The Board of Health for the Peterborough County-City Health Unit v. The Association of Allied Health Professionals: Ontario, 1994 CanLII 9972

[1994] OLRB Rep. March 292

3433-92-JD The Board of Health for the Peterborough County-City Health Unit, Applicant v. The Association of Allied Health Professionals: Ontario, and Ontario Nurses' Association, Responding Parties

BEFORE: Robert D. Howe, Vice-Chair, and Board Members W. H. Wightman and P. V. Grasso.

APPEARANCES: Walter Thornton, Lorraine Cruwys, Maureen McKeen, and Ann Keys for the applicant; James Fyshe and Lynn Keays for The Association of Allied Health Professionals: Ontario; Elizabeth Mcintyre, Maureen O'Halloran, Bertha Kovacs, and Paul Marshall for the Ontario Nurses' Association.

DECISION OF THE BOARD; March 25, 1994

1. This is an application under section 93 of the Labour Relations Act in which the appli­cant (also referred to in this decision as the "Employer") requests a work assignment direction (and certain other relief) with respect to the work performed by its employees in the classification of Health Promoter.

2. In deciding this application, the Board has duly considered all of the voluminous mate­rial filed by counsel on behalf of their respective clients, as well as their able oral submissions to the Board at the consultation held on February 10, 1994, pursuant to section 93(1.1) of the Act.

3. The applicant provides public health care programs and services in the City and County of Peterborough. It has a longstanding collective bargaining relationship with the Ontario Nurses' Association ("ONA"). The recognition clause in their most recent collective agreement provides as follows:

2.01 The Employer recognizes the Association [ONA] as the sole collective bargaining agent for all registered and graduate nurses employed by the Board of Health for the Peterborough County-City Health Unit, save and except the Director of Nursing, Home Care Director, Assistant Director of Home Care and Senior Supervisors.

(For ease of reference, the term "nurses" (and "nurse") will be used in this decision to encompass both registered nurses and graduate nurses.)

4. On March 27, 1990, the Board (in File No. 2944-89-R) certified the Association of Allied Health Professionals: Ontario ("AAHPO") as bargaining agent for all of the applicant's paramedical employees, with the exception of certain specified exclusions. AAHPO and the appli­cant subsequently entered into a collective agreement containing the following recognition clause:

2.01 The Employer recognizes the Association [AAHPO] as the exclusive bargaining agent for all paramedical employees of the Employer in Peterborough County and the City of Peterborough, save and except supervisors, persons above the rank of supervi­sor, students employed during the school vacation period and employees for whom any trade union held bargaining rights as of February 28, 1990.

5. On August 10, 1990, the Board (in File No. 0635-90-R) certified the Canadian Union of Public Employees ("CUPE") as the bargaining agent for "all employees of The Board of Health for the Peterborough County-City Health Unit in Peterborough County and the City of Peterbor­ough, save and except supervisors, persons above the rank of supervisor, persons for whom any trade union held bargaining rights as of May 29, 1990, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period." CUPE and the applicant subsequently entered into a collective agreement in respect of that bar­gaining unit.

6. The applicant created the classification of Health Promoter in the summer of 1988 and hired a new employee named Margaree Edwards to fill that classification. ONA was the only one of the aforementioned unions which held bargaining rights for any of the applicant's employees at that time. It did not claim jurisdiction over the work performed by Ms. Edwards because she was not a nurse and, as far as ONA was aware at that time, the position for which she was hired was to a great degree involved in community relations and media work. Ms. Edwards' job title was changed to Supervisor of Health Promotion in December of 1990.

7. The next Health Promoter position created by the applicant was that of "Health Pro­moter, Tobacco Use Prevention". That position's job description includes the following informa­tion:

Position Summary:

Responsible under the direction of the Supervisor of Health Promotion for the development, implementation and evaluation of the Tobacco Use Prevention Program (TUP) with an empha­sis on community based strategies for increasing the participation of the community in tobacco use prevention activities.

Major Duties and Responsibilities:

• To act as a consultant to Health Unit Staff, the public, community agencies, organiza­tions and groups.

• To assist in the co-ordination of the development, implementation and evaluation of the TUP program.

• To establish and maintain liaison, as assigned, with community agencies, organiza­tions, groups and individuals so as to ensure effective co-ordination of services.

• To participate on relevant agency and/or community boards and committees as assigned.

