The Regional Municipality of Sudbury Pioneer Manor - Home for the Aged v. Ontario Nurses' Association and Canadian Union of Public Employees, Local 148

[1993] OLRB REP. MAY 447

1286-92-JD The Regional Municipality of Sudbury Pioneer Manor - Home for the Aged, Applicant V. Ontario Nurses' Association and Canadian Union of Public Employees, Local 148, Responding Parties

BEFORE: Robert D. Howe, Vice-Chair, and Board Members G. 0. Shamanski and H. Peacock.

APPEARANCES: Walter Thornton, John Luszka and M. Mclnnis for the applicant; Elizabeth McIntyre, Bertha Kovacs, Ralph Mills and Carol Fleming for Ontario Nurses' Association; Nancy Rosenberg and Dennis Burke for Canadian Union of Public Employees.

DECISION OF THE BOARD; May 4, 1993

1. This is a complaint concerning work assignment under section 93 of the Labour Relations Act.

2. The primary work in dispute consists of the administration of various medications to the residents of Pioneer Manor, a home for the aged which opened in 1953 and has been operated by the Regional Municipality of Sudbury (the "Employer") since 1973. (For ease of reference, Pio­neer Manor will also be referred to as the "Home" in this decision.) Certain other nursing duties (including providing guidance to Practical Nurses, reporting to incoming shifts, and engaging in some forms of data collection, documentation, and administration) are also in dispute. However, since the submissions of the parties focused primarily upon the administration of medications, that will also be the focus of this decision.

3. During the period from 1953 to 1974, the function of administering medications at the Home was performed by Practical Nurses who generally had no formal training and were trained on the premises. That practice ceased in 1974 when the Director of the Ministry of Community and Social Services' Senior Citizens' Bureau issued new guidelines concerning the administration of drugs, which included a requirement that they be administered to a resident "only by a physician, dentist, registered nurse or, where the Director of the Bureau approves, a registered nursing assis­tant." After those guidelines were issued, the administration of medications was assigned exclu­sively to Registered Nurses ("RNs") at Pioneer Manor. That practice remained in place until 1991, when the Employer decided to assign to Registered Nursing Assistants ("RNAs") the administra­tion of most medications. Although no RNs have been laid off by the Employer as a result of the reassignment of that work (or any of the other work in dispute) from RNs to RNAs, the number of RNs employed at the Home has been reduced through attrition, and it is the Employer's intention to continue to reduce its RN complement by that means.

4. Canadian Union of Public Employees, Local 148 ("CUPE") has held bargaining rights since 1963 for all of the employees at the Home except specified exclusions such as Professional Medical Staff, Charge Nurses, Assistant Department Heads, Registered and Graduate Nurses, and office staff. It is common ground among the parties that any RNAs employed by the applicant fall within the scope of CUPE's bargaining rights.

5. The Ontario Nurses' Association ("ONA") holds bargaining rights for all Registered and Graduate Nurses employed in a nursing capacity by the Home, with the exception of the Director of Nursing Services and the Assistant Director of Nursing Services. Both its full-time and part-time collective agreements with the Home contain the following provision, which has remained unchanged since being awarded by an interest arbitration board chaired by Gail Brent (the "Brent Board") in 1980:

2.02 In order to protect the standard of nursing care, the Employer agrees that no one out­side the above mentioned bargaining unit shall perform the work normally performed by members of this bargaining unit, except for:

(a) the purpose of instruction or experimentation; or

(b) in the event of an emergency; or

(c) work normally performed by employees outside the bargaining unit.

6. In awarding that provision, Arbitrator Brent wrote as follows:

The board considers that the above clause represents a reasonable compromise between the positions taken by the parties which protects the interests of the parties as expressed to the board.

7. The position taken by ONA in its written submissions to the Brent Board included the following:

ARTICLE 2.02 - RECOGNITION - (Full-Time and Part-Time)

ASSOCIATION PROPOSAL

2.02 In order to protect the standard of nursing care the Employer agrees that no one out­side the above mentioned bargaining unit shall perform the work normally performed by members of this bargaining unit except for the purpose of instruction or experi­mentation or in event of an emergency situation.

EMPLOYER PROPOSAL

2.02 The parties hereto, agree that for the term of this Agreement, there will be no restric­tion on Contracting Out by the Employer, of their work or services of a kind now per­formed by employees herein represented; provided, however, that no Permanent Employee of the Employer, who was such on March 6th, 1979, shall, as a result of such Contracting Out, thereby lose employment.

