Sunday, November 24, 2013

Transfer of bargaining unit work, an arbitrator's award and a "judicial clarification"

 The cba between New England Health Care Employees Union, District 1199 and Women and Infant's Hospital provided that all bargaining unit work would be performed by employees covered by the cba. It defined bargaining unit work as work "presently and routinely performed" by bargaining unit members. Following the acquisition of the Hospital by Care New England, a new telephone system was introduced. The new system was staffed by non unit  employees, and the employees formerly performing telephone related duties were reassigned. The Union grieved and ultimately arbitrated this assignment of work, claiming that it violated the cba.

Arbitrator Tim Bornstein concluded that the Hospital transferred approximately 25% of the work of the bargaining unit employees to a help desk staffed by non unit employees. He also determined that some of the tasks formerly performed by unit employees had become obsolete or had been automated or eliminated. Despite his finding that 25% of the work had been transferred, Arbitrator Bornstein denied the grievance, finding that the transferred work "is not the same work that is 'presently and routinely performed" by W&I employees. It is technologically different....There is no evidence--nor does the Union contend-- that the transfer of work to CNE's Help Desk was not made for reasons of business efficien[cy]." He further found that the management's rights clause, and the doctrine of residual rights, privileged the Hospital to make changes in its operation for legitimate, non-discriminatory reasons.

The Union sought to set aside the Award, and the District Court in Rhode Island has refused, instead granting the Hospital's request for confirmation. The court did so despite what it considered the Arbitrator's "slightly vague" and possibly ambiguous  discussion of the transfer of work issue. In confirming the award, the Court noted the deferential standard of review of arbitration awards, even when there was ambiguity in the award. The court also noted that the grieving employees had not suffered any adverse consequences as a result of the Hospital's actions.

However, observing that the parties would have an ongoing relationship, the Court did enter what it referred to as a "judicial clarification":

The workplace changes imposed by the Hospital in connection with the telecommunications system upgrade are described by the Arbitrator as "legitimate," "non-discriminatory" and efficient. Indeed, this Court concurs that the changes are reasonable. The issue, however, is not whether or not these changes are legitimate, reasonable, or made in the interest of business efficiency. Instead, the issue is whether or not these changes comport with Article XXX of the Contract. To the extent that the bargaining unit employees' work has stayed the same, or has been discontinued because it's obsolete, there is no contract violation. On the other hand, if specific tasks that were performed "presently" (that is, at the time of the filing of the grievance) and "routinely" by the bargaining unit employees have been transferred to non-bargaining unit employees, then Article XXX has been violated. The limitations that are imposed on the Hospital by Article XXX must be clear to both parties going forward.

 The Court's decision can be found here.

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