HomeMy WebLinkAbout1989-0778.Nichols et al.90-02-08 ONTARIO EMPt. OY~-$ DE LA COURONNE
CRC;WN EMPLOYEES DE L'ONTA RIO
GRIEVANCE C,OMMISSION DE
S~R'LEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONT~4RIO. MSG IZ8- SUITE 2100 TEI..EPHONE/T~I..~'PNONE
180. RUE DUNDAS OuEST, TORONTO, (ONTARIO) MSG 1Z~I. BuREAu 2100 [416)
'778/89
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE QRIEVANCE SETTLEMENT BOARD
Between=
OPSEU (Nichols et al)
Griever
- &nd -
The Crown in Right of Ontario
(Ministry of Health)
Employer
Before: P. Knopf Vice-Chairperson
E. Seymour Member'
M. Tims Member
For the Griever: D. Wright '.
Counsel
Ryder, Whitaker, Wright and Chapman
Barristers & Solicitors
For the ~gyer: M. Farson
Counsel
Fraser & Beatty
Barristers & Solicitors
Heart~g; December' 14, 1989
AWARD
This' case in~ol~es grievances filed by 3l employees
who woi~k as R~eglstered Nurses in the Penetan]uishene Mental
H_~alth Centre, Their .Claim. is filed ,ou.rsuant tO Arti'c.le 6.].
claiming entitlement to wa§=.s dur~ing temporary assignments to
the posit~on of Charge Nurse, Given the n;]mb-~r of g~i=.vors, the
complexity of their work and the sophisticatiion of the legal
issues, t,~is could have evolve'J into a long, costly and
exhausting exercise in ~itigat].on. However, ~ue to the
co-operation and the excellence of the counsel presentin~ [he
cas~ for Doth parties, the matters were pces,.~nte,J to us in-a
clear,~ efficient an,~ i,Je'al manner. Th,~ p'arties were able to
come to an agreed stat.~ment of facts and were able to narrow the
leQal iss~es. They also agreed .that th~ ~acts and this Award
would resolve the issues for all the grievers. Coun~sel and the
parties are to be commended for presenting this cas,} in a manner,
which does them all credit. We, as a Board, would be remiss in
dealing with the issues withodt first compl~men[~ng and ~5ankin.§
the counsel and the parties for their professionalism.
We turn now to the facts og the case.. The Grievers
are employe~] at the Penetan9u'ishene Mental Health Centre -
Regional Division. They are all emoloy~d as registered nurses
and are classed as "Nurse 2, General". The Regional Division of
the Centre is divided into six war,J's. ?here is a WarJ Supervisor
or Hea,] Nurse for each ward and then a complement of Registered
Nurses and Psychiatric Nursing Assis[ants are assign?] regularly.
to each ward. At the top of the or3anizational structure is a
Director of Nursing. ReDorting to th~ Director is the Assistant
Director of Nursing.' Reporain~ to the Assistant. Director ar=·
two Area Supervisors ~ur~ng ~he day and on.~ Shif~ Su.pe~visor
during other sh.ift~. The next level involves six positions of
Ward Supervisor or a [lead Nurse for each of the six wards. The
Registered Nurs3s .repo~t to the Ward Supervisors or [.lead Nurses
as do the P~,chiatric Nursing Assistants. The WarJ Supervisors
- 2 -
or Head Nuts. es work on a steady day.basis from 8:30 a.m.' to
4:'30. p.m on Monday through to Friday. However, the Hospital is
o~v~ousiy ~equi~ed to operate on a 24-hour basis and the
Registered Nurses operate on rotating shifts' referre~d [o as
eithar day, night or afternoon shifts, each of 12 hours in
duration.
During .parts of the a~ternoon shift and all the night
shift, there is no Head Nurse or Ward' Supervisor on duty. In
those cases, one or.more Registe~ed Nurses awe assigned to a
ward. Where there is only one nurse on a ward, that nurse takes
on the position of "Charge Nurse". If there is more than one
nurse'on a ward, the nurses decide amongst themselves Who will .
De designated as the "Charge Nurse" for the ward.
Worki.ng from the Position specification of the Head
Nurse position, the parties were able to agree that many of the
responsibilities of the Charge Nurse are found in the Position
Specification for the Hea~ Nurse. For ease of uhde'rstanding and
to put things in .a facual con~e, xt, we shall quote from the
Position Specification fo'~ the Head Nurse and then explain the
functions of the Charge Nurse as they. relate' to the Head Nurse
positron.
