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HomeMy WebLinkAboutUnion 06-11-15 IN THE MATfER OF AN ARBITRATION BETWEEN PROVIDENCE CONTINUING CARE CENTRE MENTAL HEALTH SERVICES (the AEmployer@) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION ON BEHALF OF ITS LOCAL 431 (the AUnion@) - and - IN THE MATfER OF A GRIEVANCE REGARDING A SPIRITUAL CARE ASSOCIATE (Policy Grievance) BEFORE: C. Gordon Simmons, Arbitrator APPEARANCES ON BEHALF OF THE EMPLOYER: Roy C. Filion, Counsel Liz Soden, Consultant Mary Pat Byrne, Co-ordinator, Spiritual Care APPEARANCES ON BEHALF OF THE UNION: Gavin Leeb, Counsel Sheryl Ferguson, Local President A hearing into this matter was held in Kingston, Ontario on October 12, 2006 -2- INTERIM AWARD On January 23, 2004 the union filed a grievance claiming the employer had violated the collective agreement by failing to deduct union dues for employees occupying the position of ASpiritual Care Associate@ pursuant to Article 6 of the collective agreement. A brief background into this matter may be helpful. The employer came into existence in March 2001 as a result of the Government of Ontario adopting a recommendation by the Hospital Services Restructuring Commission. Its effect was the Government of Ontario divested itself of the direct operation of most psychiatric hospitals in Ontario. There were a number of divestitures following 2000. The only one remaining under direct government direction or control is the mental health facility at Penetanguishene. Prior to the divestiture most employees of the psychiatric hospitals were members of OPSEU who were covered by a provincial collective agreement. Sometime during the mid- 1990S legislative enactments changed successor rights opportunities when Crown-operated facilities were turned over to non -Crown organizations. By this legislation, unions no longer carried bargaining rights with them to receiving hospitals. That is to say, successor rights were not automatically available to them. This change meant unions were forced to obtain new bargaining rights either through legislation or through certification or both. Consequently, as a result of the above- mentioned changes the union in the instant situation sought and was granted certification for an all-employee bargaining unit of this employer. The parties signed their first collective agreement on November 28, 2002. The recognition clause in that collective agreement reads (ex. 3): -3- 2.1 Recognition Providence Continuing Care Centre (PCCC) recognizes the Ontario Public Service Employees Union (OPSEU) as the sole and exclusive bargaining agent for all employees who work at Providence Continuing Care, Mental Health Services (MHS) site, 752 King Street West and any satellite sites directly or indirectly connected with functions and operations of the (MHS) site, save and except supervisors who exercise managerial functions within the meaning of the Ontario Labour Relations Act, those persons above the rank of supervisor (subject to Labour Relations Board award), persons employed in a confidential capacity within the meaning of the Ontario Labour Relations Act and students engaged in a period of internship as a part of a course of professional training. Spiritual Care Associates (SCA) who work at 752 King Street West were employed prior to the divestiture but had not been included in any bargaining unit that existed under the prior regime. Noone appears to know why this was so. At one time the persons holding the position were referred to as AChaplains@. The position description of Spiritual Care Associate (ex. 2) sets out the type of service provided by the incumbents. Briefly, the incumbents provide pastoral ministry of spiritual and religious care to patients, residents, families, staff, volunteers, and visitors. As stated, no one appears to know why the position had not been raised before but I was informed that no one raised this job classification or position description during any of the proceedings that resulted in the certification of the union. As also stated previously, the union filed a grievance on January 23, 2004 seeking to have union dues deducted from the incumbents. The employer has denied the grievance and the matter has proceeded to arbitration. -4- A procedural issue was raised at the commencement of these proceedings. Briefly, the union claims that because the incumbents do not fall within any of the enumerated exceptions in the recognition clause they are employees within the bargaining unit. The employer takes the position that seAs provide spiritual care to staff members, whether in the bargaining unit or not, regardless whether or not they perform managerial duties and maintain their duties transcend the entire organization. Further, this position has traditionally not been included in bargaining units. In addition, the employer maintains the incumbents= duties and responsibilities should not be included in the bargaining unit because their community of interests differ greatly from the interests of the clients they serve. Finally, the employer raises an issue of estoppel which it intends to pursue. The foregoing brief commentary relates more to the nature of the merits each party intends to pursue rather than to the issue of procedure. The task at hand is to determine who is to proceed first and who bears the onus. The union advanced several arguments in support of its position that the employer proceed first. It relied on a number of prior decisions, both Labour Board and Rights Arbitration decisions in support of its