[1989] OLRB Rep. April 390
2798-87-JD Sudbury Algoma Hospital, Complainant v. Ontario Nurses' Association and Ontario Public Service Employees Union, Respondents
BEFORE: R. Herman, Vice-Chair, and Board Members I. A. Rundle and R. R. Montague.
APPEARANCES: K. R. Valin, N. Huneault and F. Jones for the ccmplainant; Mark J. Freiman, Paul Head, Jillian Welch and Carole Ann Priddle for the respondent, Ontario Nurses' Association; Terry D. McEwan and John Scott for the respondent, Ontario Public Service Employees Union.
DECISION OF THE BOARD; April 7, 1989
This is a jurisdictional complaint filed pursuant to section 91 of the Labour Relations Act. The complainant hospital created a new position, Registered Nurse - Alcohol and Addiction Program, and posted and filled the job within the bargaining unit of the Ontario Nurses' Association (hereinafter "O.N.A."). The Ontario Public Service Employees Union (hereinafter "OPSEU") initially filed a grievance with respect to this posting, but the parties subsequently agreed that the instant complaint was a more appropriate mechanism for resolving their dispute. OPSEU claims that the work of this position, the work in dispute, should be assigned to its members. O.N.A. represents almost all registered nurses (R.N.'s) at the hospital. OPSEU represents, amongst others, paramedical employees and community psychiatric nurses (who are R.N.'s). Although only one position and its work was in dispute, in final submissions we were asked to make remedial directions directly affecting the community psychiatric nurses.
The relevant provisions of the Act are as follows:
91.-(1) The Board may inquire into a complaint that a trade union or council of trade unions, or an officer, official or agent of a trade union or council of trade unions, was or is requiring an employer or an employers' organization to assign particular work to persons in a particular trade union on in a particular trade, craft or class rather than to persons in another trade union or in another trade, craft on class, or that an employer was or is assigning work to persons in a particular trade union rather than to persons in another trade union, and it shall direct what action, if any, the employer, the employers' organization, the trade union on the council of trade unions or any officer, official or agent of any of them on any person shall do on refrain from doing with respect to the assignment of work.
(2) The Board may in any direction made under subsection (1) provide that it shall be binding on the panties for other jobs then in existence or undertaken in the future in such geographic area as the Board considers advisable.
(15) The Board may in its discretion, or at any time following the release of its direction, alter the bargaining unit determined in a certificate or defined in a collective agreement as it considers proper, and the certificate on agreement, as the case may be, shall be deemed to have been altered accordingly.
(18) Where an employer is a party to or is bound by two or more collective agreements and it appears that the description of the bargaining unit in one of such agreements conflicts with the description of the bargaining unit in the other or another of such agreements, the Board may, upon the application of the employer on any of the trade unions concerned, alter the description of the bargaining units in any such agreement as it considers proper, and the agreement on agreements shall be deemed to have been altered accordingly.
(19) Before disposing of an application under this section, the Board may make such inquiry, may require the production of such evidence and doing of such things, or may hold such representation votes, as it considers appropriate.
Sudhury Algoma Hospital is a psychiatric hospital located in Sudbury. It provides a wide range of services to patients, and one of its programs is an alcohol addiction program. The job in dispute was posted as an RN. position in this alcohol addiction program. Prior to the creation of the RN. position in the program, the staffing component of the addiction treatment service consisted of three people: the manager, a secretary and a social worker, John Scott. At that point in time, Scott was the primary provider of assessment and treatment services for the patients in the program. In many significant and fundamental respects Scott was a critical player in the creation and development of this program at the hospital. He was one of the original employees working in the program, and he played a key role in the metamorphosis of this program over the years.
The hospital applied for and received funding from the Ministry of Health to increase the staff component in this program by the hiring of a fourth employee. Because of its commitment to a multidisciplinary approach in the delivery of alcohol addiction services, an approach common to many facilities in the province, the hospital decided that the additional team member should be an R.N., as someone with an RN's education and background would complement Scott's social work background, training, and abilities. This is the position in dispute
After the employer decided that the position required a registered nurse, it then assessed both the ONA. and OPSEU collective agreements in order to determine under which agreement the position should be posted. The hospital concluded that the agreements demanded that the position be posted under the O.N.A. collective agreement, which it did. The recognition clause in the ONA. collective agreement reads as follows:
The Hospital recognizes the Association as the sole and exclusive bargaining agent for all Registered on Graduate Nurses employed by the Sudhury Algoma Hospital at Sudbury save and except Head Nurses and Supervisors, persons above the rank of Head Nurses and Supervisors. Health Nurse. Community Psychiatric Nurses, persons specifically excluded by the decisions of the Ontario Labour Relations Board dated November 25, 1970, and part-time employees.
Community psychiatric nurses, specifically excluded .from the ON A. collective agreement as set out immediately above, are covered by the OPSEU paramedical bargaining unit by virtue of a Letter of Agreement appended to that collective agreement. The unit itself is simply described as '-all paramedical employees of the hospital at Sudbury..."
The facts as recited above were essentially undisputed. There was initially dispute concerning some other factual issues. In this respect, we note that the nature of OPSEU's claim changed after completion of the evidence. OPSEU initially asserted that the work in dispute was not a nursing position, but a paramedical one, falling within its collective agreement. The case on the merits was litigated on this basis. Presumably because of the evidence that was ultimately placed before the Board, in final submissions OPSEU agreed that an RN. is required for the position in question. However, it conceded that the community psychiatric nurses whom it represents were not able to perform the job in question. OPSEU further conceded (again for the first time in final submissions) that as an R.N. is required, the collective agreements of O.N.A. and OPSEU mandated that the employer assign the work to O.N.A. Finally, OPSEU acknowledged that no employee in its paramedical bargaining unit was capable of performing the duties and responsibilities of the disputed position.
