Loading...
HomeMy WebLinkAboutNoseworthy 89-06-02 , 05/09/2006 09: 51 FAX. 905, 841 3847, ~ ...-4 o N r- ...-4 en CO BET 'l' E E N: BOARD OF ARBITRA nON: APPEA:!tING FOR THE ASSOCL\ nON: APPEARING FOR TIlE HOSpn'At.L: . CANADA LAW BOOK, [gJ 009/032 RECEIVED - I' (,-.,. '! ,) --"".. , ," , - = 'j-< O:-:F1CE CF ARS1TRATIC~J IN THE MATTER OF AN ARBITRATION YORK FINCH GENERAL HOSPITAL (the "Ho~pit?l") - and - ONT ARlO NURSES' ASSOCIA TlON (the "Association") GRIEVANCE RE N. NOSEWORTHY P3.mela C. Picher - Chair Beverly Lanigan-Gilmour - '1ospital 'Jominee Sandy ~icholson - Associatlon :-Jommee Elizabeth Woods - ArbitratIon Officer Chri, Riggs - Counsel A hear:l.g in this matter was held in Toronto on January 16,1989. ,> )..-4- 05/09/2006 09: 52 FAX 905 841' 3.847 CANADA LAW BOOK AWARD Two grievances are before this board of arbitration: the first is a policy grieva:'l.::e respecting the Hospital's failure to recognize the posi tion of DIscharge ? lanner as a position within the Association's bargaining unit along with its related failure to deduct union dues from the incumbent to that position, Ms. Noreen Nosewor thy; the second grievance is an individual grievance of Ms. Noseworthy pursuan I to which the Association argues that the Hospital's failure to recognize Ms. Nosewo:thy as part of the bargaining unit is a breach of the collective agreement. -: he Hospital maintains that the discharge planner is not "employed in a nursing capacit:," and thus does not fall within the scope of the bargaining unit which is defined a,s follows: ARTICLE A - RECOGNITION &: DEFINITIONS A.l The Hospita! recognizes the Association as the bargaining agent of all Registered and Graduate Nurses ~ in a rlUr$ing capacity by the York Finch Genera! Hospital, in the Municipality of Metropolitan Toronto, save and except Unit Supervisors, persons above the rank of Supervisor, Quality Assurance Coordinator, Employee Health Co- ordinators, Staff Training Development Co-ordinator, and persons regularly employed ior not more than twenty-four (24) hours per week. [emphasis added J A. EIAC KGROUND: I I is common ground that the discharge planner has been included in the bargainhg unit from the point of the Association's certification in 1984. The grievances . [gJ 010/032 05/09/2006 09:52 FAX 905 841 3847 CANADA LAW BOOK - 2 - whid were flied on February 1, 1988 were triggered wher, the H::>spt'~al adv,sed \\5. ~ose',orthy on or about January 15, L98& that effective Januarv 25, ~ <83 It '>,'olJ:d '10 longe' recogrllze her position of dIscharge planner as Dart of the = argain:n~ Uflit. Then, commencing February of 1988, the Hos::lital ceased deduct!"g unl,m dues f-om \Is. ~ ose"orthy. The Hospital's action respecting the discharge planne" followed the estab,whment at the Hospital of a Social Work Department. The di';charge pLanner position was re-organized and placed within that department. The duties were spread to a nurTl)er of individuals, in additIon to Ms. Noseworthy, all of whom began reporting to the y,lllager of the Social Work Department. Prior to that, \As. ~ose'''''orthy had been the o',ly person functioning as the discharge planner. The position had been included within the group of what is referred to in the collective agreement as "special servic:~s" and she reported to the Associate Director of Patient Services. Ms. Miriam Wheatly is an R.N. at the Hospital. She has been the president of th~, O.N.A. local executive since 1984 and has been involved in the negotiaticn of tf)e three collective agreements between the parties. Ms. Wheatly confirmed that at tf)e certjfcation hearing before the Ontario Labour Relations Board in 19&4, l1umerou-, positians were contested by the parties respecting their induslon in (lr exclusion [roT! the b;lrgaining unit. The position of discharge planner, however, was iot discussed. It was i'duded in the unit and a salary grid for the position was set Jut in the salar f appen1lix to the collective agreement. ~s. Wheatly acknowledged that during the parties' negotlatio~' for the 1933-1 ~I) renewal agreement, which occurred in NOvember of 19&7, :he HO-'PL :al. botr. ve~':lal!,' . [gJ 011/032 05/09/2006 09:52 FAX 905 841 3847 CANADA LAW BOOK [gJ 012/,032 " - 3 - and in its written proposals, asserted that the position of discharge planner did not pre :>erly fall within the bargaining Llrlit for the reason that the incumbent was not "er.ployed in a nursing capacity". The Association advised the Hospital that it could not agree to the exclusion of the position and the issue was joined. The Board concludes from the evidence and submissions that the parties resolved the"r impasse over the inclusion or exclusion of the discharge planner position by a me,.ns that was designed to avoid holding up their bargaining. They agreed to set their dis,!,greement aside, continue with their negotiations on all other issues and have their dis ;Iute respecting the discharge planner position dealt with by a board of arbitration. We conclude that it is that dispute that is now before this Board under the rubric of the Association's policy grievance and the individual