Ontario Labour Relations Board
Citation: [1999] OLRB REP. MARCH/APRIL 227 File No.: 4803-97-JD
CUPE Local 1974, Applicant v. Kingston General Hospital, Responding Party v. Ontario Public Service Employees Union, Intervenor
Before: Pamela Chapman, Vice-Chair.
Appearances: Susan Ballantyne for the applicant; Carolyn Kay-Aggio for the responding party.
Decision of the Board; April 22, 1999
1This is an application pursuant to section 99 of the Ontario Labour Relations Act, 1995 ("the Act") alleging that the responding party ("the employer") has improperly assigned work to persons in the bargaining unit represented by the intervenor, the Ontario Public Service Employees Union ("OPSEU") rather than to persons in the bargaining unit represented by the applicant, the Canadian Union of Public Employees, Local 1974 ("CUPE").
2The Board held a consultation with the parties on January 18, 19 and 20, 1999. The parties admitted into evidence a number of documents on agreement, stipulated many of the facts set out in the pleadings as undisputed, and called evidence on the facts remaining in dispute. The Board heard submissions from the applicant and responding party employer, OPSEU not being in attendance despite having received notice of the consultation. OPSEU did respond to the application, filing a brief intervention which stated: "OPSEU takes no position with respect to this matter".
3Having carefully considered all of the evidence, and having reviewed the submissions of the parties and the legal authorities they rely upon, I have determined that the application should be granted. The following are my reasons.
FACTS
4Both CUPE and OPSEU represent employees at the Kingston General Hospital. The following excerpt from the scope clause in the CUPE agreement defines the bargaining unit for the purposes of this proceeding:
All employees of the Kingston General Hospital, save and except... professional staff and laboratory, Allergy, Echo, BEG, ECG and radiology technicians.
The OPSEU unit is defined by the following language:
All Technologists, Technicians, Perfusionists and Assistants employed by the Kingston General Hospital save and except.. employees covered by subsisting collective agreements.
In addition, CUPE has negotiated strong job protection language as follows:
Article 11.01
Employees not covered by the terms of this Agreement will not perform duties normally assigned to those employees who are covered by this Agreement, except for the purposes of instruction, experimentation, or in emergencies when regular employees are not readily available.
5The work which is in issue in this proceeding was to a large extent done for more than sixteen years, from 1974 to 1995, by a member of the CUPE bargaining unit, Ed Veley, who held the position of Pharmacy Storekeeper. The job essentially involves responsibility for ordering, purchasing, receiving, stocking and maintaining an inventory of drugs in the hospital pharmacy.
6When Veley accepted another job in 1995, the employer posted the position of Pharmacy Storekeeper, on February 22, 1995, within the CUPE bargaining unit. Several grievances were filed by CUPE members who were not considered for the position, complaining that the posting required completion of a Pharmacy Technician training program or equivalent. Veley had not been trained as a Pharmacy Technician.
7The successful candidate for the Storekeeper position, Elizabeth Bowman, was an external candidate who had completed the Pharmacy Technician community college course and had some job experience as a Pharmacy Technician at other institutions in Kingston. She remained in the job throughout the grievance procedure.
8The parties settled the grievances on October 3, 1996. The Memorandum of Agreement provided that the position would be reposted and would be open to any members of the CUPE bargaining unit who had been employees as of February 22, 1995. The agreement further stated that:
"The Hospital acknowledges that the job was previously performed by an employee who did not have the pharmacy technician course referred to in the posting, nor any experience of the pharmacy technician although it is recognized that the previous employee had been in the position since 1978 and the position has evolved over time. The Hospital acknowledges and the parties agree that the current job description for the position contemplates the consideration of equivalencies for the stated qualifications. As a result, it is recognized that the requisite qualifications for the position may be gained through experience and that this will be considered when the decision is made."
9The position of Pharmacy Storekeeper was again posted on October 28, 1996 (and again on November 4, 1996 to extend the deadline for applications). Several CUPE members who did not have the Pharmacy Technician course applied and were again unsuccessful. Ms. Bowman continued in the position.