ARGUMENT

The above proposal of the Association is one which prohibits those outside the bar­gaining unit from performing bargaining unit work. It is clear that in the absence of an express provision in the Collective Agreements an Employer may assign bargaining unit work to Supervisors or other employees outside the bargaining unit, or contract out work. The Employer's proposal would give them almost unfettered rights to con­tract out work and to assign work out of the bargaining unit. In our view, such an occurrence would be undesirable and threatening to the job security of those within the bargaining unit. The provisions of a Collective Agreement can be made null and void if the Employer can, in effect, remove work from the bargaining unit at will.

Our proposal is also an attempt to protect the standard of nursing care in the Manor by assuring that personnel with an ongoing relationship with the Employer (i.e. -members of the bargaining unit) perform the nursing functions necessary at the Manor. This will provide consistency of patient care as well as the benefits of being able to discuss problems on an ongoing basis and familiarity of personnel with each other.

It would also ensure that the bargaining rights of ONA. are protected in that nursing functions will be done only by personnel covered by the Collective Agreement except in exceptional circumstances. The Employer's proposal would not in fact, protect the bargaining rights of our members. The only proviso which they have placed in their clause is that no permanent employee, who was such on March 6th, 1979, shall lose her employment as a result. Presumably, they would then have the right to contract out work and terminate employees as long as those employees were not hired before March 6th, 1979. A second concern is that present employees could have their hours of work reduced as a result of contracting out without being actually terminated. This concern is especially great with respect to the Collective Agreement covering part-time nurses. Any such employee could have her job security seriously threatened by the Employer contracting out even though she would officially remain an employee.

Trends in the Homes Sector in general in this regard are the basis for our concern that this clause as we have proposed be included in the Collective Agreement. There has been a tendency in many Homes for the Aged to employ fewer registered nurses and to place less trained personnel in positions of greater responsibility. Such a practice has led to a decrease in the standard of nursing care and has also placed those regis­tered nurses remaining in the bargaining unit in a position of greater jeopardy. They often become liable for the actions of registered nursing assistants and others whom they are, in effect, unable to supervise directly.

This is an issue of great importance that goes to the heart of the question of job secu­rity, the integrity of the bargaining unit, and the standard of nursing care which the Manor provides. We want to ensure that there is no avenue open for the Employer to embark on a course of action which may have the effect of nullifying the force and effect of the Collective Agreement.

8. The position taken by the Employer in respect of Article 2.02 in its written submissions to the Brent Board was:

Article # 2 - Recognition

2:02 The Association Proposal would negate all routine duties currently being provided on a daily basis by the Director of Nursing; i.e. Residents walking into or by her office for medication, first aid treatments, liniment applications, routine resident counselling and overload nursing.

In addition, such a clause would prohibit the contracting out of any nursing care or service. The granting of such a clause would cement a monopoly of nursing care and services to the Ontario Nurses Association.

A public service body, being the Regional Municipality of Sudbury, and being democratically elected, must retain the right to explore and seek alternative sources of supply that maintain or improve its standards and provide more economical costs. Therefore, the Employer proposes in its counter-proposal to the Association exercising such rights however providing job security to Permanent class employees covered by this Agreement, who were such on March 6th, 1979. This Proposal is similar to that provided C.U.P.E. employees. Non-Union employees do not have such a job security clause. The Association Proposal is not contained in any of their collec­tive agreements within the boundaries of the Regional Municipality of Sudbury.

9. The acceptable scope of nursing practices of RNs and RNAs is guided by the College of Nurses of Ontario (CNO). In particular, the CNO's Standards of Nursing Practice for Registered Nurses and Registered Nursing Assistants (the "Standards") identify the minimum expectations for providing safe, effective, and ethical nursing care. Prior to 1984, the administration of medica­tions (of certain types and by certain routes) was an "A level" basic skill for RNAs, but an RNA could also be qualified to administer medications in additional ways as an "added skill". After 1984 the administration of medications ceased to be a basic skill for RNAs and became an added skill, which could be exercised only by RNAs who had completed an approved pharmacology course and who worked in a setting in which their employer provided adequate instruction and supervision. Under the CNO's current Standards and its Medication Administration Guidelines, an RNA who has obtained a Drug Administration Certificate by completing the post-basic pharmacology course which was developed in 1985 satisfies the basic requirements for competence to administer medica­tions. Under the current Standards, qualified RNAs can administer medications "topically, through natural body orifices, through tubes, and by intracutaneous and subcutaneous injection." However, unlike RNs, they cannot administer medications through intramuscular injections or "in­travenously, above the drip chamber".

