Association of Allied Health Professionals: Ontario v. Ontario Nurses' Association, 1996 CanLII 11164

[1996] OLRB REP. JANUARY 28

3901-94-JD Association of Allied Health Professionals: Ontario, Applicant v. Ontario Nurses' Association and Sudbury & District Health Unit, Responding Parties

BEFORE: Jerry Kovacs, Vice-Chair, and Board Members W. H. Wightman and P. V. Grasso.

APPEARANCES: James Fyshe, Michele McPhee and Heather Hare for the applicant; Karen Sander-cock, Greta Barazzutti, Monique Proulx and Lise Nicholls for Ontario Nurses' Association; K. R. Valin and John Cowan for Sudbury & District Health Unit.

DECISION OF THE BOARD; January 10, 1996

1. This is an application under section 93 of the Labour Relations Act (as it was before Bill 7) concerning the assignment of work performed in the classification of "Genetic Counsellor". The applicant ("AAHP:O") seeks a declaration that the Sudbury & District Health Unit ("the employer") properly assigned work to the AAHP:O bargaining unit. The responding party, Ontario Nurses' Association ("ONA") seeks a direction that the work should be assigned exclusively to the ONA bargaining unit, and that the employer should cease assignment of the work to the AAHP:O. Both the AAHP:O and the employer take the position that the work in dispute should be assigned on a "composite crew" basis, i.e., where a nurse is hired the position should be assigned to the ONA unit, and where a non-nurse is hired the position should be assigned to the AAHP:O unit.

2. In deciding this matter, the Board has been assisted by the helpful submissions filed by the parties, as well as their able oral submissions to the Board at the consultation held pursuant to section 93 (1.1) of the Act.

3. ONA represents all registered and graduate nurses employed at the Sudbury & District

Health Unit. The scope clause of its current collective agreement with the employer includes the following provisions:

2.01 This Agreement shall apply to all nurses of the Employer, as defined in the Certificate of Certification issued by the Ontario Labour Relations Board, dated at Toronto the 15th day of June, 1967.

2.02 Notwithstanding Article 2.01, this being all registered, graduate nurses and those Case Managers who are nurses, employed by the Board of Health, Sudbury and District Health Unit, save and except Assistant Director of Nursing, persons above the rank of Assistant Director of Nursing, Director of Home Care Program and Assistant Director of Home Care Program, and Manager - Home Making Services, and Assistant Manager - Home Making Services.

2.03 (a) Employees outside the Scope of the Bargaining Unit will not perform the work normally performed by members of the Bargaining Unit except for instruction, research, during an emergency or in other cases as are mutually agreed by the parties.

4. The AAHP:O represents a bargaining unit of paramedical employees and its current collective agreement with the employer contains the following recognition clause:

1.01 The Employer recognizes the Association as the sole and exclusive bargaining agent of all paramedical employees of the Sudbury & District Health Unit in the Regional Municipality of Sudbury and the Districts of Sudbury and Manitoulin, save and except Supervisors, persons above the rank of Supervisors, students employed during the school vacation period, and persons for whom any trade union held bargaining rights as of April 14, 1992.

The AAHP:O unit has included such paramedical classifications as physiotherapist, occupational therapist and social worker.

5. The Sudbury & District Health Unit works closely with the Sudbury General Hospital. Indeed, the Health Unit's offices are found within a house owned by the hospital. The work in dispute forms part of the Sudbury Genetic Program, a joint operation of the Health Unit and the hospital. Although the parties did not dispute that it is the Health Unit that employs persons occupying positions in the classification in dispute, they spent some time in explaining to the Board that the source of funding for the Health Unit differs from the source of funding for the hospital. Although the Ministry of Health funds both entities, it is the Hospital Branch of the Ministry that funds the hospital, and the Public Health Branch of the Ministry that funds the Health Unit, i.e., the employer in this case. And although the Health Unit is the employer of the Genetic Counsellors at issue, the funding of the few positions in that classification is shared by the two entities that jointly administer the Sudbury Genetic Program. Accordingly, one full-time position is funded by the hospital Branch of the Ministry, and another full-time position is funded by the Public Health Branch. Further, there is a part-time position that is funded by the Public Health Branch as well. While the Health Unit works in conjunction with the hospital, it is obvious that the Health Unit has no right to control the resources of the hospital. Accordingly, one might speculate (as did both AAHP:O and the employer) that the hospital could withdraw its allocation of Hospital Branch funding in respect of one of the full-time genetic counsellor positions, and one might further speculate that it might do so for any reason, including the outcome of this case. We are not convinced that funding concerns, speculative and variable as they are, ought to be accorded much weight in this case.

