HomeMy WebLinkAboutUnion 22-06-28In the Matter of an Arbitration pursuant to the Labour Relations Act, RSO 1995
Between:
ROYAL OTTAWA HEALTH CARE CENTRE
(BROCKVILLE MENTAL HEALTH CENTRE)
(the Employer)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 439
(Paramedic Unit and Service/Office & Clerical Unit)
(the Union)
Re: Article 24 - Union Policy Grievance - # 2021-0439-0003
A W A R D
Paula Knopf - Arbitrator
APPEARANCES:
For the Employer:
Stephen Bird, Counsel
Alicia Bouchard, Manager, Labour Relations
Darlene Rempel, Labour Relations Partner
Kate Baker, Director, Patient Care Services (Community Health)
Nick Downs, Director, Patient Care Services (O.S.I.)
For the Union:
Ashley Low, Grievance Officer
Sherri Haley, President, Local 439
The hearing was held by way of Video Conference on May 25, 2022.
1
This Award addresses the Union’s policy grievance alleging that the Employer violated
the Collective Agreement by transferring work normally done by members of its
bargaining units to other bargaining units. The Parties agree that I have jurisdiction to
resolve the issue for both the Local Paramedic and Service/Office & Clerical bargaining
units, given that the relevant language is the same in both contracts.
Since the grievance seeks the preservation of bargaining unit work, the Union gave
notice of this proceeding to CUPE Local 943, ONA Local 74 and OPSEU Local 479.
CUPE 943 was the only union that indicated any interest in intervening in this case or
chose to appear at the hearing. After the nature and the scope of the grievance and
remedial requests were outlined to CUPE 943 at the commencement of the hearing,
CUPE 943 withdrew its interest in the proceeding and withdrew from the hearing, on a
“without prejudice” basis.
To the credit of the Parties and their counsel, this case was effectively presented on the
basis of a Joint Exhibit Book that was supported with the following uncontested facts.
The Brockville Mental Health Centre (Brockville) is part of The Royal Ottawa Health
Care Group (Ottawa). For operational and clinical reasons, it was decided to change its
method of providing services to clients and adopt an out-patient, multi-disciplinary
Flexible Assertive Community Treatment Team for Persons Dually Diagnosed (FACTT-
DD). This was designed to enable FACTT-DD to provide an intensive level of service to
clients who require contact with several team members and/or individual case
management to other clients. There is both a Brockville and an Ottawa FACTT-DD
Team. The multi-disciplinary teams consist of a number of health care professionals,
some of whom are represented by OPSEU 439, OPSEU 479 and ONA.
Prior to the events leading up to this grievance, Brockville had an Assertive Community
Treatment Team for clients with Dual Diagnosis (ACTT-DD) that served the
communities of Prescott, Mallorytown, Smiths Falls, Kemptville, Gananoque, Perth,
2
Lanark (Town), Carleton Place and Almonte. With the transition to the FACTT-DD
model, clients from Carleton Place and Almonte who had been receiving care from the
Brockville ACTT-DD Team are to be transferred to the care of Ottawa’s FACTT-DD
Team. To date, only one client has been moved to the Ottawa Team. The Union
estimates that the changes could result in as much as 23% of the previous Brockville
clientele being moved over to the Ottawa Team. On the other hand, the Employer
estimates that the changes may increase the complement of the Brockville Team if the
transition to the FACTT-DD model of delivery results in more clients being served in that
catchment area. To date, no members of the Brockville Team have been laid off as a
result of the changes.