10By letter dated June 13, 1997, Bowman was advised that the Pharmacy Storekeeper position was being eliminated and that she was being laid off with six months of notice. On or about the same date, CUPE was advised that the employer had decided to eliminate the storekeeper position and create an OPSEU position in the pharmacy entitled "Inventory Management Technician". This job was posted on June 16, 1997. Bowman was the successful candidate for the position, and was notified on September 17, 1997 that she was being transferred into the job effective September 8, 1997.
11CUPE filed a grievance on June 17, 1997 concerning this posting.
12At the same time that the Inventory Management Technician position was posted, the employer posted and filled a new part-time position, Pharmacy Clerk, in the CUPE unit in the pharmacy. This position was filled by a CUPE member through an internal competition.
13Both parties called evidence concerning the Pharmacy Storekeeper, Inventory Management Technician, and Pharmacy Clerk positions, and the operations of the pharmacy generally. I will not attempt to summarize all of that evidence, which was quite detailed, but will outline briefly the operations in the pharmacy and the main job duties performed in the various positions. I will also outline the factual disputes, which were quite limited, focusing on the parties' positions on the differences between the positions in question.
14The pharmacy provides drugs to the various parts of the Kingston General Hospital for use in the hospital, to out-patients, and to several other institutions, including the Kingston Regional Cancer Centre, Hotel Dieu Hospital and St. Mary's at the Lake Hospital. The pharmacy is staffed primarily by pharmacists and pharmacy technicians, who dispense and distribute drugs as required. Three CUPE positions previously provided support: the Storekeeper, a part-time Analyst and a secretary. Since the matters complained of, the only CUPE positions are the Analyst, which is now a full-time position, and the part-time Pharmacy Clerk. The secretary position is now an administrative assistant position out of the unit. The pharmacy is headed by a Director, who is a pharmacist.
15The Board heard extensive evidence concerning the ways in which drugs are distributed, and the regulations which govern pharmacists and pharmacy technicians, which will not be reviewed in detail. Essentially, both pharmacists and pharmacy technicians may dispense drugs, which includes preparing particular prescriptions, filling syringes and IV bags, repackaging large supplies of drugs into smaller unit doses, and stocking carts with ward stock. Pharmacists delegate many functions to Pharmacy Technicians but must supervise or check their work.
16The storeroom in the pharmacy is stocked with more than 2,000 different kinds of drugs. Most drugs are what are called "formulary" - they are in regular use and therefore a stock is kept on hand. A smaller number of irregularly used drugs are acquired only when a need arises. Previously more than 90%, and presently about 80% of the formulary drugs are "on contract" - the pharmacy enters into a contract with a particular manufacturer, on an annual basis, for the provision of that drug. Most contract items are obtained through contracts entered into by HealthPro (and formerly by the Ontario Hospital Association) an organization which negotiates on behalf of numerous Ontario hospitals; other "prime vendor contracts" are negotiated just for the Kingston General Hospital. When a contract item is unavailable, or when a non-contract item is required, any manufacturer which has the drug in stock may be contacted and a purchase arranged. The computer system identifies the vendors from whom purchases have been made in the past.
17The amount of a drug which may have to be acquired is tracked by a computer system which has been set with the minimum and maximum amounts which should be on hand. Whenever the computerized stock system reports that too little of a drug is in stock, a printout identifies the need and the amount to reorder. These reorder lists are checked against the physical stock on the shelf and may have to be adjusted.
18The orders are placed by telephone, providing a purchase order number, and purchase orders are then generated by the computer system and forwarded to the central purchasing department. Purchasing forwards the purchase orders to the vendors. Purchase orders must be signed by the Director, but often after the drug has already been received. Copies of the purchase orders are maintained in the pharmacy. When drugs are delivered, the packing slips and contents are checked against the purchase orders, and the deliveries are then placed into stock. Stock is maintained in the central storeroom, and in the various areas in which Pharmacists and Pharmacy Technicians work: the unit dose and out-patient dispensing area, the sterile prep area (IV's and chemotherapy), the manufacturing and pre-pack area, and the narcotics room, which is a room off the storeroom in which narcotics substances, which are subject to stricter control, are logged, stored, and dispensed. Pharmacy Technicians stock these areas daily from the stock maintained in the central storeroom.
19Inventory maintenance requires that the levels of stock be monitored regularly, including year-end inventories, that stock be rotated, and also that existing stock be checked to ensure that it has not expired. Most expired drugs can be returned for a credit, but some are destroyed.