position that the employer proceed first. The cases relied on by the union are listed under Schedule AA@ at the end of this decision. In Cancer Care the arbitration board had before it the issue of determining whether a newly- created nursing position was to be included in or excluded from the bargaining unit. A preliminary issue arose, as in the instant case, of who should proceed first. That board at para. 13 wrote the following: The employer created the position of nurse practitioner. The employer assigned duties to that position. The employer -5- determined that the position is an excluded one. The facts, unlike facts with respect to positions in the bargaining unit are uniquely within their knowledge. The employer therefore is in the best position to lead evidence with respect to this alone. Insofar as onus was concerned the board offered the following at para. 9 In dealing first with the issue of onus the Board takes the position that to the extent issues of this nature are decided by onus, it is premature to determine that issue. We take this position for two reasons. First, the Board will require evidence as to whether a new classification has been created or not. At the moment there is a factual dispute about this issue. Thus to the extent that the authorities place the onus on one party or the other depending on whether a new classification has been created or not, it is too early to make that determination. The union asserts that it is the employer who has assigned the duties which are within the unique knowledge of the employer and consequently the employer should proceed first. The employer argued that until the divestiture on March 5, 2001 the union knew more what had gone on with the previous employer than the current employer. There had been over 600 employees in the bargaining unit and no matter whatever the name used at the time whether it be AChaplain@ or some other name the incumbents were performing spiritual care duties and they were excluded from the bargaining unit. One must presumably conclude they were excluded by agreement of the parties. So it is the union who has a better knowledge of the status quo ante than this employer. Further, the union had applied for certification to become bargaining agent for the employees of the employer but did not include the incumbents in their application. Only the union knows its reasons for not doing so. A reasonable inference can be made that the union knew the reasons why the -6- incumbents had not been in the bargaining unit under the old regime. The employer maintained the union should proceed first. The employer relies on an Ontario Labour Board decision involving Ontario Public Employees Union v. Providence Continuing Care Centre St. Mary=s of the Lake Hospital Site (2001) CanLn10255 (ON L.R.B.) The board in that application recognized full-time registered nurses; part-time registered nurses; service and clerical employees; and paramedicalj technical employees as bargaining units. Insofar as paramedical and technical employees were concerned, the board stated that [all] lay Paramedical employees of St. Mary=s of the Lake Hospital were included in the bargaining unit. The employer argues that the SCAs are not viewed as lay persons but are viewed as having religious rather than lay attributes. This, according to the employer, is further evidence the incumbents ought not to be included in the bargaining unit. The employer filed a further Labour Board decision involving Ontario Public Employees Union v. Providence Continuing Care Centre St. Mary=s of the Lake Hospital Site (2002) CanLn 39595 (ON L.R.B.) which was a follow-up to its August 10, 2001 decision wherein it listed positions and employees who were to be included and excluded from the bargaining unit at St. Mary=s of the Lake Hospital. The position of Spiritual Care Associate does not appear in this decision. The employer suggests that they were not included because it was so obvious the incumbents were excluded which was simply a continuation of their exclusion as understood and accepted by the union while they had been employees of the Crown. It is the position of the employer that it could not be possible that they were simply forgot about during the course of all of these proceedings. Basically, the employer takes the position that a reason exists why the SCAs (Chaplains) -7- were not included in the bargaining unit during the years prior to divestment and the years that followed and it is the union who must know what that reason was. The employer asks what changes have motivated the union to now claim they should be included in the bargaining unit? The employer suggests there have been no changes and that it is the union who ought to proceed first. Further, in support of its position that the union proceed first, the employer relies on International Molders= and Allied Workers Union, Local 41 v. Canron Ltd. Pipe Division [1981] O.J. No. 417 (Div. Ct.). The employer maintains this decision stands for two propositions. One, the onus is on the union to prove its case; and two, there is a community of interest plus history of the background that must be taken into account in situations such as these. In Canron the issue before the arbitrator was whether a person who held the position of AConcrete Products Supervisor@ was excluded or included in the Aall office and technical employees bargaining unit@. The arbitrator decided the person was not a supervisor but was a technical employee. However, the arbitrator went on to conclude the person did not share