Loading...
HomeMy WebLinkAboutUnion 08-10-07 IN THE MATTER OF AN ARBITRATION BETWEEN PROVIDENCE CONTINUING CARE CENTRE MENTAL HEALTH SERVICES (the ?Employer?) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION ON BEHALF OF ITS LOCAL 431 (the ?Union?) - and - IN THE MATTER OF A SPIRITUAL CARE SERVICES ASSOCIATE POLICY GRIEVANCE (the ?Grievance?) BEFORE: C. Gordon Simmons, Arbitrator APPEARANCES ON BEHALF OF THE EMPLOYER: Mr. Roy Filion, Counsel Ms Mary Pat Byrne, Coordinator, Spiritual Care APPEARANCES ON BEHALF OF THE UNION: Mr. Gavin Leeb, Counsel Mr. Tim Hannigan, Counsel Ms Sheryl Ferguson, Local President Date of Award: October 7, 2008 - 2 - On January 23, 2004 the union filed a policy grievance which claimed (ex. 1): STATEMENT OF GRIEVANCE The employer has violated article 6 of the Collective Agreement by not deducting dues from the Spiritual Care Associates. By way of settlement the grievance sought: SETTLEMENT DESIRED The employer begin deducting dues immediately from all persons working at PCCC-MHS as a Spiritual Care Associate. By way of background, prior to the year 2000 the Sisters of Providence of St. Vincent de Paul operated the long- term care facility in Kingston known as St. Mary?s of the Lake Hospital which is located at 340 Union Street. The Sisters operated other facilities in addition to St. Mary?s of the Lake Hospital in the Kingston and Brockville areas. These facilities were called Providence Manor, a long-term care facility; and, St. Vincent de Paul Hospital, a complex providing continuing care, palliative care, and rehabilitation facility in Brockville. This grievance is not concerned with these latter two facilities. The Province of Ontario also operated a long-term care facility in Kingston commonly known as the Kingston Psychiatric Hospital. At some point in time near the turn of the century, the province decided to relinquish its involvement in long-term care of the mentally challenged to the private sector. As a result, on - 3 - March 5, 2001 the governance of the Kingston Psychiatric Hospital facility was divested to the Sisters of Providence of St. Vincent de Paul. The employees who had previously been employed by the Province of Ontario at the psychiatric hospital had, as the union representative, the Ontario Public Service Employees Union (OPSEU). The statutory regime in place which regulated their Crown Employees Collective Bargaining Act labour relations was the . The bargaining rights did not continue following the divestiture which compelled OPSEU to apply to the Ontario Labour Ontario Labour Relations Act Relations Board (OLRB) under the for certification and for the right to continue in their role as bargaining agents for the employees. Without going into detail it is sufficient to relate that the OLRB eventually certified OPSEU as the bargaining agent, not only for the employees at the now divested Kingston Psychiatric Hospital which was now renamed the Mental Health Services site (MHS) but also for employees at St. Mary?s of the Lake (and the other satellite sites). The MHS site is located at 752 King St. W. in Kingston. The scope and recognition clause in the collective agreement sets out the parameters of employees who come within the bargaining unit. It reads (ext. 3): Article 2: SCOPE AND RECOGNITION - 4 - 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. The union gave notice to bargain in or about March 2001 with a collective agreement being signed on November 26, 2002. Prior to the divestiture in March 2001 the Kingston Psychiatric Hospital (KPH) ?engaged? the service of ?chaplains? on a fee-for-service basis. The chaplains would attend at the hospital on an as-needed basis to carry out various assignments normally associated with chaplaincy services. On March 23, 2001, a few weeks following the divestiture, the employer offered Rev. Grace McBride a full-time position entitled ?Co-Coordinator Chaplaincy Services?. Rev. McBride had previously been employed with the Kingston Psychiatric Hospital where the record shows she commenced her employment on August 26, 1991. Rev. McBride accepted the offer of employment and remained an employee until April 16, 2004. Rev. McBride was not called to testify in these proceedings. - 5 - Another person with whom we are concerned is Rev. George Best. Rev. Best did not testify in these proceedings and is no longer an employee. The record shows he had provided pastoral care at the MHS site on a fee-for-service contract basis after January 10, 2002. The evidence did not reveal when he was first engaged to provide services at KPH. On March 1, 2002 he applied for the position of ?Duty Chaplain? at the MHS site (ex. 32, tab 1, p. 7). His application was accepted and his employment as ?Duty Chaplain? began on April 8, 2002. His employment was terminated by letter on June 26, 2003 for reasons set out in that letter (ex. 2, tab 2, pp. 1 & 2). During Rev. Best?s tenure as an employee there were changes made to the name of the position?s title he held. In December 2002 it is referred to as ?Chaplain Associate? which was later changed to ?Pastoral Care Associate? (ex. 32, tab 1, p. 5). This title was again changed in early 2003 to ?Spiritual Care Services Associate?. There is some evidence the title ?Pastoral Care? appeared during the summer of 2002 (ex. 44). Nothing turns on specifically when the job titles were changed. In any event, the ?Chaplaincy Services? at the MHS site had been carried out by Rev. Grace McBride as Coordinator and Rev. George Best as Associate. The same services at St. Mary?s of the Lake Hospital (SMOL) were provided by Sister Joan Budzik as Coordinator with Rev. Mike Gurnick and Sister Alma Sutton as Associate. - 6 - Sister Budzik retired in April 2002 and was replaced by a newly-hired employee by the name of Ms Mary Pat Byrne. Ms Byrne not only replaced Sister Budzik as Coordinator at SMOL but also assumed the position of Coordinator for the MHS site. The pastoral care staff was expanded in January 2003 with the addition of Henry Clarke. Mr. Clarke was hired as a result of a job posting on November 18, 2002. It is noted that the letter to Mr. Clarke from Jan Raven, Human Resources Consultant, dated December 19, 2002 is one of congratulations for a successful application for the position. Ms Raven?s letter began by referring to Mr. Clarke as Rev. Clarke but has been scratched out (ex. 6, p. 3). Mr. Clarke testified that he was not an ordained priest at the time nor has he become one to this day. It is noteworthy as well that Ms Byrne?s title is Ms and not Rev. as was Rev. McBride?s. However, the evidence did not establish for certainty whether Ms Byrne is or is not an ordained priest . In any event, Mr. Clarke signed a union application card on June 19, 2003 for membership in OPSEU (ex. 19). The employer took the position the ?Spiritual Care Services Associate? position was an excluded one from the bargaining unit and has refused to recognize Mr. Clarke as a union member and has refused to deduct union dues. The grievance referred to earlier was filed on January 23, 2004. The employer objected to the grievance going forward on the basis that the persons holding the position of ?Spiritual - 7 - Care Services Associates? do not have a community of interest