20The pharmacy has various contacts with, and responsibilities for, other institutions. Drugs are sold regularly to other hospitals and private pharmacies, at the contract price in the case of institutions, and with a 10% mark-up to pharmacies. The drugs which have been requested are packaged and sent, with a billing prepared and sent to accounting. The pharmacy is also involved regularly in providing drugs to certain institutions, including St. Mary's at the Lake Hospital, the Kingston Regional Cancer Centre, the Belleville Dialysis Unit and the Women's Clinic, and since Mr. Veley left the pharmacy has taken on responsibility for all the pharmacy needs of the Hotel Dieu Hospital which is in the process of being merged with Kingston General.
21Both the Pharmacy Storekeeper and the Inventory Management Technician had overall responsibility for ordering, receiving, stocking, monitoring and managing the inventory in the pharmacy at Kingston General Hospital, as described generally above. Rather than going through each of the two jobs to detail the various job duties performed, I will outline the main distinctions which were drawn between the two jobs, particularly as they relate to the submissions made by the parties on the work assignment issue.
22When ordering a non-contract drug, or deciding to order a quantity of drug different from that indicated on the reorder list, the Inventory Management Technician feels that she has more discretion to exercise than she did as a Pharmacy Storekeeper and does not always check with the Director before ordering. Mr. Veley testified that he would go to the Director before departing from the amount indicated on the reorder list, but that he would not require direction to order a non-formulary drug or a drug not on contract.
23Both employees entered information on drugs into the computer, as the Pharmacy Storekeeper and as the Inventory Management Technician, when the terms of a contract changed or when a new drug was to be purchased. In the latter case, Veley would enter information provided to him by a pharmacist on a form, while as an Inventory Management Technician Bowman fills out the form and then has it checked by a pharmacist. Bowman also has some discretion to change prices when an invoice from a vendor indicates a price different from that which appears on the purchase order, and has some dealings with accounting in that regard. She testified, however, that she did this both as a Pharmacy Storekeeper and as an Inventory Management Technician.
24When drug contracts were up for renewal, Veley would review one-page summaries on the existing contract which were issued by the computer and note any changes proposed, for review by the Director. Purchasing would then do the negotiation of the new contract and provide a copy of the contract to the pharmacy. As the Inventory Management Technician, Bowman prepares similar documents for review by the Director, but also reviews the financial analysis done by the purchasing department, makes recommendations to the Director, and is involved in negotiating the contracts. This increases the dealings that she has with drug companies and sales representatives.
25Changes in the receiving function seem to reflect the addition of the Pharmacy Clerk position. Before this person was hired, the Pharmacy Storekeeper checked the contents of boxes delivered to the pharmacy against the packing slip, and against the purchase order, before moving the items into stock. Now, the clerk checks the contents against the packing slip, and Bowman checks the packing slip against the purchase order. Similarly, Bowman has delegated to the clerk some of the stocking and stock monitoring functions. Importantly, though, Bowman testified that when she was the Pharmacy Storekeeper and continuing as the Inventory Management Technician, the Pharmacy Technicians stock the areas of the pharmacy other than the main stockroom, and are involved in stock rotation and checking for expired stock in those areas. The only difference she claimed in her roles as Pharmacy Storekeeper and Inventory Management Technician was that in the latter role she has been more "proactive" in attempting to anticipate stock shortages generally and in the areas in which the technicians work, keeping a closer eye on the levels of stock. Year-end inventories are still done by the inventory staff (the Inventory Management Technician and clerk) together with Pharmacy Technicians and some Pharmacists, but Bowman takes a more active role in co-ordinating the inventory, such as printing off the inventory sheets.
26The receiving and stocking functions are different with respect to the Narcotics Room, given the increased security required for those products, and this has been true with both the Pharmacy Storekeeper and Inventory Management Technician positions. The duties of the Pharmacy Storekeeper were to order the items required off a list prepared by the Pharmacy Technician in the Narcotics Room, by sending a purchase order rather than a telephone order (a signature is required to order narcotics) and to bring narcotics items once received into the room and unpack them. The Pharmacy Technician would then log the items into a register, sign it, and put the drugs away, although Veley testified that sometimes he would log the items and the technician would then sign. As an Inventory Management Technician, Bowman still receives an order from the Pharmacy Technician assigned to the Narcotics Room, although she claimed that she sometimes makes changes to it if, for example, she feels that more of an item should be obtained. When items are received, the Pharmacy Clerk unpacks them and checks them against the packing slip, and Bowman then takes them into the narcotics room to be logged. She may actually log in the items and sign for them, and put them away into stock, because she is qualified as a Pharmacy Technician, although she admitted that the technician in the narcotics room still does this as often as she does.