6. In reviewing the applicant's submissions, ONA observed that the applicant had failed to provide a detailed description of the work in dispute. Indeed, both AAHP:O and the employer admitted that there was no existing job description. For its part, ONA referred to a number of detailed draft job descriptions and to genetic policy and procedure manuals that nurse Genetic Counsellors had prepared at various points in the recent past. These were not official documents in the sense that the employer had never formerly approved them. During the consultation with the Board, however, the parties and their counsel made commendable efforts to reach agreements on the nature of the work in dispute.

7. The employer commenced a genetic counselling service in 1976, employing one nurse on a part-time basis (one-half day per week) to work in conjunction with medical and support staff. In or about 1978, a different nurse replaced the original employee, but continued to perform the genetic counsellor duties on a part-time basis. By about 1980, two nurses were employed on a part-time basis performing genetic counsellor duties. These two nurses prepared (in 1991 or 1992) the draft policy and procedure documents referred to above. In about 1992, one of those nurses, Louise Picard, began to work on a full-time (or near full-time) schedule. Ms. Picard left the position later in 1992. Before her departure, the employer posted (on March 6, 1992) a full-time vacancy in a Genetic Counsellor position. That position was filled by a nurse, Val Allison. Later that year, in approximately September, 1992, the employer posted a further full-time vacancy in the Genetic Counsellor position. That position was filled in May of 1993 by Heather Hare, who is not a nurse. Although the employer delayed in deciding whether this was a position within the bargaining unit of either trade union, it eventually (in August of 1993) decided that the position fell within the AAHP:O bargaining unit. ONA responded by filing a grievance against the employer disputing the assignment of the Genetic Counsellor position to the AAHP:O unit. Subsequently, AAHP:O filed the instant application.

8. ONA provided some further details of the manner in which the Genetic Counsellor positions have been filled. One of the part-time Genetic Counsellors, Monique Proulx, took a leave of absence during 1993. During that period, a nurse filled that position temporarily while maintaining her position within the ONA bargaining unit. Further, in April of 1994, Heather Hare was absent from her position while on a maternity leave. During that period, the same nurse filled the position temporarily vacated by Ms. Hare. As in the earlier instance, that nurse continued to be covered by the ONA collective agreement while filling the temporary vacancy.

9. As noted, no job description exists for the position of Genetic Counsellor. With the assistance of all parties during the consultation process, the Board learned something of the nature of the work in dispute. The parties refer to persons utilizing the services of the Sudbury Genetic Program as "clients". Clients come to the employer's clinic either upon referral by a physician or on their own initiative. The client's first substantial contact is with a Genetic Counsellor. The Genetic Counsellor meets with the client to gather information from the client and to provide information about genetic testing. Clients come for a variety of reasons including concerns related to a family history of diseases, or to recurrent spontaneous abortions, to give two examples; such concerns suggest the appropriateness of genetic testing. The Genetic Counsellor's contact with the client may include a home visit with the client's family. After these initial screening procedures, the counsellor prepares a written report in the form of a letter to a physician. That report provides a summary of information gathered and includes recommendations in respect of genetic testing. The Genetic Counsellor may speak to a geneticist (i.e. a physician) with respect to the type of testing that should occur. Because the Genetic Counsellors in the Sudbury Genetic Program work closely with physicians in the area, there is some understanding with respect to the counsellors' authority to arrange for certain standard testing. Genetic Counsellors are further involved in clinic preparation and related activities. Following the testing, if no abnormalities surface, the Genetic Counsellor will meet again with the client and the client's family to discuss the test results. If there are abnormalities present in the test results, the client is referred to the geneticist. Formal interpretation of the results is done by a geneticist. Although the geneticist is formally responsible for interpreting the result of a test, the counsellor is most often responsible for explaining the results of a test to the client and the client's family. In addition to duties that are specific to a client, the counsellors are also responsible for educational and promotional activities.

