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HomeMy WebLinkAboutUnion 11-04-12 IN THE MATTER OF AN ARBITRATION UNDER THE ONTARIO LABOUR RELATIONS ACT BETWEEN: BROCKVILLE GENERAL HOSPITAL ("the Employerl)) AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION ("the UnionlJ) GRIEVANCE RE LAYOFFS AND ASSIGNMENT OF WORK AWARD ARBITRATOR: BARRY STEPHENS EMPLOYER COUNSEL: COLIN YOUNGMAN/ Hicks Morley Hamilton Stewart Storie UNION COUNSEL: CHRISTOPHER BRYDEN, Ryder, Wright, Blair and Holmes Heard in Brockville, Ontario on September 13, 2010 AWARD Facts {1] This case involves a dispute over the layoff of OPSEU members in circumstances where members of DNA and CUPE now perform work previously performed by DPSEU. The parties proceeded by way of agreed statement of facts the text of which is as follows: The parties agree to the following Statement of Facts in the arbitration of a policy grievance. The parties agree that this Agreed Statement of Facts and the terms and descriptions used therein is without prejudice or precedent to their respective arguments regarding the interpretation of the Collective Agreement. 1. OPSEU is the bargaining agent for all Paramedical Employees of the Hospital. The Bargaining Unit has approximately 90 employees. The Hospital and the Union are parties to a collective agreement which combines Central and Local language. 2. As part of the bargaining unit the Hospital previously employed 4 fullw time, 6 part-time and 4 casual Medical Laboratory Assistants ("MLA"). The MLA job duties are described in the attached Job Description. Part of an MLA's duties include the collection of "specimens" such as blood and performing specified cardiac procedures (ECG's and Holter Monitors). 3. On March 9, 2010, the Hospital provided OPSEU with notice of proposed lay-oft's of a permanent or long-term nature. In the notice of lay-oft the hospital described the reasons as follows: I regret to inform you that due to patient care model changes, efficiency initiative, permanent bed closures and budget shortfalls in the upcoming fiscal year (2010/2011), there will be layoffs for members of OPSEU local 425. To be more specific, the Hospital intends to continue using MlT's during peak hours for drawing blood. However, during non-peak hours, the Hospital intends to reduce or eliminate the number of MlT's on shift and reassign the task of drawing blood to nursing staff on the floor. 4. While the lay-oft notice speaks to ML T's, it is acknowledged by the parties that the lay-oft's were of MLA's and not ML T's. 5. Open meetings for staff were held on or around March 9, 2010. During these meetings, management outlined to employees the hospital's 2010/2011 operating plan, as well as the impacts the plan would have on staffing and the budget. 6. The hospital received a number of questions from staff regarding these changes, and responded to these questions in a spreadsheet which was distributed to all. 7. The hospital proceeded with the proposed lay-off's. One full-time and two regular part-time MLA's were laid off. One MLA accepted an early retirement, another accepted a separation allowance and the last MLA is currently working in the Hospital covering a pregnancy/parental leave. 8. On or about March 10, 2010 OPSEU filed a policy grievance alleging a violation of Article 22 of the Collective Agreement. 9. The lay-off's were a result of the elimination of the evening and midnight shift for the MLA's. Previously the Hospital had at least one MLA on shift 24 hours a day 7 days a week. 10. The hospital examined the number of blood draws on any given day and it was found that between the hours of 10 pm an'd 6 am there were very few blood draws occurring. Typically on any given night the number of blood draws throughout the hospital was in the single digits. 11. MLA's can only draw blood by Venipuncture. Venipuncture involves drawing blood from the vein. MLA's are not permitted to draw blood from any line (i.e. arterial line or pice line). 12. The drawing of blood, the collection of other specimens and performing ECG's and Holter Monitoring is within the scope of practice of the Nursing Staff. Nursing staff may collect blood by venipuncture or may collect blood through an existing line, 13. While the MLA's historically drew blood from patients throughout the hospital, Nursing staff have also performed the task of drawing blood. Specifically, in the critical care areas of the hospital (ICU and Emergency) Nurses have always drawn blood from patients, although they have not done so exclusively. With respect to other specimen collection, including urine and feces, Nurses have historically collected those specimen's. 14. The Hospital undertook a formal training program to train expert users throughout all areas of the Hospital. The expert users then trained all nursing staff. MLA's assisted in providing on-the-job training and education in the lab to RNs and RPNs on phlebotomy/drawing blood. This training was provided through June, July, and August 2010. MLAs and other lab personnel have continued to provide phlebotomy training in the lab to RNs and RPNs into September, 2010. 