27Both the Pharmacy Storekeeper and the Inventory Management Technician were involved in maintaining inventory records, including purchase orders, and the computerized system. Since she has taken a larger role in contract negotiation, however, Bowman maintains more of the contract records in the pharmacy, rather than them being retained in purchasing.
28One area in which the Inventory Management Technician has clearly been assigned more responsibility than the Pharmacy Storekeeper is in creating and reviewing reports. Veley sometimes saw certain reports concerning inventory which are generated regularly by the computerized inventory system, but had little exposure to the details of those reports. Bowman has been assigned more responsibility for ensuring that those reports are generated, and does some analysis of the results, including discussing the outcomes with the Director and other pharmacists involved in drug acquisition.
29Bowman's dealings with other institutions are also different than were Veley's. The Pharmacy Storekeeper was regularly involved in sending drugs to other institutions, including other hospitals and pharmacies, and would prepare and package the items required and prepare a billing to be sent through accounting. The only exception was the delivery of narcotics items, which had to be done through a technician. There have been two changes since the inception of the Inventory Management Technician position. One is that regular deliveries to certain institutions, including the Belleville Dialysis Unit, the Women's Clinic and the Occupational Health department, which had previously been done by a Pharmacy Technician in the pharmacy, are now processed by the Inventory Management Technician. Bowman testified that the delivery to the dialysis unit is considered dispensing as the unit is a nursing unit and the stock is therefore considered ward stock, which may explain why only someone with Pharmacy Technician qualifications has been assigned these tasks. This delivery is done once a week and only takes a few minutes to complete. However, it is not clear why the deliveries to the Women's Clinic and to Occupational Health were not previously handled by the Pharmacy Storekeeper, as they involve no repackaging and do not include narcotics.
30The other change is coincidental to the change in the bargaining unit designation of the position: the pharmacy now provides pharmacy services to a number of other institutions which have been, or are in the process of being, merged to varying degrees with the Kingston General Hospital. The pharmacy now provides all pharmaceutical services to the Hotel Dieu Hospital, so the Inventory Management Technician prepares a weekly order for delivery to that location. This takes about one afternoon a week, and about 3% of that time is spent dealing with items that have to be repackaged, which is considered dispensing and must therefore be done by a Pharmacy Technician or a Pharmacist. The Hotel Dieu order also includes narcotics. These deliveries began while Bowman was still in the Pharmacy Storekeeper position; at that time the narcotics technician would fill the order for narcotics from paperwork prepared by Bowman. There is also a weekly delivery to St. Mary's at the Lake Hospital, which has not yet entirely merged its pharmacy with the Kingston General Hospital. A small amount of repackaging is done for this order, taking a few minutes per week. The Inventory Management Technician also looks after a weekly delivery to the Kingston Regional Cancer Centre, which does not involve any dispensing duties or the delivery of narcotics.
31Other than these deliveries to other institutions, the Inventory Management Technician is not regularly assigned any dispensing duties. Other Pharmacy Technicians are regularly scheduled shifts to do the prepackaging of unit doses; Bowman helps out in doing this approximately once a month for a few hours, if she has the time. Similarly, Veley testified that he sometimes helped the Pharmacy Technicians make up the carts of ward stock. Bowman is asked occasionally by a Pharmacy Technician to check some work, and she infrequently is asked to help cover the front, where prescriptions are made up.