grievance of Ms. Noseworthy. B. THE STANDARD FOR. EVALUATION OF THE EXCLUSION~ The Association submits that the Hospital's exclusion of the discharge planner constitutes a breach of the collective agreement tor two reasons: first, because the HO.ipital has not discharged its onus of establishing that there have been substantial chc,nges to the duties and responsibilities in order to justify its removal of the position from the bargaining unit and, second, because in any event the incumbent, Ms. NOielworthy, is employed in a nursing capacity. The Hospital does not rely on changes to the discharge planner position to justify its exclusion. Although there were some changes to the position that occurred wit 1 the 1988 re-organization, the Hospital does not suggest that they were fundamental or ':hat they alone could ;ustify the exclusion of the position from the bargaining unit. InSlead, the Hospital argues that the relevant question is whether the incumbent is " 05/09/2006 09:52 FAX.9{)5 8413847 CANADA LAW BOOK.' - Ij. - employee in a nursing capacity, not whether the pOSltLOn ha'i Jnder~ont' a lunda~en:aI change ii' its duties and responsibilities. Because the dispute respecting the discharge planner poslt,on W,tS joined oy the parties ifl iegotiations, and because the parties agreed to set :hat issue aside to avo:d a hold-up ill their bargaining, this Board concludes that the applicable s:andard for the determin:.tion of whether the discharge planner falls within the bargaining unit is whether ':he incumbent is "employed in a nursing capacity" within the meaning of the recognitiun clause of the collective agreement. The fact that this issue arose between the parti(:s in negotiations (with an agreement to put it aside and refer it to a board of arbitratkr: for resolution) distinguishes it from those cases where the dispute over the removal uf a position from the bargaining unit has arisen within the currency of the collectiv:~ agreement. In such cases, the focus of a board of arbicration's inquiry respectiq a position that has previously been included in the unit is typically whether there ha"e been substantial changes in the duties and responsibilities that would justify the exclllsion. Ir Re Humber Memorial Hospital (dec_sion of Mr. M.G. Pic~er dated January 18, 1982), fol' example, the board declined to renove the re-classified position of Admitting Officer j ~om the bargaining unit for the reason that there were no sub~tantjve changes in the fun;:tions exercised by the incumbent in :he re-c1assified positic'l. The oosition had beer re-classified from Staff Nurse Admitting to Admitting Officer. The Board noted that the grievor's job functions as Admitting Officer could be "substantially perform€.j by a clerk who is not a registered nurse". The Board further stated at p.9, however, :hat " [w ]hether external observers or authorities would agree that she sh:>ulc! be classil ied as tieing in a nursing capacity [was] neither here nor the-e [since by] the > [gJ 013/032, ,05/09/2006 09:52 'FAX 905 841 3847 CANADA LAW BOOK - 5 - very terms of their collective agreement... the parties (had] agreed that for their collee t;ve bargaining purposes she was" in the unit. We note that the predecessor positio:." had been expressly referred to in the collective agreement. Unlike the circumstances in the instant matter, in Humber Memorial Hospital the is!iue of the proper characterization of the position as being or not being one in which the incumbent was employed in a nursing capacity was not raised in bargaining where it could be the subject of negotiation. Rather, it was dealt with unilaterally by the erl::>loyer during the currency of the agreement. Accordingly, the board's inquiry focusl~c on changes to the position. In contrast, because in the instant matter the disput'! was raised during negotiations, joined and, by agreement, set aside for subsequent resolution, we conc:lude that the appropriate question is not whether there have ::'E--en substantial changes to the discharge planner position but rather a threshold questil)1'l of whether the discharge planner is employed in a nursing capacity within the meaning of the recognition clause of the collective agreement. C. FACTS: Ms. Noseworthy was employed as the Hospital's sole discharge planner from 1975 to 191:8. In that capacity, she worked with those patients throughout the Hospital who would require continuing care and who, accordingly, would need to enter another institution or facility upon being discharged from the Hospital. A general description of Ms. Noseworthy's job of discharge planning, both prior to ant! following the 19&8 reorganization and esta.blishment of the Socia! Work Depar':ment, may be summarized as follows: Each morning 'v1s. Noseworthy picks up the admis ijon sheets for patients within her area of responsibility. She notes their ages, . [gJ 014/032 05/09/2006 09:52 FAX 905841 3847 CANADA LAW BOOK - 6 - diagnosi; and family circumstances. She makes Dunds m her a.ea of re'ponsi')~lJty a'ld consult~ with members of the health ca.e team which might incLJde i:~ le.