10. Over the years the Employer has hired as Practical Nurses a number of individuals with RNA qualifications, including some having a Drug Administration Certificate. In the Fall of 1991 the Employer decided that it would be desirable to utilize some of those persons to administer medications and perform some of the other duties previously performed by its RNs. That decision was motivated by financial considerations and by a concomitant desire to make use of employees who, although not employed as RNAs, were qualified as RNAs with a Drug Administration Certif­icate.

11. As of November 1, 1991, the Home's Practical Nurses earned between $14.22 and $14.62 per hour. The Employer anticipates that its negotiations with CUPE will yield a start rate of approximately $14.75 per hour for RNAs, with a top hourly rate of approximately $16.50 after three years’ service. As of April 1, 1989, the Home's RNs earned between $16.17 and $19.53 per hour. However, in its most recent round of contract discussions and interest arbitration proceed­ings with the Employer, ONA has proposed (maximum) rates of $24.62 as of October 1, 1991, and $26.67 as of April 1,1992, in order to bring RNs employed by the applicant into a position of par­ity with hospital rates. The Employer, on the other hand, has proposed wage increases of approxi­mately 6% per year, which would produce a top rate of $21.99 as of October 1, 1991. By gradually reducing through attrition the number of RNs it employs and replacing them with RNAs, the Employer hopes to be in a financial position to meet the needs of its ever increasing number of res­idents who, as a result of physical and/or mental dysfunction, require extended care. (Residents having little physical or mental dysfunction require only "residential care", as their mobility enables them to eat their meals in the Home's dining room and make their own beds.)

12. In order to effectuate its plan to utilize RNAs, the Employer notified CUPE in October of 1991 that it would soon be introducing at Pioneer Manor a new position of "Registered Nursing Assistant, with Medication Certificate" (and requested a meeting with CUPE to determine the appropriate wage rate for that new position). Since that time, the Employer has posted and filled several of those positions, instead of posting RN positions vacated by resignation, physical incapac­ity, and death. The Employer's actions have given rise to a number of grievances by ONA and members of the ONA bargaining unit. A motion by ONA that the Board defer consideration of this complaint pending arbitration of those grievances was dismissed by another panel of the Board in an oral ruling rendered on November 6, 1992, for the reasons set forth in a decision dated November 13, 1992 (see Pioneer Manor - Home for the Aged, [1992] OLRB Rep. Nov. 1219).

13. As indicated below, it is the Employer's contention that Article 2.02 does not preclude it from assigning the work in dispute to RNAs. However, in June of 1992, approximately a year after conciliation in respect of its latest round of contract negotiations with ONA, the Employer submitted the following additional proposal to ONA "for clarification purposes":

ARTICLE 2 RECOGNITION

2:02 The following shall be entered as additional language under this article:

"Where the standard of nursing care is not affected, then the provisions of this article do not apply."

Further, the Employer proposes the following to appear in the Interest Arbitration Award or in a Letter of Commitment:

"It shall be understood that no employee in the bargaining unit shall lose employment, be domoted [sic] or suffer a loss of basic wages or welfare benefits as a result of persons outside the bargaining unit performing the work normally performed by members of the bargaining unit."

ONA's response to that proposal was that it was "not prepared to entertain any additional propos­als at [that] time." The Employer subsequently informed ONA that although it was unfortunate that ONA would not meet with it to discuss the proposal, the Employer would nevertheless be including it in its interest arbitration submission. ONA's response was that the Employer's "sug­gestion of including [the proposal] in the upcoming interest arbitration would be completely inap­propriate."

14. At a consultation conducted by the present panel of the Board on March 25, March 31, and April 1, 1993 in respect of this complaint, the parties agreed that area (and industry) practice is a neutral factor. After counsel for the Employer admitted that all other things being equal, the Employer preference is to assign the work in dispute to RNs because of their broader base of skills and knowledge, the parties further agreed to argue the matter on the basis of it being assumed for purposes of argument, without deciding, that RNAs are capable of performing the work in ques­tion in a competent manner. (That agreement was reached on the understanding that if the Board found itself unable to decide the complaint without hearing evidence regarding RNAs' capability to perform the work in question, that evidence would be heard on the other continuation dates previously scheduled.)

15. In assessing the merits of jurisdictional disputes, the Board has traditionally considered a number of criteria, including the following:

(a) collective bargaining relationships,

(b) skill and training,

(c) safety,

(d) economy and efficiency,

(e) employer past practice,

(f) area or industry practice,

(g) employer preference.