The Head Nurse assumes responsibility for the effective
operation of the assigned ward by:
(a) 'allocating duties to subordinate staff, issuing
special instructions;"
The Charge nurse assigns tasks to various
people on the war4 such as who would unde~taka
escort duty and who would take on the duty of
dispensin.~ medications.
- 3
(b "ensuring that care and :rgatment is provided
according to' Nursing Standards an,~ Hospital
Polic ies. :'
· he'Charge Nurse i~ expected to have a
di.~eren: response .than a Hea~ Nurse in tl%e
event of a breakdown. The partitas agree that
the Charge Nurse is rcsponsib!e for "seei,~g" '.
thaL Car..~ and treatment are provided rathe~
that "en~uring" the same.
(c) "directing and participating in various therapeutic
prog~ammes and activites a~ prescribed for the ward
by the treatment team."
Again, ~he charge nu.~sa is not cespon~ibl, e loc
"dlrecting" this function. But she d~es
participate in programmes such a~ organizing
trans'portion and social functions such as
bin.go games.
(d) "ensuring that assessments of patients, and
programmes are carried out;
Again, the Charge 'Nurse is not responsib'l.~ for
"ensuring" this function. But she does see
that other Registered ~]urses and Psych ia tr lc
Nursing Assistants are following the
programme s ·
(e) "establishing and maintaining good liaison and
com~uni6ation with other facility departments...
The Charge Nurse has no responsibility fo~
th ~s.
- 4 -
(f) "responsible for the requisitioning, d stribution,
recording and security of. controlled or other drugs
and medical supplies on the ward;
The Charge Nurse is responsible tO s~_~ that
someone Joes distribute the drugs.
Medications must be distr~bu~-ed by a
regist.=red nuts_~. If there is only one nurse
on duty the Charge [.;urse does it, If the~e is
moo9 than one nurse on duty, 'the Charge Nurse
has responsibility loc seeing that it is done.
If there is a medication error, the nurse.
res~onsib!e for the error is supposed to
initia.te a report whir9 is then given to .the
Charge Nuts.~ who de~[vers that report to th_:
Shift Supervisor. If ii is found tha~
medications are mis$~.ng, this is usually
noticed at the end of the shift. The Chasge
Nurse would, be advised of £~ and it would be
r~ported to the Shift Supervisor. However, if
a He~d Nurse were on dui! [~ would De reported
to the Head Nurse who would initiat=. an
'investigation which could inctude interviewing
staff. The Charge Nurse would not De e×pected
tO do that.
(g) "advising the the Unit Director of all ward
activities e.g. programs, patient and staff
participation and recommending changes or
ad~ust_ments, where necessary.
Th~ Charge Nurse is n~t involvgd in this.
"Participates in team approach
- 5 -
(h) "ensur lng rna ~ prepare tory work for cl in ical
presentations is accurate and clear;" ~
There is a clinical meeting o~ the ward h~!J
once .a week. The charge Nuts9 may hav~ .]u~'es
involving gathering together the material
required for th~ meeting. However, the
co-ordinating function remazns with the Head
Nurse.
(i) "co-ordinating, the activities of clinical meetings
and ensuring staff participation;"
The Charge Narse is.not invol~ed ~n this.
(j) "maintainin~g a follow up on .medications and
'treatments prescribed by the clinical team,"
'These is a recognized distinction in the
nature of follow-up expected of the Head Nurse
and the Charge Nurse. The ~{ead Nurse has
additional powers anJ ~esponsibilit~es.
However,. %he Charge Nurse does have more
responsibilities than a regular Registere.~
Nurse. For example, a Registered Nurse might
report a pro.bl,=m with medications or
treatments tO a Charge Nurse if no Head Nurse
is on duty.'. But if there is a Head Nurse,
{hat nurse takes responsibility. A Head Nurse
has more power ~o deal with a problem such .as
the ability to contact a doctor directly and
has latitude in decision--making that a Char§e
Nurse does not.
3. "Performs administrative duties bY:·
- 6 -
(k) ensuring that patient charts and files are kept up
to date at all times;"
The Charge Nurse oversees ~h[~ for the shift
in which he/she is in charge.
