HomeMy WebLinkAboutUNION-1995-08-05R -316{
Bulletin 9&15-ARB -60
Job Security - Con&=6ng Out- Work oftbeBargaining unit - WorkAssignmoit - Overlap of Duties
The
Facts: Prior to 1986, scrub dories in the Hospital's Operating Room were shared between RN.'s and
OR Technicians. In 1986, the Hospital opted to utilize only RN.'s in this capacity. To achieve
this end, any vacancies which were created by departing O.R. Technicians were filled by RN.'s.
aorly after the departure of the final OR Technician in September 1992, the Hospital decided
to assign all scrub duties on regularly scheduled shifts during the week to RNA's classified as
O.R Tecbmcians. The RNA's belongedio another bargaining unit, This work reaccirnmont
resulted in a loss of work homy to part time RN.'s. As a consequence, a grievance was filed
alleging that the Hospital violated Article 9.11 ofthe collective agreement by contracting out work
of the bargaining unit.
The
Collective
Agreement: Article 9.11- Contracting Out
The Hospital shall not contract out work currently performed by members of this bargaining unit
if, as a result of such contracting out, a layoff of any bargaining unit employees occurs. This
clause will not apply in circumstances where the Hospital no longer provides particular services
as a result of the rationalization or sharing of services betweea Hospitals in a particular
geographic district, or as a result of the withdrawal of the Hospital's lic=se or Government
Approval to perform such services.
The
Union's
Position: The Utdon submittedthatArticle 9.11 precludes the assignment ofbargainiag unit work to other
employees of the Hospital, if that work was "currently" being performed by bargaining unit
members at the date of execution of the collective agreement. With the exception of filling the
position vacated by the final remaining OR Technician, who performed scrub duties as of the
dateofthe last collective agrees the Hospital is restricted from assigning scrub duties to O.R.
Technicians. The Union claimed that the Hospital's transference of scrub duties to OR
Technicians, wbo belonged to another bargaining unit within the Hospital, breached Article 9.11.
The
Hospital's
Position: The Hospital counteredthatArtcle9. 11onlyprecludes the transfero fbargainmgunitworktoan
independent contractor outside of the Hospital. Within the collective agreement, there is no
restriction on the assignment of wcrkto other employees witbia the Hospital. Additionally, the
Hospital submitted that even if this interpretation was given to Article 9.11, it would still be
acceptable to assign scrub duties to OR Techmicans due to the traditional overlap ofthese duties
between the two bargaining units.
Bulletin 95- 15 -ARB40 (continued)
The
Board's
Decision: Them" addressedbyt Board was wbcd=the assgament of scrub duties to O.R. Tocimiciaas
=Mdfttedavioladmofibeconectiveagom=t In its mterpretatioa of Article 9.11, the Board
concurred with that submitted by the Hospital. "Contracting oat", in common usage, refers to the
transfer of work to an independent contractor. As such, the Board held that the patties, in
krmulatiggAracle 9.11, ultimately intended to address the tMusfer of work to another employer,
andnot the assignment of work to members of another bargaining unit who are employees of the
Ham• Thts i»gaTpretabonwas supported by the exception to the prohibition of c oatractutg out,
under conditions where the Hospital no longer provides for particular services. Farther, even if
Article 9.11 could be ia7etpreted as arestriction on the assignment ofwork to other employees of
the Hospital, no violation of the collective agreement would be fond. Referring to Sadbury
Memorial Hosoiml and Canadian USIOR ofPabhc BM09YOM Local 161, March 11, 1986 (Knopf
(unreported)), the instant Board held that the collective agreement does not protect work
assP m =ts where traditional overlap indutie =stsbetweenbargammgunits. The clear overlap
ofdahes, which existed for marryyears at the Hospital between the R.N.'s and O.R. Technicians,
led the Board to dismiss the grievance.
[Hotel Dieu Hospital (Cornwall) and Ontario Public Service Employ= Union, Local 402; May
8,1995; award of 12 pages; J.H. Devlin]
BETWEEN:
IN THE MATTER OF AN ARBITRATION.