(See, for example, Newmarch Inc., [1990] OLRB Rep. Feb. 179; Quebec and Ontario Paper Com­pany Ltd., [1989] OLRB Rep. July 796; Premier Pipelines Ltd., [1988] OLRB Rep. Oct. 1068; Spruce Falls Power & Paper Company Limited, [1988] OLRB Rep. July 708; Southam Murray Printing, [1984] OLRB Rep. June 868; Southam Printing Limited, [1984] OLRB Rep. Jan. 117; Silverwood Dairies Limited, [1981] OLRB Rep. Nov. 1624; Toronto Star Newspapers Ltd., [1980] OLRB Rep. April 565; Boise Cascade Canada Ltd., [1979] OLRB Rep. Sept. 850; and Anchor Shoring Ltd.,[1974] OLRB Rep. Aug. 528.

16. As indicated above, the parties have agreed that area (and industry) practice is a neu­tral factor in the instant case. The Employer's preference is somewhat equivocal and not particu­larly helpful in and of itself. As a result of considerations of economy and efficiency, the Employer would prefer to assign the work in dispute to RNAs. However, as noted above, all other things being equal, the Employer would prefer to assign the work in dispute to RNs because of their broader base of knowledge and skills.

17. As further indicated above, this matter has been argued on the basis that, at this stage of the proceedings, the Board will assume for purposes of argument, without deciding, that RNAs are capable of performing the work in question in a competent manner. However, this is also indis­putably true of RNs. Thus, the criteria of skill, training, and safety are of little assistance to the Board in this context.

18. Economy and efficiency are also of limited assistance in resolving this dispute. Although the applicable RNA wage rates are lower than those of RNs, the Board has indicated on a number of occasions that "a trade union can't buy jurisdiction" by being prepared to do the work for a lower wage rate than the competing union. (See, for example, Ontario Hydro, [1983] OLRB Rep. June 932, and Anchor Shoring Limited, supra.) The Employer's contention that it will be in a posi­tion to provide better care to its residents if it can use the money saved by non-replacement of RN positions (eliminated through attrition) to hire a greater number of RNAs is, in essence, simply an alternate phrasing of that approach which has been rejected by the Board.

19. The matters generally considered by the Board under "economy and efficiency" are such factors as the overall flow of work and output per hour by the competing classifications or trades. Viewed by this perspective, "economy and efficiency" provide some support for the Employer's case, as the flexibility of being able to assign the work in question not only to RNs but also to RNAs would increase the Employer's scheduling options and its ability to efficiently distrib­ute that work.

20. As regards Employer past practice, although Practical Nurses administered medications at the Home prior to 1974, the Employer's practice of assigning the work in dispute exclusively to RNs throughout the period from 1974 to 1991 provides strong support for ONA's position that the work in dispute should be assigned to RNs. However, this is not conclusive, as the Board has been prepared to alter the status quo in jurisdictional dispute proceedings. (See, for example, Boise Cas­cade Canada Ltd., [19831 OLRB Rep. Feb. 194, and Joseph Brant Memorial Hospital, [1981] OLRB Rep. Nov. 1598.)

21. Article 2.02 of the full-time and part-time collective agreements between ONA and the applicant also provides strong support for ONA's position in these proceedings. In this regard, we find no merit in the contention of Employer's counsel that the introductory phrase contained in Article 2.02 refers to the minimum expectations for providing safe, effective, and ethical nursing care, as set forth in the CNO Standards. In our view, those words refer to the actual standard of nursing care in existence at the Home as a result of the performance by RNs of "the work normally performed by members of this bargaining unit". That actual standard of nursing care has clearly exceeded the CNO Standards for a number of years, in that the Home has been using RNs to per­form work which the CNO Standards indicate to be within the competence of RNAs as either a basic or added skill. To the extent that it is necessary for us to interpret Article 2.02 in order to resolve this complaint, we respectfully agree with and adopt the reasoning contained in the May 10, 1984 (unreported) majority award of an arbitration board chaired by H. D. Brown in South Centennial Manor and Ontario Nurses' Association (Group Grievance 83-5). In that case which involved the interpretation of a substantially similarly provision, the majority wrote, in part, as fol­lows in finding that South Centennial Manor violated its collective agreement with ONA by assign­ing to RNAs and the Director of Nursing work which had previously been performed by a day-shift RN who left its employ and was not replaced:

… Article 2.03 … is as follows:

2.03 In order to protect the standard of nursing care, the Employer agrees that no one out­side the above mentioned bargaining unit shall perform the work normally performed by members of this bargaining unit except for the purpose of instruction or experi­mentation or in event of an emergency situation, and provided that the act of per­forming the aforementioned operations, in itself does not reduce the hours of work or pay of any nurse.

