Association of Allied Health Professionals: Ontario v. The Board of Health for the Kingston, Frontenac and Lennox and Addington Health Unit, 1995 CanLII 9914

[1995] OLRB Rep. May 587

3729-94-JD Association of Allied Health Professionals: Ontario, Applicant v. The Board of Health for the Kingston, Frontenac and Lennox and Addington Health Unit, and Canadian Union of Public Employees and its Local 3175, Responding Parties

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

APPEARANCES: James Fyshe and Maureen Fraser for the applicant; Joni E. Smith and Jeanette May for The Board of Health for the Kingston, Frontenac and Lennox and Addington Health Unit; Nancy Rosenberg, Linda Dumbleton, and David McWilliam for Canadian Union of Public Employees and its Local 3175.

DECISION OF VICE-CHAIR ROBERT D. HOWE AND BOARD MEMBER P. V. GRASSO; May 23, 1995

1. The style of cause of this application is amended to name "The Board of Health for the Kingston, Frontenac and Lennox and Addington Health Unit" and "Canadian Union of Public Employees and its Local 3175" as responding parties.

2. This is an application under section 93 of the Labour Relations Act in which the applicant (also referred to in this decision as "AAHPO") requests a work assignment direction (and certain other relief) with respect to the classification of Health Promoter, which was assigned by The Board of Health for the Kingston, Frontenac and Lennox and Addington Health Unit (also referred to in this decision as the "Employer" and the "Health Unit", for ease of exposition) to the bargaining unit represented by the Canadian Union of Public Employees and its Local 3175 (also referred to in this decision as "CUPE").

3. In deciding this application, the Board has duly considered all of the material filed by counsel on behalf of the parties, as well as their able oral submissions to the Board at the consultation which commenced on February 27, 1995, and continued on April 12, 1995, pursuant to section 93(1.1) of the Act.

4. The Employer provides health care programs and services to the public in the City of Kingston, the County of Frontenac, and the County of Lennox and Addington, pursuant to its mandate under the Health Protection and Promotion Act. It employs over two hundred employees in various divisions, including its Home Care/Placement Division, Health Promotion Division, Health Protection Division, and Research, Education & Development Division.

5. On June 7, 1984, the Board (in File No. 0461-84-R) certified AAHPO as bargaining agent for all of the Health Unit's paramedical employees, with the exception of certain specified exclusions. AAHPO's most recent collective agreement with the Employer contains the following recognition clause:

The Employer recognizes the Association [AAHPO] as being the sole and exclusive bargaining agent for all paramedical employees of the [Health Unit], save and except supervisors, persons above the rank of supervisor, students employed during the school vacation period, residents, interns, student health professionals and persons covered by a subsisting collective agreement. For the purpose of clarity, "paramedical" includes those classifications listed in the Ontario Labour Relations Board clarity note for a paramedical unit, and which exist in the Employer's Home Care and Health Unit programs.

6. Thus, AAHPO currently holds bargaining rights for a number of classifications at the Health Unit, including Certified Dental Assistant, Registered Dental Hygienist, Occupational Therapist, Physiotherapist, Dietitian, Clinical Facilitator, Speech Pathologist, Public Health Nutritionist, and Social Worker.

7. Prior to December of 1986, the Employer's Registered Nurses and Public Health Nurses were represented by the Ontario Nurses' Association ("ONA"). (For ease of reference, the term "nurses" (and "nurse") will be used in this decision to encompass both Registered Nurses and Public Health Nurses.) However, ONA'S bargaining rights were terminated on December 2, 1986, and on March 5, 1987 CUPE was certified (in File Nos. 2982-86-R and 3048-86-R) for an "all employee" bargaining unit which included the Employer's nurses. CUPE's bargaining rights for employees of the Health Unit are currently described as follows in Article 2.01 of its most recent collective agreement with the Employer:

... all of [the Health Unit's] employees, save and except supervisors, persons above the rank of supervisor, secretary to the Medical Officer of Health, secretary to the Director of Administrative Services, administrative assistant (personnel), public relations coordinator, students employed in training programs in a school, college or university, students employed during the school vacation period, and any employee for whom any trade union held bargaining rights as of January 29, 1987.