• To develop and maintain public awareness of the program through media visibility and promotion in the community.

• To assess, procure and/or develop appropriate resources for program development and implementation.

• To categorize tobacco use prevention resources for the Health Information Access System (HIAS).

• To conduct tobacco use prevention presentations, inservices, updates and orientations for Health Unit Staff, elected and professional groups, agencies and organizations.

Other:

• To advise the supervisor of projected program expenses for budget purposes.

• To monitor, analyze and manage expenditures within given allocations.

• To prepare reports and keep statistics as required.

• To maintain professional competency.

• To assist in other projects as assigned by the supervisor.

Qualifications Required:

• A bachelor's degree in health promotion or a related health/community discipline.

• Well developed oral and written communication skills.

• A vehicle is necessary with a valid Ontario Driver's Licence.

Preferred Qualifications:

• Health promotion experience in tobacco issues.

• Experience in program planning and development.

• Familiarity with social marketing strategies, media relations and computer software applications are a definite asset.

• Practical experience in community based health promotion.

8. In February of 1991 the applicant hired an individual named Larry Stinson to fill that position. Mr. Stinson has an Honours Degree in Physical and Health Education. Prior to accepting that position he had been employed by the Lung Association, where he had previously worked with Ms. Edwards before she commenced employment with the applicant.

9. At the time of the applicant's hiring of Mr. Stinson, both AAI-IPO and CUPE claimed the right to represent the classification of Health Promoter. After attempting unsuccessfully to resolve that issue through collective bargaining, AAHPO filed a Complaint Concerning Work Assignment under what was then section 91 [now section 93] of the Act in December of 1991 (File No. 3025-91-JD). The Employer was named as the respondent in that complaint, and CUPE was named as a trade union potentially affected by it. ONA was not named as a respondent or a poten­tially affected trade union, and did not receive notice of or participate in those proceedings. Dur­ing the course of a pre-hearing conference, AAHPO, CUPE, and the Employer entered into a Memorandum of Agreement under which they agreed to the following disposition of that com­plaint:

The classification of Health Promoter is within the bargaining unit of the complainant [AAHPO], and as such is covered by the collective agreement between the complainant and the respondent.

10. In a decision dated April 3, 1991, another panel of the Board wrote, in part, as follows, in disposing of that complaint:

11. In light of that agreement, we find that the classification of Health Promoter is within the bar­gaining unit of The Association of Allied Health Professionals: Ontario, and as such is covered by the collective agreement between The Association of Allied Health Professionals: Ontario and the Peterborough County-City Health Unit.

12. Although CUPE was named in the instant application as a "trade union ... that may be affected by the application", it did not intervene or otherwise participate in these proceedings. Moreover, it was not suggested by any of the parties to these proceedings that any of the Employ­er's Health Promoter positions should be included in the CUPE bargaining unit.

13. In August of 1992 the Employer posted a new Health Promoter position titled "Health Promoter, Physical Activity Promotion". The qualifications specified in the posting were:

QUALIFICATIONS REQUIRED:

• A bachelor's degree in physical education or a related health discipline.

• Have at least 2 years practical experience in community based physical activity promotion.

• Well developed oral and written communication skills.

• A vehicle is necessary with a valid Ontario Driver's Licence.

QUALIFICATIONS PREFERRED:

• Focus on community health and/or health promotion preferred.

• Experience in program planning and development.

• Familiarity with social marketing strategies, media relations and computer software applica­tions will be a definite asset.

13. The successful applicant for the Health Promoter, Physical Activity Promotion position was Larry Stinson. The Health Promoter, Tobacco Use Prevention position which he vacated in order to assume that new position was posted in September of 1992 and filled by a nurse, as was another Health Promoter, Tobacco Use Prevention position that was posted in October of 1992. Both of the nurses who obtained those positions (Susan Harper and Christine Finlan) came from the ONA bargaining unit, but were treated by the applicant as no longer being in that bargaining unit once they became Health Promoters. A fourth Health Promoter position, bearing the title "Health Promoter, Substance Abuse Prevention", was subsequently posted by the Employer, but that posting was later withdrawn, pending the outcome of this application. As an interim measure, a nurse named Paul Marshall was "seconded" by the applicant to perform the duties of that posi­tion. Throughout his secondment, Mr. Marshall has continued to be covered by the ONA collec­tive agreement and paid as a Public Health Nurse.

