieve optimal recovery and early return to work. To establish a professional relationship with workers as early as possible after an injury or diagnosis of a work related illness. To partner with the worker, employer, treating practitioner, adjudicator and other resources as required to develop a plan to facilitate early/modified return to work and ensure the worker's optimal recovery. To participate in, promote and support research activities to enhance client outcomes. (bold print my emphasis) Page 11 The Nurse Case Manager implements, evaluates, participates and promotes research in order to facilitate an early and safe return to work. The Nurse Case Manager assesses the worker, formulates a plan by collaborating with multi-disciplinary team, and monitors and evaluates the plan. The Nurse Case Manager also facilitates in early and safe return to work by collaborating with the worker and health care provider and ensures appropriate health care intervention including educating and assisting others. This goes far beyond the collation of data and assistance expected of the Nurse Specialist. The Nurse Case Manager(SI/D) has similar responsibilities but is focussed on the timely recovery and reintegration of a worker effected by catastrophic injury/and or disease. Its job description states the objectives are: Effect/facilitate the smooth transition of workers from catastrophic injury and/or disease to optimal health, including reintegration into appropriate settings. Establish a professional/therapeutic relationship with workers and families as early as possible after such a serious injury (e.g. multiple amputations, spinal cord/paraplegia/quadriplegia, serious head injuries, multiple injuries, sight impairment, burns) or disease (e-g-emphysema, occupational cancers). Partner with the worker, treating practitioner, adjudicator and independent living specialists to co-ordinate the development, implementation and evaluation 0 f specialized treatment plans. Facilitate the provision of appropriate care and support to workers and families in a timely way through the recover, reintegration and follow up phases to ensure optimal recover and quality of life. Participate in, promote and support research activities in order to use current rehabilitation research findings to enhance client outcomes. Essentially the duties of a Nurse Specialist shifted from a 'resource person to the adjudication and vocational staff, to a Nurse Case Manager who was a proactive member of a multi- Page 12 disciplinary team trying to ensure better treatment and an early return to work. The depth of knowledge, responsibility and expertise required of a Nurse Case Manager as seen by the job descriptions is much greater than that of a Nurse Specialist. The higher salary grade and range that the Board gave to the Nurse Case Managers is also a reflection of the greater duties and responsibilities expected from the Nurse Case Managers. There was also a great deal of evidence in the Board's documents that showed that the Board, itself, viewed the Nurse Case Manager position as a new position. The Questions and Answers created by the Board are evidence of how it viewed the position. The first one issued in on March 12, 1997 and was solely an Board document. In the document it treated the position of Nurse Case Manager as a new position. It stated with respect to the following questions: 21. WILL A QUALIFIED NURSE CASE MANAGER HAVE INPUT INTO THE JOB DESCRIPTION FOR THE 'NURSE CASE MANAGER?... 22. WHAT ARE THE SALARIES OF THESE NEW POSITIONS?... 23. WILL THESE NEW POSITIONS BE IN THE BARGAINING UNIT?... 24. WILL STAFF HAVE TO APPLY FOR THESE NEW POSITIONS OR WILL THEY BE ASSIGNED. Answer: We are committed to internal recruitment, where possible. Some new positions will require skills that will have to be recruited externally i.e. Nurse Case Manager. Applications for bargaining unit positions will be guided by the collective agreement where bargaining unit staff will be guided by the collective agreement where bargaining unit staff have priority. (bold print my emphasis) On April 27, 1997 the Board, Policy Communications sent a series of Questions and Answers outlining the changes and the development of the Nurse Case Manager. The Communique indicated that under the new system there would be nurse case managers and a Page13 nurse case management project manager, but the Board was unsure whether it would have a distinct role for the Nurse Specialist. It indicated the breadth of functions that the Nurse Case Manager would be engaged in. The Nurse Case Manager was to work closely with the health care adjudicator who also was given a broader range of duties. I. Therefore on the basis of a comparison of the job descriptions, and on the testimony given, I find that the positions of Nurse Case Manager and Nurse Case Manager(SI/D) are not merely a name change or a continuation of the Nurse Specialist, but are new positions. Furthermore if the Nurse Case Manager position was merely a change in name for the position, the Nurse Specialists would not have had to apply for the position, but the title of their position would merely have changed. The Board did not challenge the Union's evidence that applications had to be made by the Nurse Specialist for the position. Since the Board created the position of Nurse Case Manager, the Union has engaged in discussions with the Board as to whether the position would be included in the bargaining unit. When the position was not included within the bargaining unit, the Union made an application to the Ontario Labour Relations Board. As the position is a new position, which the Union has challenged from its inception, the Union has not abandoned its bargaining rights for the position. Whether or not the Union has abandoned the Nurse Specialist position is not relevant to this case as as I have determined that the position of Nurse Case Manager is a new position and is not merely a continuation of the Nurse Specialist position. . As the parties agreed - that if- the Board was not successful in establishing that the Union had abandoned the Nurse Specialist and the Nurse Case Manager positions, that the Nurse Page 14 -- Case Manager position was a position within the bargaining unit, I so declare. Accordingly the position is to be posted as a bargaining unit position. The Union shall be entitled to receive the union dues that relate to these employees from 20 days prior to the date of the grievance.- There is no need that I remain seised on the issue of seniority. I have heard no evidence on this issue. This would be the subject of a separate grievance, which could be dealt with by any other members of the Grievance Settlement Board. In conclusion, this grievance is upheld. iLifi Dated at Toronto, this !day of August. , .