Employer guilty of contracting out despite lack of formal agreement
hiring private security workers to provide relief on night shifts went against the collective agreement between employees at the North Bay Regional Health Centre in Ontario, an arbitrator has decided.
The Canadian Union of Public Employees union filed a policy grievance against the hospital after it decided to use security operators — employees of Russell Security Services — to provide relief coverage for workers operating the switchboard during night shifts.
The problem was that, up until February 2015, two bargaining unit employees operated the employee’s switchboard.
However, in 2014, the employer decided that, in view of the modest number of calls received on that shift (between 11 p.m. and 7 a.m.), it could not justify continuing to schedule two switchboard operators.
As such, about 35 Russell Security employees were hired to provide relief when those two workers would take breaks, and were responsible for various related duties such as monitoring security cameras.
This was a direct violation of the collective agreement, CUPE said, particularly the clauses relating to contracting out work typically performed by the bargaining unit.
The duties of the security operators were only to provide relief during switchboard operators’ breaks, which they did at no extra cost to the employer, as per an unwritten agreement between Russell and the hospital.
However, the employer maintained the union failed to provide evidence linking the contracting out of the disputed work and the layoff of any employees. Thus, in the absence of such a link, there could be no finding that the collective agreement had been violated, the employer said.
It also argued that because Russell employees provided relief only informally and in addition to their prescribed duties, the security operators were not employed by North Bay during the work in question, but rather they remained employees of Russell Security.
This argument was dismissed as a "straw man" by arbitrator Michael Bendel.
Rather, Bendel said the determination was whether the employer’s actions constituted a "genuine, legitimate or effective ‘contracting out.’" In order to establish that, there must be "a significant change in the method by which the employer does its business, some new arrangement readily distinguishable from the manner in which business is conducted under the collective agreement."
In this case, the security operators performed the disputed work on the employer’s premises, used the employer’s equipment and followed the schedule set by the employer. They were also not really subject to control by Russell’s supervisors.
If the employer had decided to use its own employees to provide switchboard backup on the night shift, their performance of the work would have been indistinguishable from that of the security operators, Bendel added.
The grievance was therefore allowed, and he ordered the employer to return the work in question back to the bargaining unit.
Reference: North Bay Regional Health Centre and the Canadian Union of Public Employees Local 139. Michael Bendel — arbitrator. Thomas Davis for the union, Shane Smith for the employer. Oct. 2, 2015.