(1) requisitioning ward supplies and materials;
The Charge Nurse may become involved in this,
but so do Re9ister.=d Nurses and Psychiatric
Nursing Assistants. Requisitions of a Charge
Nurse are approved by the Head. Nurse unless it
is something that has to be dealt with
immediately, in which case it'would ~o to the
Shift Supervisor for approval.
(m) "reporting damaged and malfunctioning equipment to
Supe rv isor;"
Everyone has a certain responsibill'ty in this
regard, inclu.]ing 'Registered Nurses anJ
Psychiatric Nursing Assistants. If an
emergency such as a burst pipe occurs, a
Charge Nurse could contact Maintenance for
repairs.
{n) "assisting with the preparation.of forecast for
budgeting purposes;"
-The Charge Nurse is not involved 'in this.
(o) "conducting monthly ward staff meetings;
The Charge Nurse is not involved in ~his,.
(p) "atte6ding and' participatiflg in Committee and other
mee'tings."
The Charge Nurse Is no[ involved, in this.
4. 'Supervises the overall staffing functions of
assigned ward by:
(g) chair.ing various committees;"
The Charge Nurse is not invoived in ~hts.
(r) "ensuring that all new.staff receive proper ward
or ien ta tion:"
A Charge Nurse does participate in war~
orientation but is not resp0nsibl~ for ensuring
that process. However, the He~d Nurse. is ..
responsible for the assessment of. what
training is necessary in the determination of
how the traininG would be provided~ The Head
Nurse also has accountability for the training
and orientation that is actually beinG
provided.
(s) "counselling staff on work performance,
· professional development and educational
opportunities;
(t) disciplining staff for minor infract'ions and
implementing corrective action;
The difference between the Charge Nurse and
the Head Nurse is that the Charg~ Nurse does
not hay,= a responsibzlity for discipline and
has no .power to impose discipline of any kind
on any other staff member. They do become
i~nvolved in counselling and Guiding other
- 8
staff in an advisory role such as saying there
may De a c~ta~n way to perform a certain
functioa on an on-the-spot basis. If a Charge.
Nurse perceives a problem, his/her
responsibility oF funct'[on is to re~ort it to
'the Hea~ Nurse or the Supervisor.
In so far as training is concerned, a Charge
Nurse will ~iv9 advice, often to newer staff,
Duc this.is something a registered.nurse woul.,~
do and not just a Charge Nurse. On the other
hand, the Head Nurse .is responsible for
monitoring per~ormancu of employees on the
'ward, fo~.evaluating and counselling as well,
S/he is also responsible for the professional
development and educational opportunities, for
which a Char.~e Nurse has no responsibilitY.
(u) "investigating and responding to Grievances
following consultation with supervisors~
(v) "preparing supportive written 'informatfon when
reco~%mending the dismissal of staff"
(w) "drawing up shift schedules with provisions for
vocations, days. off, special assignments, 'etc."
(x) participating in the interviewing and selection of
staf f."
.5 Related duties:
(y) "perfor'min9 duties of Shift'Supervisor when
requ i red;"
(z) "as assigned."
The Charge Nurse is not invo].v'-~J in any o~
these ·
Th,~ parties recognizeJ that the Position Specification for
the Hea,J Nurse oft~n includ._~s th~ worJ "ensuring" with
to several functions. They agree that that worJ connotes the
nature and extent of the assumption of responsibility that
~Joes not apply ~o a Charge Nurse3. It is a§~eed that
Charge Nurse has an obligation to reJo~t a p~oblem if it
ari~ses. If it is a ~probiem that must be dealt with
immediately, it is to be re.Do~te-~ to the Shift Supervisor.
If it is no~ a problem r~qu~rin9 £mme.J'[ate atten%io.n, it is
to be reported to th-~ Head Nurs~ when 's/he comes on ~uty.
However, a Head Nurse has responsibility to investigate and
to respond to problems. The Head Nurse is accountable ~or
taking measures to resolve o~ob%ems ~ncluding counselling and'
disciplining em?~oyees, E×clus[ve~ to'the ~ead Nurse are the
functions of investigating, c.9']nse~-[ inG and discipl inin~ that
are not shared with the Charge ~u~e. Instead, the Charge
Nurse directs-the activities that a~e to De done during a
shif't,~ but his/her authority ts 1,~m~e-d to reporting any
matters that arise. An ex'amble q~ven to illustrate, this
situation is the situation whe'ra a staff member reported to
work under ~he influence of alcohol. A Charge Nur~ wo~ml.1
expected to re,~ort that to the .~ht~t S. uoervisor. A Head
Nurse would be expected to dec ~ ~e whether to send the ~erson
home and whether the incident w.jrrante'J discipline. Further,
it was pointed out that the He~.~, '~u~se does ~erformance .
appraisals on employees and ha~ ~on~-range administrative
responsibilities for prepar'ing monthly schedules and tim~
sheets. The Head Nurse also, ~.~orov--~s vaCation re.guests, ,Jays
off and recommends the 9raat~n9 o~ ~enial of other leaves.
