[1992] OLRB Rep. November 1219
1286-92-JD The Regional Municipality of Sudbury Pioneer Manor - Home for the Aged, Complainant v. Ontario Nurses' Association and Canadian Union of Public Employees, Local 148, Respondents
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. A. Correll and B. L. Armstrong.
APPEARANCES: Walter Thornton and John Luszka for the complainant; E. Mcintyre, Ralph Mills and Amanda Pask for Ontario Nurses' Association; and Nancy Rosenberg and Dennis Burke for Canadian Union of Public Employees, respondents.
DECISION OF THE BOARD; November 13, 1992
This is a complaint concerning work assignment which has been brought to the Board under section 93 of the Labour Relations Act.
Upon hearing the representations of the parties at a hearing on November 6,1992, the Board ruled, orally, that it has jurisdiction to inquire into this complaint, and that it is appropriate for the Board to proceed to do so. The Board therefore dismissed the motion by the respondent Ontario Nurses' Association (the "ONA") that the Board defer consideration of this complaint pending the disposition at arbitration of certain grievances filed by the ONA.
At issue in this complaint is the assignment by the complainant employer to members of the respondent Canadian Union of Public Employees, Local 148 (the "CUPE") of certain work which the respondent ONA has, in effect, asserted in a series of grievances should have been (and should be) assigned to its members. For purposes of the motion, it is sufficient to describe the work in issue as a bundle of nursing duties including certain types of data collection and charting, most drug administration, guidance to Practical Nurses employed by the complainant, and reporting to oncoming shifts and to the complainant's administration.
Counsel for the ONA argued that the real dispute is a bilateral one between it and the complainant with respect to the proper interpretation and application of the collective agreement between them. She submitted that there is no conflict between that collective agreement and the collective agreement between the complainant and the CUPE and that the best forum for resolving that dispute is arbitration. Counsel submitted that the jurisdictional dispute mechanism in section 93 of the Act was enacted primarily in response to the needs of the construction industry, which is quite different from the public sector and, more specifically, is not applicable to the dispute herein. She argued that only the grievance arbitration procedure which the ONA has engaged provides the appropriate contractual remedies, and that the absence of such remedies in the Board's jurisdictional dispute procedure will force the ONA to proceed with the arbitration of its grievances whatever the disposition of this complaint by the Board.
Counsel conceded that CUPE members would lose their jobs if the ONA succeeds at arbitration, but submitted that the interests of the CUPE and its members can be adequately covered by giving them notice of the arbitration proceedings and standing to participate in them.
The complainant and the CUPE both opposed the ONA's motion.
Subsection 93(1) of the Labour Relations Act provides that:
93.-(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 or in a particular trade, craft or class rather than to persons in another trade union or in another trade, craft or 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 or the council of trade unions or any officer, official or agent of any of them or any person shall do or refrain from doing with respect to the assignment of work.
Together with the other subsections of section 93, it gives the Board broad powers with respect to disputes concerning the assignment of work. Although it is particularly well suited to such disputes in the construction industry, section 93 is patently not limited to that labour relations sector. Indeed, we did not understand counsel for the ONA to suggest that it was.
In the interests of labour relations stability, the Board has taken a broad approach to work assignment disputes such that, when it is satisfied that a complaint does relate to a true jurisdictional dispute, the Board will generally inquire into it. It is not uncommon for a grievance to raise an issue which is essentially or substantially a jurisdictional dispute. When a complaint under section 93 relates to the same assignment which is the subject of a grievance, the Board is often faced with deciding how to best proceed.
In this case, the complainant has assigned certain work to members of the CUPE which the ONA claims should have been assigned to its members. The CUPE claims that the work in dispute has been properly assigned. This is clearly a jurisdictional dispute, or complaint concerning work assignment, within the meaning of section 93 of the Labour Relations Act, which we were satisfied the Board has the jurisdiction to inquire into ( and we note that Counsel for the ONA did not suggest that the Board was without jurisdiction).
The second question was, in essence, whether the Board is the best forum for resolving the dispute between the parties. The purpose of arbitration is to provide an expert and expeditious mechanism for resolving grievances with respect to the interpretation, administration or application of the particular collective agreement with respect to which the particular grievances have been brought. On the other hand, section 93 has been specifically designed to be the primary means by which jurisdictional dispute complaints are resolved. A board of arbitration undoubtedly has jurisdiction and the expertise to deal with alleged violations of a collective agreement and may even have remedial powers which the Board does not have in a jurisdictional complaint. However, the Board's jurisdictional dispute complaint jurisdiction and process is much broader, in terms of the parties involved, the scope of the inquiry and the range of remedies available, than the private arbitration process. Indeed, it includes consideration of the applicable collective agreement(s) and the parties' rights thereunder as well as the other relevant factors, the significance of any one of which varies from case to case depending on the circumstances of each case. The Board is certainly no stranger to the interpretation and application of collective agreements. Consequently, while there may be circumstances in which it is not appropriate to do so, the Board will generally be inclined to proceed with a complaint filed under section 93 of the Act, rather than allowing or requiring a grievance relating to the same assignment of work to proceed first.
In this case, we were satisfied that the matters in issue between the parties transcend the collective agreement issues raised in the ONA's grievances, and have a substantial and proximate jurisdictional element and implications. The fact that the proceedings before the Board may not be dispositive of the entire dispute between the parties or any two of them was not, in our view, a cogent reason not to proceed with this complaint.
Consequently, and not withstanding the able submissions of counsel for the ONA, we dismissed the ONA's motion as aforesaid.
The complaint will therefore proceed as scheduled.
Of course, nothing in this decision precludes the ONA from seeking to proceed with the arbitration of its grievances. Those arbitration proceedings are outside of this Board's jurisdiction.