2007-99-PS Grey Bruce Health Services, Applicant v. Ontario Public Service Employees’ Union and Ontario Nurses’ Association, Responding Party.

2230-99-PS Ontario Public Service Employees’ Union, Applicant v. Grey Bruce Health Services, Responding Party.

2451-99-U Ontario Public Service Employees’ Union, Applicant v. Grey Bruce Health Services, Responding Party.

BEFORE: Timothy W Sargeant, Vice-Chair.

APPEARANCES: Robert Hickman and Jennifer Kierinkiewiez for Grey Bruce Health Services; Gail Sax for Ontario Nurses’ Association; and David Wright and Terry Moore for Ontario Public Services Employees’ Union.

DECISION OF THE BOARD; April 27, 2000

1Re File No. 2230-99-PS application withdrawn with leave of the Board.

2Re File No. 2451-99-U application withdrawn with leave of the Board.

3File No. 2007-99-PS is an application under the Public Sector Labour Relations Transition Act, 1997 (the “Act”). In relation to this file the request of the applicant to withdraw its application in relation to the Ontario Public Service Employees Union is hereby granted. The issue remaining involves the applicant and the Ontario Nurses’ Association. The issue involves two part-time employees.

4By way of background as set out in Board Decision File No.2380-98-PS, five hospitals, Meaford General Hospital, Saugeen Memorial Hospital, Grey Bruce Regional Hospital and Bruce Peninsula Health Services voluntarily amalgamated into Grey Bruce Health Services (the “employer”). The decision of February 26, 1999 in File No. 2380-98-PS stated in part “in accordance with the Minutes of Settlement signed by the Parties the Board makes the following declarations and directions:

1. That ONA shall be the bargaining agent for the following bargaining unit:

all registered and graduate nurses employed in a nursing capacity by Grey Bruce Health Services, save and except head nurses and persons above the rank of head nurse”.

It should be noted that prior to the amalgamation ONA represented nurses at all five locations involved in the amalgamation. It should further be noted that no issue is raised either in the Minutes of Settlement or the decision dated February 26, 1999 in Board File No. 2380-98-PS concerning any status dispute in relation to employees included in the agreed upon ONA bargaining unit.

5The applicant seeks to have two part-time positions included in the ONA nursing unit. These positions are classified as Nursing Supervisor positions at the Southampton site. The applicant alleges these positions are clinical in nature and perform only minimal supervisory functions as part of their job. It is acknowledged that such positions were not, prior to the amalgamation, included in the bargaining unit at the Southampton location. However, the employer submits that such positions should have been included in the Southampton bargaining unit and alleges that similar positions at other locations were included in other bargaining units at other locations prior to the amalgamation. The applicant seeks not only the inclusion of the two part-time nurses in question in the new nursing bargaining unit but also asks that such employees be included with full recognition for their service and seniority. It is the position of ONA that such positions are supervisory but in the alternative if the positions are included in the nursing unit, then such employees should not receive any recognition for prior service or seniority.

6Counsel for the employer submits that under section 33(3) of the Act the two nursing employees in question should be “accorded seniority on the same basis as other employees in the bargaining unit”. Counsel argues that the Board has an obligation under section 33(3) to determine as a threshold issue whether the two employees in question are employees “in the bargaining unit”.

7Counsel for ONA submits that the Board should not at this point entertain such request. The Board has made a decision concerning the configuration of the bargaining unit and these employees are not currently employees in the bargaining unit, and were not employees in any predecessor bargaining unit. No issue was raised concerning the status of these employees until after the Minutes of Settlement had been signed and the Board decision of January 26, 1999 issued. In the circumstances the Board should not entertain this application.

DECISION

8Section 33(3) of the Act states:

..33. (3) If an employee in the bargaining unit was employed by a predecessor employer immediately before the changeover date but not a member of a bargaining unit, the employee shall be accorded seniority on the same basis as other employees in the bargaining unit and, without restricting generality of the foregoing,

(a) if the collective agreement provides that seniority includes all periods of employment with the employer and all periods of employment with a predecessor employer, his or her seniority shall include all periods of employment with the employer and all periods of employment with a predecessor employer,

(b)if the collective agreement provides that seniority includes all periods of employment in the bargaining unit of the employer and al periods of employment in a bargaining unit of a predecessor employer, his or her seniority shall include all periods of employment in the bargaining unit of the employer and all periods of employment with a predecessor employer in a position having duties, responsibilities and other attributes such that, if the employment were with the employer, the employee would have been a member of the bargaining unit; and

(c) if the collective agreement provides that seniority includes all periods of employment in the bargaining unit or in a similar bargaining unit of the employer and all periods of employment in a bargaining unit of a predecessor employer, his or her seniority shall include all period of employment in the bargaining unit or similar bargaining units of the employer and all periods of employment with a predecessor employer in a position having duties, responsibilities and other attributes such that, if the employment were with the employer, the employee would have been a member of the bargaining unit or similar bargaining unit.

9Having considered the submissions of the parties the Board is in agreement with counsel for ONA. In the Board’s view section 33(3) deals with an “employee in the bargaining unit”. In this instance clearly there is no agreement that the employees in question are “in the bargaining unit”. No issue was raised prior to the Minutes of Settlement, when clearly such employees were not members of a bargaining unit. The decision of the Board in Board File No. 2280-98-PS did not by agreement or direction specifically sweep such employees into the new nursing unit. Had it done so, then section 33 might have been applicable However, it is not for the Board under this Act, once a decision has been made as to the configuration of the bargaining unit, to then decide status disputes under the guise of an application alleging in effect a breach of section 33 of the Act.

10The application as regards to ONA is therefore dismissed.

“Timothy W. Sargeant”

for the Board