Ontario Public Service Employees Union v. Trenton Memorial Hospital
[1996] OLRB REP. SEPTEMBER/OCTOBER 897
1465-95-JD Ontario Public Service Employees Union, Applicant v. Trenton Memorial Hospital, Responding Party v. Ontario Nurses' Association, Service Employees' Union, Local 183, Intervenors
BEFORE: Roman Stoykewych, Vice-Chair, and Board Members S. C. Laing and C. McDonald.
APPEARANCES: David Wright, Ed Holmes, Roger Haley; Jill Morgan, Marlene Wolters and Fran Stickle for the applicant; Robert Hickman, Peter O'Brien, Michael Murphy Susan White, Judy Running and Linda Mitchell for Trenton Memorial Hospital; Caroline Cohen, Elizabeth Dewar and Bernice MacCormack for the Ontario Nurses' Association; Linda Thayer and Harma Badglev for the Service Employees Union, Local 183.
DECISION OF THE BOARD; October 2, 1996
This is a dispute relating to a work assignment filed pursuant to the provisions of what is now section 99 of the Labour Relations Act, 1995. The applicant Ontario Public Service Employees Union ("OPSEU") complains that the employer Hospital has improperly reassignment work related to the performance of various respiratory and cardiac tests, treatments and associated tasks. This work was formerly performed by employees represented by OPSEU, and has now been assigned to employees represented by the Ontario Nurses' Association ("ONA") and the Service Employees' International Union ("SEIU") is improper.
The applicant requests that the Board make an assignment direction with respect to the work in question so as to require employees represented by it to continue to perform the work. The employer resists any such direction, maintaining that the assignment was appropriate. Both ONA and the SEIU filed intervention materials and otherwise participated in all aspects of the Board's proceedings relating to this application. They maintained, with OPSEU, that the "status quo" prior to the events giving rise to this application is the appropriate work assignment.
The Board held a consultation with the parties during which the parties developed and submitted a substantial document setting out their respective positions on the various matters in issue as well as outlining the areas of agreement and disagreement on facts in relation to this application. The Board then entertained the parties' oral submissions. Upon our review of the parties' statement of fact, their oral submissions, as well as the voluminous materials filed in support of this application, the Board is satisfied that the application may be appropriately disposed of and determined on the basis of the materials presently before the Board and without the calling of oral evidence or the making of further submissions.
As noted above, the work in question consists of the performance of various respiratory and cardiac tests, treatments and associated tasks. Prior to the reassignment, the work in question constituted the job functions performed by seven part-time Cardio-Pulmonary Technicians, represented by OPSEU, working out of the Hospital's Respiratory Therapy Department. The respiratory services that have been reassigned include:
the provision of ventilator support;
the administration of wet nebulization;
the setting up of oxygen tents and the provision of oxygen at bedside;
the administration of certain forms of pulmonary function tests.
The cardiology functions that have been transferred consist primarily of the the administration of ECG's to inpatients.
In conjunction with their direct testing and therapeutic functions, the Cardio-Pulmonary Technicians also performed work related to the stocking, cleaning and storing of the equipment used in the course of respiratory therapy and testing. It appears that this latter function was ancillary to testing and therapeutic functions, and constituted a relatively small proportion of the overall work in question.
With the reassignment of the work, the testing and treatment tasks have been transferred to Registered Nurses represented by the Ontario Nurses Association. The exception to this transfer is outpatient and booked inpatient ECG testing, which has been transferred to a cardio therapist, who is represented by OPSEU. The stocking, cleaning and storage aspects of the work in question have been transferred in their entirety to employees represented by the SEIU. As a result of the reassignment of work, the seven part-time Cardio-Pulmonary Technicians' job functions have been eliminated and they have been provided notices of layoff.
Prior to the employer's transfer of the respiratory and cardio testing and treatment work, these functions were performed at the Hospital by Registered Nurses during those hours when CardioPulmonary Technicians were not present in the Hospital or were otherwise unavailable. To similar effect, stocking, cleaning and storage functions relating to other hospital materiel was performed by the members of the SEIU operating out of the Hospital's Central Storage Room and it appears from the materials filed with the Board that the performance of such work by technicians was something of an anomaly in terms of the Hospital's overall operations.