with other employees in the bargaining unit and, therefore, ought not to be members in the bargaining unit. This subject will be considered in more detail later in this decision. Another ground for the employer?s objection is based on delay. It maintained the union had been aware of the presence of ?Chaplains? at MHS when it was the union bargaining agent there prior to divestiture and never sought to include chaplains in the bargaining unit. Then following divestiture it could have raised the issue of their inclusion during negotiations but nothing was said. Following the signing of the collective agreement in November 2002 it delayed raising the issue until it filed its grievance on January 23, 2004. This delay gave the employer reasonable grounds to believe the union likewise believed the Spiritual Care Services Associates were excluded personnel. The employer?s position is to allow the union to bring the matter forward at such a late stage was a surprise to the employer and one which went counter to the belief and understanding it held that the union shared its view the Spiritual Care Services Associates were properly excluded from the bargaining unit. It should be noted the employer did not object to the matter proceeding forward but remains of the view the Spiritual Care Services Associates are properly excluded employees and the grievance ought to be dismissed. - 8 - It will have been noted the title of the position with which we are concerned has changed from time to time. The union argues it was unaware of the fact the persons performing the work associated with giving spiritual care were actual employees. The union argued it was under the belief such persons were providing fee for service and as such were contract people and not employees. That is, the union claimed it did not know the persons were employees and not contract persons until sometime in mid- 2003 and as soon as it learned they were employed it acted without delay in pursuing their interests. In order to resolve this apparent difference between the parties it is necessary to review the evidence. It is common between the parties that Rev. George Best was, at one time, a person whose services were provided on a fee- for-service basis. In March 2001 Rev. McBride became Coordinator for Chaplaincy Services under the employ of the present employer. Rev. Best successfully applied for the position of ?Duty Chaplain? at the MHS site. The record shows Rev. Best worked a 4- day compressed work week until May 3, 2003 (ex. 32, p. 22) when his hours of work were changed to 7.5 hours per day. Henry Clarke began his employment at the MHS site as a Pastoral Care Services Associate on January 6, 2003 (ex. 5, pp. 6 & 7). The employer maintains Mr. Clarke?s position was posted, which is not disputed, and the union would have seen or ought to have seen the posting. However, the employer acknowledges that it - 9 - considered the position to be an excluded one and did not officially notify the union of the posting. The union maintains it was never aware of Mr. Clarke?s posting and only became aware of the fact Mr. Clarke and Rev. Best were employees in June 2003. Mr. Maurice Broadfoot (Local union president at the time of Rev. Best?s and Mr. Clarke?s hirings) testified as to his knowledge of the matter. Mr. Broadfoot, a maintenance mechanic at the MHS site since July 1988, became actively involved in the union in 1990 as a union steward. This was followed by a number of executive positions in the union when he became President of the Local in 1998 which he held until May 2003 when he voluntarily resigned. Mr. Broadfoot had participated in the local round of negotiations in 1998 and again as Chair of his bargaining team in 2001/2002 which led to the first collective agreement following divestment. For the period beginning approximately six months prior to divestment in 2001 until sometime following the signing of the collective agreement in November 2002, Mr. Broadfoot had been on a union leave of absence from work. He testified his involvement was making preparations for the transition; the decertification of the Local and the organizational efforts of its members for a certification vote before the OLRB. Other unions were interested in obtaining bargaining rights but eventually OPSEU was certified as the bargaining agent for the all inclusive bargaining unit. - 10 - Mr. Broadfoot explained it was a busy time. He also dealt with the issue of inclusions/exclusions in the bargaining unit. He received support from head office in Toronto and from union counsel but he acted alone on behalf of the Local in Kingston. Mr. Broadfoot testified he met with Mr. Kevin Latimer, labour relations manager, to discuss the inclusion/exclusion issue. Mr. Latimer had produced a list for consideration sometime in either late September or early October 2002. They discussed the matter in November. One of the titles included on the inclusion/exclusion list was: ?Chaplaincy ? Coordinator, Chaplaincy Services? Mr. Broadfoot readily agreed the position should be excluded as he considered it to be managerial. He had been aware Rev. McBride held the position at the time and he had no issue with it being excluded. He testified he and Mr. Latimer never discussed the position of ?Chaplain? during their discussions. He stated he believed chaplain contracts were on a contractual basis as required. He did not consider ?Chaplains? to be employees. In any event, the position ?Chaplain?, according to Mr. Broadfoot, was not on the list nor was it discussed. Mr. Latimer has a different understanding of their discussion which will be discussed later in this decision. - 11 - In any event, I will assume, without deciding the issue, that as late as November 2002 the union held the belief that ?chaplaincy? was a contract-for-service position which engaged non-employees to perform chaplaincy service on an as- needed basis. Mr. Broadfoot resigned his Local presidency position in May 2003 at which time Dan Phalen, vice president, assumed the role of acting president. He held that position from June 1, 2003 until July 17, 2003 when Ms Sheryl Ferguson was elected president. Mr. Phalen had been employed part time in the position of Food Services Helper at the MHS site. He became a union steward in 1997 and was secretary treasurer from 1998 to 2002 when he became vice president of the Local. Mr. Phalen was a member of the 2001 bargaining team for the union. His time spent at work was 90% in the kitchen. He stated he did not know Rev. George Best; had never met or saw him at MHS. Mr. Phalen first learned of Rev. Best through one David Carmichael, a member of the union, who suggested Rev. Best ought to be considered to be a member in the bargaining unit based on the Scope clause definition. Phalen requested Carmichael to put his views in writing to give him a starting point to look into the matter. Mr. Carmichael wrote the following memorandum to Mr. Phalen on June 16, 2003 (ex. 33). Mr. Bob Arnold who was Chief Steward at the time was included in the memo. - 12 - To: Dan Phalen, Bob Arnold From: Dave Carmichael Date: June 16, 2003 Re: Recognition Clause and Representation of Duty Chaplains Dear Dan and Bob: Thank you for your help. As requested, I have