32The Pharmacy Director, John McBride, testified about other changes in the pharmacy which have occurred during the period in question. There has been a fairly substantial change in the managerial structure, resulting in fewer managers and a different focus for the responsibility for drug distribution. This in turn has resulted in more responsibility for some aspects of inventory management being assigned to the Inventory Management Technician, as discussed above. The mergers with other institutions beginning in January 1997 have resulted in more work for the pharmacy, and there have also been staffing changes, with some people from the other institutions moving to the pharmacy at Kingston General Hospital. There has also been an ongoing increase in the number of drugs being dispensed out of the pharmacy: Veley testified that when he began in the position in 1978 there were approximately 800 drugs in use; there are now more than 2000, and this number has increased even more rapidly in recent years. The volume of drugs dispensed and their cost has also increased.
THE DECISION
33Certainly the first question in any jurisdictional dispute is whether or not both trade unions have a claim to the work in question arising out of their collective agreements. In this case, CUPE asserts a strong claim to the work arising out of the language of Article 11.01 which is reproduced above. There is no question that the great majority of the tasks being performed by the current incumbent in the Inventory Management Technician positions were previously performed by Mr. Veley when he was the Pharmacy Storekeeper. However, the employer takes the position that Article 11.01 does not clearly establish an entitlement to maintain the work in question in the CUPE unit.
34The employer argued that there was no proprietary interest in the essential duties of the storekeeper position, as several of those duties were performed regularly by Pharmacy Technicians, or were shared with the Director or the manager responsible for drug distribution. Some overlap was established, but it was not of such a degree to override the fact that there had clearly been a collection of duties sufficient to constitute one full-time CUPE job for over 16 years. The evidence about changes in the department does not alter that balance; in fact, McBride testified that he had an interest in having technicians do less, not more, of this work given the increased workload in the pharmacy and other pressures.
35As there was clearly a bundle of duties that had long made up a job within the CUPE unit, this is not a case like the health promoter cases (The Board of Health for the Peterborough County-City Health Unit, [1994] OLRB Rep. March 292, and the Eastern Ontario Health Unit case cited at paragraph 14 of that decision). In these cases a number of employees in various classifications and bargaining units did work in the health promotion field and therefore had claims to some of the duties which were ultimately organized into a single job. Here, the storekeeper job was entirely taken up in all aspects of inventory management, while inventory functions are incidental to the central aspects of the technician job, which are primarily concerned with the dispensing of drugs. The health promoter cases were distinguished in similar circumstances in Sudbury & District Health Unit, [1996] OLRB Rep. Jan. 28, because the employer in that case had had a long history of employing nurses in the position of Genetic Counsellor which was in dispute.
36It has also been clearly established that work normally assigned to a member of CUPE has now been assigned out of the bargaining unit. Some of the duties previously performed by the Pharmacy Storekeeper are now done by the Pharmacy Clerk within the CUPE unit, but on a part-time basis and at a lower rate of pay. The largest share of the Pharmacy Storekeeper's responsibilities have been assigned to the Inventory Management Technician, as was abundantly clear by the testimony of Bowman, who acknowledged that there was little difference between the work she did while holding the Storekeeper position and her responsibilities as the Inventory Management Technician.
37The employer argued that the additional functions performed by Bowman in addition to those she was assigned as Pharmacy Storekeeper have transformed the job to the point that it can no longer be identified with the former CUPE position. There is no doubt that the job has developed since it was held by Veley because of a number of changes in the department, including the addition of other sites serviced by the pharmacy and changes in the management structure resulting in fewer managerial positions. It is also probably true that Bowman performs differently in the job, and has taken on some additional functions, because she is qualified as a Pharmacy Technician and can therefore "cross the line" into dispensing to the limited extent that this is required.
38It was not established, though, that these changes, or the convenience of having someone qualified as a Pharmacy Technician in the job, have fundamentally altered the nature of the work performed. Indeed, the evidence disclosed that the additional functions performed by Bowman which were not performed by Veley occupy only a small portion of her working hours. Most importantly, those which could not have been performed by Veley, that is those which are restricted to a technician, are almost entirely collateral to the central job of inventory management, such as performing relief duties on occasion.
39It is also important in assessing whether work normally performed by CUPE has been reassigned to consider the source of the additional duties assigned to Bowman. The duties which were normally performed by a Pharmacy Technician in the OPSEU unit which are now performed by Bowman are occasional and incidental, so it cannot really be said that her job is made up of any significant amount of work previously performed by an OPSEU member. (This would perhaps explain the decision of OPSEU not to take a position in these proceedings.) Many of the additional duties taken on by Bowman relating to the preparation of reports and other kinds of record-keeping were formerly done by, or at least supervised closely by, management, and in particular the Director. Finally, it is arguable that Bowman now exercises more discretion over purchasing, and has in that sense taken on some of the duties formerly performed by employees in the central purchasing department. The employees in purchasing, however, are CUPE members. Surely the fact that the Inventory Management Technician has taken on yet more work formerly performed by employees in the CUPE unit cannot be used as a justification for taking the job out of the very same unit.