10. Despite agreement on the general nature of the work, there remained areas of dispute. In particular, AAHP:O and the employer initially took the position that a Genetic Counsellor with specific counselling education (i.e., Heather Hare, who has a Master's degree in genetic counselling) acts as a resource person to the nurse Genetic Counsellors. After some debate, the parties each acknowledged that the nurse Genetic Counsellor and the non-nurse Genetic Counsellor each bring particular strengths to the program because of education and experience, and that each benefit from the other's assistance.

11. Although the position has existed since 1976, there was no evidence of a job posting prior to that posted on March 6, 1992. It appeared as follows:

MARCH 6, 1992

STAFF ADVISEMENT

Sudbury Genetic Program

Position Available

for

Genetic Counsellor

In an integrated Genetic Program jointly administered by the Sudbury General Hospital and the Sudbury & District Health Unit.

Serves a large geographical area in Northern Ontario.

Responsibilities

Working with a team to provide

coordination of the clinical genetic services

• prenatal diagnosis counselling

• teratogen counselling

• educational and promotional activities

Qualifications:

Interested candidates must have a Masters degree in Genetic Counselling OR B.Sc.N. or equivalent degree with additional preparation and/or experience in genetic counselling.

Compensation based on qualifications and experience.

Current salary scale is under review.

Submit enquiries, application, curriculum vitae and references to:

Mr. John Cowan, Director

Administration Department

Sudbury & District Health Unit

1300 Paris Crescent

Sudbury. Ontario

P3E 3A3

Although all persons filling the position until that time had been registered nurses, we note that the job posting "qualifications" provision referred to either a Masters degree in Genetic Counselling or a "B.Sc.N. or equivalent degree".

12. The next posting for a genetic counsellor position was that of June 7,1994, which read as follows:

June 7, 1994

SUDBURY & DISTRICT HEALTH UNIT

JOB POSTING ONA 94- 10/AAHP 94-02

POSITION Genetic Counsellor

Temporary replacement for approximately 35 weeks

Pregnancy/Parental Leave of Absence

SALARY $19,889 - $26,667 hourly LOCATION Sudbury - Genetic House

POSITION Working with a team to provide

SUMMARY - coordination of the clinical genetic services, including the maternal serum

screening program

• prenatal diagnosis counselling

• teratogen counselling educational and promotional activities

QUALIF I- Interested candidates must have a Masters degree in Genetic

CATIONS Counselling OR equivalent degree with additional preparation and/or experience in genetic counselling.

EXPERIENCE Preferred but not essential.

EFFECTIVE Immediately.

Applications are invited and will be received by the Coordinator, Human Resources above noted posting until June 13, 1994.

"Elsie Lindsay,"

Coordinator

Human Resources

We note that this job posting's provisions regarding qualifications made no reference to nursing.

13. The Board was also referred to a posting from September of 1993, the provisions of which were identical to the first job posting reproduced above, with the exception of an additional contact person for receipt of applications. The Board was further referred to two more recent job postings which were prepared and posted after the initiation of these proceedings.