Until the events giving rise to the complaint, the employment relationship of the CardioPulmonary Technicians was governed by the provisions of the collective agreement between the Hospital and OPSEU. The collective agreement relates to a "standard paramedical unit" for both full-time and part-time employees. As is normally the case in unit descriptions of this sort, the scope clause (Article 2.01) is clarified by a note setting out the various paramedical positions currently employed by the Hospital. Although no specific reference is made to Cardio-Pulmonary Technicians in the "clarity note", there was no dispute that these terms and conditions of their employment were covered by the provisions of the agreement. It is clear that this arrangement has been in place for many years, spanning a number of collective agreements between the parties. The Hospital had concluded collective agreements with ONA and SEIU in relation to units of Registered Nurses and non-technical, nonprofessional personnel, respectively. Both collective bargaining relationships are also of considerable duration.
While the OPSEU collective agreement, as noted, covers work when performed by CardioPulmonary Technicians, it is nevertheless clear that it does not compel the employer to assign such work exclusively to its employees covered by the agreement. The collective agreement between the Hospital and OPSEU features significant "job protection" provisions relating to the contracting out of work performed by employees under the collective agreement (Art. 28.04) and to the transfer of work to supervisors or managers (Art. 28.05). There is nevertheless no specific provision in the agreement relating to the transfer of work to employees in other bargaining units. No grievance had been filed by OPSEU with respect to the employer's action, and its counsel stated that none was planned.
To similar effect, while the language of the collective agreement between ONA and the Hospital may well preclude the Hospital from transferring certain work performed by Registered Nurses out of that bargaining unit, there was no suggestion that the collective agreements of either ONA or the SEIU compel the assignment of the work in question to the employees represented by them.
The Hospital's stated rationale for the reassignment of the work was that the provision of the testing and treatment functions by Registered Nurses at bedside would produce both increases in the efficiency and improvements in the quality of nursing care. Considerable material was submitted in support of that position, including materials related to its Functional Programme, a recent external review of the respiratory therapy department, professional literature, and various other documents. The general thrust of the Hospital's position was that the functions in question could be performed more efficiently and with an improvement in patient care were the direct caregivers to perform them in an uninterrupted fashion during the course of the provision of other care. Prior to the reorganization, a nurse would administer a wide range of tests and treatments, but in the instance of the tests in question, would be required to call a Cardio-Pulmonary Technician. This would necessarily entail an interruption of treatment or, in some circumstances, a transportation of the patient. Under the "point of care" system put in place by the Hospital, a patient's care would be administered in an uninterrupted manner by transferring the work to the nurses and (through the implementation of relatively minor changes to the instrumentation), by permitting the work to be performed at bedside.
Its decision to transfer the work to Registered Nurses, the Hospital stressed, was not a case of allowing one union to "buy jurisdiction" at the expense of another on the basis of differential wage rates since it is apparent that the hourly rates for Registered Nurses are substantially higher than those of the Cardio-Pulmonary Technicians. Rather, the employer claims, the savings would be achieved by eliminating the "down time" inherent in the delivery of the services in question by means of a separate department. In this respect, the Employer asserted that the overall use of the respiratory therapy department had shown a significant decline in recent years. It estimated that only a limited increase in the nursing complement was necessary to absorb the shift of job functions.
While counsel for OPSEU took issue with a number of the conclusions relied upon by the employer to support its position, the thrust of its argument was that the assignment of the work in question was disruptive of the system of collective bargaining relationships that had been established for many years at the workplace. It was recognized, of course, that the contractual relationship between the Hospital and OPSEU did not expressly prohibit such a transfer. Nevertheless, it was argued that the retention of the stability of existing bargaining relationships and the work assignments flowing from them is a labour relations value of considerable significance and, thus, a factor to which the Board should give substantial weight in the course of a work assignment determination. Placing considerable emphasis upon the Board's decision in Silverwood Dairies Limited [1981] OLRB Rep. Nov. 1624, counsel stressed that these values should be considered as predominant whether or not they are based on contractual language enforceable at arbitration, and irrespective of their taking place outside the construction industry.