obtained position descriptions for the Duty Chaplain and/or Spiritual Care Associate. This memo and the position descriptions will be faxed to the Local union office. Management introduced the Spiritual Care Associate position description in May 2003. I do not see any of the criteria that are normally used to exclude people from the bargaining unit in either position description. Furthermore, the recognition clause in the OPSEU Local 431 collective agreement appears to include Duty Chaplains. The chaplain at the centre of this discussion and I would be interested in an update regarding the negotiations that gave rise to the recognition clause as it pertains to Duty Chaplains. In short, is OPSEU confident that it will be successful in making the case to include Duty Chaplains in our bargaining unit? There are two Duty Chaplains working at MHS and [they] are both interested in having OPSEU represent their employment interests. It would be wise to meet the chaplain at the centre of this discussion before approaching management on this issue. After the issue of representation is settled then a grievance process is likely to follow. Mr. Carmichael followed up with another memorandum dated June 19, 2003 to which he attached membership cards from two Spiritual Care Services Associates. Mr. Clarke?s application was entered in as an exhibit and is dated June 19, 2003 (ex. 19). I assume the other applicant was Rev. George Best. His name came to the - 13 - attention of Ms Sheryl Ferguson in July who had been aware of Rev. Best?s presence on clinical teams. Mr. Phalen sent the information he received to Lynda Kernokan, organizing representative at head office in Toronto (ex. 37) asking about whether the two ?chaplain? positions should be included in the bargaining unit. Shortly thereafter Ms Sheryl Ferguson was elected to the office of Union President. Ms Ferguson also worked at the MHS site. She held the position of ?Rehabilitation Officer 2? in 1990 and became ?Employment Coordinator? in 1993. Since 1996 she has been involved with the forensic program at MHS where she works with and is part of the clinical teams dealing with patients in forensics. When Mr. Phalen brought the ?Chaplain? issue to her attention in July 2003 with Rev. Best?s name attached she was aware Rev. Best had been working with the clinical teams in forensics and was present a good deal of the time. In Ms Ferguson?s view, Rev. Best was not there ?just leading services? but was participating more in the role of a therapist in the broadest sense. In her eyes, Rev. Best was just one member of the clinical teams. As an aside, the reader will have noticed the word ?Chaplain? appears in quotations from time to time. This is deliberate. The name had been undergoing change from time to time since late fall 2002. Some of the participants referred to the - 14 - old ?nomenclature? of ?Chaplain? until Spiritual Care Services Associate became known sometime in mid-2003. The point is there was confusion not only over the titles used but also the change in contract/employment status arrangements taking place over this period. Ms Ferguson made enquiries of the head office personnel but received no feedback until just before Christmas when she received an email informing her there was no reason the two Spiritual Care Services Associates should be excluded and suggested Ms Ferguson file a policy grievance which she did on January 23, 2004. The foregoing are the facts as I understand them surrounding the issue of delay raised by the employer. The employer raised a further objection to having the matter proceed which is based on its understanding/belief that the union, like the employer, has always understood the position of ?Chaplain? a.k.a ?Spiritual Care Services Associate? was/is an excluded position. Part of this understanding is based on Mr. Latimer?s evidence over the inclusion/exclusion discussions he held with Mr. Broadfoot. Mr. Broadfoot?s evidence was only Rev. McBride?s position was discussed (exs. 28 & 64). The list of proposed exclusion positions Mr. Latimer provided Mr. Broadfoot for discussion included, as stated before, ?Chaplaincy Coordinator Chaplaincy Services? - 15 - which Mr. Broadfoot readily agreed was to be excluded. However, according to Mr. Broadfoot, the position of ?Chaplain? was not included in the list nor discussed. Mr. Latimer, in his evidence- in-chief in relation to chaplaincy stated ?the only talk I can remember was a comment I made to Broadfoot ? I said ? I?m glad chaplaincy was agreed to be excluded as that was a priority for the Sisters and senior management?. He could not recall any comments made by Broadfoot in reply to his statement. In cross-examination Mr. Latimer acknowledged that the Coordinator, Chaplaincy Services was the only position listed on the inclusion/exclusion list as that was the only full-time position on staff at the time. The Chaplains were contract positions. Mr. Latimer further testified that the Coordinator position was the only one discussed with Mr. Broadfoot but, ?We were looking for chaplaincy as a group to be excluded ? that was my instructions?. However, he went on to say, ?There was no discussion about Service Chaplains because Rev. McBride was it?. This was incorrect. Rev. Best had been hired in March/April 2002. In any event Mr. Latimer did not tell Mr. Broadfoot that Rev. Best had been hired as an employee. He assumed the union knew Rev. Best had been hired and that the union had no interest in him. From the evidence led it cannot, in my opinion, be concluded the union was aware of any ?Chaplains? being employed by the employer during the exclusion/inclusion discussions - 16 - between management and the union. While Mr. Latimer may have assumed ?Chaplains? were agreed to be excluded along with Rev. McBride, the Coordinator, Chaplaincy Services, there is no evidence to support the conclusion the union was in agreement with excluding the ?Duty Chaplains?. The Duty Chaplains were never considered to be employees by the union until the matter was first raised by David Carmichael in June 2003. Thus, in my respectful opinion, there was never a mutual understanding over whether ?Duty Chaplains? were or were not excluded/included in the bargaining unit. I have no doubt Mr. Latimer genuinely believed he had arrived at some understanding the union was in agreement with his position that Chaplaincy positions as a group were excluded. However, I am unable to find, based on the evidence adduced, that the union shared Mr. Latimer?s understanding. Mr. Broadfoot said the position of Duty Chaplain was never raised during their discussions. The evidence supports him in this regard. Accordingly, it cannot be said the union agreed during exclusion/inclusion discussions to the exclusion of ?Duty Chaplains? from the bargaining unit. Notwithstanding there was no agreement reached the employer maintains the Spiritual Care Services Associate position does not belong in the bargaining unit for other reasons. The union, of course, takes a different view of the matter. Witnesses called by the union included employees who worked on various clinical teams whose team members included the - 17 - Spiritual Care Services Associates. One witness was Mr. Henry Clarke who commenced