In this case, the Hospital began assigning duties previously shared by RPNs and RNs to RNs exclusively. At the same time, the Hospital eliminated the RPN positions and reassigned and red-circled the affected RPNs to an uncertified, lower-paying classification. The Union argued that removing duties that had previously been assigned to employees in the bargaining unit and assigning them out of it, the Hospital had violated Article 11.01 (Work of the Bargaining Unit).

The Hospital argued for a new “balanced” approach to Article 11.01, in which the Union should be made to demonstrate a causal connection between a significant transfer of work out of the bargaining unit and a real erosion of the bargaining unit.

Aribtrator Christine Schmidt resolved the grievance in the Union’s favour, holding that that Article 11.01 of the collective agreement had been breached. She would have reached this conclusion even under the Hospital’s proposed “balanced” approach, since she found that there had been a significant erosion of the bargaining unit. However, she expressly rejected that approach, noting that “[a]rbitrators since Extendicare have generally been reading these clauses as protecting the volume and type of the shared work, regardless of an employer’s bona fide operational exigencies or preferences.” In the result, she upheld the grievance on the basis “that the transfer of duties previously shared by RPNs and RNs, so that these duties are now performed in greater proportion (in fact, exclusively) by RNs, constituted a violation of Article 11.01.”

This case is an important victory for OCHU, as it confirms the progressive approach to Article 11 in which both the volume and type of bargaining unit work is strictly protected from transfer outside of the bargaining unit. The Hospital’s attempt to erode this jurisprudence was soundly rejected.