… Without Article 2.03, the Employer could maintain a substantial case, since it was based on proper operational reasons and not made in bad faith, that its decision ... to eliminate the R.N. position on days, was consistent with its operation and committments [sic] to the patients and Ministry directives. Having regard to Article 2.03 however, the Employer cannot eliminate a position in the bargaining unit and have the duties of that position carried out by others who are not members of the bargaining unit. The parties have commenced that section by stating its pur­pose as being "to protect the standards of nursing care". That is a recognition that members of the bargaining unit are required to perform the nursing functions involved in the home and that they have the right to do so as opposed to any other persons who might be assigned duties they would normally be expected to perform. The Employer has the right to control its work force and in that regard to layoff employees or to reduce the number of its employees, but it does not have the right to do that by assigning the tasks pertaining to members of this bargaining unit to persons not included in the bargaining unit. When therefore the parties entered into the collec­tive agreement containing the terms referred to in this matter, the Employer's operations changed and that became the status at that time, which applied for the term of that agreement and any renewals thereof…..

22. The reasoning in that case was also adopted and applied by an arbitration board chaired by J. W. Samuels in an (unreported) award dated February 8, 1991 in Cambridge Country Manor and Ontario Nurses' Association, which reads in part as follows:

In late-1989, the Employer posted for and then hired a full-time RNA to do the "D2 shift", that is to work from 0800 to 1600 on a permanent basis. Up to this point in time, the D2 shift had been staffed by part-time RNs or by RNAs.

The Association claims that the new arrangement violated Article 2.07 of the collective agree­ment, which reads:

In order to protect the standard of nursing care, employees not covered by the terms of this agreement will not perform duties normally performed by those employees who are covered by this agreement, except for the purpose of instruction or in emer­gencies when members of this bargaining unit are not readily available.

In our view, Article 2.07 protects members of the bargaining unit from losing work which was "normally performed" by them when the collective agreement came into force....

What is meant by "duties normally performed by those employees"?

In Little's Nursing Home (Tecumseh) Limited and Ontario Nurses Association (grievances of Lozinski et al, unreported decision of Roberts, dated May 10, 1983), the Board dealt with a sim­ilar provision, except that the work protected was the work "presently" performed by members of the bargaining unit. The Board held that "The employer was obligated to assign to that com­plement of RNs the same type and volume of work that they performed on the effective date of Article 2.05" (at page 14, emphasis added). In our view, the difference in wording between the collective agreement in the Little's case and the language in the collective agreement before us ("presently" instead of "normally") means that in our case one establishes the protected work sample over a broader time period than simply the effective date of the collective agreement. We are concerned with the work which was "normally" done by members of the bargaining unit, not simply the work which was done by them at the point in time at which the collective agreement came into force. But the essential meaning of the two provisions is the same--it is the type and volume of the work which is protected.

In South Centennial Manor and Ontario Nurses' Association (Group Grievance 83-5, unreported decision of Brown, dated May 10, 1984), the Board dealt with a provision which was virtually identical to the one before us. It was held that the members of the bargaining unit were entitled to continue doing the particular day shift work which was taken away from them.

The Employer in our case argued that, because the D2 shift had been staffed by either RNs or RNAs before the change was made, the work in question was not nurses' work but was work which could be done either by RNs or RNAs, and therefore could not be characterized as "duties normally performed by" RNs.

In our view, though sometimes an RNA would do the D2 shift, when an RN was on the shift she was providing nursing care to the residents of Home. Without evidence to the contrary, we accept that nurses provide different care from RNAs. If a resident needed attention, the resi­dent received different care from an RN than from an RNA. When the RN was providing the care, the resident had someone with a different education from an RNA--an education which provides a great expertise, a greater measure of recognition. And this education comes to bear whenever the RN is attending to the needs of a resident.

The evidence before us showed that, throughout 1989 up to the date of the contested change, in each two-week scheduling period, RNs were assigned the bulk of the D2 tours. Between Janu­ary 1 and December 16, 1989, RNs averaged 10 of the 14 D2 tours in each two-week period. This meant that, for roughly two-thirds of the D2 shifts, residents could count on full nursing care from the person on the shift. Article 2.07 says that, "in order to protect the standard of nursing care", this staffing ought to continue.