Nevertheless, the Employer concedes that there will be a transfer of work that has
normally been performed by the Brockville Team’s bargaining unit members to the
Ottawa Team. That is why the Union has filed this grievance, asserting that the transfer
of the Carleton Place and Almonte clients has or will result in the erosion of its
bargaining units and a violation of Article 24.02. That provision and the other language
that is relevant to this case is as follows:
ARTICLE 2 – RECOGNITION
2.01 The Employer recognizes the Union as the sole bargaining agent of all
paramedical staff [and service/office & clerical] staff employed by The
Royal Ottawa Health Care Group employed at or administered from the
Brockville Mental Health Centre save and except Chiefs, Managers, Co-
ordinators, Supervisors and persons above the rank of Chief, Manager,
Co-ordinator or Supervisor, and Hospital QA Coordinator/
Program Evaluator and persons already represented by a bargainin g
agent.
ARTICLE 24 – CONTRACTING OUT
24.01 Work of the Bargaining Unit
Supervisors or Managers or other persons excluded from the bargaining
unit shall not perform duties normally performed by members of the
bargaining unit, except in exigencies of patient care.
3
24.02 Contracting Out
The Hospital shall not contract out work currently performed by members
of this bargaining unit if, as a result of the contracting out, a layoff of any
employees other than casual part-time employees results from such
contracting out.
Notwithstanding the foregoing . . . [the listed exceptions are not relevant to
this case]
The Submissions of the Parties
The Submissions of the Union
The Union asserted that Article 24.01 places express limits on management’s ability to
transfer bargaining unit work out of its bargaining units. It was stressed that both the
plain and ordinary meaning of Article 24.01 and its spirit and intent are designed to
protect bargaining unit members and prevent the erosion of their bargaining unit work:
see Brown and Beatty, Canadian Labour Arbitration, 5th Edition, s. 5:17; CUPE, Local
1282 and Bathurst (City), 2021 CarswellNB 483 (Couturier).
Further, it was submitted that the merits of this case should be assessed with the same
approach taken by Arbitrator Goodfellow in Royal Ottawa Health Care Group and
CUPE, Local 942, CanLII 58932 (ONLA), where the reassignment of bargaining unit
work was looked at in light of whether there had been a change to the “type and
volume” of duties normally assigned to bargaining unit members over to the staff in
another bargaining unit. It was pointed out that the same approach has been endorsed
by the Divisional Court and followed by many cases since then, including CUPE, Local
942 and Royal Health Care Group, decision of Sydney Baxter dated December 19,
2018; Royal Ottawa Hospital v Canadian Union of Public Employees, Local 942 , 2019
CanLII 98881 (ON LA) (Knopf); Toronto Transit Commission v Amalgamated Transit
Union Local 113, 2021 CanLII 118490 (ON LA) (Slotnick); Health Sciences North v
Canadian Union of Public Employees Local 1623 , 2018 CanLII 93856 (ON LA) (C.
Schmidt); Gate Gourmet Canada Inc. v Milk and Bread Drivers, 2021 ONSC 4202.
4
The Union stressed that the transfer of the Carleton Place and Almonte clients to the
Ottawa Team, who are represented by different bargaining units, will change the volume
of work done by the Brockville bargaining units. While the Union recognized that
management has the right to change its processes, it was submitted that Article 24.01
prevents this Employer from moving bargaining unit work away, even if this is being
done in good faith and for bona fide operational reasons.
On the basis of these principles and cases, the Union submitted that there is
“overwhelming and extensive” caselaw in favour of its position. The Union asked that
Article 24.01 be given its ‘plain and ordinary meaning’ to prevent persons outside of the
bargaining unit from performing the work of its members. By way of remedy, the Union
seeks:
a) A declaration that the Employer is in violation of Article 24.01;
b) An Order prohibiting the Employer from transitioning the work of the
Brockville Team to the Ottawa Team;
c) Any further remedy deemed appropriate; and
d) For this Arbitrator to remain seized with this matter in the event that any
layoffs occur as a result of the transition of the work to the Ottawa Team.
The Submissions of the Employer
The Employer conceded that the change in the provision of service will move clients
from the Brockville Team to the Ottawa Team and could potentially have a negative
affect on the number of employees in this Union’s bargaining units. However, it was
stressed that this Collective Agreement not only gives the Employer the right to transfer
work outside of the geographic scope of the contracts, but it also gives the Employer the
right to contract out work, as long as no one is laid off or the other conditions in Article
24.02 are met.