For the purpose of clarity, the parties agree that supervisor includes Nursing Program Managers, Dental Program Coordinator, Program Manager Disease Control & Epidemiology, Home Care Supervisor of Office Services, Napaneee Office Supervisor and Home Care Supervisors.

8. The changes in the health care field which have given rise to the creation of "health educator" and "health promoter" positions were aptly summarized as follows by arbitrator Mitchnick in Ontario Nurses' Association and Hastings & Prince Edward Health Unit (award dated November 14, 1994, as yet unreported):

…..traditionally health care has, in general terms, focused on care and counselling of the individual i.e., on a patient-by-patient basis. In Canada, the Lalonde Report of 1974 moved beyond treatment to "prevention", focusing on such life-style negatives as alcohol, tobacco, and the lack of physical activity. In 1986 the federal government's Epp Report changed the focus in a noticeable way from one primarily of individual responsibility to a recognition of at least the concomitant effects of broader social influences, such as public policy, and the social and economic climate around health and nutrition generally. Various provincial initiatives took root from there, culminating in Ontario with, inter alia, a comprehensive manual of "Guidelines" issued by the Ministry of Health to all Boards of Health in the province. Published in April of 1989, that document was entitled "Mandatory Health Programs and Service Guidelines", and stated in certain of its material parts:

The purpose of the standards is to set out the requirements for fundamental public health programs and services targeted at prevention of disease, health promotion and health protection. These standards reflect broad aspirations for the health of all Ontarians and the important role of boards of health in providing and/or ensuring relevant programs and services.

Through these standards, public health seeks to enable residents of the community to realize their fullest health potential. It does this by prompting improved health, preventing disease and injury, controlling threats to human life and function, and facilitating social conditions to ensure equal opportunity in attaining health for all.

The standards have been developed around five key principles implicit in the mission and goals of public health. These are:

• Health as a positive concept with known elements.

• Strategic planning for health and for addressing major public health problems in Ontario through established goals.

• The efficacy of actions aimed at achieving improved health, with an emphasis on general strategies of primary prevention and on health promotion.

• The efficient and effective use of resources, and utilization of inter-disciplinary teams to gain health program excellence.

• Relevance, responsiveness and accessibility of mandatory health programs and services for all Ontarians.

While practitioners in the health-care field have, obviously, always been involved in elements of what could broadly be termed "health promotion", the evidence and case material indicates the term "Health Promotion" coming to be used in a more specialized way, and in particular, of the term "Health Promoter" as describing a position existing in and of itself within the health-care sector. And perhaps reflective of that, Waterloo University, to take the example in the evidence, maintains a Department, there called "Health Studies", whose purpose it is to turn out individuals, not necessarily having either medical or nursing degrees, with baccalaureate degrees in "health promotion" or "health education".

One of the programs contained within the Ministry's Guidelines is "Tobacco Use Prevention", and because of the priority being placed on that by the government in 1992 funding became available to Health Units for 100% of a "Tobacco Use Prevention Health Promoter" position.

9. The Employer's Public Health Nurses traditionally worked in teams designated by district and performed functions which consisted primarily of providing individual care and undertaking health promotion strategies with individuals who had pre-existing illnesses. However, in recent years this traditional focus has gradually shifted to a broader approach under which multi-disciplinary teams use population based strategies that focus on the promotion of health and weilness. Thus, in 1988 the Health Unit created the position of Health Educator to work with its teams in developing the new skills required to effectively make the transition to new methodologies in health promotion, including the skills of needs assessment, program development, group facilitation and presentations, and program evaluation. The qualifications required for that position, which was assigned to the CUPE bargaining unit, were a baccalaureate degree with major course work in health education, health or behavioural sciences (or equivalent), well-developed written communication skills, an ability to work as a member of a multi-disciplinary team, a valid driver's licence, and a vehicle. Although each of the three persons who has occupied that position has been a nurse, that is not a requirement of the position. The Health Educator classification remains a position assigned to the CUPE bargaining unit, but it is currently vacant.