employment at the MHS site as a ?Pastoral Care Service Associate? on January 6, 2003 (ex. 6, p. 3). By June 23, 2003, his title had been changed to Spiritual Care Services Associate as reflected in his performance appraisal taken at that time (ex. 8). There is some confusion regarding the title of the position with which we are concerned. While Mr. Clarke?s position was described as ?Pastoral Care Service Associate? by management in January when he began his employment, there is evidence the title of the posting for which he applied in November 2002 was ?Spiritual Care Services Associate? (ex. 12). I believe it to be instructive to produce the job posting which sets out the job summary and the requirements for the position. It reads: POSITION VACANT POSITION: Spiritual Care Services Associate JOB SUMMARY: Spiritual Care Services provides a pastoral ministry of spiritual and religious care to patients, residents, families, staff, volunteers and visitors of all faiths and cultures at two of the PCCC sites; St. Mary?s of the Lake Hospital site and Mental Health Services site. Spiritual Care Services staff strive to develop authentic, caring relationships with patients. EDUCATION, KNOWLEDGE & SKILLS: v Sound theological preparation and reflection v Spiritual assessment skills v Ability to listen and counsel v Strong interpersonal skills including excellent listening skills v Demonstrated ability to communicate effectively with people v Ability to work collaboratively and supportively with other team members v Ability to be non-judgmental, maintain confidence, and affirm individual worth - 18 - v Knowledge and respect of other faiths and traditions v Spiritual, psychological, and emotional integration v Ability to interact with people during periods of transition, loss, and functional changes v Working knowledge of faith development as it relates to cognitive and physical processes v Ability to work independently and take initiative with minimal supervision v Demonstrated proficiency in word processing, spreadsheets, email, and electronic calendar/ scheduling v Effective time management skills with the ability to prioritize and manage work flow and respond to needs v Sound decision making and problem solving abilities v Knowledge and commitment to the Health Ethics Guide of the Catholic Health Association of Canada (CHAC) HOURS OF WORK: 37.5 hours per week PLEASE APPLY IN WRITING TO THE HUMAN RESOURCES CONSULTANT, ST. MARY?S OF THE LAKE HOSPITAL SITE POSTED: November 18, 2002 - 3:30 p.m. CLOSING: November 25, 2002 - 3:30 p.m. FILE: NON UN #02-54 Notwithstanding any confusion over the title for the position, Mr. Clarke stated that his duties have remained the same. Mr. Clarke gave a general overview of his duties. He explained they consisted of three categories of work. The first includes the administrative and organizational duties performed in his office which takes up approximately 20% of his working hours. A second category of work is the direct interrelationship on an one-on-one basis with ?clients/ patients? which takes up approximately 40% of his time. A third category, while related to the second, involves work with clinical care teams. This category - 19 - also requires approximately 40% of his time. He explained the hospital where he works is comprised of five wards, each having a clinical team. According to his evidence there are eight team members who have responsibilities for approximately 23 clients. These include himself as a Spiritual Care Services Associate; a member from Psychiatry; a member from Psychology; a Recreation Therapist; an Occupational Therapist; a Vocational Therapist; a Social Worker; and, Nursing. The team holds case conferences once each week for approximately one and a half hours where members offer their insights regarding a client?s needs. Mr. Clarke explained his role begins with the admission of a patient to the hospital. His goal is to meet with the new patient and to perform an assessment within 48 hours of admission. He explained this assessment includes observing the patient?s peace of mind; a revelation whether the patient?s formal religious background is important or is not important to him/her; the importance to allow a patient to share issues that he/she may have on their minds as well as any crisis in their life which they find difficult to cope with. He explained it is possible, once having heard the patient discuss issues and crises on their minds, to make a connection between those issues/crises expressed to a spiritual background. In addition to listening to patients, he considers his role as being a non-judgmental ear for them as individuals. For patients who express views relating to the importance of their formal religious background, they may - 20 - have been active in religious groups and if they request assistance, he will contact members of one?s faith and ensure resources are available. There are others who do not have a formal religious background and have no desire to pursue any religious connection. In such instances, Mr. Clarke views his role as a listener to one?s life?s story which is usually a story of a sense of hopelessness. Mr. Clarke gave as an example of such a patient being depressed and feeling hopeless. Through discussions it was learned the patient found comfort in something else such as music. In such a case, Mr. Clarke?s efforts were directed to obtaining compact discs which contain music and by possibly have family members bring music in to the patient. Mr. Clarke stated that regardless if a patient has religious interests or not he believes he has some knowledge that his learning will enable him to inject a ?spiritual background? as distinct from a ?religious background? into assisting that patient. The prime objective is to assist in recovery for the patient. That is the aim of all the clinicians on the team. Another hypothetical example Mr. Clarke mentioned was a situation in which a Recreational Therapist on the clinical team might learn a patient loves basketball. The Recreational Therapist will provide resources and time for that activity. Mr. Clarke explained when he works with a patient on a one-to-one basis his objective is focussed on helping the individual rediscover his/her own spiritual or inner strengths so one can - 21 - move toward eventual recovery. He believes his work may be somewhat akin to a psychiatrist who assists one with one?s emotional strengths. He sees his role as one who provides such services as are described in the pamphlet entitled ?Spiritual Care? published by the employer. More particularly, he emphasized the following passage from the pamphlet as encapsulating the role he plays. That passage reads (ex. 14): Spiritual Care Services The Spiritual Care team provides compassionate care to the whole person, realizing their needs are spiritual, emotional, physical and social. We are members of a multi-disciplinary health care team and work closely with other caregivers to enhance patient care and quality of life. Mr. Paul Kasurak, an employee since 1980 at HMS, holds the classification of ?Social Worker 2?, was called to testify on behalf of the union. Mr. Kasurak is a member of the bargaining unit but has never held a position in the Local. Mr. Kasurak