Loading...
HomeMy WebLinkAbout1998-0383.Union.98-08-19 Decision ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONEfTELEPHONE (415) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACS/MILEfTELECOPIE (416) 326-1396 GSB # 0383/98 CUPE 1750 # 98-10 -- IN THE MATTER OF AN ARBITRATION V nder THE CROWN EIVIPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEIVIENT BOARD BElWEEN CUPE 1750 (pohcy Gnevance) Grievor - and - The Crown In Right of Ontano (Workplace Safety & Insurance Board) Employer BEFORE B Klrkwood Vice-Chair FOR THE Lmda Paddison, NatIOnal RepresentatIve UNION Paul Siffiourd, PresIdent Paul Pynkosla., Vice-PresIdent Gary Kelly, Clief Steward FOR THE Ehzabeth KosrrudIs EMPLOYER SolIcItor - Legal ServIces DIV1sIon HEARING July 9, 1998 Page 2 DECISION The Union claimed that the positlon of Nurse Case Manager is a new position, covered by the collective agreement The Unlon asked that the position be posted as a bargainlng unlt position and that the Board be responslble for any unlon dues that ought to have been paid since the creation of the Nurse Case Manager position The Board claimed that the Nurse Case Manager position is the same as the Nurse Specialist position, and that the position merely changed its name during the reorganization of the workplace The Board agreed that the Nurse Specialist posltion should have been in the bargaining unit, but as the Board treated the Nurse Specialist position as a non bargaining unlt position since it was created in 1992, and the union did not challenge the Board's decision, the Unlon had acquiesced, and could not now challenge the status of the Nurse Case Manager posltlon as a bargaining unit position Accordingly it raised a preliminary issue that the Union had abandoned its right to claim the Nurse Case Manager position as a bargaining unit position The union then submitted that if the Nurse Case Manager position is not a new position, but a continuation of the former non bargaining unit Nurse Specialist position, that it has not abandoned its bargalnlng rights as the status of the Nurse Speclallst posltion lS stlll a live lssue between the parties The Union further submitted that the status of the new position has always been challenged by the Union The parties agreed that the Nurse Case Manager position does not fall within the exception of Article 1 3 of the collective agreement, and therefore under normal circumstances - Page 3 would be in the bargaining unit Issues Simply put, the issue of abandonment, and the eVldence on the Unio~'s activity or inactivity, flows from a deterffilnatlon whether the Nurse Case Manager was a new position, or merely a name change for the former position of Nurse Specialist. Facts The Board developed the job description for the Nurse Specialist in February 5, 1992 The thrust of the Nurse Specialist was to act as a facilitator to actively manage the injured employee's file to insure that the employee obtains proper medical care, and to answer the employee's medical issues. It also had a coordinatlng role facllitating the passage of lnformation between other members of the Board and between the employee and the Board In 1995, as a result of the amendments to Crown Employees' Collective Bargaining Act 1993, ( "CECBA") the Union grieved that certain employees should be considered "employees" under CECBA and should be included in the bargaining unit In April 12, 1995, Counsel for the Board forwarded a letter to Counsel for the union enclosing a list of all non bargaining unit positions, which lncluded the Nurse Specialist position and showed 30 persons in that posltlon. It also stated that It categorized the position as a non bargaining unlt position as the position had been abandoned by the Union Slnce certiflcation In May 31, 1995, the parties came to an understanding and agreed to meet and discuss these contentious positions The parties agreed that the status of these contentious positions, including that of the Nurse Specialist, would be discussed in the next round of Page 4 bargaining The parties also agreed that the Ontario Labour Relations Board would resolve the issue if the positions continued to be excluded The parties, however, agreed that the Board still had the right to argue that the Union had abandoned its bargaining rights The partles also agreed that the lnclusion or the exclusion of the positions that the Board had classified as bargaining unit positions, would be dealt with by the Grlevance Settlement Board As the Nurse Specialist was considered by the Board as a non bargaining unit position, it would not be dealt with by the Grlevance Settlement Board As a result of a declsion of Vice-Chair Kaufman of the Grievance Settlement Board, (GSB #1029/94, CUPE #94-40 CUPE 1750 and The Crown in right of Ontario (Workers' Compensation BOard) (S Kaufman) (May 13, 1996)) 1250 employees were brought lnto the bargainlng unlt in May 1996 The decision was upheld in judicial review (October 16, 1997) Subsequently, the Board underwent a reorganizatlon to lffiprove the dellvery of its health care servlces. Paul Slmourd, a union Staff Representatlve, testified that he first learned of the Board's intention to reorganize in February 1997, when he met with the President of the Worker's Compensation Board, Michael O'Keefe He understood from the discussions that the Board intended to remodel the organization on an American model Three positions were to be created, a Consolidated Adjudlcator, Customer Service and the Nurse Case Manager The Nurse Case Manager would involve managing the medical aspects of the claim file, determining the level of disability, provldlng information to those who were inJured, and taklng some of duties that had been