10. The Health Unit developed the following Health Promoter job description in the latter part of 1992, after the Ministry of Health announced funding for the expansion of the Tobacco Use Prevention Program:

KINGSTON, FRONTENAC AND LENNOX AND ADDINGTON HEALTH UNIT

POSITION DESCRIPTION

POSITION TITLE: Health Promoter

REPORTS TO: Program Manager

STATUS: CUPE

POSITION SUMMARY:

Assesses the need for health promotion, plans health promotion activities and provides direct health promotion services in accordance with the Mandatory Health Programs and Services Guidelines.

RESPONSIBILITIES:

1. Takes initiative in developing and fostering relationships with boards of education, business organizations, unions, worksites, health care groups and institutions to promote awareness of health promotion issues.

2. Uses health promotion strategies to promote positive health practices in schools and worksites, health care organizations and the community-at-large and conducts relevant behaviour change programs when necessary.

3. Makes presentations to school personnel, management, unions, business organization, owners/managers/administrators of health care settings about relevant health promotion issues.

4. Plans and coordinates special events in schools, workplaces and the community-at-large.

5. Trains health care providers to deliver relevant behaviour change programs to their clients.

6. Encourages schools, workplaces, health care settings and municipal policy setting bodies to develop policies and by-laws restricting negative health practices.

7. Implements local media campaigns to increase awareness of health promotion issues.

8. Monitors the efficiency and effectiveness of the activities of the appropriate lifestyle program.

9. Responsible for personal professional development in Health Promotion.

10. Other duties as may be assigned.

QUALIFICATIONS:

Education: Baccalaureate degree in Applied Health Sciences or equivalent with major course work in the appropriate area of health promotion.

Experience: Experience in health promotion an asset.

Other: A valid driver's license and a vehicle are required.

11. The purpose of creating that classification was to increase the effectiveness and efficiency of health education programming directed to individuals, groups, community leaders, and the media. In determining the skills that would be required for that classification, the Health Unit's Medical Officer of Health, Manager of Human Resources, and Manager of the Tobacco Use Prevention Program reviewed the Ministry's Mandatory Health Programs and Service Guidelines. They concluded that the classification's emphasis should be on the skills necessary for effective health promotion including needs assessment, program development, behaviour change, community development, social marketing, and program evaluation. Emphasis was not placed on a specific qualification in a specific health discipline, as they were of the view that any health science discipline with major course work in the appropriate area of health promotion would be satisfactory. They also expressed a preference for candidates with specific experience in health promotion.

12. Although the Health Promoter classification was assigned to the CUPE bargaining unit in February of 1993, it was not filled at that time. In September of that year a somewhat more specific job description was prepared by the Employer, to reflect the fact that it required a Health Promoter with training in tobacco use prevention to assist in developing and implementing the Tobacco Use Prevention Program. Thus, although the description of the position's responsibilities remained unchanged, the qualifications for the position were revised to read as follows:

QUALIFICATIONS:

Education: Bachelor's degree in Applied Health Sciences or equivalent with major course work in the following areas:

a) Health Promotion principles including community development and social marketing

b) Program planning and program evaluation

c) Epidemiology

d) Behavioural Psychology

e) Tobacco Use prevention

Experience: Excellent oral and written communication skills.

Ability to work effectively as a member of an interdisciplinary team.

Computer skills are an asset.

Experience in health promotion and tobacco preferred.