HOTEL DIEU HOSPITAL (CORNWALL)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
AND ITS LOCAL 402
GROUP GRIEVANCE
BOARD OF ARBITRATION:
JANE H. DEVLIN CHAIR
D.A. PEARLMAN HOSPITAL NOMINEE
RON COCHRANE UNION NOMINEE
LYNN HARNDEN, FOR THE HOSPITAL
MICHAEL GOTTHEIL, FOR THE UNION
GORDON O•BYRNE, FOR O.P.S.E.U. LOCAL 469
NJ
The grievance in this case was filed by a number of
part -time Registered Nurses ( "R.N.'s ") who claim that the
Hospital has improperly assigned certain scrub duties in the
Operating Room to Registered Nursing Assistants ("R.N.A.'s "),
classified as Operating Room Technicians ("O.R. Technicians "),
who are members of another bargaining unit. The Union contends
that this assignment violates Article 9.11 of the collective
agreement which provides as follows:
9.11 Contracting out
The Hospital shall not contract out work currently
performed by members of this bargaining unit if, as a
result of such contracting out, a layoff of any
bargaining unit employees occurs. This clause will not
apply in circumstances where the Hospital no longer
Provides particular services as a result of the
rationalization or sharing of services between
Hospitals in a particular geographic district, or as a
result of the withdrawal of the Hospital's license or
Government Approval to perform.such services.
The parties agreed that the Board would determine in the first
instance whether the assignment in question involves a
contracting out of bargaining unit work within the meaning of
Article 9.11 and would remain seized as to whether a layoff of
bargaining unit members occurred.
The Operating Room at the Hospital is comprised of
three operating theatres. In the early fall of 1992, the staff
complement on the day shift from Monday to Friday consisted of
one charge nurse, one float nurse, one circulating nurse and one
2
scrub nurse who were assigned to each operating theatre, one
relief nurse who worked a four hour shift and two nurses who were
assigned to the Recovery Room. Apart from one of the scrub nurse
positions which was occupied by Richard Leroux, an O.R.
Technician, the remaining positions were staffed with R.N.'s. As
well, two half days a week, R.N.'s were assigned scrub and
circulating duties in the endoscopy suite. The day shifts on
Saturday and Sunday were also staffed with two R.N.'s who
performed scrub and circulating duties and worked in the Recovery
Room. At all other times, the Operating Room was staffed on an
"on call" basis and although at one time, Mr. Leroux was
available for on call duties, such duties were later performed
exclusively by R.N.'s.
As to staffing in the Operating Room prior to the fall
of 1992, the evidence indicates that beginning in the late
1960's, scrub duties were shared by R.N.'s and O-R. Technicians.
During the 19701s, for example, there were three employees
classified O.R. Technicians who performed scrub duties. In 1986,
however, the Hospital decided to phase out the use of O.R.
Technicians performing scrub duties and replace them with R.N.'s.
Although there was some dispute between the parties as to the
reason for this decision, the reason is not material to the
grievance before the Board. In any event, as O.R. Technicians
left the Operating Room, they were replaced by R.N.'s so that by
the fall of 1992, Mr. Leroux was the only O.R. Technician who
a
3
continued to perform scrub duties. In late September, 1992, he
was the successful applicant for another position in the
Operating Room and shortly after he vacated his existing
position., the Hospital made a decision to assign all scrub duties
on regularly scheduled shifts daring the week to R.N.A.'s
classified as O.R. Technicians. The Hospital indicated that this
decision was prompted by a reduction in the level of hospital
funding which was announced in 1992. In any event, following
some period of transition and training, the Hospital implemented
its decision in the spring of 1993 which resulted in a loss of
hours to a number of part -time R.N.'s and prompted the filing of
the grievance before the Board. At the present time, weekend and
on call duties in the Operating Room continue to be performed by
R.N.'s.
It was the submission of Mr. Gottheil, on behalf of the
Union, that Article 9.11 of the collective agreement is intended
to preclude the erosion of bargaining unit work, including the
assignment of that work to other employees of the Hospital.