14. ONA highlighted the language variations in the "qualifications" section of job postings. It is apparent that the employer no longer sought, in particular, a candidate with a nursing degree. From ONA's perspective, this signalled the employer's intention to continue to move away from the employment of nurses in the position of Genetic Counsellor with a resulting continued erosion of the ONA bargaining unit. The first of the more recent postings was dated April 3, 1995 and reads as follows:

April 3, 1995

SUDBURY & DISTRICT HEALTH UNIT

JOB POSTING ONA 95-13 AAHP 95-01

POSITION Genetic Counsellor

Part-time - 35 hours/bi-weekly

SALARY Negotiable according to qualifications

LOCATION Sudbury - Genetic House

POSITION Working with a team to provide

SUMMARY - coordination of the clinical genetic services, including the maternal serum

screening program

• prenatal diagnosis counselling

• teratogen counselling

• educational and promotional activities

QUALIFI - Interested candidates must have a Master's degree in Genetic

CATIONS Counselling OR a Bachelor's degree in a related field e.g. Nursing with additional preparation and/or experience in genetics.

EXPERIENCE Preferred but not essential.

EFFECTIVE Immediately.

Applications are invited and will be received by the Coordinator, Human Resources for the above noted posting until April 7,1995.

'Elsie Lindsay,"

Coordinator, Human Resources

The second, dated May 8, 1995, reads as follows:

May 8, 1995

SUDBURY & DISTRICT HEALTH UNIT

JOB ADVISEMENT

POSITION GENETIC COUNSELLOR

Part-time - 35 hours/hi-weekly with possibility of moving to full-time within the

Sudbury and District Health Unit (not only genetics)

SALARY Under review

LOCATION Sudbury - Genetic House

POSITION Working with a team to provide

SUMMARY - coordination of the clinical genetic services, including the maternal serum

screening program

• prenatal diagnosis counselling

• teratogen counselling

• educational and promotional activities

QUALIFI - Interested candidates must have a Master's degree in Genetic Counselling

CATIONS OR a Bachelor's degree in a related field e.g. Nursing with additional preparation and/or experience in genetics.

EXPERIENCE Preferred but not essential.

EFFECTIVE Immediately.

Submit enquiries, application, curriculum vitae and references to:

Mr. John Cowan

Administration Department

Sudbury & District Health Unit

1300 Paris Street

Sudbury, Ontario

P3E 3A3

15. Nurses have filled the position of Genetic Counsellor at all times until the employment of Heather Hare, who has a Master's degree in Genetic Counselling. From the perspective of the employer and AAHP :0, the field of genetic counselling has evolved since 1976 when the employer began its genetic counselling program. In particular, there have been developments in post-secondary education in this field. New university programs such as a Master's degree in Genetic Counselling now provide for more specific education in the field. There now exists a Canadian Association of Genetic Counsellors, which counts persons of varying educational backgrounds among its members. More than half of its members are not nurses. The employer's goal is to have a multi-disciplinary group of employees filling the available positions in the classification of Genetic Counsellor. In particular, it prefers to have persons with genetic counselling education as well as persons with nursing education. It believes that each brings different qualifications to the program and that the program functions best when Genetic Counsellors with differing qualifications can share their differing expertise.

16. Although the parties dispute the degree to which a nurse Genetic Counsellor might seek the particular expertise of a genetic counsellor with a Master's degree in genetic counselling (i.e., Heather Hare), their counsel suggested that the situation was analogous to that of a group of lawyers practising in the same field and working together as partners. Lawyers will speak to each other about particular areas of expertise and will benefit from those discussions. ONA accepted that this may be the true workplace dynamic, but argued that it had nothing to do with characterizing the nature of the work in dispute. It further argued that the training factor was not critical in the instant case. It acknowledged that Heather Hare or a person with a Master's degree in genetic counselling was competent to perform the work. However, it argued that this was not a determinative factor in a case where the employer had invariably employed nurses to perform the work throughout the history of the program, and where the ONA collective agreement guaranteed that work normally performed by its members should continue to be performed by its members.

17. In assessing the merits of jurisdictional disputes, the Board typically considers a number of criteria, including the following:

(a) Collective bargaining relations;

(b) Skill and training;

(c) Safety;

(d) Economy and efficiency;

(e) Employer past practice;

(f) Area or industry practice;

(g) Employer preference.

The Board developed that approach in cases involving, for the most part, construction trade unions. Indeed, construction industry cases comprise the bulk of proceedings under section 93 of the Act. Not surprisingly, the Board has commented that an approach fashioned to address the largely unique circumstances of construction industry disputes is of rather limited assistance in non-construction disputes.

