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HomeMy WebLinkAboutUnion 10-09-30 r J I V11. ' I UJ ~H~'mll? IN THE MATTER OF AN ARBITRATION BETWEEN: NORTH BAY GENERAL HOSPITAL (Hereinafter referred to as the "EmployerlHospital") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 636 (Hereinafter referred to as the "Union") AND IN THE MATTER OF A POLICY GRIEVANCE RESPECTING BARGAINING UNIT WORK BEFORE: JOSEPH D. CARRIER Sole Arbitrator Aooearances for the Union: Christopher Bryden Counsel Ryder, Wright Vice-President, Local 636 Mickey King Aooearances for the Emolover/Hosoital: Shane Smith Counsel Miller Thomson H.R. Generalist Program Manager, Community Programs Addiction & Mental Health Shelley Fraser Claudette Lamothe A hearing in this matter was held in North Bay, Ontario, on July 14, 2010 AWARD In the matter before me, Local 636 of the Ontario Public Service Union grieves that the Employer, North Bay General Hospital, has inappropriately assigned bargaining unit work to persons outside the bargaining unit, specifically to members of the Service Employees International Union. In or about June of 2009 the Employer reassigned the duties involved in the taking of after hours telephone calls from OPSEU employees who are members of the Hospital's Assertive Community Treatment Teams to SEIU employees who are members of the Hospital's Crisis Intervention Team. The grievance was filed on July 22, 2009 alleging that the reassignment which has continued constitutes a violation of the collective agreement with OPSEU. It was the position of the Union advanced by Mr. Chris Bryden at the hearing that the reassignment of duties constituted a violation of an implied term of the collective agreement. It was his position that it was implicit in the collective agreement that there existed bargaining unit work, that the duties here in question fell within the ambit of bargaining unit work and that the reassignment of such duties to non-bargaining unit personnel represented a threat to the integrity of the unit and a violation of the implied term in the collective agreement against such actions or conduct by the Employer. For the Employer, amongst other things, Shane Smith took the position that I ought not to imply in the collective agreement before me a term restricting the Employer's rights to re-allocate the duties in question. In particular, here there was a specific provision in the collective agreement dealing with the re-allocation of bargaining unit work. That provision was not so broad as to - 2- interfere with the Employer's action in this matter. Specifically, Article 14 of the collective agreement entitled "Work of the Bargaining Unit" reads as follows: "Article 14.01 Supervisors or Managers excluded from the bargaining unit shall not perform duties normally performed by members of the bargaining unit which shall directly cause or result in the layoff, loss of seniority or service or reduction in benefits to members in the bargaining unit. " In brief, it was the Employer's position that there was no violation of the collective agreement. The Back2round It was helpful to have received the Agreed Statement of Facts prepared by counsel for this matter. However, I do not believe it is necessary to reproduce the entirety of that document for the purposes of this Award. The following outline should suffice to highlight the issues: 1. In or about the middle of 2008 Community Programs operated by the Northeast Mental Health Centre were transferred to the Employer, the North Bay General Hospital. With those programs a significant group of OPSEU employees transferred to the Hospital. There they became members of the Hospital's two Assertive Community Treatment Teams ("ACIT") operated by the Hospital in the North Bay area. Aside from OPSEU members, these teams are comprised of members from several disciplines including, for instance, nurses. The ACIT teams provide mental health services to mentally ill patients living in the community. 2. In addition to the ACTT employees the Hospital also has on staff a group of crisis workers who are involved in crisis intervention in particular in relation to substance abuse programs. The crisis workers are represented by the Service Employees International Union. - 3 - 3. Until the change was implemented in or about June of 2009, an OPSEU member of the ACTI teams (of whom there were approximately 50 OPSEU members) was required to remain on stand-by during off hours in order to field or take emergency calls. ACTT provides 24 hour accessibility to the community at large. Employees were assigned to this duty on a rotational basis which was shared by nurse members of the ACTT staff. Stand-by pay for OPSEU members was at $3.00 per hour and $3.50 hourly for holidays. 4. In supplementation of their stand-by pay, OPSEU members also received payment for after hours calls as follows: (a) Non-emergency calls were paid at time and one-half (lV2) at 15 minute increments; (b) Calls categorized as emergency were paid pursuant to the call back provisions of the collective agreement (Article 13.07) - which meant the employee was entitled to payment for a minimum of four (4) hours pay at the rate of time and one-half (1 V2). Of course, if an employee received two or more calls during the same four (4) hour period only one call back credit would be recognized. 5. There was no dispute before me as to which types of calls were emergency and which non-emergency. For instance, a client call inquiring as to shopping or cigarettes the next day would be considered non-emergency, whereas, a call from a suicidal client or one who has run out of medication would be considered an emergency. 6. Until July of 2009 all calls whether emergency or otherwise went to the ACTI team member who would in effect triage the call as to emergency or non-emergency and deal with it or pass it on as the case may be. 7. Rather than continue the practice of having members of the ACTT staff who are on stand-by receive all after hour calls, the Hospital decided to have these calls screened or - 4 - triaged by the crisis intervention employees, who would then forward calls that required the attention of an ACIT staff member, that is, the emergency calls. 