13. The individual hired by the Health Unit in February of 1994 to fill that "Health Promoter, Tobacco Use Prevention Program" position was Robert Goodfellow, who has a Master's Degree in Sociology. At the time of hire he also had six years of relevant experience in health promotion, with particular experience in tobacco use prevention. In addition to Mr. Goodfellow, the interdisciplinary team which operates the Health Unit's Tobacco Use Prevention Program is comprised of a Public Health Nurse and a Public Heath Inspector, both of whom are also included in the CUPE bargaining unit.

14. The Health Promoter currently shares the following activities with the Public Health Nurse on the Tobacco Use Prevention Program team: (a) answering the Health Untt Tobacco Information Line, which is a hotline for the public regarding tobacco issues; (b) providing tobacco cessation advice to members of the public over the telephone; (c) consulting with workplace and other groups regarding tobacco issues; (d) facilitating the Health Unit smoking cessation support group, Success; (e) designing and implementing media campaigns concerning tobacco issues; (f) carrying out lobbying campaigns through the media, letter writing, and other vehicles; (g) making presentations to groups regarding tobacco issues; (h) developing education material; (i) accompanying displays to answer questions from members of the public about tobacco issues; (j) working with schools and school boards to ease the implementation of the Tobacco Control Act, and with respect to other tobacco issues; (k) writing fact sheet brochures about tobacco laws; and (1) appearing on local televisions shows regarding tobacco issues. Activities (a), (c), (e), (g), (h), (i), (j), and (k) are also shared with the Public Health Inspector who is the other member of the Tobacco Use Prevention Program team.

15. AAHPO's primary position in these proceedings is that the work performed by Mr. Goodfellow, and any other Health Promoters hired by the Employer who are not nurses, should be assigned to its bargaining unit, and that the work performed by any future Health Promoters who are nurses should be assigned to the CUPE bargaining unit. AAHPO's alternative position is that all Health Promoters, including those who are nurses, should be included in its bargaining unit. Both of those positions are opposed by CUPE and the Employer, who contend that all Health Promoter positions should be included in CUPE's "all employee" bargaining unit, regardless of whether they are held by nurses or non-nurses.

16. The Health Unit has a strong preference for having its existing Health Promoter and all Health Promoters whom it may hire in the future placed in a single bargaining unit. The Health Unit has assigned the Health Promoter classification to the CUPE bargaining unit because it is an "all employee" unit which contains a range of classifications including Public Health Nurse, Epidemiologist, Public Health Inspector, and Health Educator. The Employer's preference is based upon its desire to avoid the practical difficulties regarding job postings, lay-offs, recalls, and other seniority related issues which would arise if some Health Promoters fell within the CUPE bargaining unit and other Health Promoters fell within the AAHPO bargaining unit. The Health Unit also wishes to maintain its practice of using the nature of the work to be performed, rather than the qualifications of the person chosen to perform it, as the basis for determining the bargaining unit to which a new classification should be assigned.

17. This is not the first case in which the Board has been called upon to deal with the difficult issue of how health promotion work should be assigned in the context of a health unit. In an unreported decision dated April 30, 1993 in Eastern Ontario Health Unit (Board File Nos. 2030-91-JD and 2164-91-JD), a majority of this panel of the Board, with Board Member Wightman Dissenting, wrote in part as follows:

20. The persons selected by the Employer to fill [its thirteen Health Educator/Promoter 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. Although the Employer recognized from the time of their inception that the Health Educator/Promoter positions were union positions, it did not assign them to any bargaining unit(s). The stance adopted by the Employer was described as follows by the Pre-Hearing Vice-Chair (G. T. Surdykowski) in paragraph 3 of his memorandum to the Registrar dated July 23, 1992:

……the employer has not filed any material in response to either complaint, either as required by the Board's Practice Note #15 or otherwise (the significance of which was recently emphasized in Ellis-Don Limited, [1992] OLRB Rep. June). At the pre-hearing conference, however, the employer's representative did make a "statement". In essence, the employer indicated that while it concedes that the Health Educator/Promoter's job is a "union" position, it takes no position with respect to which union (or the members of which union) the work should be assigned to. The employer said it recognizes the validity of the claim to the work made by all three unions and leaves it to the Board to determine the matter.

