OCHU

The decision in William Osler Health Centre involved important questions respecting which remedy an arbitrator should award where the no-contracting out provisions contained in the Central Agreement have been violated. The Union requested as a remedy that the contractor that worked be returned to the bargaining unit. Arbitrator Springate accepted the union’s submission that the general approach to remedy breaches.of the contracting out provisions are to order that the contracting out be undone and the work returned to the bargaining unit and directed the employer to bring the contracting out of the cafeteria and catering operations to an end and return the work involved to the bargaining unit. This is an important precedent to require work be returned to the bargaining unit rather than simply an award of damages for breach of contracting out provisions.

The June 2007 award from Arbitrator Bryan Mclean regarding a grievance challenging the performance of bargaining unit work previously done by Renal Assistants and given to registered nurses at the Credit Valley Hospital. The decision turned on the interpretation of article 11.01 of the collective agreement. The employer argued that article 11.01 gave the employer considerable latitude to reassign shared job duties as it sees fit and relied upon a number of arbitration awards that held that language similar to article 11.01 did not protect work which overlapped two different classifications. OCHU argued that article 11.01 protects both the type of work and the amount of work previously performed by bargaining unit members even if some of the duties are shared; and that any removal of such duties which leads to layoffs clearly violates the protection of the clause. The arbitrator supported the OCHU position concluding : “What Article 11.01 prohibits is the reduction of the type and volume of Renal Assistants’ duties through the use of employees who are not members of the bargaining unit.” This case constitutes an important precedent in interpreting work of the bargaining unit clauses and establishes that reduction in the type or volume of duties is a breach of Article 11.01. This provides considerable protection against erosion of work historically performed by RPN’s

In July 2007 , Arbitrator William Kaplan dealt with a grievance at Sudbury Regional Hospital relating to the red-circling of employees as a result of the Pay Equity Plan.. OCHU successfully challenged the red-circling of employees and obtained an award by agreement that red-circled employees would receive the general wage increases negotiated in the 2004-2006 collective agreement After this award the employer paid employees the 2004 -06 increases but refused to give these employees the future centrally negotiated settlement for the period 2006-2009. OCHU supported the grievance based on the language of the previous award claiming that employees were entitled to the future across the board increases. The arbitrator agreed that the only reasonable and sustainable interpretation of that award was that red circled employees were to receive the benefits of the central settlement. As a result he allowed the grievance and directed that employer compensate all affected employees for the missed increase and pay other increases as scheduled. Because this grievance involves the interpretation and application of the central settlement to employees who are subject to red-circling under pay equity plans, the case was an important precedent in ensuring that the benefits of collective bargaining obtained centrally apply equally to all employees in the province.

In August 2007 another important award respecting the job security provisions of the collective agreement was issued by Arbitrator Albertyn, with the Sudbury Regional Hospital. The award concerned a dispute as to the options available to an employee who has been bumped by a more senior employee who has received notice of layoff. The employer took the position that it was free to reassign employees who are bumped using the reassignment language in article 9.08(b). OCHU took the position that these employees cannot be reassigned but must receive notice of layoff and be entitled to bump since they are deemed to be laid-off. Arbitrator Albertyn agreed. He stated: “She (the grievor) was, by virtue of Article 9.09(d), deemed to have been laid- off when she was bumped . Article 9.08(b) cannot therefore apply to her. She could be offered a position but she could not be re-assigned. As a deemed laid-off employee, she could refuse to accept any position offered and maintain her layoff.” This case constitutes an important precedent protecting the options of employees who have been bumped under the re-assignment language ensuring that they have all of the rights of laid off employees and denying the employer the right to re-assign such employees

The Joseph Brant Memorial Hospital’s case dealt with the interpretation of the HOODIP plan. The Employer took the position that in administering the HOODIP plan employees who returned to work on WSIB modified duties were not be eligible for short term disability benefits even if they are disabled for reasons unrelated to worker’s compensation and would only have such benefits reinstated following a return to work at full duties. OCHU argued that since WSIB and HOODIP are entirely separate and since HOODIP is not intended to provide compensation for work--related injuries, employees who return to work on WSIB remain entitled to benefits under HOODIP for any non-work related injuries or illnesses. Arbitrator William Kaplan issued an award which upheld this position. While the Arbitrator emphasized that employees on WSIB are not entitled to HOODIP benefits for work related injuries or during a return to work on modified duties for WSIB purposes, they were entitled to HOODIP benefits if during a WSIB return to work they became ill for any reason not related to the WSIB injury. The decision in this case ensures that employees who are injured while on a return to work from WSIB are granted HOODIP benefits. This award clarified the legal situation for employees throughout the province given conflicting employer practices

On December 3, 2007, OCHU obtained an important award regarding the call-back provisions of the agreement at Markham-Stouffville Hospital. The award concerned mechanics who were contacted at home to diagnose and fix equipment problem remotely through the use of a laptop computer. The employer took the position that since employees were not called back physically to the hospital that call-back pay under the agreement was not payable. OCHU took the position that call-back pay is intended to be paid anytime an employee is called back to perform work for an employee regardless of where such work is performed and is intended to compensate employees for the inconvenience of being required to work outside of regular working hours. Arbitrator Albertyn allowed the grievance and held that “ The notion of being called back to work, to do one’s job for the Employer, can mean having to do it at home as much as at the usual workplace.” Given the increased use of computers and mobile devices which allow employees to work at places other than the worksite, this case constitutes an important precedent to establish that the call-in provisions of the collective agreement apply even at remote locations other than the usual workplace.