In fact, however, after the change RNs almost never staff the D2 shift. This was a substantial change in the "standard of nursing care" on that shift.

We declare that, in December 1989, the Employer violated Article 2.07 of the collective agree­ment when it assigned to RNAs the work on the D2 shift which was normally performed by RNs, and we order that the Employer return to scheduling the D2 shift as it was normally sched­uled before December 1989.

23. We respectfully agree with that reasoning and find that it applies even more forcefully in the instant case in which none of the work in dispute has been performed by RNAs, but rather has been performed exclusively by RNs throughout the time that Article 2.02 of the ONA collec­tive agreements has been in force. That fact clearly distinguishes the instant case from the situation which existed in Fairhaven Home Senior Citizen and Ontario Nurses' Association (an unreported award dated July 8, 1992, by an arbitration board chaired by I. G Thorne), in which the majority award found no violation of an article similar to Article 2.02 on the grounds that the work in ques­tion was not exclusively reserved to RNs, as it had previously been shared with RNAs during the course of successive collective agreements. (The other awards to which we were referred by coun­sel for CUPE are also similarly distinguishable.) The Fairhaven award is also distinguishable on the grounds that it was based in part upon the terms of a Letter of Understanding which expressly con­templated that certain functions performed by RNs would also be performed by RNAs.

24. The interpretation we have placed upon Article 2.02 is also supported by the position taken by ONA in its written submissions to the Brent Board, whose awarding of Article 2.02 was (in the words of arbitrator Brent) intended to "[protect] the interests of the parties expressed to [that] board." Those interests, which are described in the submissions quoted in paragraphs 7 and 8 of this decision, include ONA's interest in protecting its bargaining rights by ensuring that work normally performed by members of the ONA bargaining unit(s) will continue to be performed exclusively by them, except in the limited circumstances described in clauses (a), (b), and (c) of Article 2.02. They also include ONA's interest in maintaining the standard of nursing care at the Home by precluding the Employer from (among other things) using RNAs to replace RNs.

25. Employer's counsel also submitted that in the event the Board rejected his contention that the assignment of work in dispute to RNAs was not violative of Article 2.02, the Board should amend ONA's collective agreement so as to permit the Employer to assign that work to RNAs. However, we are not persuaded that it would be appropriate to do so in the circumstances of this case. As noted above, the Employer is also seeking to obtain such an amendment through the interest arbitration process. Indeed, the Employer's request for relief from this Board could well be viewed as premature, in that the interest arbitration board has not yet ruled on that matter. In our view, interest arbitration is an appropriate forum in which to at least initially seek such a change, as an interest arbitrator, if persuaded that such revision is warranted, will be in a position to make such an adjustment in the context of the total balance of the interest award. Thus, if ONA loses an element of its existing job protection in that manner, it will likely achieve some gains in other areas to offset that loss. It is highly doubtful that this Board would be in a position to adopt a similar approach. Thus, for the Board to grant the Employer's request would be to deprive ONA, without compensation, of an important element of job security which was undoubtedly gained at some expense to other interests through the interest arbitration process.

26. This is not a case in which CUPE has negotiated (or obtained through interest arbitra­tion) a provision requiring the Employer to assign the work in dispute to it. Indeed, as noted by counsel for ONA, this is an Employer generated dispute in which CUPE neither asserted nor had any claim to the work before the Employer elected to assign the work in dispute to RNAs in the manner described above.

27. Having carefully considered the matter and duly weighed the various competing inter­ests, we are not persuaded that it would be appropriate for the Board to alter Article 2.02 at this juncture, in the circumstances of this case.

28. For the foregoing reasons, although the criteria of economy, efficiency, and employer preference provide some support for the position advocated the Employer and supported by CUPE, the criteria of collective bargaining relationships and Employer past practice strongly favour the position asserted by ONA and combine to outweigh those other criteria in the circum­stances of this case.

29. Accordingly, the Board hereby orders that the Employer cease assigning the work in dispute to persons covered by the CUPE collective agreement, and that it restore the assignment of the work in dispute to persons covered by ONA collective agreement(s) forthwith. Unless revoked by the Board, this order shall remain effective so long as the Employer's assignment of the work in dispute to RNAs would constitute a violation of Article 2.02 (or any provision which replaces or succeeds it).

30. In view of the foregoing, the continuation dates previously scheduled in respect of this complaint (May 25, 26, 31, and June 4, 8, 9, 10, 14, 15, and 16, 1993) are hereby cancelled.