15. The MLA's continue to draw blood from in-patients in the hospital during the first draw in the morning (6 am to 10 am). Throughout the 2 day on Mondays and Fridays to B pm, the MLAs perform only ECGs and do not routinely draw blood after 1 DAM on the floors. MLA's also continue to be employed on Saturday's, Sunday's and Statutory Holidays from 6 am to 2 pm. The morning blood draw accounts for the vast majority of in-patient blood draws in the hospital on any given day. 16. Critical care nursing staff now perform ECG's and blood collection in the ICU and Emergency units, 24 hours 7 days a week. although MLAs are called by nurses to provide assistance with blood draws, including difficult or unique draws. During the hours of Bpm to 6am on the inpatient unit only, critical care nurses will attend on the unit to perform ECG's. However, because MLA's continue to perform ECG's and other cardiac testing from 6am up to Bpm, there are very few if any ECG's performed by nursing staff on the inpatient units. 17. No additional staff have been hired, nor have otherwise surplus staff been retained, to perform the duties that were previously performed by the MLA's on the evening and midnight shifts. The additional duties the Nursing staff are performing are within their scope of practice and made a minimal impact on their workload. [2] I note that the grievance potentially impacted the rights of members of two other unions at the hospital) CUPE and DNA. Both unions were contacted and asked if they wished to seek standing at the hearing of this matter, and both declined. [3] The relevant provisions of the collective agreement include the following: ARTICLE 22 - CONTRACTING OUT 22.01 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 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 to perform such services. ARTICLE 23 - WORK OF THE BARGAINING UNIT 23.01 Supervisors or Managers excluded from the bargaining unit shall not perform duties normally performed by members in 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. 3 Union's Submissions [4] The union argues that the layoffs arose from the employer's decision to change the way blood work was done at the hospital. As a result of the change, aside from the first morning run, nurses in the DNA unit and RPN's in the CUPE unit routinely perform blood work. As a direct result, there has been a reduction of one full time and two part- time MLA's, as well as a reduction of MlA shifts. The union does not argue that the layoffs constituted a breach of Article 22, since the work was not "contracted out" but was "contracted in" to other unionized employees in different unions. However, the union argues that the transfer of work to another bargaining unit represented by a different bargaining agent violated Article 23 and the implied protection of seniority, recognition of the union, and the negotiated wage scales in the DPSEU collective agreement. [5} By way of remedy, the union seeks a declaration of a breach, an order that the layoff notices are to be rescinded, and reinstatement of the affected employees with no loss of compensation or seniority. The union requested that I remain seized with respect to the implementation of the decision. (6] The union relied on the following authorities: Nova Scotia (1991), 19 L.A.c. (4th) 23 (Veniot); Hospital for Sick Children, [1993] a.L.A.A. No. 600 (Mitchnick); Ault Foods Ltd. (1994), 42 L.A.c. (4th) 289 (Fraser); North West Co. (1996), 57 L.A.c. (4th) 158 (Freedman); Network North (1998), 77 L.A.c. (4th) 86 (Thorne); Liberty Mil/works, [1996] 4 a.L.A.A. No. 622 (Aggarwal); Knollcrest Lodge, [1996] a.L.A.A. No. 290 (Carrier); Ontario Jockey Club, [1998] a.L.A.A. No. 708 (Herlich). Employer Submissions [7] The employer argues that there is no implied restriction in the collective agreement with respect to the assignment of work or, in the alternative, that even if there was such an implied restriction, it did not apply to this fact scenario. Furthermore, the employer took the position that there can be no violation given the overlap of blood work duties across bargaining units. [8] The employer argues that Article 23 only prohibits the employer from re~ assigning work of the bargaining unit in cases where managers or supervisors perform the work. This is not a circumstance, the employer argues, where persons outside the bargaining unit are acting as MLA's. Rather, the nurses in the ONA bargaining unit, for example, are performing the duties of nurses as they have done all along, and there is no question that the nurses are qualified to perform the blood work. The employer points out that there is no suggestion that the work was reassigned as part of an attempt to avoid collective agreement obligations. Rather, the employer's motivation was to realize efficiencies while maintaining patient care. The employer argued the union is attempting to import rights into the collective agreement that do not exist, rights which would impose serious restrictions on the employer's ability to manage the hospital. 