40One problem with the argument advanced by the employer that the job had developed to the point that it belonged in the OPSEU unit rather than the CUPE unit is that the changes in the position which the employer sought to make simply did not require that it be moved out of CUPE. This is demonstrated clearly by the fact that they had been able to post the job, following the settlement of a number of grievances, as requiring either Pharmacy Technician qualifications or equivalent experience.
Indeed, they filled the Pharmacy Storekeeper job with an outside employee with just those qualifications, who was later assigned the Inventory Management Technician position. So to the extent that management perceived that the expanded responsibilities of the position commended it to a person with a higher level of formal educational training in pharmaceuticals, and someone with experience in a hospital pharmacy setting, there was no evidence that they would be unable to meet those goals, and indeed did meet those goals, with the job remaining in the CUPE unit.
41The only problem that was identified which could not easily be solved with the job remaining in the unit is that of coverage for vacations and illness. It was not disputed that the union had earlier complained of the employer using OPSEU members to cover for the Pharmacy Storekeeper, and that the practice had then changed so that the part-time CUPE analyst, who was also a part-time Pharmacy Technician, would work in the position when the Pharmacy Storekeeper was absent. (Although beginning in 1994 the analyst who covered in Veley's absence was not a Pharmacy Technician.) There was no testimony that established that this approach had been unworkable, other than McBride's assertion that he felt the analyst did not like being assigned these duties and that in his view is was "makeshift". It was also undisputed that when it was considering re-organizing the inventory functions the employer did not raise its concern about coverage with the union in order to determine whether or not some appropriate arrangements could be made. Certainly it is likely that the union would have been less concerned to see the employer assign the Pharmacy Storekeeper work to OPSEU members infrequently when a coverage problem arose, than it was to have the job eliminated and the duties moved permanently into the OPSEU unit.
42It is also relevant to the issue of coverage that the employer had concluded that the duties of the Pharmacy Storekeeper had expanded to the point that there was more than one full-time job to be filled. McBride testified that he felt that there was an immediate need to have at least one full-time and one part-time person working in the inventory management duties, and that he anticipated that the Pharmacy Clerk position would likely be expanded to full-time once the merger with Hotel Dieu hospital was complete. In these circumstances, there would likely be fewer issues regarding short-term coverage than there had been when Veley was the only person working in the pharmacy storeroom.
43Veley's availability for coverage should also have been taken into account in assessing the significance of this need. For the first time in 16 years, the hospital could anticipate having at its disposal another CUPE employee who remained at work in the hospital and had had extensive experience as the Pharmacy Storekeeper. Indeed, Veley testified in reply that he had been called upon to work in the Pharmacy Storekeeper position in Bowman's absence, and that a Pharmacy Technician assigned to replace Bowman in the Inventory Management Technician position had called him for assistance only the week before the hearing.
44In these circumstances, I am satisfied that Article 11.01 applies to the changes made by the employer in this case, in that the work which was reassigned had normally been assigned to an employee in the CUPE unit, and that most of that work is now being performed by an employee who is outside of the unit.
45These facts should then be taken into account when considering the factors which have been cited by the Board as relevant to resolving a jurisdictional dispute. Both parties in this matter made reference to statements by the Board in earlier cases that we ought to be wary of mechanical application of the factors which have been developed in jurisdictional dispute proceedings in the construction industry to other sectors, including the hospital sector (see for example Sudbury & District Health Unit, supra at paragraph 17, and the cases cited therein.). At the same time, though, there has been no clear articulation of any alternative approach to resolving these disputes. In these circumstances, it is appropriate to review those factors which seem to be relevant to the facts of the present conflict, while being cautious not to take a too rigid approach to the principles developed in the earlier jurisprudence.