18. Indeed, the trade union parties to this proceeding are not strangers to the Board's jurisprudence in this regard. In particular, three recent decisions of the Board have involved one or both of these trade unions in disputes regarding the position of "Health Promoter" at different health units in the province, and the parties referred to these decisions at some length.

19. In the first case, (Eastern Ontario Health Unit, Board File Nos. 2030-91-JD and 2164-

91-JD, an unreported decision dated April 30, 1993) ONA, AAHP:O and the CUPE, Local 1997, each took the position that the newly created position of Health Promoter fell within its respective bargaining unit. In that case (as well as in the subsequent two cases considered by the Board), the employer created the position of Health Promoter in response to the "Mandatory Health Programs and Services Guidelines" published by the Ministry of Health and with which the employer was required to comply. The key impact of those guidelines was to mandate the "utilization of interdisciplinary teams to gain health program excellence". The Board noted that the position in dispute, that of Health Promoter", was created in direct response to the Ministry's guidelines. As ONA pointed out, much of the work performed by the Health Promoters was similar to the health education and promotion work previously performed by Public Health Nurses employed within the nurses bargaining unit. However, the employer filled the Health Promoter positions with persons from a variety of backgrounds including nurses and persons with different Bachelor's or Master's degrees in areas such as physical and health education.

20. After reviewing the above-noted traditional criteria, the Board noted that the factors of employer past practice and area past practice were of limited assistance because the positions were of such recent origin. The Board also decided that it would not give much weight to employer preference because the employer had refused to assign the position to either of the three units.

21. The Board concluded that a "composite crew" approach was appropriate in the circumstances and found that the Health Promoter positions should be apportioned among the three bargaining units. The Board stated:

22. 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 ONA. '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 ONA. bargaining units confined to registered and graduate nurses. That very narrow unit is undoubtedly advantageous to ONA. 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.

23. In the second related decision (Peterborough County-City Health Unit, Board File No. 3433-92-JD, unreported decision dated March 25, 1994) [now reported at [1994] OLRB Rep. Mar. 292] the dispute was between AAHP:O and ONA. Again, the employer had recently created the position of Health Promoter. In the litigation of that matter, the employer eventually took the position that the Board should apply an approach similar to that adopted in the Eastern Ontario Health Unit case by directing that if the employer elected to a nurse to fill a health promoted position, the position must be included in the ONA bargaining unit. That approach would require the position to be included in the AAHP:O bargaining unit if the employer chose to use someone who was not a nurse to fill the Health Promoter position. The Board again found an employer that had created the Health Promoter position in response to the mandatory guidelines of the Ministry that required an "inter- disciplinary approach". As the Board said in paragraph 17:

“…..there remains a legitimate need for the Employer to be able in filling those positions to consider not only nurses, but also other individuals ... 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".

23. In the third related case, (Frontenac and Lennox and Addington Health Unit, Board File No. 3729-94-JD, unreported decision dated May 23, 1995) [now reported at [1995] OLRB Rep. May 587] AAHP:O and CUPE disputed the employer's assignment of the Health Promoter position. As in the prior decisions, the Board decided that the criteria often found to be of considerable assistance in the context of jurisdictional disputes arising in the construction industry were of rather limited assistance in disputes in the health industry. Again, the Board found that employer past practice and area past practice were of relatively little assistance. However, the Board found that the criteria of collective bargaining relationships and employer preference were of assistance in deciding the case. In discussing the "composite crew" approach that it had taken in the early Health Promoter cases, the Board explained that it had been

…..”attempting to protect ONA's "craft unit" bargaining rights from being unduly eroded while simultaneously accommodating the health unit's legitimate need to employ in health promotion positions not only nurses but also other individuals whose educational and experiential backgrounds qualify them to perform health promotion work, and whose involvement in such positions was essential to inter-disciplinary approach emphasized in the aforementioned [guidelines]".