The Board is troubled by the approach adopted by the Employer, which was tantamount to an abdication of its managerial responsibilities. Although the Health Unit did subsequently file a detailed Employer's Statement (in accordance with the procedure agreed to by the parties on January 5, 1993, as described in paragraph 2 of this decision), it remained "on the fence" regarding how the work should be assigned until its counsel, during the course of his oral submissions to the Board on February 25, 1993, advised the Board that on the basis of the material filed and the submissions made on behalf of the other parties, the Employer had concluded that the Board should assign all of the work in question to the A.A.H.P.O. bargaining unit.

23. O.N.A., A.A.H.P.O., and C.U.P.E. each claim that all of the Health Educator/Promoter positions should be included in their bargaining unit, with the possibility of distributing the positions between two or among all three of the bargaining units being seen as, at best, a much less desirable alternative.

24. 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, 119841 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. Since the positions in question are of recent origin, there is no meaningful employer, area, or industry past practice in relation to them. A somewhat similar issue was apparently raised in a jurisdictional complaint which A.A.H.P.O. filed against Peterborough County-City Health Unit (in File No. 3025-91-JD), and in which C.U.P.E. also participated. However, in that case the parties resolved their differences in the course of a pre-hearing conference. Thus, the resulting Board decision which found that the classification of "Health Promoter" was within the A.A.H.P.O. bargaining unit was based upon that agreement and did not involve an adjudication on the merits. That case is also of little assistance to the Board in the instant case because O.N.A. was not involved in it, and because there is nothing before the Board which establishes to what degree the work performed by persons in the (Peterborough) "Health Promoter" position is similar to that performed by persons in the Eastern Ontario Health Unit's "Health Educator/Promoter" positions. We are also not prepared to give much weight to employer preference in the instant case, given the belated stage of the proceedings at which that preference was expressed for the first time.

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 O.N.A.'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 O.N.A. 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 O.N.A. 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, [19891 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 C.U.P.E. 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.

18. In The Board of Health for the Peterborough County-City Health Unit, [1994] OLRB Rep. March 292, this panel of the Board wrote, in part, as follows regarding another jurisdictional dispute in respect of health promotion work:

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, in services, 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 AAHPO 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 [AAHPOJ, 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.

After quoting extensively from Eastern Ontario Health Unit (supra), that decision continued as follows:

15. 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.

16. 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 its 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.

17. 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.

18. 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.

19. Before leaving that decision, it is appropriate to note that, in the instant case, AAHPO submits that the Memorandum of Agreement referred to in paragraph 9 thereof is binding upon CUPE in respect of the Health Promoter classification which is in issue in these proceedings. However, we find no merit in that submission, as it is clear from a fair reading of that document as a whole that it was only intended to resolve AAHPO's complaint in File No. 3025-91-JD, in respect of the Health Promoter, Tobacco Use Prevention position created by The Board of Health for the Peterborough County-City Health Unit, and was not intended to be of general application throughout the Province.

20. As was the case in The Board of Health for the Peterborough County-City Health Unit, the criteria which the Board has often found to be of considerable assistance in the context of jurisdictional disputes arising in the construction industry are of rather limited assistance in resolving the instant dispute. Although the fact that the Health Educator position (which was to some extent the progenitor of the Health Promoter position) was assigned by the Employer to the CUPE bargaining unit provides some support for their contention that the latter position should be similarly assigned, the criterion of employer past practice is of relatively little assistance to the Board in these proceedings because the Health Promoter position held by Mr. Goodfellow is the first Health Promoter position created by the Health Unit. As regards area practice, it is common ground among the parties that the relevant area to be considered is the entire Province of Ontario. However, that criterion is also of little if any assistance in resolving this dispute as the material filed with the Board indicates that the practice in Ontario regarding the representation of unionized Health Promoters is quite varied. Indeed, that material indicates that Health Promoters are currently represented in Ontario by at least four different unions (ONA, CUPE, AAHPO, and the Civic Institute of Professional Personnel). Moreover, that material further indicates that many Health Promoter positions in Ontario are being treated by health units as non-union or excluded managerial positions. However, as indicated below, the Board has found the criteria of collective bargaining relationships and employer preference to be of some assistance in deciding this case.