14. This is not the first case in which the Board has dealt with a jurisdictional dispute per­taining to health promoter positions. In File Nos. 2030-91-JD and 2164-91-JD, this panel was called upon to determine jurisdictional claims of AAHPO, ONA, and CUPE in respect of thirteen per­sons employed by the Eastern Ontario Health Unit in "Health Educator/Promoter" positions. In an unreported decision dated April 30, 1993, the majority (with Board Member Wightman dissent­ing) wrote, in part, as follows in making that determination:

15. The Employer created the position of Health Educator/Promoter in response to the "Manda­tory Health Programs and Services Guidelines" (the "Guidelines") which were published by the Ministry of Health in April of 1989 for implementation by the end of 1992. All boards of health are required to provide, as a minimum, the programs and services specified in the Guidelines. That document contains "standards" whose purpose is to set out the requirements for funda­mental health programs and services targeted at prevention of disease, health promotion, and health protection. One of the key principles around which the standards have been developed is the "efficient and effective use of resources, and utilization of interdisciplinary teams to gain health program excellence."

16. The introductory portion of the Guidelines contains the following information under the heading of "Staffing":

Each standard has a general statement that emphasizes an interdisciplinary approach.

Boards of health are expected to employ the services of appropriately trained profes­sionals. This should be consistent with any qualification requirements of the Health Protection and Promotion Act and Ontario Regulation, Qualifications of Boards of Health Staff in respect of medical officers of health, public health dentists, dental hygienists, public health inspectors, public health nurses and public health nutrition­ists. Also, some boards of health employ staff with training in epidemiology, health promotion, speech pathology, toxicology and with other backgrounds that are appro­priate for interdisciplinary program planning and effective program delivery.

In addition, the services provided by boards of health are expected to be delivered by staff with skills in the following areas:

• community needs assessment

• program planning

• program evaluation

• data management

• health promotion

• community development

• social marketing

• health education

• adult education

• behavior change education

• case management

• counselling

• immunization practices

• infection control

• health hazard investigation and assessment

• emergency planning

20. The persons selected by the Employer to fill those thirteen positions have a variety of educa­tional and experiential backgrounds. Five of the thirteen have previously been employed as Public Health Nurses, including three who were employed by the Health Unit as Public Health Nurses before becoming Health Educator/Promoters. Much of the work being performed by them is similar to the health education and promotion work previously or currently performed by Public Health Nurses employed by the Health Unit (such as doing presentations and work­shops for community groups at schools and work places). Other persons selected by the Employer to fill Health Educator/Promoter positions have bachelors or masters degrees in such areas as physical and health education, sport administration, recreology, kinanthropology, food sciences, nutrition and population, and counselling and group dynamics. The individual holding the position that consists of .4 F.T.E. Public Health Inspection and .6 F.T.E. Healthy Lifestyles does not have a university degree but is a Certified Public Health Inspector with a Certificate in Public Health Inspection from Ryerson Polytechnical Institute, and a number of years of experi­ence as a Public Health Inspector.

21. There is also a substantial variation in their prior experience, which includes promoting health, sports, and fitness to teachers and municipal officials on behalf of the Ministry of Tour­ism and Recreation; delivering fitness programs; planning, organizing, and conducting sports oriented activities; supervising cardiac patients in a cardiac rehabilitation program; analyzing fit­ness evaluations and developing personalized exercise programs; presenting nutrition education sessions; working as a dietetic supervisor; researching community resources for emergency plan­ning purposes; serving as a counsellor and group facilitator in respect of overcoming sexual abuse trauma; and working for the Victorian Order of Nurses.

22. 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; Spruce Falls Power & Paper Company Limited, [1988] OLRB Rep. July 708; Anchor Shoring Ltd., [1974] OLRB Rep. Aug. 528; Boise Cascade Canada Ltd., [1979] OLRB Rep. Sept. 850; Southam Murray Printing, [1984] OLRB Rep. June 868; Premier Pipelines Ltd., [1988] OLRB Rep. Oct. 1068; and Toronto Star Newspapers Ltd., [1980] OLRB Rep. April 565.)