is concerned with mood disorders and works in Adult Rehabilitation programs and is a member of the clinical teams referred to earlier. He explained the clinical teams follow a treatment model which attempts to deal with the whole person. That is, the team considers the patient?s environment; family; and all aspects of the patient. Different team members contribute their expertise. More specifically, the clinical team functions in the following manner. It is a collaborative approach. Each team member is seen - 22 - as a professional and team members respect the expertise of others. All team members become involved as the need arises. Insofar as his role on the team as a Social Worker is concerned, Mr. Kasurak first meets with the patient within 48 hours of admission where he will endeavour to assess the psychological and social needs of the patient; his/her history; information about family and relationships; and the strengths and problems associated with such relationships. He, as a Social Worker, may be responsible for ensuring the patient?s basic needs are provided such as whether he/she has sufficient income/pension resources. He sees family members to ensure they know what is involved and then later in the program he becomes involved in community liaison making plans about the discharge of the patient. Mr. Kasurak continued to explain that when working with patients he listens and tries to understand what is important to them and what the team might be able to do to support them. He works with Mr. Clarke on the clinical team. Both attend the weekly conference meetings and they interact with each other as do all the members of the team. Mr. Kasurak has also contacted Mr. Clarke via email outside of conference meetings when necessary. During team meetings Mr. Kasurak has asked Mr. Clarke from time to time to see a particular patient, as have other team members from time to time. The employer?s evidence was led through Sister Sheila Langton, President, Providence Health System 1998-2006; Ms Mary - 23 - Pat Byrne, Coordinator of Spiritual Care Services from 2002- present; and Kevin Latimer, Human Resources Manager, 2001-2004 following which he has assumed a more generalist role in the field of compensation and benefits. Sister Langton participated in the interview process by preparing interview questions and being a member of the interview team for the position of Spiritual Care Services Associate. Sister Langton stated her belief the Spiritual Care Services Associate?s role on the clinical team is one which performs a different role than that of a Social Worker and the other professional team members. The Spiritual Care Services Associate, according to Sr. Langton, does not provide hands-on clinical care. Rather, patients are freer to talk to Spiritual Care Services Associates which opens a venue to have the right person there who is less self-centred but who is well grounded. It is amazing, so said Sr. Langton, how that staff member can reach a patient through guidance to be made to feel whole and cared for and not rejected. Union counsel objected to Sr. Langton?s views claiming such statements were beyond her expertise how patients may respond. During cross-examination, Sr. Langton conceded she is unaware of what Mr. Clarke?s or Rev. Best?s work entails on a day-to-day basis and that she has never been assigned to work in Spiritual Care Services per se and that she does not have any training in CAPPE (Canadian Association of Pastoral Practice and Education); nor has she ever received training nor worked as a - 24 - ?Chaplain? in a psychiatric hospital setting. However, I have included Sr. Langton?s perception of what she, as President of Providence Health, expected a Spiritual Care Services Associate?s duties were and what responsibilities were included. Ms Mary Pat Byrne, Coordinator, Spiritual Care Services, was also a member of the interview team. Ms Byrne explained the term ?Duty Chaplain? and ?Chaplain? had been used in the Kingston Psychiatric Hospital before divestment. The term ?Pastoral Care? had been the phrase used at St. Mary?s of the Lake Hospital. The term ?Chaplain? had been change to ?Pastoral Care? to have both sites use the same title. Later, the title was changed to ?Spiritual Care Services Associate? because it was considered to be more inclusive in explaining the role the employees performed. Ms Byrne explained her view of the role performed by a Spiritual Care Services Associate as being attentive to staff needs as well as patient needs. Insofar as staff needs are concerned, one was to be attentive to the staff?s needs; become aware of stressors in the workplace; and provide support both at the organizational and personal levels. This includes staff who have patients but also staff who are not involved in patient care. The latter staff would include Housekeepers, Maintenance, Nursing, Managerial Level, Site Administrator, and the CEO to be available to provide support to these people in need. Also to be aware of crises such as a death in the family, and be available - 25 - to offer support. By support means having a sense of presence; paying attention to one?s needs and recognizing the need for dignity if a person has wounds, to let that person know one cares for him/her. Ms Byrne stated Spiritual Care Services Associates? roles differ from other disciplines in that their mandate is support for staff who view Spiritual Care Services Associates in a specialized role. Staff talk to Spiritual Care Services Associates where they would not talk to others, and discuss matters in confidence with a feeling it is a safe place to do so. That is, staff look upon Spiritual Care Services Associates as someone analogous to clergy who look for sacred support. Also, when organizational changes take place within the organization where positions may change, the Spiritual Care Services Associate may go to the individuals and suggest they approach someone in management; in the union; or in the Employment Assistance Program for assistance. The Spiritual Care Services Associate can make these approaches knowing staff will not be judging them as having some ulterior motive. The differences Ms Byrne sees in the Spiritual Care Services Associate role from other team members in the clinical teams is the special concern the Sisters of Providence have for the mentally ill, the most vulnerable members of society. That concern is to continue the ministry within the hospital. The Social Worker is part of a program. There are three mental streams at the MHS site. Social Workers are assigned to one of those units in a program whereas spiritual care is a - 26 - support service assigned to all programs. While other professions do hands-on work with clients and move them to a certain destination to perform certain tasks, the Spiritual Care Services Associate does not do that. He/she is there to listen, to hear the heart, to provide a presence, and tries to see what the needs are and attempt to provide some meaning and hope. She went on to say, ?Due to the nature of the work we perform we consider it a sacred calling and clients look at us as very trusted people. They share information with us that they do not share with others in the interdisciplinary team.? It