The Head Nurse is also involved in recruitment and'promotion.
The HJad Nurse may recommend sus[~ension, dismissal or re!eas=
unJer th~ P~u_Dlic Service Ac~. The ~{ead Nurse may De calle,J
~ 19 -
upon to present management's case at a d%scipline hearing
under the regulations to the Public Seruic~. Act. ~{ead Nurses
also perform an investigative functlon and may be req~ire~
investigate allegations of patient ab~se and present a r~port
o~% the ~n~estigation which may include a recommendation for'
Jismissai. The HeaJ Nurse 'can also recommend .transfers-of
sta~ and is accountable for the development' Of nursing
prog~ammes, the assignment of staff and for getting the
proper r~sources assigned to ensure that ~the p~ogrammes
carried out. The Head Nurse is also held accountable loc the
staff'[ng of his/her shift an.t for the budgeting for stafff[ng.
All thes$ res~onsibilitles are not undertaken'by the Charge
Nurse. But it is recognized that the Charge Nurse does have
greatar ~esponsibili'ty than when s/he acts as a Registered
Nurse ·
This claim is filed under Article 6.1.1 of tha
Collective Agreement which provides.
Where an employee is assigned temporarily c'o
.perform duties of a .position of a classification of
a higher maximum for a period in excess of f~ve .(5)
'consecutive workin9 days, ~e shall De paid acting
pay from the day he commenced to ~De$,:orm the duties
of the higher classification in'accorJance with the
next high.est ra~e in the classification provided .
that such acting pay shall not De less than 3%
per cent above his current rate.
The claim l's filed in respect of those occasions where the
grievors have been· assigned to the position of Charge Nurse.
for periods which would fall within th~ scope of Article 6. ~.
The part~es quite sensibly agr-=e~ ~o defer t~e question of
what constitutes "five consecutive workin9 days" 'in this
facility and-when the individual grievors would quaiify g~ven
the schedule pending the determination of the larger question
of whether the assignment to the Charge Nurse position can be
considered-an assignment within the meaning of Article 6.1.l.
- 11 -
use n t
The Union argues that the grzevors ought to receive
acting 9ay pursu'ant to Article 6.1.1 when they assume the
duties of the Charge Nurse.. It was subm[tte~ tha~ they
assuming the same duties as a Head Nurse, even though they do
not assume all taos.~ duties. It was said that th-= Charge
Nurse assumes the co~e or the essence of the duties of a Head
Nurse which amounts to a position in a highe~ classification.
I¢ was said that not every duty of the Head Nurse must be
assume..~ before they coulJ qualif-f. We wer~ asked ~o adopt
the analysis in ,the decision of Collin's and Ministry 0.6 the
Solicitor General, unreported decision 0~ B. Kirkwood issued
November 26, i987, Board File 997/85 and to look at the
essence of the job the grievors performed .along' with the
essence of the co~e of Hea'J Nurse position. It was said tha't.
the essence of the Head Nurse posi=ion has been captured !n
the summary s.'.Decification for the Nurse 3 General job title
wh~c~ applies ~o Head Nurses an.~ which begins, "Em..oloyees in
positions allocated to this class provide progression.al
supervision of the nursinG an:~ person care of a group of
patients in an inflrmary, 'ward or administrative unit of an
Ontario Hospital oT other provincial institution." Thus, it
was said that the ess_~nce of a position of a Head Nurse
Char.~e Nurse is the supervising o~ other nurses .and the
takln{~ charge'of a group of patier)ts. It was said that this
is precisely what a Charge Nurse does and although .a Cha'~e
Nurse.may have limited Powers, he or she r,=mains in .charge of
the ward and responsible for th,= opesation of ~he ward durin~
the shift in question. It was acknowte]ge,~, that even though
a Head Nut-se had a greater 'degree of responsibility and
control over a ward, this' does no~ take away from the fac~
that the Cha~ge Nurse is also ~responsible and in control
wh~le on duty. This was contrasted 'to the situation of a
Nurse 2 or registered nurse who.is said tO have t~e physical'
ca~-e of patients as the core or essence of his/her job. I't
was stressed that the r.=sponsibiliti~s and the core of a
Charge Nurs~s function is beyond what is expec teJ of a
Registered Nurse and f~ts better with the RN' 3
categorization. In conclusion, we .ar9 asked to review t~_
lunch, ions being assumed by a Charge Nu~se and to conclude
that they are a "better fitL' within the classification of
Registered. Nurse 3, mainly because of the supervisory
function.
