CUPE Local 145 v. William Osler Health Centre

On March 20, 2006, Arbitrator Ian Springate held that William Osler Health Centre violatedits collective agreement with the Canadian Union of Public Employees, Local 145 when it contracted out operations in one department and laid off employees in another.

The collective agreement provided that the employer could not contract out work usually performed by members of the bargaining unit if it would result in the layoff of employees other than casual part-time employees.

In 2004, as part of a cost-cutting initiative, the hospital solicited proposals from its various departments as to how each department could operate more efficiently. The Food Services Department proposed contracting out the cafeteria operation and the reassignment of its Dietary Aides. The Estate Management Department proposed that the task of delivering food trays to patients be transferred from Service Associates, who also performed housekeeping duties, to Dietary Aides so that Service Associates could focus on cleaning. The hospital contracted out the cafeteria operation, transferred the tray delivery task to Dietary Aides, and issued layoff notices to 31 employees, including Service Associates who had previously delivered trays.

While none of the Service Associates were actually laid off to the street, the union argued that they were laid off as a result of the contracting out of the cafeteria – the transfer of tray delivery to Dietary Aides and contracting out of the cafeteria were part of one process. The employer claimed that the two proposals were independent and that it would have contracted out the cafeteria operation regardless of what had happened with the tray delivery function.

In concluding that the hospital had improperly contracted out bargaining unit work, Arbitrator Springate cited the tests from earlier contracting-out awards, which required the union to demonstrate that the layoff occurred in a “legally relevant or material sense as a result of the contracting out” and that the layoff was “substantially or significantly related to” the contracting out. Arbitrator Springate found that although the two proposals may have been presented by the departments independently “the employer addressed the two proposals as an interrelated whole and structured the situation so that the impact of the contracting out was felt by Service Associates instead of Dietary Aides.”

Remedy

Arbitrator Springate remitted the matter of a remedy to the parties, but they were unable to agree. Therefore, the matter came back on before the arbitrator who issued an award on February 10, 2007 in which he ordered the contracted out work returned to the bargaining unit.

The employer had argued that the remedy should be limited to a declaration that it had breached the agreement and an order rescinding the layoffs and directing compensation to any employee who may have suffered a loss as a result of the layoff. It maintained that the collective agreement protected employees from layoffs caused by contracting out, but did not protect the integrity of the bargaining unit. Therefore, the contracting out should not be undone by returning the work to the bargaining unit, particularly since the third party contractors would be harmed.

The arbitrator rejected these arguments, holding that the collective agreement language was designed to protect both the employment interests of employees and the institutional interests of the union. Here the employer had contracted out work normally performed by the bargaining unit which resulted in a layoff of employees other than casual part-time employees. The appropriate approach to remedying the situation was to order that the contracting out be undone and the work returned to the bargaining unit.

CUPE Local 145 was represented by Mark Wright

Click here to read the first award

Click here to read the award on remedy