is obvious Ms Byrne shares the view of Sister Langton that the Spiritual Care Services Associates have a certain higher calling in the role they perform which is separate from the role performed by other professionals who work on the various clinical teams. UNION SUBMISSIONS Article 2.1 in the collective agreement is clear and unambiguous. It is an all employee bargaining unit. The exceptions are listed. They include supervisors who exercise Ontario Labour Relations managerial functions within the meaning of the Act , persons above the rank of supervisor, and persons employed Ontario Labour in a confidential capacity within the meaning of the Relations Act , and students engaged in a period of internship as a part of a course of professional training. We are not dealing - 27 - with a craft or professional unit which is often the case in hospital settings. Quite often one finds units carved out into specific professions and skills such as nurses; pharmacists; paramedics; and office and clerical staff. That is not what we have in the instant situation. Job postings were posted; interviews were held and offers of employment given; the Spiritual Care Services Associates were hired and are subject to terms and conditions of employment just like any other employee. There is evidence that Rev. George Best was an employee who had his services terminated. So the Spiritual Care Services Associates are employees and they do not fit within any of the enumerated exceptions. The language the parties negotiated and included in art. 2.1 of the collective agreement makes it clear the Spiritual Care Services Associates are employees within the bargaining unit. The arbitrator is reminded that art. 14.7 restricts him from rendering decisions inconsistent with the collective agreement. An arbitrator is not permitted to amend or modify any terms of the collective agreement. It submits that should I decide to exclude the Spiritual Care Services Associates it would be inconsistent with the clear language of art. 2.1. The arbitrator is further reminded the parties broadened the Scope clause issued by the OLRB by agreeing to add the words ?and students engaged in a period of internship as a part of a course of professional training.? Thus, according to - 28 - the union, the parties having had the ability to add to the exclusions, which they did in relation to students, they could likewise have added ?Chaplains? (the forerunner to the Spiritual Care Services Associate position) but they chose, for whatever reason, not to do so. In view of the clear language in art. 2.1 it is submitted there is no need to consider bargaining evidence to assist with the interpretation of the language in the collective agreement. However, in the alternative, should the arbitrator consider the bargaining history as necessary to assist in the interpretation of the wording, it does not assist the employer. The Spiritual Care Services Associates were never discussed during bargaining nor was the position discussed during the exclusion/inclusion discussions held between Mr. Latimer and Mr. Broadfoot. Rev. McBride?s position, Coordinator, Chaplaincy Services, was the only position discussed. It was known Rev. McBride accepted the position which Mr. Broadfoot considered to be managerial. He readily conceded it be excluded. But that was the extent of the discussions between the two. Moreover, the evidence is clear the employer never told the union there were Spiritual Care Services Associate positions during negotiations and it is equally clear from the evidence the union had been unaware of their presence as employees until June 2003. As soon as the union became aware of the presence of Spiritual Care Services Associates being employees they were signed up as - 29 - members and steps were taken to pursue their status as bargaining unit employees. Accordingly, for all of the foregoing reasons the union submits the grievance be allowed. EMPLOYER SUBMISSIONS The employer submitted a total of 15 authorities in support of its position, none of which have Chaplain positions included in hospital bargaining units. Many of the authorities are Labour Board decisions. Some of those authorities indicate the exclusions of Chaplains have been by agreement of the parties. In others where there is no apparent agreement, the Labour Board has excluded Chaplains along with a list of other exclusions. None of the cases explain why Chaplains were excluded. The titles appear, in many cases, in a lengthy list of exclusions. Counsel for the employer candidly acknowledged his researcher searched out the title ?Chaplain? which appears in bold print in a number of authorities which caught the random search. While no one case explained the rationale for exclusion of ?Chaplains?, counsel offered his view it was a foregone conclusion, at least it would so appear, that Chaplains do not share a community of interest with other employees in the bargaining unit. That is, there must be an obvious - 30 - acknowledgement of a connection with the sacred; a higher calling; a vocation that transcends the duties and occupations of others. People talk to Chaplains in confidence on matters of faith; a confession; or call it what you will. In any event, they have not been included in bargaining units. The employer had reasonable expectations Chaplains would be excluded from the bargaining unit. Moreover, the union must have shared those expectations. Rev. McBride had been performing chaplain services around the hospital and Rev. Best was likewise present. Admittedly, the first three months following divestiture, Rev. Best had been engaged on a service contract but became a full-time employee thereafter. There were two individuals performing services daily in the workplace. The employer had every right to believe and expect the union to share its expectations. Mr. Latimer had no doubt the issue of ?Chaplains? being excluded was agreed to by Mr. Broadfoot in the exclusion/inclusion discussions held in November 2002. The expectations, on the part of both parties, so argued the employer, are based on a common understanding there is not a community of interest between those who perform pastoral care and the rest of the employees in the bargaining unit. There is nothing stopping the union from applying for a tag end unit but that issue is for another day. The issue is ? should they be in this bargaining unit. Sister Langton testified how committed she is to the mission which is a longstanding commitment to health - 31 - care. It is obvious when any person seeking help approaches a reverend or a pastor and tells that reverend or pastor information of a confidential nature, like letting it all hang out, it is a confidential-like atmosphere. There is no way that same person would approach a Nurse, a Social Worker, an Occupational Health Therapist, or others and discuss the same topic with them as they would with a reverend or a pastor. It was very important for sponsors of Providence Health and senior management that the Chaplains ? a.k.a the Spiritual Care Services Associates ? would not be included in the bargaining unit. For the foregoing reasons the employer submitted the grievance be dismissed. DECISION Any analysis of the subject matter must begin with a