On January 16, 2008, OCHU was required to arbitrate two disputes which arose out of implementation of the Memorandum of Settlement for the 2006-2009 agreement. The first dispute concerned whether employees who had achieved 28 years of service immediately upon the commencement of the agreement or did you have to wait until the next anniversary date. The Arbitrator supported the OCHU position that if employees had the requisite service by the effective date of the agreement the employee was entitled to the enhanced entitlement of one week vacation. An additional issue arose with respect to whether employees continued to be entitled to superior conditions in respect of chiropractic and physiotherapy services in local agreements. The arbitrator again accepted the OCHU position that superior benefits in respect of these two benefits should be maintained during the currency of the new agreement. Because these disputes involved the interpretation of the Central Agreement, they clarified the position that OCHU had taken as to the proper application of these centrally negotiated benefits.

This grievance involved a breach of article 11.01 of the collective agreement insofar as duties normally performed by RPN’s on floors 8 A and B of the hospital were transferred to RN’s and a certain RPN’s were layed off. The hospital alleged that the RPN’s displaced were unable to work to the full scope of the RPN practice and hence unable to do the work assigned. OCHU was successful in obtained a consent award, by terms of which the Board ordered that the hospital create 5 full time RPN positions on floors 8 A and B by April 30th, 2010. It also ordered that if any of the displaced PRN’s were able to become fully qualified to perform at the full scope of RPN practice by April 30th, 2010, they were entitled to the newly created positions. Any positions not filled by the displaced RPN’s are to be posted in accordance with the collective agreement...award currently not available for download.

This grievance involves the use of contractors to perform housekeeping work at the West Nipissing Hospital. The employees used for this purpose, including a supervisor, were former employees of the Hospital who had taken the position that this is not a valid contracting out situation. The grievance was important in that it constitutes an attempt to defend the contracting out language and to establish a precedent as to what constitutes legitimate contracting out under the collective agreement. As a result of filing the grievance, part of the housekeeping work was returned to the bargaining unit and the Hospital agreed to pay the union the amount of $800.00. With respect to a second grievance, the Board directed that if the housekeeping work was not returned to the bargaining unit by December 31, 2011, the grievance would proceed. Given this award there is a strong likelihood that all Housekeeping work will be returned to the bargaining unit...award currently not available for download.

This grievance involved the question of when an employee is entitled to overtime pay when they work more than one overtime shift within a period of 24 hours. The employer has taken the position that, in order for a shift to be continuous, it must be directly followed by the originally scheduled overtime shift. The union’s position is that, provided that there is no intervening regular shift between the two overtime shifts and the shifts occurred within a 24 hour period, then overtime is to be paid. This case involved important questions of interpretation of newly negotiated language. There is a negative precedent in a case taken by Service Employees but we hope to be able to distinguish that case. The hearings in this case have been concluded and we are awaiting an award.

This grievance involved the discharge of the local union president who the hospital alleged had fraudulently represented that she was ill in order to attend a convention in Toronto. OCHU was successful obtaining the member's reinstatement to employment at the hospital without compensation but with no loss of seniority. A ten day suspension was substituted for the termination.

This grievance involved extremely important questions respecting the rights of employees who were transferred from public hospitals to a central laboratory service. It was the position of the employer that the employer had an unfettered right to transfer such employees, while the union took the position that such a transfer triggered a lay-off and that employees were entitled to refuse to take the job with the laboratory service and to exercise any lay off and bumping rights which they had. The arbitrator, for the most part, agreed with the union’s position holding that the employees affected could agree not to take a job with the laboratory service and, if so, they were entitled to notice of lay off and to any rights accruing to laid off employees, including bumping rights. The arbitrator held that the number of early retirement incentives required to be offered would depend on the number of employees who elected not to transfer. Finally, the arbitrator held that the union was entitled to notice of elimination of positions in such situations

In this case CUPE intervened in an ONA grievance where ONA was arguing that its part-time registered nurses were entitled to be assigned work prior to assigning the work to RPN’s in the CUPE union. The arbitrator accepted CUPE’s position that, under the language of the collective agreement, the hospital was allowed to assign work to RPN’s provided the duties and responsibilities were appropriate to the assigned scope of practice and the assignment was consistent with quality patient case. The Board dismissed the grievance on the basis that a mere change in RPN’s work schedule did not establish a breach of the collective agreement. This intervention protected RPN work at the Hospital

This case involved an interpretation of the re-assignment provisions of the collective agreement and whether the provisions of the re-assignment language were breached where employees were re-assigned to a lower rated position and red-circled. CUPE argued to reverse previous awards in grievances brought by Service Employees which held that the employer was entitled under the re-assignment language to assign employees to a lower-rated position provided the employees were red-circled. The arbitrator, unfortunately, upheld the employer’s position relying upon the previous Service Employees’ precedents.

This is an ongoing case involving the question of the extent of benefits covered under the Blue Cross plan incorporated into the Central collective agreement. The specific case involves the question of whether Viagra is covered under the drug plan, but the case raises the larger issue of whether the brochure describing the Blue Cross plan is the relevant document for purposes of determining the scope of benefit coverage or whether it is the detailed Blue Cross plans themselves which are determinative. It also raises the question of how drugs which have recently been discovered or created are to be covered under the terms of the collective agreement.

This grievance involved an employer sending home employees as a result of incidents of the flu in the hospital because the employees would not take the flu vaccine. The hospital appears to have failed to attempt to re-assign employees and removed those who did not appear to have any patient contact. The grievance involved the scope of new language negotiated requiring an employer to re-assign employees in outbreak situations. The hearing is ongoing with two more days scheduled for December, 2009.