performed by clalm - adjudicators, health and safety work, and on site work with the workers Page 5 Mr Simourd testified that from the time he was notified of the Board's intention to reorganlze, he had discussions with Mr. O'Keefe, Mr Clay Appleton, Vice President of Human Resources, and Ms Marilyn Latchford, Executive Assistant to the Vlce- President Human Resources Tife union was concerned that in the reorganization that 500 vocational workers would lose their jobs and the Union thought that some of the functions of the vocational rehabilitation workers would be taken over. The Union was concerned whether positions would be bargalning unit or non bargaining unit positions and how the positions 'would be filled The Board, without input from the union, prepared a document, Workers Compensation Board Reorganization Questions and Answers to respond to some of the concerns of the employees in March 12, 1997 The document was prepared by communications and approved by Senior Management to be then delivered to all staff at the Board. It referred to the new positions including that of Nurse Case Manager It recognized that as a result of the 1996 Grievance Settlement Board decision, that lS the Kaufman decision, referred to above, that the new position of Nurse Case Manager would be included in the bargaining unit unless It had managerial responsibilities or unless the Grievance Settlement Board decision was reversed on judicial review On April 4, 1997, Minutes of a Joint meeting between the Board and the Union indicated that the Board had not yet determined if the Nurse Case Manager position was in the bargaining unit, but would be in a better position to determine its status once a job description had been prepared On April 29, 1997 the Board issued a policy communique on the new system It stated that the Board was contemplating having Nurse Case Managers and a Nurse Case Manager project Page 6 Manager, but it was uncertain if it would continue to have Nurse Specialists The Board did not continue to have the Nurse Specialist position, but had Nurse Case Managers As of September 1997, the Nurse Case Managers reported to Margaret Keating, whose responsibility it was to oversee the Nurse Case Managers and determine their roles and functions The Board created .:two job descriptions for the Nurse , Case Manager One was more focussed on diseases, and the other on occupational aspects The job descriptions were ultimately created for the Nurse Case Manager in November 21, 1997 and for the Nurse Case Manager (SI/D) (Serious Injuries and Diseases) in January 9, 1998. The Nurse Case Manager position had a different rate of pay from the Nurse Specialist The Nurse Speclallst salary grade had been 672 and the salary ranged from $39,665 to a maXlmum of $55,725 The Nurse Case Manager salary grade was 799 and the salary ranged from $46,600 to $53,000. The 27 Nurse specialists became Nurse Case Managers without applying for the position and undergoing a competition There was no evidence on any other Nurse Specialists In addition seven General Duty Nurses competed successfully for the position of Nurse Case Manager It is the intention of the Board to have a complement of 240 Nurse Case Managers by January 1999. Paul Pynkoski, the Vice-President at large for local 1750 testlfied that he had not been involved directly with the reorganization in 1997. However, since October 1997 he had been directly involved in a joint project with the Board, "project Placement" which was trying to develop a process to move people from older jobs to the new and changing jobs, while remaining - consistent with the collective agreement The project as seen by the Union was directed to those jobs that were in the bargaining unit and were changing As part of the proJect, Questions and . Page 7 Answers were prepared and dated February 6, 1998 They had the approval of the Vice-President of Operations, the Vice-President Human Resources and the President of CUPE, before they were issued The intent was to have timely and effective responses to the questions that the hundreds of people had about the changes In those questions and answers the joint document stated that the Nurse Case" Manager was not part of Project Placement, and acknowledged that there had been preliminary discussions between the Board and the Unlon as to its status The Nurse Case Manager position was not involved as it had not been identlfied as a union position. On April 21, 1998 the union applied to the Ontario Labour Relations Board for a declaration that the Nurse Case Managers were employees under the Labour Relations Act In Minutes of Settlement executed on June 11, 1998, the parties agreed that the Nurse Case Managers were Jlemployees" under the Labour Relations Act, and agreed that the Grievance Settlement Board would determine if they were included or excluded from the bargaining unit Argument Board's counsel argued that it is possible for a union to abandon its bargaining rights if it does not actively pursue them (Re Cybermedix Health Services Ltd and ontario Public Service Employees' Union, Local 544 1990, 11 LAC (4th) 334 (H.D Brown), J.S. Mechanical and Local union 800 of the Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting Industry of the united States and Canada OLRB Rep 1677-78-M (February 20, 1979 ) . Furthermore Board's counsel submitted that J S Mechanical (supra) set out some of the factors that are relevant in establishing abandonment, lithe length of the union's inactivity, whether it has made attempts to negotiate or renew a collective agreement, whether the union has Page 8 sought to administer the collective agreement through the the grievance and arbltration provisions in the