5
The Employer indicated that although this case was initiated and progressed through
the grievance process as a “contracting out” case, the submissions of the Union clarified
that this is, in essence, a grievance focused on Article 24.01, not 24.02. The Employer
indicated no objection to the change of focus. On that basis, the Employer submitted
that the merits of the grievance should be decided on the basis of the principles set out
in the arbitration and judicial review decisions involving Gate Gourmet Canada Inc. v
Milk and Bread Drivers, supra [Gate Gourmet]. The Employer pointed first to the
Divisional Court decision upholding the principle that any limits on the transition of work
out of the bargaining unit within the same organization must be read in conjunction with
the geographic scope of the Collective Agreement. Accordingly, the Employer argued
that Article 24.01 only limits it from transferring the work normally done by members of
one bargaining unit to excluded employees and/or other bargaining units covered by the
scope clause of the same collective agreement.
The Employer also relied on the following case t o emphasize that there is an important
distinction between contracting out and transferring work within the Employer’s
operations: Providence Care Centre (MHS) v Ontario Public Service Employees’ Union,
2010 CanLII 99126 (ON LA) (Nairn). As a result, the Employer submitted that Article
24.01 must be read in conjunction with Article 2.01 to prevent only the reassignment of
work normally performed by the members of these two bargaining units to managerial or
other non-bargaining unit employees at the Brockville site. This conclusion was also
said to be consistent with the decision of Arbitrator Mitchnick in the original case of Gate
Gourmet, supra.
In conclusion, the Employer asked for the grievance to be dismissed. In the alternative,
the Employer suggested that even if the grievance is allowed, there can be no basis to
retain jurisdiction over any future layoff that may be a result of contracting out, because
this case has been focused only on the issue of transitioning work within the Employer’s
operations, rather than to a third party employer which would be governed by Article
24.02.
6
Reply Submissions from the Union
The Union acknowledged the Employer’s right to contract out bargaining unit work if the
conditions under Article 24.02 are met. However, it was stressed that nothing in the
Collective Agreement allows the transfer of one bargaining unit’s work to other
bargaining units. In response to the reference to the Providence Care decision, supra,
the Union submitted that the language of Article 24.01 is different and stronger than the
wording that compelled that decision.
The Decision
Some aspects of this case are clear. The Parties agree that the operational and clinical
changes to the model of patient delivery will move the Brockville Team’s clients who live
in Carleton Place and Almonte to the care of the Ottawa Team. Accordingly, it is clear
that there has and/or will be a movement of work normally done by members of the two
Brockville bargaining units to employees in different bargaining unit(s). This may affect
the size of the Brockville bargaining units in a negative way, although no job losses or
layoffs have occurred to date. The Parties also agree that this is not a contracting out
case. Therefore, Article 24.02 has no application, other than providing context and
contrast to the provisions in Article 24.01.
Further, it is clear that the line of cases flowing from Arbitrator Goodfellow’s decision
in Royal Ottawa Health Care Group and CUPE, Local 942, supra, establish that
reassignment of bargaining unit work within an organization should be looked at by
examining whether there has been a change to the “type and volume” of duties normally
assigned to the bargaining unit members. Those cases reject the older case law that
had focused on whether the work in question had been shared or overlapped with other
bargaining units or classifications. Those cases did not need to consider the geographic
scope clause of their collective agreements.
7
The Employer does not dispute that there can and will be a change to the type and
volume of work for the members of the bargaining unit on the Brockville FACTT-DD
Team. However, the submissions of the Parties focused this case on the question of
whether this Collective Agreement places restrictions on the internal transfer of
bargaining unit work to a location not covered by this Collective Agreement.
The case turns on the language of the Collective Agreement. None of the cases cited
by the Parties has identical language. Therefore, it is most helpful to analyze Article
24.01 on the basis of the accepted principles in relevant case law.