In OPSEU's submission, the majority of the duties and responsibilities involved in the position are not ~nursing" duties, although an R.N. is needed to perform some of them. OPSEU submits these duties are of a psycho-social counselling or therapy nature. As the OPSEU paramedical bargaining unit consists of employees who provide such services, the Board ought to transfer from the ONA. bargaining unit to the OPSEU bargaining unit the R.N. position in question. Thus, OPSEU submitted that, although an R.N. is needed for the job, the job would more fairly and justly be given to OPSEU, whose paramedical members provide the psycho-social counselling and therapy that the job predominantly involves. OPSEU also submitted that no jobs would be lost to O.N.A. by this mechanism, precisely because there are no current employees in the OPSEU bargaining unit who can perform the duties of the job. If the Board were to transfer this RN. position to the OPSEU collective agreement, the job would first have to be posted only for OPSEU members, and as no OPSEU member could successfully perform the job, it would then have to be opened to the hospital at large. In that case, OPSEU submitted, a current member from O.N.A. would no doubt be the successful candidate. Thus no current O.N.A. member would lose a job.
Returning to the facts, the Board finds that the evidence clearly substantiated that an R.N. is needed to perform the job in question. We are also satisfied that the duties and responsibilities of the job generally involve the performance of nursing work. Although one can fairly describe the majority of the duties and responsibilities as consisting of counselling and therapy in various forms, this position was created and an R.N. required for it specifically because the employer felt that a multidisciplinary approach to such counselling and therapy was warranted. Counselling and therapy are not the exclusive preserve of social workers or professionals of other disciplines, just as they are not the exclusive preserve of nurses. Although some of the services being provided may seem similar or identical from the patients' perspective, the different educational and work backgrounds brought to the task by an RN. result in differentiation in the nature of the services provided. This is the very justification for the multidisciplinary approach. Only a few of the duties of the job legally require that an R.N. perform them, but nursing background and work experience are nevertheless valid requirements for the range of duties and responsibilities of the job; that is, to provide counselling, therapy, and related services from a nursing perspective. It is clear that ONA members are fully able to perform the duties of the job.
The employer assigned the work in question to the O.N.A. bargaining unit. O.N.A. represents all registered and graduate nurses, save specified exclusions not claimed by OPSEU to be entitled to the job. Although the duties of the job were largely, though as noted not exclusively, nursing duties, the ONA recognition clause does not restrict O.N.A.'s representation of nurses to when they act or work "in a nursing capacity". To the contrary, O.N.A. has representative rights whenever an R.N. or graduate nurse is required for the job. An RN. in the alcohol addiction treatment program would thus fall within the parameters of the O.N.A. scope clause, as the employer initially concluded. As an R.N. was required for this work, as O.N.A. represents R.N.'s, and as in any event no one in the O.P.S.E.U. bargaining unit is able to perform the job in question, we decline to interfere with the employer's assignment.
Also in final submissions, we were asked by O.N.A. and the hospital to issue a direction and make the necessary collective agreement amendments to transfer community psychiatric nurses from the OPSEU bargaining unit into the O.N.A. bargaining unit. The submissions of all three parties in effect accepted that the Board had the jurisdiction to make such an order. It was suggested that our jurisdiction to do so was found in the entire scheme set out in section 91, and more specifically in subsections (1), (15), and (18). We were asked to do so because it was submitted that such a direction would make labour relations sense, and would most likely reduce further jurisdictional disputes.
The assignment of work involving community psychiatric nurses was not the subject of any dispute in this proceeding, and therefore it is questionable whether we have jurisdiction to make a direction with respect to them. Their jobs were not clearly understood to be subject to potential remedial directions in this complaint, and it might well be of considerable surprise to them to discover that this Board had changed their bargaining agent without affording them any opportunity to participate in that decision or without canvassing their views in that respect. We therefore decline to make any directions in this respect.
Finally, an issue arose during the course of the proceedings over the continuing expansion and development of the addiction service at the hospital. As the hearings continued, the hospital received additional funding and was able to plan further expansion of the addiction service, including the proposed creation of new staffing positions. Several of these additional positions have been identified by the hospital as requiring R.N.s. The parties were unable to agree on a proposed expansion of the ambit of the case to deal with these additional R.N. positions. The Board ruled that this complaint would be restricted to the one position in question, and would not deal with the positions of any additional nurses in the proposed structure. The Board indicated that evidence could be adduced concerning the new structure and organization, and the duties and responsibilities of any of the new positions in that structure, but that it would not make directions with specific reference to the proposed positions. At the same time, the Board indicated that its decision might in any event effectively resolve any dispute over these additional positions. The Board's ruling was without prejudice to the right of any of the parties to file a new jurisdictional dispute with respect to any of these other positions. However, we would hope that our decision in this matter will render additional litigation unnecessary.
If any further jurisdictional complaints are filed, the parties will of course have to comply with the provisions of Rule 60 and Practice Note #15 (dated August 2,1988). Any such further complaint will be dealt with according to the provisions applicable thereto, save that the Registrar will schedule the instant panel (if available) for any hearing on the merits, should a hearing on the merits be necessary.
For the reasons given, this complaint is hereby dismissed.