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Canadian Blood Services and O.P.S.B.U. (Re)
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Canadian Blood Services and O.P.S.E.U. (Re)
Re Canadian Blood Services and Ontario Public Service Employees' Union
94 L.A.C. (4th) 429
2001 CLB 12134,63 C.L.A.S. 30
Ontario
P.A. Chapman, P. Munt-Madill and K. Butler-Malette
Decision rendered: Janumy 9, 2001
Work assignment -- Bargaining unit work -- Use of volunteers to transport donors not contrary to
collective agreement.
Job evaluation -- Job descriptions -- Job description for driver position amended to provide for driving of
donors -- Past practice of assignment to volunteers -- Amendment permitting rather than requiring
assignment of drivers to transport donors.
[See Brown & Beatty, 3:4420 ; 5:1200 ; 5:1410 ; 5:1440 ; 5:2230]
Cases referred to
Hotel Dieu Hospital and Service Employees Union, Loc. 210 (Re) , W. Rayner, January 5, 1995
[ p. 430 ]
MacLeods Stores and C.A.S.A. W, Loc. 6 (Re), H.A. Hope, October 2, 1985
Orenda Ltd. and IA.M, Lodge 1922 (Re) (1972), 1 L.A.C. (2d) 72
POLICY GRIEVANCE concerning use of volunteers. Grievance dismissed.
M Gottheil , S. Blatt and others, for the union.
L. Harnden, L. Vaillancourt and others, for the employer.
AWARD
This dispute arises from a policy grievance filed by the union on August 11, 1999, alleging that the employer's
use of volunteer drivers to transport blood donors is contrary to the collective agreement between the parties.
The union seeks an order that the employer be required to use employee drivers in the bargaining unit to
perform the disputed work.
At the hearing of this matter a number of witnesses testified, documents were entered into evidence, and both
parties had an opportunity to make submissions concerning the facts, the language of the collective agreement,
and the relevant law. Having had an opportunity to carefully consider the facts and the submissions of the
parties, the following is our decision.
The Facts
Canadian Blood Services ("CBS") is the successor to the Canadian Red Cross in respect of blood services. This
grievance relates to the operations of the CBS in the Ottawa region.
OPSEU represents various employees of the CBS including clinic assistants who conduct blood donor clinics,
lab technicians who process blood, and drivers who drive equipment, blood products and personnel. The present
complaint arises from the transportation department. OPSEU and CBS or its predecessor the Red Cross have
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had a fairly long bargaining history, although the collective agreement under which this grievance was filed was
only recently signed.
The parties agree that prior to the negotiation of the current collective agreement the task of driving people who
required transportation to donate blood at clinics or at the offices of CBS, was assigned to volunteers, and not to
employee drivers from within the bargaining unit. The Red Cross has a long history of volunteerism, which has
been continued by the CBS, albeit with some changes. Indeed, the employer argued that it was fundamental to
both organizations that they deliver a range of services through the use of
[ p. 431 ]
volunteers, including the actual donation of blood (and therefore the time of the volunteer donors) as well as
assistance in the collection of blood. Volunteers have played a variety of roles in the latter respect, including
recruiting donors by telephone, driving them to and from clinics, greeting donors at clinics, registering them,
and assisting post-donation with refreshments. They also play an important role in the community in terms of
recruiting blood donors, by speaking at service club functions, high schools and other public venues, and by
organizing blood donor clinics, particularly in rural areas. Some duties have moved from volunteers to staff as
the organization has evolved, including the telephone recruitment of. donors, which used to be performed
exclusively by volunteers but has recently been assigned mostly to paid staff.
The previous collective agreement included as Schedule B-7 ajob description for drivers, parts of which are set
out below:
II. POSITION SUMMARY
Under the direction of the Transport Supervisor/Co-ordinator or delegate, the driver . . . transports
personnel, equipment, supplies, mail and blood, as directed.
III. DUTIES AND RESPONSIBILITIES
Collection
2. Transports staff, equipment and supplies to and from collection area.
During the period the language on this position description was in effect, the Red Cross sought on a number of
occasions to assign bargaining unit drivers to transport donors. Some drivers, supported by the union, objected
to this assignment of work, on the basis that the transportation of donors did not form part of the job duties and
responsibilities of the drivers. While the employer never conceded the union's position that the position
description prohibited the assignment of such work to the drivers, it did withdraw its requests in the face of such
objections.