24. ONA was not involved in this third case, and so the Board did not need to address the complicating factor of ONA "craft unit" bargaining rights for health unit's nurses. The employer's nurses were included in the CUPE "all- employee" bargaining unit. In all of the circumstances, the Board found that it was most appropriate to maintain the Health Promoter positions within a single bargaining unit and that this would serve to facilitate the inter-disciplinary approach required of the employer. In other words, the Board found these circumstances distinguishable from the earlier two cases involving Health Promoters. It also noted that, unlike the employers in the other cases, the employer had consistently expressed a strong preference to have the Health Promoter classification included in the CUPE unit, based on valid labour relations considerations (e.g., the composite crew approach might raise problems regarding seniority— related issues such as promotions, layoff and recalls).

25. Although all parties referred to this trilogy of health unit cases, we do not find that any of them are determinative of the matter before us. In the case before us, we are not presented with a newly created position. The Sudbury & District Health Unit has a long history of employing nurses in the position of Genetic Counsellor. Further, the position was not created in response to, nor were its duties tailored to comply with, any particular mandatory Ministry guidelines. That said, we nonetheless find that the employer in the instant matter seeks, of its own accord, to live by the spirit of the "inter-disciplinary approach" to health care that was described at eloquent length in the earlier decisions related to the Health Promoter position. But the Genetic Counsellor position was not created as part of a plan to introduce multi-disciplinary health care. In this case, the employer has reassigned a long-established position in order to introduce a new professional discipline into its health care program.

26. From ONA's perspective the instant case turns on two of the traditional criteria applied to determine jurisdictional disputes: (i) ONA's long-standing collective bargaining relationship with the employer (and in particular, the collective agreement provisions protecting work "normally performed" by nurses) and, (ii) the employer's long-standing consistent past practice of employing only nurses as genetic counsellors.

27. As counsel for ONA noted, the Board considered provisions similar to article 2.03 of its collective agreement in Pioneer Manor - Home for the Aged, [1993] OLRB Rep. May 447, where the Board reviewed arbitral jurisprudence related to similar language in a number of ONA collective agreements. In general, such provisions refer to ONA's entitlement to "work normally performed" by members of its bargaining unit.

28. In Pioneer Manor, the Board concluded that the language and the jurisprudence interpreting similar language provided forceful support for the nurses' claim in the circumstances of the particular work in dispute. In Pioneer Manor, the work in dispute consisted of the administration of various medications to the residents of the Home for the Aged. For more than twenty years the function of administering medications was performed by practical nurses (i.e., persons who were not registered nurses or graduate nurses represented by ONA). Subsequently, Ministry guidelines required that drugs be administered only by a physician or a registered nurse or, with approval, by a registered nursing assistant. After the issuance of those guidelines, the employer re-assigned administration of medications exclusively to registered nurses. That practice remained in effect for more than fifteen years, when the employer decided to reassign the administration of most medications to registered nursing assistants, (i.e., persons who cannot form part of ONA bargaining units). Clearly, it was the employer's intention to continue to reduce its use of registered nurses and thereby reduce its labour costs.

29. As in this case, the Board in Pioneer Manor had occasion to consider the apparently voluminous arbitral jurisprudence regarding 'job protection' clauses such as the one found in the ONA agreement with the Sudbury & District Health Unit (and counsel for ONA referred us to various other arbitral awards to the same effect). As in Pioneer Manor, it would be difficult for the Board in this case to conclude that the employer in the matter before us has not violated the 'job protection' provision of the ONA collective agreement. The work of genetic counselling has been performed exclusively by nurses for many years. The obvious intent of Article 2.03 (a) of the ONA collective agreement is to protect the scope of its bargaining unit by ensuring that work normally performed by nurses will continue to be performed exclusively by them. In other words, ONA has negotiated a provision requiring the employer to assign the work in dispute to it. As for AAHP :0, it never asserted any claim to the work during the years before the employer chose to hire a non-nurse and to assign her to the AAHP:O unit.