First, it is important to note that Article 24.01 is a “supervisors working” or “bargaining
unit work”, clause, not a “contracting out” clause. The distinction is based on whether
the movement of work is within the employer’s operation, or whether it is moved to a
third party employer. The distinction has bearing on an employer’s right to reorganize
its workforce. This was ably summarized and applied by Arbitrator Nairn in Providence
Care, supra, wherein she relied on the well-accepted summary of principles set out in
International Forest Products, (2005) 83 C.L.A.S. 165 (McPhillips):
Prior to concluding that the movement of work constituted an internal transfer of
work and not contracting out, as the receiving company was controlled, directed
and dominated by the employer, the arbitrator summarized certain relevant arbitral
principles:
52 …First, management has the right to arrange its affairs and run
its operations as it sees fit. Any restrictions on those rights must be
stated in clear and explicit language in the collective agreement…
53 Second, if it is intended that there exists a right within the
bargaining unit to perform any particular work, then that right should
be explicitly contained in the agreement in such a way that actual work
is protected by a provision which fully or partially restricts the
performance of bargaining unit work to members of the bargaining
unit…
54 Third, the arbitral authorities draw a clear distinction between
such bargaining unit work or work jurisdiction clauses and contracting
out restrictions. In that regard, in Sodexho Marriott Services of
Canada, supra, Arbitrator Surdykowski stated, at para. 23:
8
It is important to remember that a no contracting out clause
is not the same thing as a bargaining unit work clause. Their
purpose and effect are different. A bargaining unit work
clause is intended to reserve certain work (often
described only as work “normally performed by
employees covered by the collective agreement”, or
words to that effect) to bargaining unit employees by
restricting the employer's right to assign such work to
managerial personnel or other (i.e. non-bargaining unit)
of its own employees at the work locations covered by
the collective agreement. In the labour relations sense of
the term, “contracting out” is the transferring of work which
has been performed by bargaining unit employees to an
independent third-party contractor by means of a
commercial contract, which third party employer then has its
employees perform the work. [emphasis added]
55 Fourth, “contracting out” restrictions are to be interpreted and
applied narrowly and generally do not apply to a transfer of work within
a company, i.e. “intra-corporation”…
56 Fifth, “contracting out” restrictions in collective agreements are
limited to inter-corporate transfers of work to a second employer or
independent party… The critical essence of contracting out is the
transfer of work to an operation over which the company does not
“have or retain direct control”… Put another way, the characterization
of contracting out involves the transfer of work to an independent
contractor or an independent firm, normally for a price…
The concept of a ‘bargaining unit work’ clause being designed to prevent an employer
from assigning that work to non-bargaining unit personnel “at the work locations
covered by the collective agreement” is critical to the outcome of this case.
That is why both Parties relied on the analyses in the two Gate Gourmet decisions that
examined the effect of a ‘bargaining unit work’ or ‘supervisors working’ clause in
conjunction with the recognition clause. In that regard, when Gate Gourmet was being
decided initially, Arbitrator Mitchnick acknowledged and accepted that the
“preponderance of arbitral case law” has established the following principles:
9
• Clear language is required to limit management’s right to organize its business
• The arbitral consensus is that “supervisors working clauses” restrict
management’s rights regarding the assignment of bargaining unit work to
excluded personnel - at the same location only.
Nevertheless, he found that the company had violated the collective agreement by
sending ‘normal work of the bargaining unit’ out to other employees of the company at a
different location, resulting in lost overtime opportunities for members of the complaining
bargaining unit. His decision was taken to Judicial Review by the company, arguing
that he had erred in finding a breach of the contract. His decision was upheld by the
Divisional Court, explaining the effect of the geographic scope clause:
[14] The Arbitrator further found that in the cases where the scope of the
clause is limited to non-bargaining unit employees at the same location, the
clauses are read in conjunction with the Scope of Recognition Clause. In the
collective agreement at bar, the Scope of Recognition Clause contained the
following wording:
In the event the facilities or part of the same are moved to a new
location the collective agreement and members will follow.