Moreover, as Article 9.11 refers to work "currently" performed by
bargaining unit members, it protects the type and volume of work
performed by R.N.'s at the date of execution of the collective
agreement. On this basis, it was contended that the Hospital is
restricted from assigning scrub duties to O.R. Technicians except
to fill the position previously occupied by Mr. Leroux.
4
It was the submission of Mr. Harnden, on behalf of the
Hospital, that Article 9.11 deals only with contracting out or,
in other words, the transfer of bargaining unit work to an
independent contractor. Accordingly, it was contended that there
is no provision in the agreement which restricts the assignment
of work to other employees of the Hospital. Moreover, even if
Article 9.11 could be construed as imposing such as restriction,
it would not preclude the assignment of scrub duties to O.R.
Technicians as such duties have traditionally been performed both
by O.R. Technicians and R.N.`s
that the grievance be dismissed.
In the result, Mr. Harnden asked
The issue, then, is whether, apart from the position
previously occupied by Mr. Leroux, the assignment of scrub duties
to O.R. Technicians on regularly scheduled shifts during the week
constitutes a violation of the collective agreement. In this.
regard, Article 9.11 which is entitled "Contracting Out" provides
that the Hospital shall not contract out work currently performed
by members of the bargaining unit if, as a result of such
contracting out, a layoff of bargaining unit employees occurs.
The clause, however, does not apply in circumstances where the
Hospital no longer provides particular services as a result of a
rationalization or sharing of services between Hospitals in a
particular geographic district or as a result of the withdrawal
of the Hospital's license or Government approval to perform such
services.
5
In the Board's view, the language of Article 9.11
favours the interpretation advanced by the Hospital. In this
regard, Article 9.11 proscribes the "contracting out" of
bargaining unit work which is generally understood to involve the
transfer of work to an independent contractor: see, by way of
example, Re Canadian National Railways and Brotherhood of Ra}lwaa
& Airline Clerks, Divisions Nos. 1, 85 (1975), 8 L.A.C_(2d) 185
(Arthurs) and Re Prince Rupert Grain Ltd and Grain Workers'
Union Local 333 (1988), 30 L.A.C.(3d) 10 (Hope). Moreover,
apart from the use of the term "contracting out ", the parties
have provided that Article 9.11 does not apply in specified
circumstances where the Hospital no longer provides particular
services. In the Board's view, these exceptions reinforce the
conclusion that the parties intended to address the transfer of
work to another employer rather than the assignment of work to
members of another bargaining unit who are employees of the
Hospital.
The Board further finds that the language of Article
9.11 can be distinguished from that in a number of awards relied
upon by the Union. In Re Country Place Nursing Home Ltd. and
Canadian Union of Public Employees, Local 1854 (1981), 1
L.A.C.(3d) 341 (Pritchard), the collective agreement provided
that no bargaining unit employee was to be laid off or suffer a
reduction in normal hours as a result of a non - bargaining unit
N
person performing work of the bargaining unit employee. In
Bonnechere Manor and The Ontario Nurses Association May 24, 1994
(Chodos (unreported)), the collective agreement provided that no
person who was not a member of the bargaining unit was to perform
work normally performed by members of the bargaining unit,
subject to certain exceptions and both in that case and in
Countrv'Place Nursing Home, it was held that the relevant
provision restricted both contracting out and the assignment of
work to other employees of the employer. Similar language,
however, does not appear in Article 9.11 of the collective
agreement in this case.
Moreover, in Re Caressant Cate Nursing Home and Ontario
Nurses' Association (1994), 41 L.A.C.(4th) 300 (R.J. Roberts),
which was also relied upon by the Union, the collective agreement
precluded the contracting out of bargaining unit work, subject to
certain exceptions and further provided that the reassignment to
other employees of work normally performed by bargaining unit
members was not to result in the termination, layoff or reduction
in hours of any member of the bargaining unit. in that case, the
employer decided to assign R.N.A.'s to perform work previously
performed by R.N.'s as a consequence of which the Association
alleged a violation of the provision respecting contracting out.