In the most recent round of bargaining, the employer put forward a number of proposals, one of which was to
amend the drivers' job description to add the transportation of donors. The union agreed to this proposal. There
was no discussion in bargaining to suggest that this change would in any way curtail the previous practice with
respect to the use of volunteers to drive donors. The employer's purpose in
[ p. 432 ]
proposing the amendment to the job description, according to its testimony, was to permit it to assign drivers to
transport donors when and if volunteers were unavailable. However, it is not clear that this rationale was
specifically stated to the union in bargaining; it appears there was really no discussion about the reasons for the
proposed change or its implications.
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The relevant parts of the job description which forms Schedule B-7 to the new collective agreement now read as
follows:
II. POSITION SUMMARY
Under the direction of the assigned supervisor, the driver. . . transports personnel, equipment, supplies,
mail and blood products.
III. DUTIES AND RESPONSIBILITIES
Incumbent may be assigned to do some or all of the following responsibilities:
Collection
2. Transports staff, donors, volunteers , equipment and supplies to and from clinics .
[Emphasis reflects new language and is present in the original document.]
Since the signing of the most recent collective agreement, the union has objected to the employer's continued
use of volunteers to drive donors. It is the position of the union that when the driving of donors was not part of
the duties and responsibilities on the drivers' job description, they ought not to do such work, but now that it has
been included it is bargaining unit work which must be done by bargaining unit employees and cannot be
performed by volunteers.
There was no significant dispute about the nature of the work in issue. The focus of the grievance is the
operation of the "Life Bus" which picks up donors at various locations (usually companies which have agreed to
permit their employees to attend at a clinic during a particular time period), delivers them to a clinic to give
blood, and then returns them. Operation of the bus requires the holding of a special operator's licence, which the
volunteer drivers have obtained. The driving of donors is planned in advance, scheduled and then assigned to
volunteer drivers. Volunteers are not assigned to replace employee drivers at the last minute: in fact the opposite
is true, as the main concern of CBS in adding the driving of donors to the list of employee drivers' job
responsibilities was to ensure that it would be able to assign employees to perform this work in the event
[ p. 433 ]
that a volunteer was unavailable. Volunteer drivers operate the same vehicles that are regularly used by
bargaining unit employees; they are simply booked out for use by that volunteer. .
It was not disputed that there has been no decline in the hours of drivers since the signing of the collective
agreement; in fact, three part-time drivers have been hired since 1999, and overall hours have increased.
The Decision
The parties referred to a number of earlier arbitration decisions which have established a framework for the
analysis of disputes over the assignment of duties alleged to be "bargaining unit work".
First, arbitrators have confirmed that employers generally reserve the right to assign work within their general
discretion to manage the workplace, and that employees do not generally have a proprietary interest in a
particular bundle of duties and responsibilities. Thus, the starting point where a dispute arises is not to require
the employer to establish a contractual right to assign work to particular persons, but rather to look to the union
to establish that an assignment is contrary to a provision ofthe collective agreement, express or implied (see the
discussion at page 6 of Re MacLeods Stores and C.A.S.A. W, Loc. 6 , Hope, unreported decision dated October
2, 1985).
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Clearly, the existence of language in the collective agreement which explicitly restricts the right of the employer
to assign work performed by bargaining unit employees to those outside the unit is highly relevant to such a
determination. Even where such language exists, however, an arbitrator must establish the scope of the
protection, and whether disputed work falls within the definition of "bargaining unit work", in order to
determine whether a particular assignment is contrary to the agreement (see for example Re Hotel Dieu Hospital
and Service Employees Union, Loc. 210, Rayner, unreported decision dated January 5, 1995).
Where there is no express provision limiting the assignment of bargaining unit work, an arbitrator must
nonetheless look to other provisions of the agreement, including the scope and recognition clauses, job
classification language, and job descriptions where they form part of the agreement, to consider whether there is
any implied restriction (see the discussion in Re Orenda Ltd. and IA.M, Lodge 1922 (1972), 1 L.A.C. (2d) 72
(Lysyk) at pages 74 to 75).
[ p. 434 ]
And finally, it is generally accepted that the assignment of work must be in good faith, and may be subject to
arbitral review if an improper purpose, such as the deliberate erosion of the bargaining unit or an attempt to
undermine the collective agreement, is established (see for example Hotel Dieu , supra, at page 8).
In the present case the union can point to no specific provision in the collective agreement which limits the right
of management to assign work normally performed by bargaining unit members to others, including volunteers.
Instead, it relies more generally on the collective agreement, including the scope and recognition clause
contained in Article 2, the language concerning position descriptions in Article 31, and, most importantly, the
job description for the driver position, which as noted above forms Schedule B-7 to the Collective Agreement.