~der, mher nurses, a physiotherapist, dietician, hospice ca.e worker, or social worKc,r. The doct::>rs and nu'ses indicate which patients required continuing care, and :hus ':Escharge planning. It then becomes Ms. Noseworthy's responsibility, alter due consultation wIth the medical staff, to decide where the patierns should be sent upon discharge. Naturally, if a doctor directs a patient to a :larticular facility or type of :acility \~s. Nosewol'thy follows that directive. Frequently, though, the doctors si -nply leave the decision in her hands. 10 determine the appr'::lpriate institution !or the con:inuing care, Ms. NO:ie'worthy looks at the patient's diagnosis, prognosis and the type of continuing nursing care required, (e.g. round the clock, 'lighly-skilled, lightly-skill~d), the type of d.ainag!~i involved (since some institutions won't take patients with dra.nage tubes) and whethe' any wounds are infected (since a patient cannot be transferred if a wound is infecte': ). Ms. Noseworthy meets with the families of the patients to discuss the patient':; circumstances, to learn about the patient's personality and hobbies, to assess the family's attitude toward the patient's condition and continuing care, to determme who wi.[ have power of attorney, if necessary, and to question and advise them about funding for the continuing care. The parties agree that the following job description accurately ;ets out the job of disC',<J.ge planner: YORK-FlNCH GENERAL HOSPITAL PATIENT SERVICES DEPARTMENT posmON TITLE.: Discharge Planner SCOPE - POSmON: The Discharge Planner is responsible to the Social 1,1; ;)rk ,'v\anager for the effective plann~ng towards disc'large of patients admitted to York-Fincr General Hospltal. 3 [gJ 015/032 05/09/2006 09:52 FAX 905 841 3847 CANADA LAW BOOK [gJ 016/032 - 7 - RESPONSIBILITIES AND FUNCTION; I. Promotes early identification of patients who will require assistance for discharge planning by collaborating with Un,t 'V\anagers, nurses and physicians. Attends appropriate rounds on Nursing Units. 2. Provides early interpretation of the role of the Discharge Planning service to the patient and lor family. 3. Assess the need for a discharge plan, co-ordinating the judgments of physician, patient, family, nursing and other disciplines. lj. Develops a discharge plan that provides for continuing care of the patient. 5. Promotes early involvement of the patient and family in plans for placement or retum to home permanently while awaiting placement. 6. Completes, with assistance of patient, family, nursing, physicians and other allied personnel, appropriate documentation for placement. Forwards documents to appropriate facilities (chronic care hospitals, etc.). 7. Maintains current information on patients awaiting placement. !. Actively liases with other hospitals, nursing homes, homes for the aged, health and welfare agencies and Home Care to which referrals are being made. 9. Visits other facilities to determine what type of patients they will accept and establish working relationships with these fadli ties. LO. Contributes to hoSpital organization by serving on variOllS committees. L I. Interprets the discharge planning service to hospital staff, physicians and the community to promote better understanding. 12. Maintains contacts with facilities re the status of placement applications. 13. Updates placement applications on a regular basis or as patient status is altered. 14. Informs patients, families and l'Iurslng urHts of the availabili ty of be<!s and dates of transfer. # 05/09/2006,09:53 FAX 905 841 3847 CANADA LAW BOOK ,1gJ017/032 - s - 1.5. Ensures proper documentation accompanies pat:ents at discharge. 16. Ensures that all information for statistica. reOOrtlng is ava;lable and produces appr::>prlate monthly reoorts -("iit reflect accurately the discharge planni,g status of patients at York-Finch General Hospital. l7. Participates in the development of policies and pr<x:edu~es related to Discharge Plannhg. I &. Reviews and updates Discharge Planning Protocols as pal"t of the Social Work Manual. 19. Maintains professional self development through attendance at seminars, conference and reading curr::nt Ii tera ture. zo. Practices good safety and housekeeping habits ,~nd demonstrates familiarity ""ith disaster, fire and bomb threat procedures. 21. Performs other duties as required by the Social V, ark Manager. QUAUFlCA. TlONS: l. Completion of post secondary studies resulting in the designation of Social Worker. (In lieu of the above a related health care degree 3.nd relevant experience will be considered.) 2. 2 years experience in a health care setting with emprasis on discharge planning and bed utilization. 3. Well organized and able to work independently, 4. Demonstrated interpersonal skills, oral and written communication skills and decision making s'..:ills. 5. Knowledge of Italian an asset. 6. Counselling experience. 7. Demonstrated interest in con:inuing educ:3. tion. "J ane Adams" .\\anager, Social Work II 05/09/,2006 09.