collective agreement, whether terms and conditions of employment have been changed by the employer without objection from the union as well as whether there are any extenuating circumstances to explain an apparent failure to assert bargaining rights" Board's counsel submitted that the same factors are present in this case The Nurse Specialist position was created in 1992 and the Union abandoned its bargaining rights for that position by its inactivlty over the following six years There have been three collective agreements covering the period since its creation with the exception of this grievance, there have been no grievances filed The Board has been solely lnvolved in the development of the Nurse Case Manager positlon and its salary Board's counsel submitted that as the position of Nurse Case Manager is fundamentally the same as the Nurse Specialist, the Union having acquiesced to the status of the Nurse specialist cannot now resurrect the issue of status when the Nurse Specialist position is continued in the form of the Nurse Case Manager Board's counsel argued that there are some issues that have not been raised by either party, such as the seniority of those who were not hlred externally but were transferred lnto the system She argued that to determine the position of Nurse Case Manager as part of the bargaining unit would be detrlmental to those who have transferred into the position Union's counsel argued that the position of Nurse Case Manager is a new position created by the Board Since prior to its creation, the Union has been involved in discussions concerning the position and its status - Union's counsel submltted that If this Board were to find that the Nurse Case Manager position was the same as the Nurse Specialist, the memorandum of May 1995 shows that lts status - I Page 9 was an issue and argued that the union has not resiled from its position On the issue of detriment, Union's counsel argued issue of seniority is not an lssue in this grievance, but flows from the decision The Union submitted that this Board could remain seised of this issue Decision I find that the two new positions of Nurse Case Manager and Nurse Case Manager(SI/D) have incorporated and expanded the duties of the Nurse Speclallst, and the Board has increased the compensation to reflect the increased change in duties and responsibilities evident in the new posltions From their inception, the Union has not accepted the new positions as a non bargaining unit positions, and has not abandoned its bargalning rights for the Nurse Case Manager positions The Board in its communique to the new nurse case managers of March 4, 1998 statetl that the Board had had nurses since 1990 in Toronto, including Nurse Specialists, but the difference with the Nurse Case Managers was in their scope of practice The increased scope of their practice lS borne out by the job descriptlons that were ultimately created in November 1997 and January 1998 When comparing the job descriptlons of the Nurse Specialist and those of the two Nurse Case Managers, some of the same duties and focus are present but those of the Nurse Case Managers are far more sophisticated and complex - The difference between the Nurse Specialist and the Nurse Case manager can easily be seen in the objective of each position, from which the nature, scope and responslbilities of the Page 1 0 posltions flow The obJect of the Nurse Specialist lS to assist the Board's medical and adJudication staff in collecting and interpreting clinical information and to actively participate in facilitating the provision of health care serVlces in injured workers " (bold print my emphasis) . The Nurse Specialist does so by collecting clinical information, assisting, by ensuring all clinical documentatlon is on file, evaluatlng treatment, discussing treatment with the expediting , physiclan, appointments and facllltating the Adjudicator and the vocational Rehabilitation Caseworker by providing them with baslc clinical training to increase thelr effectiveness In managing claims The Nurse Specialist would assist in acquiring medical reports or information and obtaining referrals to cllnics that would have a better programs The position is, as described by Paul Pynkoski, a Claims Adjudicator, and Vice-President at large for Local 1750, a resource person The Nurse Case Manager is much more proactive in the .delivery of health care The Nurse Case Manager lS part of a team The objective of the Nurse Case manager is: To intervene early and facilitate the provision of appropriate, timely and effective health care to workers throughout the episode of a claim in order to achieve optimal recovery and early return to work. To establish a professional relationship with workers as early as possible after an injury or diagnosis of a work related illness To partner with the worker, employer, treating practitioner, adjudicator and other resources as required to develop a plan to facilitate early/modified return to work and ensure the worker's optimal recovery To participate in, promote and support research activities to enhance client outcomes (bold print my emphasis) J Page 11 The Nurse Case Manager implements, evaluates, participates and promotes research in order to facilitate an early and safe return to work The Nurse Case Manager assesses the worker, formulates a plan by collaboratlng with multi-discipllnary team, and monitors and evaluates the plan The Nurse Case Manager also facilitates in early and safe return to work by collaborating with the worker and health care provider and ensures approprlate health care lntervention including educating and assisting others This goes far beyond the collation of data and assistance expected of the