The parties also made submissions framed in terms of the list of factors normally considered by the Board in work assignment cases, and which had been developed in the context of 'jurisdictional disputes" arising for the most part in the construction industry or in relation to disputes between the crafts. This panel of the Board found the majority of these criteria to be either of dubious applicability to the resolution of a dispute in the present context, yielding equivocal results, or both, such that a review of these indicia would serve little purpose. It is sufficient to note that we are not persuaded that the employees represented by either union are better suited to perform the work in question. While it may be that a Registered Nurse would usefully bring her or his professional training and experience to bear in the performance of the operations, the fact of the matter is that the employees represented by OPSEU have been performing this function for many years, and there is no suggestion in the materials that the work has been performed in anything but a satisfactory manner. Conversely, although the employees to whom the work has been transferred have been required to familiarize themselves with the equipment and procedures entailed in the work in question, there is nothing in the materials to suggest that they would require the acquisition of a substantially new set of skills to perform the work safely and efficiently.
Instead, the Board has found the employer's preference, based as it is upon a demonstrated operational business rationale, and nature of the contractual relations between the parties, which do not compel the employer to assign the work in question to employees represented by OPSEU, to be the two factors of greatest significance in determining this matter. The Hospital's materials demonstrate a careful consideration of its service-provision functions in relation to respiratory and cardiac care, and the course of action it has embarked upon is, at the very least, consistent with the results of such a review. The employer states that the transfer of the work is conducive to producing a result that is both more efficient from a cost perspective and more effective in terms of care to patients. While the submissions of OPSEU substantially question whether these desired objectives would be achieved (and, the Board notes, the objections raised are not mere quibbles), there is nevertheless no suggestion that the employer's decision is anything but a bona fide initiative on its part. It is noteworthy, in this respect, that the transfer of work entails the engagement of unionized personnel to perform this work at what is, for the most part, a higher wage rate.
Furthermore, it is a matter of considerable significance to the Board that the action taken by the Hospital appears to fall within the scope of the managerial prerogative contemplated in its collective agreement with OPSEU. In particular, and unlike the collective agreement between the Hospital and ONA, there is no contractual prohibition to the transfer of work previously performed by members of the OPSEU bargaining unit to other employees of the Hospital. Under such circumstances, the applicant's request to have the employer's actions declared improper is,. in effect, a request that the Board disturb the contractual dynamic established between the various parties in the processes of collective bargaining and/or interest arbitration.
It is with this consideration in mind, moreover, that the applicant's primary submission -which we take to be an appeal to the collective bargaining status quo - appears to be equivocal at best: although the employer had for many years assigned such work to employees represented by OPSEU, there is no dispute that throughout this period and subject to the previously mentioned job security provisions in the collective agreement it retained the power to assign it elsewhere. In this respect, it is important to appreciate the collective bargaining context in which this dispute arises. The disputed work assignment is not the product of a mark up meeting in the construction industry. In that latter context, for a variety of historical reasons, centred largely around the craft organization of the construction industry, collective agreements routinely make overlapping claims to a specific kind of work. For that reason, the parties' ability to rely upon the stability of bargaining relationships has been recognized as a value of considerable significance. (Ontario Hydro, [1992] OLRB Rep. Aug. 9]5.) In the present circumstances, by contrast, the contractual claims to work do not conflict. Indeed, the recognition provision of the OPSEU agreement as is usually the case outside the craft context makes representational claims with respect to groups of employees and not to work. More generally, the parties' relationship is established in a collective bargaining process conducted in the midst of an arbitral consensus that restrictions upon the employer's work assignments must be founded in express provisions of collective agreements. (Re: USWA and Russelsteel Ltd., (1966), 1966 CanLII 853 (ON LA), 17 LAC 253) (Arthurs)). In light of this, the Board is not prepared to place the precedence upon the labour relations values inherent in "past practice" urged upon us by counsel for the trade union.
Moreover, we do not accept that the Silverwood Dairies decision assists the applicant in this respect. While the Board in that case relied heavily upon the employer's past practise to find the departure from the work assignment status quo to be improper, it is important to note that its decision was premised upon a finding of a conflict between collective agreements. Furthermore, the Board's reliance upon past practise was expressly predicated on the "absence of cogent evidence of a reasonable and substantial need to change [the] assignment". As has been discussed, neither of those conditions obtain in the present circumstances.
Accordingly, in light of the Hospital's decision to assign work made, as described above, for bona fide reasons, and in the absence of any contractual provision preventing it from doing so, the Board is not satisfied that there are sufficient labour relations reasons to overturn the Hospital's work assignment notwithstanding that such assignment constitutes a departure from the employer's previous practice.
The application is therefore dismissed.