Taken as a whole, the union submits, these provisions clearly restrict the performance of those duties which
appear on the job description to employee drivers within the bargaining unit. In support of this argument, the
union relies upon an unreported decision which is discussed in Re Orenda, supra, at page 75, in which
Arbitrator Shime, in adjudicating a dispute between the same parties, concluded that "the specific consideration
given to job classifications, occupational groups and job descriptions can only reflect an intent that the work
falling within the purview of those considerations is to be performed by employees in the bargaining unit and
not assigned to persons outside the bargaining unit" .
There is no question that the job description for the drivers, and the other language in the collective agreement
which relates to job classifications, is relevant to assessing whether or not there is any implied restriction on the
employer's ability to assign work outside of the bargaining unit. The relevant position description language is
reviewed above; the parties also made reference to the following provisions of the collective agreement:
ARTICLE 2 -- RECOGNITION
2.01 The Employer recognizes the Union as the exclusive bargaining agent of all non-
professional employees (support staff) of the Canadian Blood Services working at or out of the Toronto,
London, Hamilton and Ottawa Blood Services Centres, together with all employees hired to work in or out
of specific locations outside the boundaries of the aforementioned Blood Services Centres as set out in
the Certificate issues by the Labour Relations Board of Ontario dated the 8th day of August, 1994
employed as Clinic Assistants, Clerical Staff, Transport Staff, Laboratory Helpers, Data Entry Clerks and
Utility Persons, Telerecruiters save and except
[ p. 435 ]
Co-ordinators, Supervisors, Assistant Supervisors, Administrative Assistants performing
supervisory functions or involved in confidential matters related to labour relations and persons employed
above these ranks.
ARTICLE 31 -- POSITION DESCRIPTION
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31.01 All employees are entitled to have in their possession, a copy of their current
Position Description. It is understood that position descriptions as appended to this contract are current as
of the date of signing of this agreement. . .
31.02 The Position Descriptions shall accurately reflect only those duties which are
applicable to all members of that position.
31.03 Any employee who is not required by her Centre's administration to perform all of the
standard duties of her Position Description shall receive no reduction in her weekly rate of pay.
31.04 An employee cannot be required to perform duties which are not contained in his
position description.
31.05 Supervisors will not customarily perform the duties of a bargaining unit employee.
31.06 a) If the Employer creates a new Position Description it shall establish the
job description and wage rate and give written notice to the Union of the new wage rate.
b) If the Union objects within thirty (30) days of receipt of the written notice
from the Employer of the wage rate, such objection shall become the basis of a meeting between
a representative of the Union and a representative of the Employer. Should such meeting result in
a revision to the wages, the wage rate shall be retroactive to the date of implementation of the
new Position Description, unless otherwise mutually agreed.
c) Failing resolution of the objections, the matter shall be determined by
arbitration.
Not having the whole of the Shime award to review, I cannot compare the language contained in that agreement
to that contained in the collective agreement negotiated by the instant parties, and I do not know how explicit
the job descriptions were, although they are described in the decision as "elaborate". In this case, though, we are
not satisfied that either the job description(s) or the collective agreement language taken as a whole establish
any clear restriction on the employer's ability to continue to assign the driving work in issue to volunteers.
It is interesting that the job descriptions all contain the following introductory language: "incumbent may be
assigned to do some or
[ p. 436 ]
all of the following responsibilities" (emphasis added). This general statement seems to mitigate against a claim
that all of the duties listed are necessarily the exclusive responsibility of the drivers, at least vis-a.-vis other
employees who may be assigned the same duties, and arguably at least with respect to volunteers as well.
The position description language in the agreement itself also fails to establish any clear restriction on the
assignment of work to volunteers. As reviewed above, Article 31 requires that employees be provided with a
copy of their current job description and establishes a process for the negotiation of wage rates for new
positions, neither of which provision limits the employer in its assignment of work Both 31.02 and 31.03, like
the job descriptions, specifically contemplate employees not performing all of the duties of their position as set
out on the position descriptions. And the limits which are contained in the Article are significant only because
they highlight the absence of any further restriction relating to bargaining unit work: Article 31.04 provides that
employees cannot be required to perform duties which are not contained in their position descriptions, but does
not address the converse problem, where duties referenced on the description are not assigned; and Article
31.05 specifically limits the assignment of bargaining unit work outside of the unit in one very specific
situation, preventing supervisors from customarily performing the duties of a bargaining unit employee. The
failure to include any similar prohibition with respect to volunteers is particularly significant in an organization
where volunteers play such a critical role, in many cases working side-by-side with paid staff.