25. In Electrical Power Systems Construction Association, [1992] OLRB Rep. Aug. 915, the Board commented as follows concerning the relative weight which is generally assigned to those criteria in deciding jurisdictional complaints:

26. The past jurisprudence of the Board has generally enumerated and examined each of these various criteria. A careful review of that jurisprudence however indicates that the primary focus of the Board in deciding a complaint concerning work jurisdiction is upon the employer and area past practice evidence. It is the rare and unusual jurisdic­tional dispute complaint in which the Board does not attach significant and primary weight to the area and employer past practice. Where appropriate these two criteria are measured and balanced together with the factors relating to economy, efficiency and safety. The experience of the Board has shown that inevitably each of the disput­ing trade unions can point to some measure of skill or training and some language in either its collective agreement or constitution to support its claim. Generally, how­ever and in the absence of some prohibition which prohibits one trade from perform­ing the work (for example a statutory enactment which precludes any person other than a qualified, certified member of a trade from performing the work) the enumer­ated criteria other than area and employer practice (together with safety and economy and efficiency where appropriate) will have little if any value when balanced against area and employer practice evidence. The real crux of most jurisdictional disputes revolves around these two past practice criteria....

27. The criteria listed above, and in particular those mentioned in the preceding paragraph, are often of considerable assistance to the Board in the context of jurisdictional disputes arising (as they traditionally do) in the construction industry. However, they are only of limited assistance in resolving the instant dispute....

28. In the instant case, health educational and promotional work has been performed, to some extent, by employees in each of the three bargaining units. However, with the possible excep­tion of the position of dental health educator, the educational and promotional work performed by employees has generally been only part of the employees' work. Although the dental health educator certainly performs educational functions, the scope of those functions is quite narrow. Moreover, the inclusion of that position in the C.U.P.E. bargaining unit despite its specific list­ing in the A.A,H.P.O. paramedical clarity note is an historical anomaly. Although C.U.P.E.'s bargaining unit is an "all employee" unit, it excludes "persons covered by subsisting collective agreements", such as paramedical employees and registered nurses. Moreover, few if any of the persons in the C.U.P.E. bargaining unit have the level of education or type of experience required for the position of Health Educator/Promoter, and many of the persons in that unit (such as secretaries, clerk typists, and custodians) would not share a community of interest with the persons in the Health Educator/Promoter classification.

29. The nature of the work performed by Health Educator/Promoters who are registered nurses, and the skills and knowledge which they utilize in performing it, lend substantial support to O.N.A.'s claim that persons in that classification who are registered nurses should be included in its bargaining unit. However, there is some variance in the duties and responsibilities of employees in that classification, and the Employer has a legitimate need to be in a position to adopt an interdisciplinary approach by utilizing Health Educator/Promoters with various types of training, knowledge, and experience in areas such as nutrition, recreology, and other aspects of health education and promotion. These factors render untenable ONA. 's contention that all of the Health Educator/Promoter positions should be awarded to registered nurses and included in its bargaining unit. For reasons which are largely historical in nature, the Board has granted ONA. bargaining units confined to registered and graduate nurses. That very narrow unit is undoubtedly advantageous to O.N.A. in a number of respects. However, it does not enable ONA. to dictate that, despite ongoing developments in the public health field as described above, the Employer must use only registered nurses to perform health education and promo­tion work, even though persons with other educational or experiential backgrounds are equally or better qualified to perform various aspects of that work, and are essential to the interdiscipli­nary approach emphasized in the aforementioned Guidelines and standards. (See, generally, Sudbury Algoma Hospital, [1989] OLRB Rep. Apr. 390.) On the other hand, an employer such as the Health Unit whose work place is split into a number of discrete bargaining units cannot legitimately proceed as if those bargaining units do not exist by creating a broad classification covering some positions that should properly be included in one bargaining unit and other posi­tions which should properly be included in a second (or third) bargaining unit. Although (in the absence of circumstances rendering it an unfair labour practice) the Health Unit is at liberty to select either a registered nurse or other duly qualified person to fill a Health Educator/Promoter position, if it elects to use a registered nurse that position must be included in O.N.A. 's bargain­ing unit, because registered nurses functioning as Health Educator/Promoters rely upon the knowledge and skills obtained through their nursing education and experience to fulfill the duties and responsibilities of those positions.