~53. FAX 905 841 3847 ,CANADA LAW BOOK - 9 _ Original: Revised: October 1985 October 1987, June 1988 (J. Adams, N. Noseworthy) The creation of the Social Work Department resulted from a recommendation to unite an~as of hospice care and discharge planning and establish social work services fOf" the entil'l) hospital, excluding psychiatry. While Ms. Noseworthy had previously reported to the ,l,ssociate Director of Patient Services, she now reports to ~s. Jane Adams as the Mar ,ager of Social Work Department. ~'he discharge planning function has been spread out over a number of positions within tile Sodal Work Department. Prior to the re-organization, Ms. Noseworthy did the disc:1arge planning for the entire hospital. She carried an extremely heavy work load and not infrequently worked from 8:00 a.m. to 10:00 p.m. Under the Social Work Departn'ent, her area of responsibility has been basically limited to the fifth floor and she nO\li regularly works from 7:30 a.m. to 3:30 p.m. Under the previous scheme, Ms. Nosewo :tny seldom took vacation relief because no one was able to cover her job. Now she can take her vacation relief without partiClJlar concern because the social workers can car: y on her work. ~;ix people report to Ms. Adams in the Social Work Department: a secretary, two registert!d nurses (Ms. Noseworthy and Ms. M. Strictland) and three medical sodal workers (Ms. V. Goldson, Ms. N. Bertolo and Ms. L. Card. Ms. Strictland, the other registerl~d nurse, works primarily in the counselling of cancer patients. She is not included in the ONA bargaining unit. Ms. Carr, a medical social wor-ker, concentrates on one- ,)n-one counselling and does very little discharge planning. Ms. V. Goldson does co'nselling and other social work in the same area of the Hospital where 'vis. .. @018/032 05/09/2006 ,09: 53 FAX 905 841 3847 CANADA LAW BOOK - I') - "losewcl-thy takes care of t~e discharge planmrg. She spe....ds 3.bout I) to ! 5 ~err:en: of her I:Ime domg discharge planning but ncrmally only for those pa:,ems .,l,flth who" she has had a long-term relationship. !'vls. N. Bertolo, the t'lird sOCIal ){or<er. does all the dis,:harge planning for the sixth floor, tle ,l1edical surgIcal :loor. The dtscharge plannin!: she performs on the sixth floor is Identical to [he d.schar~e planning \\5. Nosewc ~thy does on the fifth floor. Ms. Bertolo is not a registered lurse and is not include:lln the ONA bargaining unit. Both, however, fall under the d_scharge planner job description, set out above. '~'1e first qualification for the discharge planner pos.tion, as set au in the job description, requires the "(c) ompletion of pos t secondary studies -esulting in the designation of Social Worker". It then stipulates that, "riJn lieu of ,he above a related health care degree and relevant experience will be consjdere'~". Ms. .....dams stated ;/ithaut contradiction that the "in lieu" c_ause in the qualifications was included to accommodate Ms. Noseworthy who was qualified as an R.N. but was not a designated social worker. Ms. Adams commented that it was understood when the department was establh led that eventually all of the positions would be filled by social w'Jrkers. She asserte:1 that the position of discharge planner does not require either the traIning or qualifin.tion of a registered nurse. !0.s. Noseworthy does not set up nursing care plans ~or patients which lncl'Jde such it,:ms as the medication for a patient, the dressings, the dlagno$is and whether dischaq:e planning has been activated. Moreover, \As. Nose.....or:hy hilS no input into any mocllflcation of the nursing care plans. .\IIs. ,'Joseworthv agreed trat she does not perforn' any of the basic nursing skills with :he patients. She stated, though, that to perforr' her job properly she needs to know such tnlngs as .vhether a :>atj~nt bas ':led " ,1gJ 019/03.2 un/Ul:l/2006 09:5.3 FAX 905841 3847 .',<..:,,~. ')('\ .c1,.,:.\ . 19J 020/03: CANADA LAW BOOK - 11 - in Ct~rtain institutions and their transportation to such institutions from the Hospital. patient is being given oxygen. These matters are relevant to the placement of patients parit"t, whether a patient has a catheter or other drainage rubes or whether the sore!;, the treatment being given them, the feeding methods employed by or for the D. SUBMISSIONS: with an appropriate facility_ uses her knowledge as a registered nurse to match the patient's continuing care needs neec:;, that she spends considerable time with patients and their families and tha t she asseises the health and status of patients and determines what facilities will meet their take!; note of the state of wounds, i.e. if they are infected, that she systematically nurs'iS and doctors, that she does charting and record keeping, that for clearance she note; that she looks at patients' charts and doctors' orders, that she collaborates with facili ty to which a patient should be diSCharged. The representative for the ASSOCiation that in her work she uses and requires her nursing skills to determine the appropriate not~.:thstanding that she performs no hands-on nursing. The Association emphasizes The Association argues that Ms. Noseworthy is employed in a nursing capacity hands-on nursing. The Association