One issue which is unclear from our review of the two Orenda decisions, and about which the parties disagree,
is the role which past practice might play in assessing the significance of any implied restrictions on the
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assignment of bargaining unit work asserted to exist in a collective agreement. Both decisions consider the
relevance of a past practice of performance of bargaining unit work by a foreman, and appear to suggest that
where such a practice is established the assignment may be justified, so long as it is relatively consistent with
past practice (Re Orenda, supra, at page 76). In the present case, of course, past practice supports entirely the
employer's assignment of donor driving to volunteers, as employees have never been assigned this task
regularly, and have in fact refused to perform it even occasionally when requested to do so by the
[ p. 437 ]
employer. The union asserts that past practice has no relevance in the present case, given the changes in the job
description language negotiated in the last agreement. Certainly that would be the case were the issue before me
the ability of the employer to assign donor driving to employee drivers, as it is undisputed that both parties
understood that by the change this would now be permitted, despite the union's earlier objections. It is not at all
clear, though, that the changes which were negotiated related to the drivers' present claim to exclusive
entitlement to the work -- certainly the negotiating history evidence which was called establishes that, at a
minimum, there was no discussion of this issue, and no statement by either party that the change would have the
effect claimed by the union.
One way in which past practice may be relevant is in determining whether the work of driving donors can be
properly considered the exclusive work of the bargaining unit, or whether it was "shared work". In the Hotel
Dieu case, supra , the arbitrator permitted the assignment of various tasks to volunteers at a hospital despite
explicit language in the collective agreement which limited the employer's ability to assign "duties or work
within the bargaining unit" to persons excluded from the unit. The grievance was dismissed "on the ground that
the work was shared, prior to the use of volunteers among three groups (employees in two separate bargaining
units as well as co-op students outside any unit) and was, therefore, not the exclusive work of the bargaining
unit" (at page 8). Again, the evidence here establishes clearly the practice ofthe employer in assigning this work
to volunteers, as well as the employer's desire that the work be "shared" with employees in the bargaining unit
to the extent at least that employee drivers might be assigned to do the work as required.
The union's argument in the present case, given the clear practice of having volunteers drive donors to and from
clinics in the past, really rests entirely on the change in the language of the driver job description in the last
round of collective bargaining, which is reviewed above. It claims that the addition of the references to the
driving of donors results in an exclusive assignment of that work to employee drivers, and prohibits the
employer from continuing to use volunteers in that capacity. This argument is not supported by the negotiating
history evidence which was called, as noted above, and having carefully examined the language in question we
are unable to
[p. 438 ]
conclude that such a significant change constitutes a reasonable interpretation of the language on its face. The
better interpretation, in our view, is that the addition of the terms "donors" and "volunteers" operates only to
more clearly permit the employer to assign the transportation of such persons to employee drivers, rather than to
require that such work be performed by bargaining unit personnel.
The union argues that to permit the employer to continue to use volunteers in these circumstances will erode the
union's bargaining rights. Certainly there has been no loss of work arising from the continued assignment of
volunteer drivers: the employer's assertion that driver hours have actually risen since the change was not
challenged; and as drivers were not previously doing this work there can have been no loss of particular
assignments. In fact, to interpret the change in the language of the position description as requiring the
assignment of donor driving to employees in the bargaining unit would result in an accretion of work to the
bargaining unit, which would be an unusual outcome and one not consistent with the claim that an erosion is
threatened.
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However, the union further asserts that a decision supporting the employer's assignment with respect to the
driving work would permit (and possibly encourage) the employer to assign other bargaining unit work to
volunteers, resulting in a clear threat to the integrity of the bargaining unit. There is no merit to this suggestion:
nothing in this decision either invites or permits the employer to assign work which has been performed by
bargaining unit members in the past to persons outside of the unit, volunteers or otherwise; and there is no basis
on the present facts to impute such a goal to the employer.
In any event, the fmal test to be considered in assessing whether a work assignment made by an employer is
appropriate is whether or not it was made in good faith, and central to that assessment is the question of whether
or not the assignment was made in order to erode the integrity of the bargaining unit. As the employer's actions
in seeking to maintain the existing allocation of the driving work do not have such an effect, there can be no
basis to question its motives or allege bad faith in the present case. But were the employer in the future to
consider a wholesale transfer of work to volunteers, as the union speculated in its final argument, we have no
doubt that the issue of good faith would be engaged.
[ p. 439 ]
For all of these reasons, the grievance is denied, and no order will issue requiring the employer to alter the
present assignment to volunteers of the work of driving donors to and from clinics and the offices of CBS.