21. By adopting in the Eastern Ontario Health Unit and Peterborough County-City Health Unit decisions an approach somewhat analogous to the "composite crew" approach which the Board has sometimes found to be appropriate in the context construction industry jurisdictional disputes, the Board was attempting to protect ONA's "craft unit" bargaining rights from being unduly eroded, while simultaneously accommodating the health units' legitimate need to employ in health promotion positions not only nurses but also other individuals whose educational and experiential backgrounds qualified them to perform health promotion work, and whose involvement in such positions was essential to the interdisciplinary approach emphasized in the aforementioned Ministry of Health Mandatory Health Programs and Services Guidelines. However, in doing so, the Board recognized that while that approach appeared to be the best of a number of bad alternatives in the circumstances of those two cases, it could nevertheless give rise to problems regarding seniority related issues such as promotions, lay-offs, and recalls. In the instant case, it is neither necessary nor desirable for the Board to adopt a similar approach, as the circumstances before us clearly enable us to adopt a solution which avoids those potential problems. Unlike those two cases in which ONA held "craft unit" bargaining rights for the health units' nurses, in the present case the Employer's nurses are included in CUPE's "all employee" bargaining unit, which also includes a number of other classifications sharing a substantial community of interest with the Health Promoter classification, such as Health Educator, Heart Health Project Coordinator, and Epidemiologist, as well as the Public Health Inspector on the Health Unit's aforementioned Tobacco Use Prevention Program team. Indeed, it is clear that the three members of that team share many of the activities of the program, and that their continued inclusion in a single bargaining unit will serve to facilitate that interdisciplinary approach. Although some of the classifications in the AAHPO bargaining unit such as Public Health Nutritionist and Community Food Advisory Trainer also perform health education and promotion functions, most of the employees in that bargaining unit are employed in the Health Unit's Home Care Division and are primarily involved in providing direct health care services to individuals. The instant case is also distinguishable from Eastern Ontario Health Unit and The Board of Health for the Peterborough County-City Health Unit in that the Employer has consistently expressed a strong preference to have the Health Promoter classification included in the CUPE bargaining unit, based upon the valid labour relations considerations described above.

22. Having regard to all of the circumstances, the Board is of the view that it would be in the best interests of sound labour relations to sustain the Health Unit's assignment of the Health Promoter classification to the CUPE bargaining. Thus, for the foregoing reasons, AAHPO's application to have that classification assigned to its bargaining unit in whole or in part is hereby dismissed.

CONCURRING OPINION OF BOARD MEMBER W. H. WIGHTMAN; May 23, 1995

1. As will have been gleaned from my dissent in Eastern Ontario Health Unit, April 30, 1993 (unreported), I do not see it serving the public interest for the Board to apply construction industry labour relations concepts to the provision of health care and related services. I was remiss in not dissenting on similar grounds in The Board of Health for the Peterborough County-City Health Unit, [1994] OLRB Rep. Mar. 292, in that the decision in that case was consistent with the earlier (Eastern Ontario) decision and both were wrong in my view.

2. In the matter at hand we accede to the preference of the employer which, in my view, is as it should be in the interests of cost effectiveness and/or the efficient deployment of resources.

3. In my view hospitals would function better with all-employee bargaining units and so would Health Units.