[1994] OLRB Rep. September 1239
1616-94-JD Ontario Nurses' Association, Applicant v. Lambton County Health Unit and Canadian Union of Public Employees, Local 1291, Responding Parties
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members S. C. Laing and B. L. Armstrong.
APPEARANCES: Aileen Ashman and Colleen lonson for the applicant; James T. Heather and
Cindy Thayer for Lambton County Health Unit; B. Sheehan, Bill Nichol, Karen Hatjoulis and
Theresa Huger for Canadian Union of Public Employees, Local 1291.
DECISION OF THE BOARD September 15, 1994
- This is an application under section 93 of the Labour Relations Act which states in part:
93.- (1) This section applies when the Board receives a complaint,
(a) that a trade union or council of trade unions, or an agent of either was or is requiring an employer or 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; or
(b) that an employer was or is assigning work to persons in a particular trade union rather than to persons in another.
(1.1) The Board may consult with the parties affected by the complaint to resolve any matter raised by the complaint or may inquire into any matter raised by the complaint, or may do both.
A consultation was held in this matter on September 7, 1994.
- It was the essence of the applicant's position at the consultation that one of the two persons occupying the two newly created Health Promotion Officer positions, both of which had been assigned by the employer to the CUPE bargaining unit, should be reassigned by the Board to the applicant's bargaining unit. The basis for the claim was that the individual in question was a registered nurse, and the scope clause of the applicant's collective agreement provides as follows:
The Employer recognizes the Association as the exclusive bargaining agent for all Registered Nurses and Graduate Nurses employed by the Employer save and except Assistant Supervisors and those above the rank of Assistant Supervisor.
The scope clause in the CUPE collective agreement states:
The Employer recognizes the Canadian Union of Public Employees and its Local 1291 as the sole and exclusive bargaining agency for all employees, covered by Schedule A of this agreement, save and except (certain named positions) and Registered and Graduate Nurses covered by the Ontario Nurses Association agreement.
The Board was also advised that a grievance had been filed in respect of the employer's conduct and that an arbitration had been scheduled for June 7, 1994 in which all three parties expected to participate. That hearing was adjourned, however, at the applicant's request pending the filing and determination of this application.
After hearing the parties' submissions on the question of whether this matter was properly the subject of a jurisdictional dispute, rather than an arbitration under the applicant's collective agreement, the Board gave the following oral ruling:
Having regard to the fact that the issue in dispute in this case appears to be into which bargaining unit a particular individual falls based on their status as a Registered Nurse and the scope clause of the applicant's collective agreement, rather than which trade union has the right to claim the performance of particular work, the Board is of the view that the matter is not properly before us as a jurisdictional dispute.
- Accordingly, the application is dismissed.