DISSENT (Munt-Madill)
With all due respect, I disagree with the Majority's conclusion that the Collective Agreement permits the
employer to utilize volunteer drivers to transport blood donors. As the Majority states, it is the Union's
obligation to demonstrate that the assignment of the disputed duties is contrary to an expressed or implied
provision of the Collective Agreement. The Majority found no such restriction and therefore has permitted the
continued assignment of these duties outside of the Bargaining Unit.
I believe a more accurate interpretation of this Collective Agreement fmds an expressed prohibition on the
assignment of these duties to volunteers. The Bargaining Unit employees' job descriptions form part of this
Collective Agreement. Included in the DUTIES AND RESPONSIBILITIES section of the drivers' job
description are the exact job duties at issue here, that is the transportation of donors to blood donor clinics. It is
noteworthy that the transportation by volunteers is done in exactly the same way as by the Bargaining Unit
drivers; that is, the same vehicles are utilized to transport the donors and this work is scheduled in advance.
The inclusion of these job duties in the drivers' job description makes these duties Bargaining Unit work and
therefore the duty assignment outside of the Unit is contrary to the expressed provisions of the Collective
Agreement.
As the Majority notes, in the last round of contract negotiations, the JOB DUTIES AND RESPONSIBILITIES
section of the drivers' job description was changed. Prior to the recent revision, the duty of transporting donors
was not included in that job description. As a result of the negotiations, it became part of that description. There
was no discussion at the bargaining table of the reasons for this inclusion or of either parties' understanding of
the ramifications of this language change.
Arbitral jurisprudence suggests reliance on past practice is only appropriate where there has been no change in
the Collective
[ p. 440 ]
Agreement language at issue. This is not the case here. In light of the significant change in the Collective
Agreement language directly at issue in the Grievance, it was incorrect for the Majority to look to past practice
in any way to ascertain the correct interpretation of the current Collective Agreement provision. Whatever that
history may have been, a change in the language of this degree and specificity renders past practice irrelevant in
interpreting the new provisions.
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Similarly, I believe it is improper for the Majority to rely in any way on the circumstances of the contract
negotiations. As correctly noted by the Majority, there was no evidence of any discussion at all of the
ramifications of this substantial change. The Majority found support for the Employer's position in the fact that
there was " no statement by either party that the change would have the effect claimed by the union ". The
Majority failed to note, however, that there was also no discussion of the continued use of volunteers to perform
the job duties now specifically allocated to the drivers in the newly negotiated provisions of the Collective
Agreement. The evidence on this point is neutral and should not have been relied upon by the Majority to
support the Employer's position.
Also relevant to the Majority's decision is the specific language contained in the DUTIES AND
RESPONSIBILITIES section of the job description, specifically the introductory language that" incumbents
may be assigned to do some or all of the following responsibilities ". From this language the Majority found
support for the Employer's position by fmding the language to exclude "a claim that all of the duties listed are
necessarily the exclusive responsibility of the drivers ". I believe this is an incorrect understanding of the
function of this introductory language. A more accurate interpretation can be found by looking at the language
in conjunction with the provisions of Article 31.03. That Article reads:
31.03 Any employee who is not required by her Centre's administration to perform all of the standard
duties of her Position Description shall receive no reduction in her weekly rate of pay.
It is clear when the two provisions are read together that the " some or all of the duties " language is merely
making the two provisions consistent. This language flows from the right established in Article 31.03 that
drivers receive no reduction in pay if they perform only" some" and not" all" of the listed job duties.
[p.441]
Finally, I disagree with the Majority's comments respecting the absence of a valid concern of erosion of the
Bargaining Unit in these circumstances. To understand that there has only been" erosion of the bargaining unit
" if job loss occurs is to adopt a narrow understanding of Bargaining Unit rights. It is the premise of a workplace
in which Collective Bargaining takes place that all individuals performing the same work have the same bundles
of rights and responsibilities. To have individuals working side by side performing exactly the same work in the
same way but with radically different rights and responsibilities does affect Bargaining Unit rights. Clearly, that
is exactly the situation here. Furthermore, in a situation where you have, as you do here, part-time and casual
employees performing the driving work, job losses do occur when this work is assigned outside of the
Bargaining Unit. Shifts which would have been assigned to part-time or casual employees are not assigned,
resulting in a loss of work Furthermore, if a full-time position is required, then that full-time position is not
posted and filled pursuant to the Collective Agreement provisions. Therefore, there is an erosion of the work or
cohesion of the Bargaining Unit by assignment of this work outside of the Unit.
In light of the above, I would have allowed the Grievance and ordered the Employer to cease using volunteer
drivers to perform the Bargaining Unit work of transporting donors.
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