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HomeMy WebLinkAbout1981-0147.Burns and Byrnes.81-11-16aetween: Before: IN THE :vlATTER OF AN ARBITRATION Under THE CROWN EXPLOYEES COLLECTIVE SARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Grievors: For ?he Employer: Hearing: Messrs. P. Burns and G. Byrnes - And - Grievors The Crown in Right of Ontario (Ministry of Health) Mr. S.B. Linden, Q.C. Vice Chairman Mr. R. Russell blember Mr. D. Middleton Xember Empbyer .Mr. C. Richards Grievance Officer Ontario Public Service Employees Union ILlr. 3. Callas Regional Perscnnei Administrator !,linistry of Health -September 16, 1981 -2- There were originally two grievances in this matter, one of !Mr. Gordon ayrnes and the other of ,Mr. Pat Burns. We-,were advised at the outset that L4r. Gordon Byrnes is now a member of management and is, therefore! not interested in proceeding with his grievance. In any event, the facts of his case are identical to those of Clr. Pat Burns. This hearing, therefore, deals only with the grievance of Mr. Pat Burns. The result achieved in this grievance would also, presumably, be determinative of the Gordon Byrnes matter. Mr. Pat Burns,grieved as follows, on January 15. 1981: STATEMENT OF GRIEVANCE: I am improperly paid as an Att. 4 R.N. Oak Ridges (Ward Supervisor). SETTLEMENT REQUIRED: That I be paid the same salary as an R.N. 3 Supervisor with full retroactive pay to the date of my R.N. ckrtification. In order to understand the nature of this grievance, it is first necessary to set out the facts. The Mental Health Centre in Penetanguishene, where the Griever is employed, is divided into two units - the Oak Ridge Unit and the Regional Unit. The Regional Unit provides psychiatric services to people in the community. The Oak Ridge Unit, on the other hand, is a maximum security psychiatric hospital. This facility iiouses people who are dangerous to themselves or others, and it is also used for forensic assessments. There is one Director of Nursing responsible for the nursing staff at both the Regional Unit and the Oak Ridge Unit. The staff ar the Cak Ridge Unit is primarily supervised by a Chief Attendant who reports to the Director - 3- of Nursing. The Chief Attendant oversees eight wards., The supervisors of these eight wards are classified as Attendant 4 Oak Ridge and called Ward Supervisors. They report to the Chief Attendant (although there may be a management layer in between). The Ward Supervisors have the highest level of classification for attendants. Their position requires them to have an R.N.A. Certificate from a community college. It is important to note that The Health Disciplines Act requires that some nursing procedures (for example, intra-muscular injections) may only be performed by a Registered Nurse. Accordingly, the Attendant 4 employees at the Oak Ridge Unit’are limited in what they can do. Therefore, the Hospital has established a special nursing unit at the Oak Ridge Unit which is headed up by a Supervisor who is a Registered Nurse. This Supervisort who is classified as Nurse 3, General, does not report to the Chief Attendant but reports to the Director of Nursing through an Assistant Director who is also an R.N. This is also a requirement of The Health Disciplines Act. There are eight Registered Nurses in this special nursing unit, classified as Nurse 2, General, who report directly to the Nurse 3, Supervisor. These nurses provide a degree of nursing care in all of the eight wards iti the Oak Ridge Unit that is beyond the limit of the Attendant 4 employees. There are no other Registered Nurses employed in the Oak Ridge Unit. The Regional Division of the Mental Health Centre, which provides psychiatric services to people in the community. has a staff made up primarily of Registered Nurses, and their classification system is designed for Registered Flurses. The wards in rhe Regional Unit are supervised by R.N.‘s. classified as Nurse 3, General einployees. There are also R.;V.‘s and R.N..\.‘s -4- employed, all of whom report to the Nurse 3, General employees who, in turn. report to the Director of Nursing. This classification system has been established pursuant to 5.17 of The Crown Employees Collective bargaining Act, 1972. The relevant section reads as follows: 17. (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions; and (b) merit system, training ‘and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of. cokctive bargaining nor come within the jurisdiction of a board. Apparently, the division of the Units at the Penetanguishene Mental Health Centre is dictated by the need for security in the Oak Ridge Unit. The responsibility of security comes under the general jurisdiction of the Chief Attendant whereas the responsibility for nursing care in both Units comes under the direct authority of the Director of Nursing. There is a significant degree of similarity between the job requirements of an ‘Attendant 4 in the Oak Ridge Unit and a Nurse 3, General in the Regional Unit. Both are essentially responsible for the direction and control of staff. the arranging of schedules, vacations and shifts, etc. Their positions are right on the borderline between management and the bargaining unit. I ’ -5- AS stated previously, the Griever, &lr. Pat Burns, is employed as an .4ttendant 4 in the Oak Ridge Unit. He has been employed in that Unit since 1966 and has been in the Attendant 4 category since approximately March, 1978. His original qualification consisted of an R.N.A. Certificate as required. In June of 1978, Mr. Burns began a course