46Collective bargaining relationships are usually considered by the Board to be an important factor, and as reviewed above CUPE has a very strong claim to the work in question having regard to the job protection language it has negotiated. The employer relied upon the management rights clause to support the assignment it has made, but the management rights clause is qualified by the provisions of the agreement, and cannot therefore trump the job protection imperative of Article 11. And importantly, OPSEU does not have a comparable claim to the work given the nature of the scope clause in the agreement it has negotiated with the hospital and having regard to the other provisions of the agreement, has never made such a claim, and did not participate in these proceedings in order to advance one. In these circumstances, and for the reasons outlined above, I have no difficulty in concluding that the language of Article 11.01 gives CUPE a strong collective agreement claim to the work in question. In Sudbury & District Health Unit, supra at paragraph 33, the Board made the following statement about the significance of strong collective agreement language in resolving a jurisdictional dispute:
...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... Thus, the factors of employer preference and of employee skill and training support the assignment of the work in dispute to a non-nurse.
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.
(emphasis added)
47On the question of efficiency, little supports the assignment made by the employer other than the issue of coverage which has been discussed above. It was admitted that the employer's costs are higher with the Inventory Management Technician position in the OPSEU unit, as that position is paid more per hour than was the Pharmacy Storekeeper. There was some reliance on the concept of efficiency when the employer first announced the change to the union, but this was intended to refer to the efficiencies that would be achieved by merging the pharmacy operations of Kingston General, Hotel Dieu and St. Mary's. As discussed above, this merger did not necessitate that the Pharmacy Storekeeper position be moved out of the CUPE unit, and so these efficiencies cannot be considered to mitigate in favour of the reassignment.
48The only factor which stands significantly in the employer's favour among those normally considered by the Board is that of employer preference. We have canvassed carefully the reasons offered by the employer for its decision to place the duties in question within the OPSEU unit, and as discussed in some detail are not satisfied that the rationale offered really required that the position be transferred.
49It is useful in this regard to consider the explanation offered by McBride for the reassignment. He cited the main concern as an expansion of needs, arising from the services being provided outside the institution as well as greater workload inside the hospital, and said that it was clear that one full-time position wasn't adequate to meet those needs. The decision was then made, he said, to "split" the position - so that the duties relating to drug receiving, drug restocking, unpacking and packing for delivery, would be assumed by a support staff in the CUPE unit, while those duties which included drug issuing, either to a patient care area or to a non-patient care area outside of the hospital, would be assigned to a technician in the OPSEU unit, together with a higher level of responsibility for inventory management. As reviewed above, though, the duties which involve the issuing of drugs, which are the only tasks which arguably require that a technician perform the work, are a very small part of the tasks assigned to the Inventory Management Technician, and certainly could not justify a conclusion that a full-time technician was required. On the other hand, the duties which he described as properly being assigned to a support person, together with the responsibilities for inventory management, which have nothing in particular to do with the qualifications of a Pharmacy Technician, had long been grouped as a full-time support job, and could undoubtedly continue to be performed by someone in the CUPE unit.
50In these circumstances, and in light of the collective agreement language, there was no basis for a conclusion that a full-time job should be created in the OPSEU unit, while only part-time duties, at a lower rate of pay, would continue to be performed by a CUPE employee. Given the proportion of the duties assigned to the Inventory Management Technician that must be performed by a technician, and the requirement that work normally performed by a bargaining unit member remain in the unit, and in light of the decision that at least an additional part-time position would be created, the employer had an obvious choice: to maintain the Pharmacy Storekeeper position and assign a Pharmacy Technician to perform the duties which involved drug issuing, on a part-time basis. These observations establish that employer preference in this case must be perceived as just that: an employer preference for a technician in the job, rather than a real change of circumstances justifying the assignment of the work to another unit.
51The union argues that employer preference is in this case tainted by an improper motive on the part of management arising out of the earlier history of the hospital's attempts to fill the Pharmacy Storekeeper position. Counsel asserted that the decision to move the position out of the unit was motivated not by any legitimate business rationale, but as a reprisal for the union's vigilance in policing the posting process, and in order to ensure that the employer would have no further difficulties in maintaining someone with Pharmacy Technician qualifications in the job.