Counsel ~or the EmplOyer also adopts the analysis in
the C_o_llins ..........case, supra,_,_. _ and adopts the tests set out there~n
as .governing 'the situation in this cas'e. It was said that
that case estaDlishes that the~e must De a position to which
the gr~evor~ were assigne~9 and th,~s the Union has the onus of.
establishing ~hat a Charg,= Nurse is performing the duties of
a Head.Nurse. Because of the significant differences between-
the two duties, it was said that the Union had not met the-
onus. Further, it was argued that if the Union succeeds, it
would amount to havinG the Employer be required to have a
Head Nurse on every shift Of every ward which would be
contrary to the provisions of Section 18 of ~he Cr. qw_n-
~m~pl_~ye_e_s_._C~ol_i_e_c_t_iv_e- ~_B~_r. Ga..i.n_½n_g._Ac_~ wh ich g ives the Employer
the exclusive right to determine ~the complement and.
.. organization of its staff. However, it Was immediately
acknowledged that i~ this BoarJ concludes that the Charge
Nurse is actually acting as a'Head Nurse, then acting pay
would follow because management had chosen to make such an
assignment. However, it was stressed that the facts do no~
support the finding the Union seeks. It was saiJ that the
facts do not establish thac the Employer is using nurses to
r~place Head Nurses. Instead, the facts establish that
nurses a~e assigned some supervisory and a~ministr'ative
duties 'as Cha~ge Nurses. But the degree and scope of the
Head Nurse's responsibility a~e not assigned to the Char..]e
Nurse, such as the powers to investigate, resolve matters on
the ward and respond to discigline. Nor Joes the Charge
Numse assume the ongoing rmsponsibil~ty for cn~ supervision
of the Ward. Further, it was submitted jthac the Charge Nurse
is in fact doing duties that are already' containe,.~ wlthin the
Job Specification of a Registmred ~]urse. Counsel took us
through the Position Specification for the Registered Nurse
to show chat' the Head Nurse functions which were a.gree~ were
p~rformed by the Cha~Qe Nurse, are containe.J within the
Registere~ Nurse Speci[ication. For example:
participating in and leading patient group
activities such as~social skills,, current affairs,
and health teaching groups ~o~ ~ur.ooses of patient
therapy nod/or rec~eation~ .
participating in clinical treatment team meetin,3s,
sharing obsarvations regarding patient Dehavio~_~,
iden. tifying patient problems, suggesting-
appropriate nursing care to treat patients;
atteqding '¢ari0us meetings pertaiqing to one,eat
care such as ward admission and/or discharge, as
well as quality assurance, meettngs;
monitoring nursing efforts pertaining to patient
care, maintaining up-to-date nursing no~es, patient
count, completi'ng patient classification, reporting
unusual occurr~nces'an.J patieht behaviour
nursing supervisors, ie., Head Nurse, A~ea or
Supervisor as appropr.iate:
~elieving ~he ~{ead Nurse on weekends, afternoons
.and night shi~ta.'.
pe_~formzng.clerical duties such as pre.~aring supOLy
requisitions, answering th,~- telephone, relaylq9
messages;
maintaining a current knowledge of hospital
policies and' procedures such as [~re drill,
- disaster plan and OomD threat as these relate to.
patient care~
checking crash chart sugply levels, including the
reorder in~ of expired druos and the proper
functioning of oxygen equlpment~
reviewing or completing r~quisitions for
blood-worK, forwarding and ~eceivlng according to
procedure;
providing instruction to co-wo.~k~rs to assist in
their professional develo.Dment.