Although the majority of the Board found that provision to be
applicable in the circumstances, considerable emphasis was placed
on the fact that the provision as it existed under the
7
predecessor collective agreement had been interpreted as
protecting both the type and volume of work normally performed by
members of the bargaining unit. Moreover, the majority found
that the exceptions to the prohibition against contracting out
bargaining unit work, which included the performance of work for
purposes of instruction or in the event of an emergency,
contemplated that such work would be performed by managerial
staff or other employees of the Employer. In these circumstance,
therefore, the majority determined that there was nothing in the
language of the provision to circumscribe the broad protection
afforded to bargaining unit work under the prior collective
agreement.
In this case, in contrast, there was no broad
protection previously afforded to bargaining unit work and, as
indicated previously, the exceptions to the prohibition against
contracting out found in Article 9.11 support the conclusion that
the parties intended to address the transfer of work to another
employer rather than an assignment of work to other employees of
the Hospital. Finally, although the Union also relied on Be
Condor Laminations and Typographical Union. Local 91 (1990), 15
L.A_C.(4th) 2 87 (Barrett) in which the collective agreement
limited the circumstances in which work could be contracted out,
in finding a violation of the agreement, the majority of the
Board determined that the Company to which the work was assigned
was a separate entity for purposes of the agreement.
0
In any event, even if Article 9.11 could be construed
as restricting the assignment of work to other employees of the
Hospital, such provisions have not generally been interpreted as
protecting individual work assignments in circumstances where
there has traditionally been an overlap in job duties between
existing bargaining units: see, by way of example, Mattawa
General Hospital and The Canadian Union of Public Emolovees
Local 1465 January 4, 1984 (Rayner (unreported)); Sudbury
Memorial Hospital and Canadian Union of Public Employees, Local
,161 March 11, 1986 (Knopf (unreported)); The Salvation Army Grace
Hospital and Service Employees' Union Local 210, November 5,
1991 (R.J. Roberts (unreported)) and Fairhaven Home for Senior
Citizens and Ontario Nurses' Association July 8, 1992 (Thorne
(unreported)).
In Sudbugv_Memorial Fosoital and Canadian Union of
Public Employees. Local 161 supra, the evidence indicated that
the task of replenishing carts with supplies for the nursing
units had been shared by employees in both the C_U.P.E. and
O.P.S.E.U. bargaining units and when the employee performing this
work in the C.U.P.E. bargaining unit retired, the vacancy was
posted as a Stores Clerk position in the O.P.S.E.U. unit as a
result of which the grievance was filed. Accordingly, the
Arbitrator was called upon to determine whether the posting
violated the collective agreement between the Hospital and
C.U.P.E. which precluded the assignment of duties normally
performed by members of the bargaining unit to those outside the
unit, subject to certain exceptions. In concluding that there
was no violation of the agreement, the Arbitrator commented as
follows:
in the Mattawa General Hospital case, supra, that Board
of Arbitration was called upon to interpret an article
of the collective agreement that is precisely identical
to Article 4.05 of the collective agreement between
these parties. In the Mattawa General Hospital case,
the union's complaint related to the assignment of
duties of a registered nursing assistant who was a
member of a bargaining unit represented by CUPE, to a
registered nurse who was a member of a bargaining unit
represented by the Ontario Nurses' Association. That
Board of Arbitration concluded that the issue in the
case was whether there was an overlap of the function
of the registered nurse and the registered nursing
assistant. The majority concluded:
If there is in fact, an overlap, this Board cannot
conclude that the Hospital has violated Article
40.01. If registered nurses also normally perform
the work of registered nursing assistants as part
of their job duties, the Hospital is not in
violation of the Article.
After reviewing the evidence, the Board of Arbitration
concluded that there was indeed such an overlap and
that the collective agreement did not protect job
functions where there was an overlap of two bargaining
units. It was concluded that the equivalent of Article
4.05 did not protect duties or functions that overlap
with other bargaining units or employees of the
Hospital.