argues that ftnursing capacity" encompasses more than traditional She invites the Board to give a broad definition to "nursing judgrr-en t. capc:::ity" and stresses that aU functions performed by the grievor require her nursing Swa.J dared February 18, 1983; St. Joseph's Hospital, Guelph and ONA, deciSIOn of GaLi in t :Iree arbitratiOl1 decisions: Toronto Western Hospital and O/'tlA. rlecision of Ken Counsel for the Hospital relies on the definition of "nursing capacity" as set out I 05/09/2006 09:53 FAX 905 841 3847 CANADA LAW BOOK - 12 - Brent dned v,ay l5, 1985 and Re Belleville General Hospital and aNA 1[983), ') L.,~..C Od) 193 (Kennedy). Following these decisions. counsel argues :~,at to :>e deerr'led tv ~ employed In a I'\ursil'\g capacity, a I'\urse must meet? two-fold -e'JU.re,h'nt: hrst, he or she mUSI be a registered nurse and. second, he or she must ~e egecte:l to possess the tratnil'\g &I'\d skills of a registered nurse in order to proper:y carrY out tl)e job. Counsel for the Hospital argues that ,v,s. Noseworthy is nOt employed in a f"Jrsing capacity because she does not meet the second test, i,e. she is under no reqUlremel'\t or expecta':ion as discharge planner to possess the skills and qual.fications of do registered nurse. Counsel maintains that the fact that Ms. Bertolo, a s.:lcial worker, dCles the same job and is not qualified as a registered nurse, underscores the absence of the need for the lnc', mben t to possess the training and skills of a r egis teree nurse. ::ounsel for the Hospital maintains that Ms. Nose'JIonry's bmiliarity, as a registel'ed nurse, with nursing skills does not establish that she 15 required or expected to use 'those skills in her job. Moreover, counsel argues that the fur:her fact that a dischaflle planner performs some general functions listed I' the stancards of nursing practjcl~ (such as systematically assessing the health care stat'JS of a pat.ent and her ability to meet the patients needs) similarly does not establish that she is expected to posses! the training and skills of a registered nurse for the due per~ormance of her Job. Counsel for the HospitaL emphasizes that an anomaly wou~:l result jf \\5. "losew:nhy is included in the ONA bargaining unlt when \.\5. Be-tolo, a social worker who is doing the same job under the same job description, is clearly not included. D. DECISION: Boards of arbitration have consistently held that "engaged ~n a nursing capaclt'" means something broader than performing hands-on nurs.ng or d,rect Jatlent <::?r~. h .' 19J 021/032 ' 05/09/2006 09:53 FAX 905 841 3847 CANADA LAW BOOK - 13 - Beacon J-fill Lodges (1984) Limited and ONA, decision of P.J. Brunner dated Decerrt>er 1, 1987, j Jr example, the board gave the following scope to the phrase: ._. we are nevertheless of the view that "nursing capacity" or nursing position, condition, character or relation as the word "capacity" is defined by the Oxford English Dictionary, should be interpreted so as to include duties and responsibIDties wtUdl require the exercise of reasonable care, skill and judgment with respect and in rekttion to the organizatiOl'lt direction and evaluation of nursing care in the nursing home, the direction of the woric of the nursing staff and the organization and direction of programs for nursing staff education and development that encompass orientation, skiD development and continuing edu:ation. In our view' it is not necessary for the employee in question to be required to personally provide nursing and per.;onal care to a resident in order to be engaged in a "nursing capacity". On the other hand, the fact that the qualifications for the position call for a Bachelor of Science degree in Nursing or its equivalent and three years' experience in geriatric nursing would not necessarily by itself be sufficient to make her employment in a "nursing capaclty". So too it may be that if her duties were akin to that of the administrator with only peripheral supervisory involvement with nursing care then she could not be said to be employed in a "nursing capacity". [emphasis added] See al:.(l Re Bonnechere Manor and ONA, decision of D. Scott dated February 12, 1988. In La Verendr'ye General Hospital (Fort Frances) Inc., decision of R.D Abbott dated December 15, 19&0, the board of arbitration also considered the meaning of "engaged in a nursing ~apacity" for the purposes of determining the scope of the barga: 1ing unit. At pp. 9-10, the board stated the following: To summarize to this point, I have noted that the parties did not employ the term "engaged as nurses", nor the term "engaged in a nursing function." What they did employ was the term "engaged in a nursing capacity." What I would conclude from these observations is that it was the parties' intention to .' 