Thus, it was said that many of the duti. es the Union is
relying upon to say that tl~e Charge Nut.ge performs which are
part of the Head Nurse's dutie~ should already be recogn£ze,~
as...Puties required'of a Registered Nurse in his/.~er own Job
Specification. Further, couns_~[ los the ~.mployer points to
the Job Standards for a Regista?ed Nurse at the ~urse 2
General leve.1 to estaolish that the Charge Nurse ~unctlons
are contemplated for the Nurse 2 General, especia[[f, in the
fotlowing pa r~ag raph:
Employees in this class ma? ~ssist in or su.Dervi~e
the assignment ~o~ duties and check the work of
subordinate staff on '~he same shift. Depen.~ing on
factors such as hours of duty,, the size and amount
of active nursin~ requic.e.J ~n ~h.~. aJministrative
un~t, they are r~=$ponsib~e to the su~ervis~.ng nurse
for all or pa~t of the nur~5[ng and personal care in
the administrative .unit as ]ssigned, They may, on
occasion, relieve Su.Dervis in~ nurses.
Maintaining a current know[eJg.~, o~ hospital
policies and proced, ures such a~ fire drill,
disaster plan and bomb ~h~e~t as th-ese, relate to
patient care.
We were reminde.J of the test ~n th~. Collins decision
indicating that in order to s,~cce~J un.Jet Article 6.[.[. the
Union mus~ prove ~hat the ~[.~.vo~s wer~ assiDned ~o a
which was not part o~. his/her 9wn. [t was saiJ that the
facts do not support such a f[n.![nQ in this case because all
the duties performed by the C~a~qe '4ur. se are contemplated in
the Registered Nusse's Posi~tlon S~ec~f~cation and in the
Class Standards for Nurse 2 General. We were also referred
unreported d~ecision of Fisher dat..~. August 23, 1988, Board
File '699/87; Farrel[y__.a_n'.d...M._l.n_istr.y._o_f__Correctional
unreported decision of DraPer da~eJ March 24, 1988,
F~le 424/86; Noon and Ministr~,_.qf_C_o_.m.m_g.n!.t~[ and Social
S_~er._~Vic__~es_, unr.=ported decision.oF. McLaren dated Augus[ 20,
1981, Board File 111/8~!.
· . T~e Dec is ion
The pa~ties agree that the p~inciples go';erning the
analysis and the determination of chis Case ace contained in
tile C_o_l.l_i__ns_ dec is ion, s_u_pr_a-. That dec is ion providers at
page 4:
Therefore the onus is .upon .the union to O~o~{e' chat
the griever was assigned to do a :)'OD .temoo~arily;
that the job was to perform duti~e.s o~ a ~osition in
a 'class if ica tion with the higher salary maximum;
and that the job p.erforme.~ was ~f'or a period in
excess of eight consecutive woskin9 days. If. these
three elements a~e p~oved the griever is entitled
to acting pay subject to the limitation referred to
in article ~.4 which covers periods du~ing which an
employe~ is on vacation.
59~art-of his own
[Emphasis addqd]
The Co~Iins' test is a threefold test. The aspects
whethe~ the job was in a classification with a highe~ salary
maximum and the number of days i~ was performe~ are not
issue at this stage. The issue w~ have to deal with is
whether the~ Union has succe:eded in'proving that the
were assigned to jobs which'were not parc o~ thei~ own.