Nurse Specialist The Nurse Case Manager(SI/D) has similar responsibilities but is focussed on the timely recovery and reintegration of a worker effected by catastrophic injury/and or disease Its job description states the objectives are Effect/facilitate the smooth transitlon of workers from catastrophic injury and/or disease to optimal health, including reintegration into appropriate settings. Establish a professional/therapeutic relationship with workers and famllies as early as possible after such a serious injury (e g multiple amputations, spinal cord/paraplegia/quadriplegia, serious head injuries, multiple injuries, sight impairment, burns) or disease (e g emphysema, occupational cancers) Partner with the worker, treating practitioner, adjudicator and independent living specialists to co-ordinate the development, implementation and evaluation of specialized treatment plans Facilitate the provision of appropriate care and support to workers and familles in a timely way through the recover, reintegration and follow up phases to ensure optimal recover and quality of life. Participate in, promote and support research activities In order to use current rehabilitation research findings to enhance client outcomes. - Essentially the duties of a Nurse Specialist shifted from a resource person to the adjudication and vocational staff, to a Nurse Case Manager who was a proactive member of a multi- Page 12 disciplinary team trYlng to ensure better treatment and an early return to work. The depth of knowledge, responslbllity and expertise requlred of a Nurse Case Manager as seen by the job descriptions is much greater than that of a Nurse Specialist The higher salary grade and range that the Board gave to the Nurse Case Managers is also a reflection of the greater duties and responslbilitiBs expected from the Nurse Case Managers There was also a great deal of eVldence In the Board's documents that showed that the Board, ltself, viewed the Nurse Case Manager position as a new position The Questions and Answers created by the Board are evidence of how it viewed the position The first one issued in on March 12, 1997 and was solely an Board document In the document it treated the position of Nurse Case Manager as a new position It stated with respect to the following questions - 21 WILL A QUALIFIED NURSE CASE MANAGER HAVE INPUT INTO THE JOB DESCRIPTION FOR THE NURSE CASE MANAGER? 22 WHAT ARE THE SALARIES OF THESE NEW POSITIONS? 23 WILL THESE NEW POSITIONS BE IN THE BARGAINING UNIT? 24 WILL STAFF HAVE TO APPLY FOR THESE NEW POSITIONS OR WILL THEY BE ASSIGNED Answer: We are committed to internal recruitment, where possible Some new positions will require skills that will have to be recruited externally i e Nurse Case Manager Applications for bargaining unit positions will be guided by the collective agreement where bargaining unit staff will be guided by the collective agreement where bargaining unit staff have priority. (bold print my emphasis) On April 27, 1997 the Board, ~olicy Communications sent a series of Questions and Answers outlining the changes and the development of the Nurse Case Manager The Communique indicated that under the new system there would be nurse case managers and a Page 13 nurse case management project manager, but the Board was unsure whether it would have a distinct role for the Nurse Speclalist It indicated the breadth of functions that the Nurse Case Manager would be engaged in. The Nurse Case Manager was to work closely with the health care adjudicator who also was given a broader range of duties -- Therefore on the basis of a comparison of the job descriptions, and on the testimony given, I find that the positions of Nurse Case Manager and Nurse Case Manager(SI/D) are not merely a name change or a continuation of the Nurse Specialist, but are new positions Furthermore if the Nurse Case Manager position was merely a change in name for the position, the Nurse specialists would not have had to apply for the position, but the title of their posltion would merely have changed The Board did not challenge the Union's evidence that applications had to be made by the Nurse Speclalist for the position Since the Board created the position of Nurse Case Manager, the Union has engaged in discussions with the Board as to whether the position would be included in the bargaining unit When the position was not included within the bargainlng unit, the Union made an application to the Ontario Labour Relations Board As the position is a new position, which the Union has challenged from its inception, the Unlon has not abandoned its bargainlng rlghts for the position. [ Whether or not the Union has abandoned the Nurse Specialist position is not relevant to this case as as I have determined that the position of Nurse Case Manager is a new position and is not merely a continuation of the Nurse Specialist position - As the partles agreed that if the Board was not successful in establishing that the Unlon had abandoned the Nurse Speclalist and the Nurse Case Manager positions, that the Nurse , Page 14 Case Manager position was a position within the bargaining unit, I so declare Accordingly the position is to be posted as a bargaining unit position The Unlon shall be entitled to recelve the unlon dues that relate to these employees from 20 days prlor to the date of the grievance There is no need that I remain seised on the issue of seniority I have heard no evidence on this issue. This would be the subject of a separate grievance, which could be dealt with by any other members of the Grievance Settlement Board In conclusion, this grievance is upheld 10th Dated at Toronto, this f$tll day of August 4,c/ ~ ~elinda Kirkwood, vlce-Chair I -