19J 022/032 05/09/2006 09:53 FAX 905 841384.7 . CANADA LAW BOOK - 14 - Identify members of the bargain,ng unit not so 'TIuch by W:lat they actually do as by what the~ are capable o~ anc :jualif:ed to do in relatlon to their posiuons in the Hospital. To put it another way, the word "capacity" was selected by the parties as a means of identifying incumbents of positions in which the incumbent, already a registered or graduate nurse, was expected to possess the training and skills of a nurse in order properly to carry on her work. No doubt there are m.:my nurses who are employed on the wards in the direct treatment of patients who do not ordinarily exercise the full range of their skills. But should the requirement anse, ~hey are expected to be able to do whatever nursing has to be dcne. They are, unquestionably, "engaged in a nursing capacity.' (emphasis added) The ~.;entia1 feature of this definition i~, that the individual, who is already a registered or graduate nurse, is employed in a position in which he or she is expected to pos~ ~ss the training and skills of a nurse in order proper:y to carry o. her work. :1\ St. Joseph's Hospital, Guelph and ONA, supra, the board bcused on these same f:~atures in the following quotation at p.Il: That does not mean, as some of the cases have pointed out, that everyone who happens to be a registered nurse and who works in the Hospital is necessarily someone who is "engaged in a nursing capacity". We agree with the comments made in the decision in Toronto Westem Hospital and Ontario Nurses' Association, (1983) unreported (Swan) at pages 7 and 8 that the bargaining unit was not described so as to bring lnt;) it everyone who has the qualificatlons of a registered or graduate nurse, but rather to include those registered nllTSe5 who are doing work which requires them to possess those qualifications in order to perform the work which comes within the ambit of their jobs. [emphasis added] " 19J0 23/032 ~ 0.5/09/2006 0.9,:54 FAX 905 841 3847 CANADA LAW BOOK - 15 - [n Toronto Westem Hospital, supra, a case relied on by the Hospital, the board found ':,at a regIstered nurse who was employed in the Animal Research Facility of the Hospital was not employed in a nursing capacity and thus was not included in the bargaining unit. The board concluded that the functions which she was required to perform are normally performed by a graduate of a course in animal research technology in a cClmmunity college, not a nurse. The board stated that although she learned the specialized range of duties relating to animal experimentation and operating room proced,:res when she was employed as an operating room nurse, those specific duties did not cOllstitute being engaged in a nursing capacity because she was not required to be possessl~d of nursing skills for the purposes of the due performance of her work in the Animal :<.esearch Facility. Instead, the board determined, her position required the skills 0:: a research technician. At p.IO of its decision, the board stated the following: While she may have learned those skills while acting as a nurse, that is not sufficient to require the Employer to employ her as a nurse when the same functions could be performed by someone without professional nursing qualifications. Obviously, there will be cases where an overlap in job descriptions makes a finding of this nature more difficult to make, but in the present case the narrow range of functions performed appears to us to lead inexorably to the conclusion that the griever, whatever may have been her professional background, is now exercising technical skills and not professional skills. [emphasis added] The Association relies on Re Dryden District General Hospital and OOA, decision of P. !:::lOp! dated July II?, 198J, wherein the majority of the board held that the Coordkator, Employee Health and Discharge Planning was employed in a nursing capacil:y and thus was included within the bargaining unit. The facts in Re Dryden General. Hospital are distinguishable from the circumstances in the instant matter and ~ 19J 024/032. 05/09/2006 09:54 FAX 905 841 3847 CANADA LAW, BOOK. - 15 - limit i':5 usefulness in the resolution of the hsta.nt grlevanc=s. The pr :decess0c t.) :he POSLtlC', under review In Re Dryden District General Hospital was CO:Jrdmator .:J: Chron.c Care and Discharge Planning and was Included wit:Hn :he ba: 5ainil1~ '-Inlt. In additinr. to the discharge planning function, t'Je pnor posit.on placed ,ts incu-n~ent I~ charg(: of nurses, and ,hus included a funnion which clearly rendered the occupant "employed in a nursing capacity". When that predecessor position ",'as .il tered, the- discharge planning function was combined with the responsibility for employee health and gi'fen to a nurse who had not previously been part of the bargainirlg unit. The newly.,created position was Coordinator of EIT,ployee Health and Discharge Planning. In the new position of Coordinator of Employee Health and Dbcharge Planning, the in,::umbent in Re Dryden District General Hospital was still clearly employed in d. nursing capacity because she provided personal nursing care to all me-nbers of the Hospital staff. The essence of the Hospital's argument that that position should be excIud,~ from the bargaining unit was that notwithstanding .hat the i~cum~ent was emplo:'ed in a nursing capacity, the position did not share a "community of Interest" with the other positions in the