review of the collective agreement. There can be no doubt the bargaining unit is an all-inclusive unit comprised of employees at the MHS site and the satellites which have already been identified. There are the usual exclusions within which the Spiritual Care Services Associates do not fit. Based on this initial reading of art. 2.1, without more, they would appear to come within the definition of employees who are included in the bargaining unit. Of course, that is the thrust of the union?s argument. In its view, the article is clear and unambiguous. The union explains the reason for not bringing the matter up at an - 32 - earlier date is due to the fact it was unaware the Spiritual Care Services Associates were employees. It had been aware ?Chaplains? at MHS prior to divestiture had been engaged on fee-for-service contracts and were not considered to be employees. Its awareness of the fact they were employees came to its attention in mid-June 2003 following which it pursued the matter with the assistance of its Toronto office and filed a grievance on January 23, 2004. The employer?s position was the union had to have been aware the Spiritual Care Services Associates were employees by the presence of Rev. McBride and Rev. Best. Failing that, the employer maintains there were expectations by both parties; ?Chaplain? was an excluded position due to a lack of community of interest that has been expressed in the employer?s submissions recorded above. In closely reviewing the evidence of the nature of the duties performed by Spiritual Care Services Associates, I find the core duties performed by them to be similar to those duties of other members of the clinical teams. Each team member brings certain elements of expertise to the conference table in relation to specific patients which contribute to the overall health and well-being of the patients they care for. It is argued Spiritual Care Services Associates have a different role from other clinicians on the team in that they are primarily listeners who do not provide any threat to the clients as do others who may deny or take away privileges in the form of sanctions. Further, - 33 - because of the nature of their calling, Spiritual Care Services Associates are likely to entertain information such as the type of confessional vetting which would not be forthcoming to other clinicians on the team. Another way of stating it would be because the special place the Spiritual Care Services Associates hold because of their calling, their role is separate and apart from other members of the team. There are at least four reasons why such arguments cannot be accepted. The first, and important one, is the fact Mr. Clarke is not an ordained priest. This came out in his evidence when it was revealed his title ?Rev.? had been scratched over in the letter informing him his application for the position of Spiritual Care Services Associate was successful. Mr. Clarke testified he still is not an ordained priest and does not carry the title ?Reverend?. However, he is a member of CAPPE which provides a code of ethics which one assumes, although it was not brought out in evidence, Mr. Clarke adheres to. The second reason why the argument the Spiritual Care Services Associates? calling places them separate and apart from other members of the team cannot be accepted is they currently participate as team members and share certain information with their colleagues on the team. Surely being a member of OPSEU and being in the bargaining unit cannot impact on this exchange of information which currently takes place. They must be taken to know and understand the parameters of what they can and cannot - 34 - communicate to their fellow team members when discussing the health and well-being of the client. This holds true, it seems to me, whether or not they are members of OPSEU and are included in the bargaining unit. Third, it is trite to state the long-held purpose of excluding employees from all inclusive bargaining units has primarily been two-fold. Supervisors and employees above the rank of supervisor have traditionally been considered part of the ?management team? whose duties have placed them in positions of perceived conflict with the interests of trade unions. Thus they were, from very early on in the development of modern labour relations, considered to be excluded personnel. The other category of excluded employees were those non-managerial employees whose duties were of a confidential nature in matters relating to labour relations which placed them in positions of conflict with the interests of trade unions. While the foregoing may be an oversimplification of the evolution surrounding the purpose for exclusions of employees from bargaining units, I believe it is sufficient to demonstrate the duties of Spiritual Care Services Associates as described in the evidence does not place them in a category which compels their exclusion from the bargaining unit. Finally, notwithstanding the foregoing, the employer points out the Spiritual Care Services Associate provides a further, more encompassing service, to other non-union staff - 35 - members, including management, both senior and middle, as well as to non-employees such as family members of clients. Once again, they receive confidential information which cannot be shared with others which could conceivably place them in conflict with their perceived duties they may hold to the union. No authorities were cited for such a proposition. In my respectful opinion I cannot envisage a situation arising where an individual would reveal information to a Spiritual Care Services Associate that could have some impact, adverse or otherwise, on some relationship concerning the union. As an example, I cannot envision a non-employee, for example a family member, pursuing a union issue with a Spiritual Care Services Associate. Surely if some complaint were to be made it would be made to a management member. The point is, the only reason for a Spiritual Care Services Associate to be excluded from the bargaining unit, in my opinion, would be for some reasons that would/could place the Spiritual Care Services Associate in a position of potential conflict with the union thus rendering a decision that would exclude the Spiritual Care Services Associate from becoming members in the bargaining unit. Finally, after having carefully considered the evidence relating to the issue of delay from the time of divestment in March 2001 until the filing of the grievance on January 23, 2004, it is my respectful opinion the union cannot be said to have caused unnecessary delays in bringing this matter forward. At the - 36 - time of divestiture there is no evidence the ?Chaplains? were employees. On the contrary, there is evidence they were performing services on a fee-for-service basis. This was clearly the understanding of the Local union president, Mr. Broadfoot, at all relevant times and there is no evidence which contradicted that understanding. It is true Rev. George Best applied for the position of ?Duty Chaplain? in March 2002. It was considered by the employer to be a non-union position which is evidenced by considerable documentation in the exhibits. While there was some discussion during the taking of evidence