I am in agreement with the analysis and reasoning in
the Mattawa General Hospital case. Applying that to
these facts, the question must be asked as to what
constitutes the job or duties in question and whether
or not there is any overlap. If the duties are defined
narrowly as the replenishing of particular carts, the
CUPE could be recognized as having the exclusive
function of replenishing the seven carts with which
they have established the historical relationship.
However, if the job function is the broader job
10
function of replenishing carts in general, it must be
recognized that both OPSEU and CUPE members have
replenishing carts in the Hospital since 1981.
On the basis of the facts presented to me, it must be
concluded that the job function I am dealing with is
that of the replenishing and refurbishing of the
exchange carts in the Hospital as part of a chain of
supply of goods and materials to the nursing units. To
define the job so narrowly as to confine it to the
particular carts on particular units is too narrow a
restriction or definition of the job duties. Further,
it ignores the fact that the S.P.D. Aides and Aides
were doing exactly the same function as the Stores
Clerks in the replenishing of the carts and in the
handling of all the items. Further, this would ignore
the fact that when Stores Clerks are absent due to
illness or vacation, S.P.D. Aides'were able to fill in
for the Clerks. Thus, there was an overlap and indeed
an interchange of the functions and in the work on the
carts. Thus, I cannot accept that the "work of the
bargaining unitRl or the "duties normally assigned" to
the employees should be restricted by a definition
pertaining to work on the seven carts alone. Instead,
the work must be recognized in the broader more general
sense as replenishing the carts. Having reached that
conclusion, the facts clearly establish that the task
of replenishing the carts was shared by both CUPE and
OPSEU members. Thus, CUPE can find no protection in
Article 3, 4 or 5 or the rest of the collective
agreement for that particular job function.
In this case, the evidence indicates that for many
years, scrub duties at the Hospital have been performed both by
R.N.'s and O.R. Technicians. Moreover, although the Union
contended that prior to the filing of the grievance, Mr. Leroux
had been "grandfathered" as a result of the Hospital's decision
to phase out the use of O.R. Technicians to perform scrub duties
there was no agreement between the parties to this effect.
Moreover, the fact is that Mr. Leroux continued to perform such
duties at the date of execution of the collective agreement.
11
Accordingly, there was clearly an overlap in scrub duties be
the two bargaining units and consistent with the authorities
referred to, Article 9.11 does not restrict the Hospital frc
assigning such duties to O.R. Technicians, rather than to R.
Furthermore, although in Re Caressant Care Nursinc
and Ontario Nurses Association, supra, which was relied upor
Union, the majority of the Board found that the employer was
precluded from assigning work to R.N.A.'s which had previous
been performed by R.N.'s, the majority noted that in that ca
the employer created and staffed a new R.N.A. classification
carry out this work. The majority distinguished that
circumstance from one in which an employer reassigns overlay
duties between existing bargaining units. Similarly, in
Sonnechere Manor and The Ontario Nurses Association, us nra.,
the Arbitrator concluded that the Employer had violated the
collective agreement by reassigning certain duties relating
the dispensing of medications from R.N.'s to R.N.A.'s, the
Arbitrator also found that, at the material date, R.N.A.'s J
for the most part, ceased to dispense medications so that i
could not be said that there was any significant overlap in
function.
In this case, as indicated previously, for many y
O.R. Technicians and R.N.'s shared the performance of scrub
duties and there was no dispute that Mr. Leroux, who was
12
classified as an O.R. Technician, was performing such duties when
the collective agreement was executed. In these circumstances,
we find that even if Article 9.11 could be construed as
restricting the assignment of work to other employees of the
Hospital, this provision would not preclude the assignment of
scrub duties to employees classified as O.R. Technicians.
Accordingly, it is unnecessary to retain jurisdiction over the
issue of whether a layoff of bargaining unit members occurred.
In the result, while we appreciate the R.N.s' concerns,
the existing language of the collective agreement does not
support their claim. For the reasons set out, therefore, the
grievance is dismissed.
DATED AT TORONTO, this 8th day of May, 1995.
Chair
"D.A. Pearlman"
Hospital Nominee
"Ron Cochrane"
Union Nominee