of studies which led to his ultimate graduation? in 19S0, with an R.N. degree from The Georgian College of Applied Arts and Technology. He was granted a leave from his duties to attend school and he received full pay during this period of time. When he returned to work with his R.N. degree he returned to his previous position of Attendant 4, although he now had the increased academic qualification of an R,.N. degree. The Crievor is somewhat unique in that he combines two qualifications and functions in his position. He is an Attendant 4, responsible for security and is also a fully qualified R.N. If he were employed in the Regional Health Unit as opposed to the Oak Ridge Unit his qualification of R.N. and the responsibility of his position would probably have led to his classification as a Nurse 3, General. However, in the Oak Ridge Unit. where he is employed there is no such classification as Nurse 3, General. The special nursing unit that has been established in the Oak Ridge Unit is made up of a Nurse 3, Supervisor and eight Nurse 2, General staff. The remuneration of a Nurse 3, General in the Regional Unit, as of .March I, 1981, is $414.80 to $482.10 weekly. An-Attendant 4 in the Oak Ridge Unit, performing a similar function, is paid between $408.00 and $433.60 weekly. When Mr. Burns testified before us he indicated that sometime in 1975 there was a decision made to move to a unified system of nursing. ,Mr. Burns testified that the then Director of Nursing, Llrs. Pascal (who has since been replaced by Lqrs. Finney), advised him that when he returned to work with his R.N. degree he would be paid as a Nurse 3: General but would be able to remain in the Attendant 4 classification. This was a verbal undertaking on her part. Mr. Burns testified that when he returned from school in the spring of 1980 he was told that the unified nursing plan was no longer in effect. He was told that he had a choice to become either a Nurse 2, General in the Regional Unit or to return to his Attendant 4 classification in the Oak Ridge Unit. Apparently, a new administration had decided, and the Union had agreed, that the unified nursing concept was not a good idea. Naturally, LMr. Burns was fru$rated that the reason for his returning to school no longer existed, hence the grievance before us. This grievance is somewhat confusing however. What appears to be a grievance over classification is not the case since the Crievor makes it clear that he does not wish to be re-classified if it would result in him being - transferred out of the Oak Ridge Unit into the Regional Unit. What the Griever wants is to return to his job at the Oak Ridge Unit as an Attendant 4 but to be paid as if he were a Nurse 3, General in the Regional Unit. The Griever wants to be re-classified as a Nurse 3, General without being transferred to their Unit. The Griever described some of his functions in detail and there is no doubt that there is a tremendous overlap between what he does as- an Attendant 4 in the Oak Ridge Unit and what a Nurse 3, General does in the Regional Unit. The Griever also testified that his job is no different than the other Attendant 4 employees in his Unit and his job is no different now than it was before he acquired his R.N. degree.’ On cross-examination. Mr. Burns indicated that openings have occurred in the Nurse 3. General category a~ the . -7- Regional Unit but that he has not bid.for them as he wishes to stay in the forensic department in the Oak Ridge Unit. There has been no Nurse 3, General opening at the Oak Ridge Unit since his return to work. On cross-examination, it was pointed out that there are some functions that an R.N. does and that an Attendant 4 does not do. Mrs. Finney is currently the Director of Nursing at the Mental Health Centre and she also testified that there are some functions that a Nurse 3, General performs that an Attendant 4 does not perform. For example, she indicated that a Nurse 3, General supervises two categbries of staff: R.N.‘s and R.N.A.‘s whereas an Attendant 4 supervises only R.N.A.?. She said that a Nurse 3, General could replace a Shifr Supervisor (a management position) on weekends and act as the officer in charge. The Attendant 4 could not do this. The Nurse 3, General is re’sponsible for drawing together information relating to a patient and relating that information to the physician. The Attendant 4 does not have access to the same information and is not responsjble to the physician in the same way. The Nurse 3? General is responsibie for controlled drugs whereas the Attendant 4 is not. .Mrs. Finney also testified that the slight wage differential between the Attendant 4 position and the Nurse 3, General position is justified by the differences in the responsibilities of the ‘WO positions. Mrs. Finney conceded, on cross-examination, that the twd~positions have a substantial ambunt of overlap in functions, as well as these differences. Sine also testified that there was no evidence anywhere in the files of the discussion that the Griever testified took place between himself and Mrs. Pascal. her predecessor. before the Griever returned to school. Mrs. Finney agreed that it seemed to make no s&se to i -8- send the Griever to school and have him come back with increased qualifications to do the same job he ‘.vas doing before he left. The substantial amount of overlap in functions is relied upon by Counsel for the Union in his argument before, this Board. Counsel refers the Board to an arbitration under The Crown Employees Collective Bargaining Act, 1972 before the