bargaining unit (because s;'e nursed ~ellow employees, not pa':~ents, and because as discharge planner she was not engaged in direct patier! care). The board held that the position did share a community of interest with the rest c:: the bargaining unit. In addition, i~ emphasiZed that the em:lloyee health functkn was being combined with a function which had previously been included 11'1 the bargahing unit under the rubric of Coordinator of Chronic and Disch3rge Planning and determi,ed, in all the circumstances, that the position belonged Ln the bargaining un:!. :he applicability of the Re Dryden District General Hospital ':aSe to the L'1.St:mt matter lS strictly limited by the fact that it does not address the issue ~efo-e thlS , 19J 025/032 05/09/20.06 09.: 54 FAX 905 841 3847 CANADA LAW,BOOK 19J 026/032 - 17 - Board, whIch is whether the dlschaq~e planning function, standin~ on its own, Involves emplo. ment In a nursing capaci ty. Because the discharge planning function :n Re Dryde"1 District General Hospital was linked both in the predecessor position and lli the posit;e" under review in that case with a function which clearly involved direct nur;;ln~ care, tbe question of whether the discharge planning function on its own required the incuml:ent to possess the training and skills of a nurse in order properly to carryon her w,; rk was not considered. Turning then to the proper characterization of the position of Discharge Plann~'r in the instant matter, we conclude on the evidence that the incumbent to the position is not "employed in a nursing capacity". Th~~ key factor in the assessment of wheth:'r an individual is employed in a nursing capacity is whether the incumbent, who is alrea::fy an R.N., is expected to possess the training and skills of a nurse in order to .....---..... -- properuY carryon her work. The grievor and Association acknowledge that the duties ~.. of the position do not involve direct patient care and do not involve the performance of \ any 01 the basic nursing skills referred to in the document entitled Standards of NUrsir:~ Practice for Registered Nurses and Registered Nursirg ^=Dt:....b. The duties do not in::lude the making of nursing care plans or their modification. "Systematically [asse~,;;ng] the health status of the individual and his or her ability to meet his or her needs' is one of the items of the nursing process set out in the Standards of Nursing Practice document. Ms. Noseworthy acknowledged that while she perform; this general functi :'rl, it is a task which is not restricted to nurses and is done by all members of the hE,llth care team, nurses and non-nurses alike. It does not therefore establish her as being employed in a nursing capacity. . 05/09/2006 09:54 FAX 905 841 3847 CANADA LAW BOOK 19J 027 /US2 - !s - ,;'lthough the grievor IS a regIstered !11rSe, t"le quahfi::at,~' as c. r~l<;~ered '1'"r>e is rlOt required for the :lue performance of her lob. The pr'~~erre~ qLJall!lc.:lt"), ~s s tatl! d to be ,,[ c ] ompletlon of post secondary studies resu! t.n~ .'1 t:'.. desl ;na ~ion 0! Socl,d Workers". It is by virtue of the alternative qualifica:io'l of. "1'1]'1 llel~ 0: :":E' abo\'~ related health care degree and relevant experience ....'j',\ ':>e cons,dered" t~at the grie.or, as a registered nurse, meets the qualification requirefT'ents 'or :he position. Furt:,er evidence that qualification as a registered nurse is not requir",d for the posltiCl<' is drawn from the fact that the other incumbent to the position is 3 ~erson who is not trail'f:d as a registered nurse but rather has a degree in social work. She performs on the ,th floor of the Hospital the same db;charge planning function tha: the grievo~ perfllrms on the 5th floor. Although it may well be that the grievor draws vn her nur;ing traming and expl!rience to perform her discharge planning job, she does ;lot p~rform any basic nurs: ng skills, including those which go beyond hand-on nursing. She IS not expected to pl)ssess or utilize her training and skills as a nurse in order to perf:mn the discharge plar :1ing function. For the reasons set out above, the Board concludes ,hat t'1e '5rievor in the posil:ion of discharge planner is not emplo~/ed in a nursing capacity ').'lthin tne meani<1g of tile recognition clause of the collective agreement and therefore ioes not fall within the scope of the bargaining unit. ,-\ccordingly, the grIevances are hereby dismissed. " 05/09/2006 09: 54 FAX 905..841 3847 CANADA LAW BOOK 19J 028/032 .. - 1-;1 - D.~,Tc:l) at Toror,t.) :hl> 23th day of April, t 989. ...- PAMELA C. PICHER CHAm I CONCUR "BEYERL Y LANIGAN-GILMOUR" HOSPITAL NOMINEE r DISS ::NT "SANDRA NICHOLSON" ASSOCIA TION NOMINEE DlSSEJ.rr OF ASSOCIA nON NOMINEE, SANDRA NICHOLSON: With respect to the majodty, r do not agt:'ee with their Eirdings in thLS Award. On page 4 and S, the majority has stated that there was an agr''*!ment between the Pat:'ties ta set this issue aside Eor- t'e~l)l1.1tian in a rights ar-bitr-atian heacing cather than have it cee.ate a delay l.n ceachLng a settlement in collective bar-galning. I clsagCe8 with that statement. There was absolutely no evidence of such an agreement. T!