8. Crisis intervention employees are on duty 2417 and typically entertain as part of their regular duties after hour calls at the Hospital for purposes of crisis assessment, intervention and support. 9. ACIT team members are engaged on stand-by primarily to receive, entertain and deal with emergency calls. Although ACIT clients are instructed that after-hours calls are to be made to ACTT for emergency purposes only, it is not uncommon for clients to call direct to ACIT when no real emergency exists. 10. As a result of the change, ACIT members of OPSEU have lost only the overtime pay referable to the non-emergency calls which are now triaged or taken by the crisis intervention members. They continue to receive the appropriate overtime for those emergency calls which are referred to them for intervention. 11. Crisis intervention employees or crisis workers are members of the SEIU bargaining unit. That classification has been in existence for over ten years and as such is responsible for crisis assessment, intervention and support to individuals with mental illness, mental health and/or addiction challenges or persons who are experiencing a crisis. These services are provided over the phone and in person to individuals at the Hospital (primarily in the Emergency Department). - 5 - The Discussion and Decision For the Union, Mr. Bryden argued that the structure of the collective agreement including the seniority provisions and the identification of specific classifications, in this case, that of ACTI team member, implied the existence of bargaining unit work. More importantly, Article 14.01 itself clarifies the existence of bargaining union work for the purposes of this contract. Further, since the Union represents the bargaining unit, the removal of bargaining unit work to non- bargaining unit employees represented a threat and compromise to the integrity of the unit and the collective agreement. In this case the Employer's conduct in removing those triage duties historically performed by members of the bargaining unit constituted a violation of the contract. In support of his argument Mr. Bryden referred to several precedents including the following: Nova Scotia (Department of Transportation and Communications) and C.U.P.E. Local 1867 [1991] N.S.L.A.A. No. 19; 19 L.A.c. (4th) 23 (M. J. Veniot, Q.C.), Re Network North v. Ontario Public Service Employees Union. Local 666 (Boyuk Grievance); [1998] O.L.A.A. No. 966; 77 L.A.C. (4Ih) 86 (I.e. Thorne); Re North West Co. Inc. and Retail Wholesal & Department Store Union. Local 468 (pine Falls Store), [1996] M.G.A.D. No. 61; 57 L.A.c. (4th) 158 (M.H. Freedman). I should therefore declare that the Employer has violated the contract and direct a remedy by way of returning those duties to the bargaining unit together with appropriate compensation. Mr. Smith argued that this collective agreement unlike those referred to in the cited jurisprudence contained a specific bargaining unit provision. I ought not to imply an additional restriction on management's right to allocate bargaining unit work when the parties had addressed the issue specifically in their contract. To do so would constitute the addition or "6 " variance of the existing provisions, an act which is beyond the jurisdiction of an arbitrator and the specific restriction in this contract in that regard. In addition, Mr. Smith pointed out that the loss of the work in question was minimal, was overtime work and in no way compromised the integrity of the bargaining unit or even a reduction of regular work hours to the bargaining unit. I have considered the evidence and the representations of counsel and I am satisfied that the Employer's position must prevail in this case. With respect to the proposition that an arbitrator may imply a provision that bargaining unit work may be protected in the face of a threat to the integrity of the bargaining unit in the absence of any such provision in the contract, I need make no comment. Rather, in this case where the Parties have specifically addressed the issue, I am satisfied that it would be inappropriate for me to imply any further restriction than that upon which the Parties have already agreed. In this collective agreement the Parties have specifically identified the nature of the protection to be afforded to the bargaining unit and its work. It is a hospital setting and the Parties have chosen to not unduly impede the Employer's flexibility in re- distributing work. Medical, technical and administrative procedures are constantly evolving within the Hospital setting. As new techniques and procedures are developed and implemented, changes will no doubt impact upon the nature of the Hospital classifications as well as the duties within those classes. The change in this case was not a dramatic one and flowed naturally from the merger of the North East Mental Health Programs with those of the Hospital. Following the absorption by the Hospital of those community programs, there were initially two classes of employees fielding calls from the community outside the Hospital in situations which might but were not necessarily critical or reflective of a true emergency, that is, the ACTT employee working on stand-by and those Crisis Workers performing similar duties as part of their regular - 7 - hours. It was not surprising that, after a period of time, the Employer would have acted to merge those duties into one group. In this case, since the SEIU employees were on regular hours and performed such duties as part of their regular work, the transfer was a reasonable business decision. Furthermore, it did not impact upon the OPSEU bargaining unit such as to diminish the regular hours or the numerical size of the unit nor were any of the emergency calls from ACTI clients directed to be performed by the Crisis Workers. In the circumstances, there IS no violation of the collective agreement before me and the grievance is dismissed. DATED at Toronto this 30th day of September 2010. ...