a community of interest with the other employees in the bargaining unit and dismissed the grievance. The majority in the court held the arbitrator=s interpretation of the scope clause was one it could reasonably bear. The majority agreed arbitrators ought to take community of interest into consideration. Mr. Justice O=Leary wrote a dissenting opinion stating the arbitrator added to the scope clause when she considered a community of interest which was not relevant to the determination of whether the employee fell within the definition set out in the collective agreement. -8- Further, the majority held the arbitrator correctly applied the proof of onus issue against the union. It concluded she had made a finding of fact on evidence the court was satisfied existed which the court was unwilling to upset. The employer submits the onus in the instant case ought to be borne by the union as was found to be the case in Canron. Accordingly, the employer seeks to have the union proceed first and that it bear the onus to prove its case. Also, the employer notified the union it will rely on estoppel in support of its defence and will pursue community of interest in support of its position that the incumbents do not fall within the bargaining unit. After carefully reviewing the submissions of the parties I have concluded the union must proceed first. My reasons are as follows. This case differs from Cancer Care in several respects. In Cancer Care the issue concerned a newly-created position by the employer. The board concluded that since it was the employer who created the position and assigned its duties it was in the best position to explain why it believed the position should be excluded from the bargaining unit. In the instant situation the employer did not create the position. It had been created by a predecessor employer. The incumbents had been excluded for some unspecified and unexplained period prior to the employer entering the scene and, as far as I am aware, the issue had never before been raised. It would appear to be unfair to require the employer to explain what reason the predecessor employer had for excluding the incumbents in the first place. Indeed, for all we know they may have been excluded by mutual agreement between the predecessor employer and the bargaining agent. If that was the case then it would appear the proper party to ask for an explanation is the bargaining agent which continues to tbe the bargaining agent today. -9- Moreover, the union was certified as the bargaining agent in March 2001. The parties signed their first collective agreement on November 28,2002 and the grievance was not filed until January 23,2004. Surely the union has an obligation to explain why it did not seek to have the incumbents included in the bargaining unit during the certification process. Furthermore, it has an obligation to explain why it waited 14 months after the signing of the collective agreement before coming forward with its grievance. On balance, therefore, as between the employer and the union it is the union who is in a better position to explain why the incumbents should now become members in the bargaining unit. Insofar as efficiency in the process is concerned, the employer has given notice to the union it intends to rely, inter alia, on estoppel and community of interest in defence of its position that the incumbents ought not be included in the bargaining unit. Having been forewarned the union ought to be in a position to address those issues when it presents its evidence. However, in the event the union may somehow find itself handicapped in this regard, any such handicap can be rectified by a greater latitude being extended to the union in reply. Insofar as onus is concerned, it is perhaps because of the impending estoppel submissions I favour adopting the views expressed by the Keller board that the determination of onus is premature at this stage in the proceedings. In my view, while I look to the union to proceed first mainly for efficiency reasons I reserve on the issue of who bears the onus. Accordingly, for all of the foregoing reasons the union will proceed first. The hearing on its merits will resume on dates that have been agreed upon. -10 - Dated at Kingston, Ontario, this 15th day of November, 2006. C. Gordon Simmons Arbitrator -11- Schedule AA@ Nurses = AssociationAjax & Pickering General Hospital v. Ajax and Pickering General Hospital (O.B. Shime, Vice-Chairman), 1969 O.L.R.B. 1283. Providence Continuing Care Centre {2003] O.L.R.B. No. 3384 (Cummings). Re Halton District School Board and Ontario Secondary School Teachers= Federation, District 20 (2002), 109 L.A.C. (4th) 211 (Beck). Re South Bruce Grey Health Centre and Ontario Public Service Employees Union, Local 275 (2006), 148 L.A.C. (4th) 442 (Surdykowski. Re Perley Hospital and Canadian Union of Public Employees, Local 870 (1984), 16 L.A.C. (3d) 413 (Roach). Re Spar Aerospace Ltd. and Spar Professional &Allied Technical Employees Association (Metropolitan Toronto) (1994), 40 L.A.C. (4th) 215 (Brown). Re Cancer Care Ontario v. Ontario Nurses= Assn. (Bargaining Unit Grievance) [2003] O.L.A.A. No. 13, M.B. Keller, S. Ballantyne, M. Riddell. Re International Nickel Co. Of Canada Ltd. and United Steelworkers, Local 6500 (1975), 9 L.A.C. (2d) 17 (Gorsky). Utility Cable Contractors Ltd. And International Brotherhood of Electrical Workers, Local 213 (Novak Grievance) [1997] B.C.C.A.A.A. No. 211 (Coleman). OPSEU and Crown in Right of Ontario (Ministry of Transportation) GSB #1614/97 (Mikus, Vice-Chair).