-lc Hospital chose to charactenz8 the eVE.'~S ;::IS "an ar,;cecmt:rlt" !Jut they pt:'cduced no dcx:ument3r-y at:' viva '/O:I~ e'J~d.~nct.? 1:) _;:~~:'5:"':.1f:;...1.)tt:> thclt perspective.. On ::h..~ .)thQl" hand the ;c3::;xtation .:h-J~'acten?.xj the eVents as Eollcws; ~ - 05/09/2006 09: 54 FAX 905 841 38.47 CANADA LAW BOOK 19J 029/032 - 20 - CVet- 5ince O.N.A. '5 Cct-tificiltioli in 19tH. H~. NoscW(n-U,y' s l~ '" i I.Ir1tl or: Disch..1t"'ge Planner' hils been includ<..'l.l 1n Lh.] il,:wc;.:lining uniL thmugh joint agrCU/llcnt (and therefore, has qUt" within the description of nursing capacity by agreement of the PCJl."ties). In the recent sc t of negotiat ions, the Hospi tal tabled a proposal to exclude that position frcm the bar:gaining unit because they had re-organized the setvice to fall urder the Social Work D!partrnent aoo had hired more staff. The Association rejected the Hospital's proposal at the bargaining table, and the issue was no longer in dispute between them. The Hospi tal ind ical:ed to the Asscciation that it would want to arbitrate the matter - but it did not Dress it to an impasse in barga in ing \oIh ieh wou ld have resul ted in an Interest Arbitration hearing on the matter. The Hospital unilaterall. stopped deducting dues fron Ms. Noseworthy and unilaterally eliminated the position from the barg<3ining unit. !loth P.:lJ:'tiC5 ,l'Jl-..."C that ther-e has ~n no substCinti..,1 change 1n Jd) functions_ 05/09/2006 09:54 FAX 905 841 3847 CANADA LAW .BOOK 19J 030/032 - 21 - 'Illo.' '.;1, ~ilt.e:.-al actiOn of the Employer 15 what is r-eally u,~'lI1<J ~r1'~'.'cd here, and as a rights Gcar-d, we have no Jur: SJ1,:t:lC!1 to alter the seop.! ,:>f the bar-gaining un1t. In m:' opllllon tl1,-, qucstlOn of ...hether or not Ms. Noseworthy's pos1tion entilils 1oI0r-k ''In a nursing capacity" or rot is relevant to the dispL.te before this Board: that position, wi th the same duties, has been historically included in the bat"gaining uni t by agrl!ernent of the Parties; the Parties can agr:-ee to inclu::le any pos:,tion they want; the Parties can also agree to change such inc:.usions if they so choose. But, in the absence of an agr"ement by the Association to exclude the position, the Einp,loyer cannot do 50 unilatet"ally short of violating the coLective agt:eement, unless the Einl;lloyet" presses the matter to imp.:sse in negotiations arrl takes the issue to an Interest Board. Had there really been an agreement between the Pat:'ties flo',':ng fran theit" talks at the bargaining table. that the inc I usian Ot:' exclusion of this posi tion was to be referred to arb:.tration, then there IoOUld rot have been an actual "grievance' beE:lI~e us, i.e. the Parties IoOUld have simply proceeded toward arb .tt:'adon without the "mechanics" of (1) the E:mployet:"s actlOn (to stop deducting dues) and (2) the Association's cesponse (to SUb'Ht ;:m :n::l1vidual g(,L~vance at Step 1 ard a Policy gnevane~ aL :;t\~P 3). But that [s not holoi this disput.:? proceeded, .:lnJ I i>"i ,.:V" ~""i rut.t11"~' 5L.pports to the poS1tL0'1 th.3t thc.:"(? ....,;,,'> f'j .-Ilj~- ,.:.;-.::~' "'_,"'j '-t~'C..~J. It tf'') (\r-~ltration. " 05/09/2006 09:,55 ,PAX 905 841 3847 CANADA LAW BOOK 19J031/ 03 2 - 22 - Th:~ iJ'.....~n.i ~:.[ Lhe T.~Jor: t:./ .]ave gp.=aL 'f"'f:L;~:. !_'~ I:re E.-.:-:.. '.:"" t thic d .~~~;'i..It~ h.]j a.rls.~n :r; ilC"gOt J.atlo~~. r.J.t1":.-:,c :. :-IJiL .' _.. ..'. J] [ran ,:)', >.::t10n of the :;:.;:-lo,:'or during U,e 11(': ,,[ j "' ,".. ........ ..? agr-eelT,~nt . Ira my opinion, the absence of e'J1dence ~:-:)t t:'e Par-tie!; agreed to refer the disp.lte ot a dghts Boare (<)5 ~ :1a'.'e reviewm: above) has been too quickly OJedCOked in the E:rdir.;s of the Il'ajor-ity. Obviously, in the absence of such an agreeme:lt it beo:mes clear that the EilIployer did irdeed act l..nilaterally during the life of the collective agr-eement to dele-:e t:.e positic):1 fr-011 the bcn-galning unit. Given that, it is also clear fr-om LIe jur-ispr-udence, that the Hospital would have -.0 demonst.rate substantial changes in the joo function 111 o:::der ::0 justifj its action. In our case, no such changes r.ad cccurred ard thE! Hospital cannot cemOJe the po51tbn fr-an the bar-ga:ni:-g unit. TtH~"efoce I I would have foord: there was no agr-eeroertt flowing fLan negotLations to refer the matter of the exclusion of the Dlscha:;;Je PlanneL to a Rights Boar-d of ArbitLatLon; the Employer acted unilateraily ::!Jong the llte <:: a collective agreement to exclude a positlt:.n e,-:::r '.he bargaining untt whiCh had been 1n=~'.)d.:d hy :.;:-ex:r. lOt (or tha full fOUL fears of tht? ~.J::-,:;,)~;~'!.n ~ . !13:". "":f1.=.:; ;>; " 05/09/200fi.09:55 FAX 905 841 3847 CANADA LAW BOOK 19J 032/032 - 23 - there W0J.'~ r\('J f':j~!):=;tant lal changt!~~ I:} I HI.' \,,:~ " :l~ LCS nf the ,~~'>lt .:'):"l :;1 ')lscharge Pl"n:'l('!l'; the Employer vlOlated the collective .~gr'::L~"er,L; and ~'erefo~e, I ~uld have allowed the grievances. 1:E1ted at Toronto, Ontario on the cJn:I.. day of May, 1989. _iNiJ ~I dL"'~ Sandra Nicho SOn, Union Nc:mlnee .