about posting of the various positions, there is no evidence the postings were seen by members of the executive of the union who testified, nor is there any evidence such posting was ever brought to their attention. The issue first came to the attention of the union executive in June 2003 while Mr. Phalen was acting as Local Union President for approximately six weeks. Ms Ferguson was elected to the presidency position in mid-July 2003 and began pursuing the matter with head office in Toronto. In December she was informed she should file a policy grievance which was done in January 2004. In my opinion, the course of events are reasonably explained why it took until January 2004 to bring the issue to a head and file a grievance. The union believed the Chaplains were not employees at the time the inclusion/exclusion discussions took place in late 2002 and from the union?s point of view were not of interest to it. - 37 - When Rev. Best became employed in the spring of 2002 he worked a compressed work week of four days until May 2003. It is acknowledged he did not start nor finish his work on a daily basis at the times other employees started and finished theirs. It is conceivable, having held the belief ?Chaplains? were contract persons, he continued to be so engaged in the eyes of fellow workers. In any event, knowledge that Spiritual Care Services Associates were employees came to the attention of the Local union executive in June 2003. They signed membership application cards but were not recognized by the employer as being members of the union within the bargaining unit and union dues were not deducted. This resulted in a grievance filed January 23, 2004 requesting union dues be deducted. Failing satisfactory resolution of the matter it came forward to arbitration. The argument by the employer over delay in bringing the matter forward is unsustainable and is dismissed. Accordingly, for all the reasons contained in this decision, I find the Spiritual Care Services Associates are employees within the meaning of employees in art. 2.1 of the collective agreement. The grievance succeeds. I direct the employer to deduct union dues of the incumbent Spiritual Care Services Associate employees and remit same to the union. It is so ordered. - 38 - th Dated at Kingston, Ontario, this 7 day of October, 2008. C. Gordon Simmons Arbitrator - 39 - AUTHORITIES FILED BY PARTIES EMPLOYER Ontario Public Service Employees Union, Applicant v. St. Joseph?s Health Care Hamilton, Canadian Union of Public Employees, Local 786, Ontario Nurses? Association and Security and Service Workers? Union Local 503 affiliated with the Christian Labour Association of Canada [2001] O.L.R.D. No. 819, File No. 2378-00- PS, OLRB (Laura Trachuk, Vice-Chair). St. Joseph?s Health Care, London and Ontario Public Service Employees Union (2001, Jan. 19), unreleased. St. Joseph?s Care Group and Ontario Public Service Employees Union (2003, May 12), unreleased. The Ontario Secondary School Teachers? Federation v. Ashbury College Incorporated [1989] O.L.R.D. No. 945 (Patricia Hughes, Vice-Chair, and Board Members R.W. Pirrie and C. McDonald). London and District Service Workers? Union, Local 220 S.E.I.U., A.F.L., C.L.O., C.L.C. v. Kitchener-Waterloo Hospital [1994] O.L.R.D. No. 4880 (Russell G. Goodfellow, Vice-Chair, and Board Members F.B. Reaume and C. McDonald). Lakehead District Roman Catholic Separate School Board v. Ontario Secondary School Teachers? Federation [1995] O.L.R.D. No. 618 (Robert D. Howe, Vice-Chair, and Board Members R.W. Pirrie and C. McDonald). Health Employers? Association of British Columbia on behalf of Chilliwack General Hospital and Health Sciences Association of British Columbia and British Columbia Nurses? Union [1997] B.C.L.R.B.D. No. 250 (K. Young, Vice-Chair). Service Employees International Union, Local 204, Affiliated with the S.E.I.U., A.F. of L., C.I.O., C.L.C. v. Pentecostal Benevolent Association c.o.b. as Shepherd Village [1999] O.L.R.D. No. 621 (Timothy W. Sargeant, Vice-Chair, and Board Members J.A. Ronson and R.R. Montague). Canadian Union of Public Employees v. Ceby Management Limited o/a Aurora Resthaven Nursing Home v. Christian Labour Association of Canada [1999] O.L.R.D. No. 1303 (Laura Trachuk, Vice-Chair, and Board Members J.A. Ronson and H. Peacock). - 40 - Penetanguishene General Hospital Inc. and Huronia District Hospital Corporation o/a North Simcoe Hospital Alliance v. Canadian Union of Public Employees and its Local 3157, Service Employees International Union, Local 204 and Ontario Public Service Employees Union and its Local 328 [ 1999] O.L.R.D. No. 2509 (Harry Freedman, Vice-Chair). Canadian Union of Operating Engineers and General Works v. Corporation of the County of Lambton and The Lambton County Employees? Association [2003] O.L.R.D. No. 2347 (Caroline Rowan, Vice-Chair, and Board Members J.A. Ronson and R.R. Montague. Bluewater Health v. Office and Professional Employees International Union, Local 347; Ontario Nurses? Association; Ontario Public Service Employees Union; Service Employees International Union, Local 1.on [2004] O.L.R.D. No. 1584 (Patrick Kelly, Vice-Chair). Canadian Union of Public Employees v. The Salvation Army Peel Residential Emergency Shelter (Wilkinson Road Shelter and Mavis Road Shelter) [2004] O.L.R.D. No. 2070 (Mary Anne McKeller, Vice-Chair and Board Members J.A. Rundle and H. Peacock). Service Employees International Union Local 2.on Brewery, General and Professional Workers? Union and The Salvation Army, Florence Booth House [2006] O.L.R.D. No. 2631 (Ian Anderson, Vice-Chair, and Board Members P. LeMay and D.A. Patterson). Canadian Union of Public Employees v. The Salvation Army, Peel Family Shelter [2006] O.L.R.D. No. 4377 (Corinne Murray, Vice-Chair, and Board Members J.A. Rundle and S. McManus). UNION Labour Relations Act , 1995, S.O. 1995, c. 1, Sched. A., pp. 1-4. Brown & Beatty , July 2007; 5:1122 (Employee defined). Re Worthington Cylinders of Canada Corp. and United Steelworkers of America, Local 9143 th (2004), 123 L.A.C. (4) 248 (Surdykowski) Re South Bruce Grey Health Centre and Ontario Public Service Employees Union, Local 275 th (2006), 148 L.A.C. (4) 442 (Surdykowski) Re Halton District School Board and Ontario Secondary School Teachers? Federation, District 20 th (2002), 109 L.A.C. (4) 210 (Beck) - 41 - Ontario Labour Relations Board Law and Practice rd , 3 Edition, Vol. 1 (Sack, Mitchell & Price) The Canadian Union of Public Employees v. The Hospital for Sick Children v. Group of Employees [1985]; File 1956-83-R (R.O. MacDowell, Vice-Chair and Board Members W.H. Wightman and W.F. Rutherford) United Steelworkers of America v. Burns International Security Services Limited v. Group of Employees [1994]; File 3340-93-R (R.O. MacDowell, Alternate Chair and Board Members J.A. Ronson and K. Davies) Re Georgian College of Applied Arts and Technology and Ontario Public Service Employees Union th (1997), 59 L.A.C. (4) 129 (Schiff, Murray & St. Onge) Re Sudbury District Roman Catholic Separate School Board and Ontario English Catholic Teachers? Association (1984), 15 L.A.C. (3d) 284 (Adams) Re DHL Express (Canada) Ltd. and Canadian Auto Workers, Locals 4215, 144 and 4278 th (2004), 124 L.A.C. (4) 271 (Hamilton)