It is certainly easy to see w~y this grievance has
been brought. When ~he g~ievors are a~signed to the position
of Charg~ Nurse, they are ex~ecte~ ~o do mome and ar~
r~sponsible .for more than when they act in the position-of a
Registered Nurse. They oversee wards, assign task~,
co-ordinate activities, and are the first level of ~esponse
for thei~ ,co workers. This clearly puts an extra burden on
them and added.responsi.btlity. The collective agr;~.ement ,Joes
not [~rovide for any 'prem. ium pay under these circumstances,
nor are ¢~eir e~tra functions recognize~ in any concrete or
formal fashion. It is sm~ll won'der that they have .launched
such a grievance' seeking the benefits of Article 6.!.l
However, the facts are simoly not sufficient to
support the grievance. Whether~ we .compar.= the. position
s~ecifications of a Registered Nurse and a Hsad NUrse or the
Class Standards of a Nurse 2 to a Nu[.$e 3 General or th.3
actual.functio~s as revealed in the statement of Facts given
to us by ;he part,es, we are ~l.e.] to the inescapaDle
conclusion that the .functions performed by the Charge Nurse
are functions which were fully con t._=mpla ted 'in the Nurse 2
and Regi-~tered. Nurse position and level. It-is true that 'the
Head Nurse positi~)n contemplates more supervisory and
administrative work than the Registered Nurse. The Head
Nurse is responsi'b!~ for the effective oper. ation of a war,~
whereas the Registered NUrse [s looked .upon tO provi.Je
nursing care. However, a Registered Nurse is also expec.ted
as a core ~unction o.~ essential elemen[ of his/her dui; to
provide administrative duties on the w~r~ such as relieving a
Head Nurse, providing instructions to other nurses an~ other
cl'in~cal staff, monitoring nursing efforts, reporti~ng unusual
occurrences, and participating as Dart o~_ the clinical
treatment team. Further, part of the joO standard is that a
Nurse 2 General may "supervise the assignment of duties and
check the wor~ of suDord ina %e staf~ on the same shift,"
Fur~er, it is specifically provided in'the Nurse 2 General
Standard that "de[~end~ag on factors such as the hours o~
duty, the size and t~e amount of active' nursin~ ~equired in
th~ administrative unit., th.=y are responsible co a
suparvlsing .nurse for all or part of the nursing or p~rsonal
care in the administrative unit as assigned." The Standard
even 9oes so far as to say "They may, o'n occasion, relieve
supe~v'ising nurses." This is'clearly what 'the Charge Nurse'
does. Thus, it is clearly park of a Nurse 2'Gen~.ral's
essential responsibility to De able to and to ac~ [n the role
which'has been ass[gnarl to a Char.~e Nurse ac this facility.
Thus, we have not peen satisfied that the .drie'.;o[s perform
functions which go beyond those expected of a[Nurse 2 General
or a Registared ~Nurse.
Sven if we ace wrong in thts re~ard, we also conc[.~de
chac the grievance must fail un~r the analysis foun~ in
F..a_r..r..e_l_l_~, s_u_~.r_a_. In t~at case the grievers sought relief
under Article 6.1.1. However, it'was found that there %;as an
essential distinction between the job performed by the
grievers in that case an,~ the resooasibility and
acco,]ntabilty of the posicion for which they sought the
temporary level of paymeRt. Quite simply', tha grievers did
not ~ake o'n the same.level of responsibility of the position
they were seekin9. In that case, the situa't~on ~s very
analogous to the one at hand-and the Boa~.d, cha[~ed by
Mr. Dra~er, coacludeH at page 3:
We are not persuaded that particula~ Juries
temporarily Derformed from time to ~ime by
different em%)loyees and forming only a oar~ o.~
regular duti.?s of their, position an] classification
may constitute proper 9rounds for the
reclassification or the position. Further, we are
of tl~e' view that Article 6.1.1 is intended to 'a.DplY
only where an employes is ~amporarily assigned to
perform the duties of a position already found in a
higher classification and where that employee
temporarily replacing another _=m~)loyee (except an
employee on vacation) or iS ~emporarily filling a
vacancy. Here the Griever was not assigned, to
.perform the dutles of the Senior Admitting/
Discharge Officer position. He was not-replacing
Mr. Lambert nor ~as that position vacant.
In the case at hand. it cannot be said 'that the g~i. uvors w~re
assignad to the position of a Head Nurse. They did not shard
the same level of responsibility, accountability or overall
'functions of the Head Nurse. A simple review.of th-= recital
of agreed facts with refe{enca to the Head Nurse position
shows that a large number of critical functions of the Head
Nurse are not undert'aken or expectaJ from a Charge 'Nurse.
Therefore, it c~annor-be said that they were filling a vacancy
for a Head Nurse or undertaking the Head Nurse's
responsibilities. Thecefore, again, the grievances must
fail.
We reiterat~ that we have no difficulty seeing why
these.grievances were brought. We note that these Charge
Nurses' lack an institutional recognition, by way of ~remium
pay or otherwise, fo~ their additional responsibilities over
and above those they undertake as registered nurses. Such
recognition is often found in o~her sectors and may well De
sought'by' the Union' a~ the bargaining table. However, the
function of the Board'of Arbitration is simply ~O inte.$pret
and tO apply the ex~sting collectiv9 agreement.
Unfortunately for these grievors, the collective ag re -=men t ,
as currently framed, does not'Qive them the relief they s~ek.
We again thank counsel for their excelZent
preseh~a[ion of this interesting and important case.
DATED at Toronto, Ontario this 8th day of February,
1990.
Paula Knopf - Vic'e-Chairperson
E. Seymour - Member
M. Tiros- Member