5 [9] The employer relied on the following authorities: Irwin Toy (1982), 6 L.A.c. (3d) 328 (Burkett); Grande Prairie General (1996). 57 L.A.c. (4th) 173 (Christian); Mississauga Hospital (unreported, Kennedy, 1997); London Health Sciences (unreported) Fisher, 1999); Canada Bread, [1999] O.L.A.A. No. 204 (Craven); Niagara Health System, [2002] a.L.A.A. No. 167 (Knopf); Ottawa Hydro Electric (2000), 90 L.A.C. (4th) 62 (Stanley); Windsor Regional Hospital, [2000] 62 c.L.A.S. 313 (Williamson); Exhibition Place, [2003] O,L.A.A. No. 145 (Mitch nick); Participating Hospitals (unreported) Gray, 2009). Decision (10] After reviewing the submissions of the parties, the jurisprudence and the agreed facts, it is my view that the redistribution of the blood work is not a violation of the collective agreement and the grievance should be dismissed. [11] The union is arguing in essence that I should find that the seniority, union security, wage rates, and other provisions of the collective agreement, when read together, import an implied term into the collective agreement that the RN's and RPN's cannot perform the disputed blood drawing work without Violating the DPSEU collective agreement. [12] Arbitrator Burkett addressed a similar issue in Irwin Toy. In that case there was no restriction with respect to supervisors but the union attempted to make the same 6 argument that is placed before me, i.e. that there was an implied term against supervisors performing bargaining unit work since it impacted on seniority and union security. Arbitrator Burkett agreed with the union that arbitrators had recognized such an implied protection. However, he also found that the supervisor would have to be working essentially as a full time member of the bargaining unit in order to trigger the protection, stating at p.335: "[W}e are of the view that the amount of bargaining unit work assigned to a supervisor necessary to trigger the implied restriction must be very close to, if not, an amount which would occupy a bargaining unit employee for a full shift on an ongoing basis. The implied restriction flows from the clauses in the collective agreement dealing with seniority, job posting and lay-off and recall. These clauses give rise to rights in connection with job bidding, bumping and recall in respect of certain jobs or job vacancies. These rights, however, can only be exercised in respect of jobs which would occupy a bargaining unit employee for most if not all of a shift," [13] Numerous arbitrators have followed Arbitrator Burkett's approach over the years, and I accept it as a reasonable method for the analysis of the dispute now before me. (14] The evidence is that the blood drawing work was reassigned to the RN's and the RPN's so that MlA's would not be required on some shifts, thus saving the employer the cost of the MlA's wages for those shifts. The parties agree that the amount of work transferred had a "minimal impact" on the workload of the nursing staff. As a result, I could not reasonably conclude that the amount of work transferred has led to a situation in which the RN's and RPN's performing the former MLA blood draw work are working as OPSEU members for full shifts on an ongoing basis. 7 (15] Moreover, the duties transferred were within the scope of nursing practice and had been performed by the nursing staff in various areas of the hospital prior to the reassignment. Where there is such an overlap of duties, I am not persuaded that the parties can be imputed to have agreed to an implied term that, in essence, would confer exclusive right to the duties in some circumstances to a specific classification and bargaining unit. The decision of Arbitrator Williamson in Windsor Regional Hospital makes this very point in the context of a dispute also concerning the task of drawing blood by venipuncture. In Windsor Regional the arbitrator found that, as is the case in the matter before me, the task had historically been assigned across bargaining units and could not be claimed exclusively by one union, stating: "Exclusivity over the work cannot be claimed by floor, by department, or time of day at which the work is performed. As the arbitral jurisprudence makes clear, work that has already been shared with others cannot be exclusively reserved as solely bargaining unit work." (16] Those comments apply with equal logic to this grievance. In addition, I do not find protection for the union in the explicit language in Article 23/ which deals solely with the case of supervisors or managers performing the work of the bargaining unit, not with members of other unions. [17] The union agreed that this was not a circumstance in which the work had been contracted out to some external company or organization, but was a matter of reorganization within the hospital. In consideration of all ofthe above, therefore, I have 8 concluded that the employer's decision to redistribute the blood work was not a violation ofthe OPSEU collective agreement and the grievance must be dismissed. 9