30. Thus, having regard to all the evidence, we have concluded that the positions held by Moni­que Bouvier, Heather Corbett, Chantal Lacelle, Sophie Leduc, and Patricia Topp, who are all registered nurses, should be included in O.N.A. 's bargaining unit. We have also concluded that the position held by Richard Chatelaine, a certified Public Health Inspector who spends forty per cent of his time performing the work of a Public Health Inspector, should be included in the CUPE. bargaining unit so long as public health inspection duties remain a substantial propor­tion of the duties and responsibilities of that position. The remainder of the Health Educator/Promoter positions should be included in A.A.H.P.O. 's paramedical bargaining unit.

31. Accordingly, the Board hereby orders, pursuant to section 93(1.2) of the Labour Relations Act, that the work in dispute be assigned by the Eastern Ontario Health Unit in the manner described in the preceding paragraph.

32. In the instant case, the Employer initially contended (in the written submissions included in its application) that it is not practical for Health Promoter work to be covered by the ONA or AAHPO collective agreement depending on whether the person performing the work is or is not a nurse. Thus, the application (which was filed prior to the release of the aforementioned Eastern Ontario Health Unit decision) contained a request that the Board order that the work in dispute is covered by one collective agreement or the other, regardless of the qualifications of the person performing the work. However, at the February 10, 1994 consultation, counsel for the Employer submitted that the Board should apply an approach similar to that adopted in the East­ern Ontario Health Unit case by directing that if the Employer elects to use a nurse to fill a Health Promoter position, the position must be included in the ONA bargaining unit, but that if it elects to use someone who is not a nurse to fill a Health Promoter position, the position must be included in the AAHPO bargaining unit. It was the Employer's contention that adopting that approach would avoid the anomaly of having some of the nurses employed by the applicant represented by ONA and others represented by AAHPO. Counsel for the applicant also submitted that, in addi­tion to avoiding the deleterious labour relations consequences which could result from that anoma­lous situation, applying that approach would enable the Employer to continue to select the most suitable person from the available individuals, without regard to whether that person is or is not a nurse.

33. AAHPO contends that all of the Employer's Health Promoters should be included in its bargaining unit unless the Employer makes being a nurse a qualification for a Health Promotion position, in which case the position with that requirement should be included in the ONA bargain­ing unit. ONA, on the other hand, submits as it primary position that all of the work in dispute should be assigned exclusively to nurses covered by its collective agreement. Alternatively, it sub­mits that all Health Promoter work should be included in its bargaining unit whether or not it is performed by nurses, and that such work should be assigned to nurses in a proportion which pre­vents job loss to nurses. In the further alternative, ONA submits that in the event it is determined that Health Promoter work may be assigned to nurses and non-nurses but that only nurses are to be covered by the ONA bargaining unit, Health Promoters who are nurses should be included as members of the ONA bargaining unit.

34. Having regard to all of the circumstances, we are of the view that this jurisdictional dis­pute should be resolved in a manner similar to that adopted in the Eastern Ontario Health Unit case (with the exception of the awarding in that case of a single position to CUPE on the basis of circumstances which are not present in the instant case). Although the duties and responsibilities of the applicant's Health Promoters have less variance than those of the Eastern Ontario Health Unit's Health Educator/Promoters, there remains a legitimate need for the Employer to be able in filling those positions to consider not only nurses, but also other individuals (such as Mr. Stinson) whose educational and experiential backgrounds qualify them to perform health promotion work, and who are essential to the interdisciplinary approach emphasized in the aforementioned Ministry of Health Mandatory Health Programs and Services Guidelines, and the related standards. How­ever, we are also satisfied that, as in the Eastern Ontario Health Unit case, where the Employer elects to use a nurse to fill a Health Promoter position, that position should be included in ONA's bargaining unit in order to prevent an unwarranted erosion of that bargaining unit. Our determina­tion in this regard reflects that fact that nurses employed as Health Promoters rely upon the knowl­edge and skills obtained through their nursing education and experience to fulfill the duties and responsibilities of those positions. It also reflects our view that, as contended by the Employer, it would be anomalous and unconducive to sound labour relations to have such nurses included in another bargaining unit, such as the one represented by AAHPO, in the circumstances of this case.

35. Accordingly, the Board hereby orders, pursuant to section 93(1.2) of the Act, that the work in dispute be assigned by the applicant in the manner described in the preceding paragraph. In accordance with the agreement of the parties, we will remained seized of this matter for the pur­pose of hearing submissions concerning the other relief requested by the Employer, in the event that it becomes necessary for those submissions to be heard.