Grievance Settlement Board between Messrs. R. Beals and M. Cain and the Ministry of Community and Social Services (30/79). At page II the Board therein stated that: It follows that it is an abuse of the system and unfair to employees where the positions of employees who are performing substantially similar work are placed in different classiications. However, in the case cited, the facts are substantially different than the facts before us. At page 13 of the award referred to above, the Board stated that: We have found no key function - no specific and essential ~ duty - that clearly differentiates the work being performed by the grievor and that being performed by the motor vehicle operators who testified. That is not the situation in The case before us. While there is substantial dverlap in functions there are also essential differences between the work performed by a Nurse 3, General and an Attendant 4. It is the view of this Board that the classifica:ion and the job specifications for the various positions are the determining factors in this case rather than any individual’s personal qualifications. .Article 5 of the Collective -9- Agreement, which deals with classification procedure, is not applicable to the facts of this case as there has been no change in job or re-classification. The Griever did not grieve that he was improperly classified. A registered nursing degree is not required to do the job that the Griever is presently doing. Management has not denied the Griever the right or the opportunity to apply for a Nurse 3, General position that does require a registered nursing degree as a qualification for the job. The Grievor has not applied for Nurse 3, General positions when they have opened up. Management is not at liberty to arbitrarily appoint the Griever to these positions simply because he is qualified as an R.N. Such action would be a violation of other sections of the Collective Agreement. The Board finds that it is open to the Employer to re-classify or re-organize its Hospital if it chooses to do so. In this situation, it has chosen not to do so. The Crievor’s position has not been changed notwithstanding his increased qualifications. The job he performs is no different than that of any of the other Attendant 4 employees who are employed at the Oak Ridge Unit. Accordingly, his position should attract the same salary and benefits as others in Qis classification. It does seem to be frustrating that the Griever obtained increased qualifications without any obvious credit for them. On the other hand, the’ Griever lost no time as a result of his school attendance and he was paid his full salary while attending the course. It would appear to this Board that now that he has tiiat increased qualification of a registered nursing degree, his career options would substantially widen for him. It is now open to the Griever to bid or apply for positions that were not previously open to him. If, however, it is the Griever’s own choice 70 stay in the position that he was in before he went back to school, then the salary and benefits which he should be paid are those provided for persons in his classification. ^ I . . -IO- It is the finding of this Board that there is no vioiation of the Coilective Agreement and the grievance is hereby dismissed. DATED at Toronto, Ontario this 16th day of November, 1981. S.B. Linden, Q.C., Vice Chairman “I dissent” (see attached) R. Russell, Member D. bliddleton, Member /as DISSENT I have read the draft award and regret that I cannot fully concur in it. It is not that the award is not a true picture of the situation, however, I am adding this explanation as a criticism of management’s behaviour in this matter. The Griever stated under oath that he was told he would be paid as an R.N. 3 if he took the applicable course and passed it. This was told to him by the Director of Nursing, IMrs. Pascal. This was uncontradicted evidence and no doubt exists in my mind that this was in fact told the Crievor before he took the course that changed him from a Registered Nurses Assistant to a Registered Nurse. It also seems clear from the evidence that at the time the Griever was told this, management had every intention of bringing in “unified nursing” which required a Registered Nurse in charge of a ward. ‘Apparently this is the practice throughout the province except at Oak Ridge. Sometime after the Griever commenced his training to become an R.N., two developments took place. 1. Mrs. Pascal, the Director of Nursing, left. 2. lManagement changed its position in relation to “unified nursing”. This left the Crievor after he graduated as an R.N. with only an oral statement from a Director of Xursing that was longer in her fcrmer position. -2- 3, . i It is my view that even though the policy towards “unified nursing” had changed and the commitment given by management’s representative ‘vas an oral one, management should nevertheless live up to the commitment it made to the Griever. Otherwise, how can one expect empioyees to accept in good faith the promises of a representative of management. The problem of “how to do it” is not insurmountable. It could be done by a red circle rate. That is, for this employee only because of the commitment previously made by management, he be given the rate of an R.N. 3 for as long as he is doing the job he is currently on. Such an arrangement tends to preserve the integrity of management. The opposite is true when management reneges on a clear oral agreement. DATED at Toronto, Ontario this 16th day of November, 1981. R. Russell. Uember