52No improper motive on the part of the employer has been made out by the evidence which was led, and I am not prepared to impute one even though I have concluded that the employer's stated rationale for transferring the position was not particularly compelling. I am satisfied that the employer, and in particular the Director, feels quite strongly that the position should be filled by someone with Pharmacy Technician qualifications, and that his comfort level with assigning more responsibilities to the job arises in part out of the knowledge that Ms. Bowman has that training. He did not, however, convincingly establish that this concern could not be met through the posting of the job within the CUPE unit with the qualifications that had been agreed were appropriate. It is not entirely clear why he felt that moving the position was necessary, but it is clear that he gave no regard to the requirements of the collective agreement in making his determination. In these circumstances employer preference, while relevant, cannot outweigh the strong claim that arises from the collective agreement, particularly where the basis for the preference has not been more clearly established as rationally related to the requirements of the job.
53We have considered the issue of past practice above, in the context of the particular collective agreement language to be considered. Suffice it to say, the practice in the present case, while not entirely unequivocal given the limited role Pharmacy Technicians have played in inventory management, still leans heavily in favour of an assignment to CUPE.
54The employer submits that the skill and training required for the position is more closely aligned to the OPSEU technical unit than the CUPE support unit. In fact, a review of the requirements for the job, as detailed above, discloses essentially a hybrid job, requiring some familiarity with the pharmacy setting and obviously some knowledge of pharmaceuticals, but also emphasizing purchasing skills, record keeping and inventory management, all of which have traditionally been associated with staff in the support unit and in particular in the various stores positions. Indeed, McBride confirmed in his evidence that he was particularly concerned, given the increase in the number and volume of drugs moving through the pharmacy, that the incumbent have skills in inventory management and be able to take on some of the purchasing functions formerly done by the purchasing unit.
55The only skills used by Ms. Bowman while she has occupied the Inventory Management Technician position that are specific to the Pharmacy Technician classification are those related to drug repackaging and dispensing. These duties have been a tiny part of her duties and are essentially performed on a relief basis in unusual circumstances, other than the small amount of repackaging that is done for some of the deliveries to outside institutions.
56By and large, the duties of the position require skills and training that might well be possessed by someone in the CUPE unit, as demonstrated by the fact that Veley performed competently in an almost identical position for more than 16 years. This is particularly the case where, as here, the CUPE job description which has been agreed to between the parties provides for Pharmacy Technician qualifications or equivalent experience. I cannot, therefore, conclude that skill and training is a factor which clearly supports the assignment made by the employer to the OPSEU unit. A similar approach was taken by the Board in Trenton Memorial Hospital, [1996] OLRB Rep. Sept/Oct 897, where the Board noted at paragraph 15 that employees in one of the units had been satisfactorily performing the work in question for many years.
57The parties agreed that the other factors which have been considered by the Board in earlier cases (safety, area practice) were either neutral or irrelevant, so I will not review them here.
58Having regard to all of the circumstances which have been reviewed above, I have concluded that the assignment of the work of the Pharmacy Storekeeper to a position in the OPSEU unit was not justified, and that the employer should have maintained that work in the CUPE unit.
59However, an appropriate order in the particular circumstances of this case is not entirely clear. The union asks that we require the employer to post the position of Pharmacy Storekeeper within the CUPE unit and that a new competition be held. However, had the employer not eliminated the Pharmacy Storekeeper job and transferred Ms. Bowman into the Inventory Management Technician position, there would have been no further competition for the position of Pharmacy Storekeeper, failing an order arising out of a grievance, as Bowman was the incumbent in that position and at that time represented by CUPE.
60There is also the added complication of the creation of the Pharmacy Clerk position. Had the employer not decided to remove the Pharmacy Storekeeper position from the CUPE unit, it is not clear what steps it would have taken to provide additional staffing for the pharmacy storeroom.
61In the circumstances, the employer must restore the work normally performed by a full-time Pharmacy Storekeeper to the CUPE bargaining unit, and it is hereby ordered to do so. The parties are further directed to negotiate the details of how that reassignment of work will be achieved, and in particular whether or not a posting and competition will be required. I will remain seized to deal with any disputes over implementation, should the parties be unable to resolve any issue which arises out of the Board's direction, including any issue as to compensation.
62The parties should contact the Manager of Field Services at the Board should they desire the assistance of a Labour Relations Officer in attempting to resolve these outstanding issues.