30. With regard to the nature of the work in dispute, we find some suggestion that Heather Hare's work differs slightly from that of nurse Genetic Counsellors. To the extent that the work includes discussions between co-workers and the sharing of experience and ideas in assessing clients' cases and in developing the Genetic Program, a person with a Master's degree in Genetic Counselling brings special expertise and perhaps a unique contribution to the work. Nonetheless, the bulk of work performed by nurse or non-nurse is the same. Indeed, the employer does not take the position that the position filled by Heather Hare is new or different from the Genetic Counsellor positions that nurses fill. Accordingly, we find that the work now performed by Heather Hare is "work normally performed by nurses".

31. We are compelled to conclude that an assessment of collective bargaining relationships and past practice ultimately support ONA's greater claim to the work in dispute.

32. However, we must comment that other factors strongly support the reasonableness of the employer's assignment of the work. The employer wishes to offer a multi-disciplinary approach in the provisions of genetic counselling services. It is attempting to keep its program in step with developments in education and in the scope of services provided by the genetic counsellor. The development of specific education in the field makes it reasonable for the employer to reassess the skills and training that it expects of employees performing this evolving work. In addition, the employer has demonstrated a genuine preference for multi-disciplinary staffing that is not driven by a desire to phase out employment of nurses as Genetic Counsellors. Thus, the factors of employer preference and of employee skill and training support the assignment of the work in dispute to a non-nurse.

33. Despite the entirely sensible attempt by the employer to improve the design of its health care program, neither the employer nor the Board can ignore the distinctive obligation borne by the employer under the ONA collective agreement. Although the AAHP:O has some claim to the disputed work, it arises only because of the employer's recent assignment of a non-nurse to its bargaining unit. In contrast, ONA bargained for significant protection of the work its members normally perform. And in this case, no one other than nurses performed the work from the time the position was created in 1976 until the recent disputed assignment. This is not a case where the competing trade unions rely on equal collective agreement rights to the work in dispute, as is typical in construction industry cases. Here, ONA bargained for protection from jurisdictional disputes and the AAHP:O did not.

34. Although we conclude that the factors of collective bargaining relationships and past practice are determinative of this dispute, we do not mean to suggest that the Board's approach to jurisdictional disputes in the health care sector should mirror the approach taken in construction industry cases. In this case, for instance, a variety of factors distinguish the dispute from those occurring in the construction industry. Those factors include the complexities of funding arrangements, the constant developments and alterations of services offered, the availability of more specialized education, and an apparent general trend to a multi-disciplinary approach in the provision of health care. More generally, the health care sector differs significantly from the construction industry because of the prevalence of mandatory interest arbitration. Although the factor of collective bargaining weighs heavily in the instant case where one trade union has bargained for protection from jurisdictional disputes and the other has not, it may not be the prevailing factor in every health care sector dispute.

35. For these reasons, we find that the provisions of the relevant collective agreements and the past practice of exclusive assignment of the work to nurses combine to outweigh other factors in this case. Accordingly, the Board orders that the employer cease assigning the work in dispute to persons covered by the AAHP:O collective agreement, and that it restore forthwith the assignment of the work in dispute to persons covered by the ONA collective agreement.

CONCURRING OPINION OF BOARD MEMBER W. H. Wightman; January 10, 1996

1. Paragraphs 23 and 34 of the main decision allude to the limited value in attempting to resolve disputes in areas of activity other than construction by attempting to apply criteria used by the Board to resolve jurisdictional disputes in the construction sector.

2. Constant changes in material, equipment and methodology result in constant debate over lines of demarcation. Given the manner in which pensions and other benefits are financed for craft members there can be little wonder at the frequency of jurisdictional disputes as each craft union sees no alternative but to attempt to protect its turf even though these turf wars are waged at great expense to the parties involved and, ultimately, the public.

3. Disputes as to "who owns the work" between various groups involved in providing health care strike me as unseemly and inconsistent with any notion of giving primacy to the interests and needs of those receiving the care.

4. Thus in the health care field I believe jurisdictional disputes should be resolved on the basis of employer preference unless a more cost effective alternative of assigning the work can be demonstrated.