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[24] I am in agreement with the analysis and reasoning in the Mattawa General Hospital case.
Applying that to the facts, the question must be asked as to what constitutes the job or duties
in question and whether or not there is any overlap. If the duties are defined narrowly as
the replenishing of particular carts, then CUPE could be recognized as having the exclusive
function of replenishing the seven carts with which they have established a historical
relationship. However, if the job function is the broader job function of replenishing carts in
general, it must be recognized that both OPSEU and CUPE members have been
replenishing carts in the Hospital since 1981.
[25] On the basis of the facts presented to me, it must be concluded that the job function I am
dealing with is that of the replenishing and refurbishing of the exchange carts in the Hospital as
part of a chain of supply of goods and materials to the nursing units. To define the job so narrowly
as to confine it to particular carts on particular units is too narrow a restriction or definition of the
job duties. Further, it ignores the fact that the S.P.D. Aides and Aides were going exactly the
same function as the Stores Clerks in the replenishing of the cars and in the handling of all the
items. Further, this would ignore the fact that when Stores Clerks are absent due to illness or
vacations, the S.P.D. Aides were able to fill in for the Clerks. Thus, there was an overlap an indeed
an interchange of the functions and in the work on the carts. Thus, I cannot accept that the “work
of the bargaining unit” or the “duties normally assigned” to the employees should be restricted by a
definition pertaining to work on the seven carts alone. Instead, the work must be recognized in
the broader more general sense as replenishing the carts. Having reached that conclusion,
the facts clearly establish that the task of replenishing the carts was shared by both CUPE
and OPSEU members. Thus, CUPE can find no protection in Articles 3, 4 or 5 or the rest of the
collective agreement for that particular job function.
[Emphasis added]
[116] The same broad perspective of the work in issue and conclusion is applied by V-Chair
Petryshen in the more recent decision of Ministry of Government Services, supra, where the
union grieved the employer’s elimination of a number of “Human Resources Assistant” positions
which provided divisional human resources support to managers in the Ministry of the
Environment after the employer centralized its general human resources while reassigning the
functions performed by those employees to the non-bargaining unit managers themselves. In
reviewing the relevant arbitral authorities, the following principles were identified at para. 8 in
determining whether the employer was prohibited from making that change:
[8]…As a general rule, management can exercise its rights to assign work to employees unless it
is restricted from doing so by the Collective Agreement. In the absence of an explicit restriction,
there may be an implied restriction that impacts on management’s transfer of work that exclusively
belongs to the bargaining unit to persons excluded from the bargaining unit. The lay-off of
bargaining unit employees and the transfer of work performed by these employees to persons
outside the bargaining unit alone do not constitute a contravention of the Collective Agreement.