[15] According to the Arbitrator, this clause, commonly referred to as a
“runaway shop clause” was significant, not because it covered the situation he was
dealing with, but because it was designed to provide the Union with full protection
in the event the Employer changes its location to outside of Pearson . Therefore,
according to the Arbitrator, “it is hardly a stretch to read the express words used in
Article 37.02 as providing the Union with protection in the case of a tiny subset of
the members’ work.” In other words, unlike in the cases relied upon by the
Employer, the Scope of Recognition Clause in the collective agreement at bar
provided Union members with protection in the event of a location change.
[16] On this basis, the Arbitrator was not persuaded that “Employees not
covered by this Agreement” was limited in scope to supervisors of other employees
at the Pearson location. This was a decision based on the express wording of the
clause in question, which refers to all “Employees not covered by this agreement”.
Further, the Arbitrator provided detailed reasons as to why he was departing from
the preponderance of the arbitral case law. Fundamentally, he did so because of
the clear wording of the clause he was being asked to interpret, taken in the context
of the collective agreement as a whole, which contained another clause focused
on protecting the Union’s rights in the event the Employer changed the location
where bargaining unit work was carried out. There is nothing unreasonable about
this analysis or the Arbitrator’s conclusion on this issue. [emphasis added]
10
In the Collective Agreement covering the employees in OPSEU’s Brockville bargaining
units, the recognition clause covers the employees employed by “The Royal Ottawa
Health Care Group employed at or administered from the Brockville Mental Health
Centre” [emphasis added]. Article 2.01 lists the staff who the Union cannot represent
and includes “persons already represented by a bargaining agent”. The ‘work of the
bargaining unit’ clause protects duties normally performed by members of the
bargaining unit by prohibiting the performance of that work by “Supervisors or Managers
or other persons excluded from the bargaining unit” except in exigencies of patient care.
Unlike the situation in Gate Gourmet, OPSEU’s Collective Agreement contains no
language protecting bargaining unit work from it being moved to another geographic
location, unless there has been contracting out of the work and non-compliance with
Article 24.02.
Basic rules of contract interpretation require that the Collective Agreement must be read
as a whole. On its own, Article 24.01 ensures that the duties normally performed by
members of these bargaining units cannot be transferred or reassigned to any excluded
employees or other bargaining unit employees at or administered by the Brockville
Mental Health Centre. Can it also be read to mean that this clause prohibits
reassignment of that bargaining unit work to employees of the Royal Ottawa Health
Care Group at another site(s)? The Divisional Court has accepted the analysis that
contained the proposition that “supervisors working clauses ” or “normal bargaining unit
work clauses” restrict management’s rights regarding the assignment of bargaining unit
work to excluded personnel - at the same location only.
The scope clause in the case at hand refers to the “staff employed by The Royal Ottawa
Health Care Group employed at or administered from the Brockville Mental Health
Centre”. This sets the geographic limits or reach of the Collective Agreement and the
scope of the bargaining unit. It must be read together with Article 24.01 to mean that
while the Employer cannot transfer the work of the bargaining unit to excluded staff or
11
other bargaining units at the Brockville Centre, it does not prevent the Employer from an
internal transfer of the work outside of Brockville.
If there was any suggestion that the transfer of patients to the Ottawa Team from the
catchment areas previously served by the Brockville Team was implemented as a ploy
to erode the bargaining units or interfere with the Union’s bargaining rights, this would
be a very different case and different result. However, there is no suggestion that the
operational or clinical changes were made for any ulterior or improper labour relations
reason.
Accordingly, because of the focus of the Parties’ submissions, the nature of this
grievance, the principles cited and the language of the Collective Agreement, the
grievance must be dismissed.
Dated at Toronto this 8th day of June, 2022
__________________________________
Paula Knopf - Arbitrator