Ontario Public Service Employees Union v. Hopital Montfort
[1980] OLRB Rep. November 1647
0361-80-R Ontario Public Service Employees Union, Applicant, v. Hopital Montfort, Respondent, v. Group of Employees, Objectors
BEFORE: Pamela C. Picher, Vice-Chairman, and Board Members J.A. Ronson and W.F. Rutherford.
APPEARANCES: S. M. Grant, P. Murray and P. Anidjar for the applicant, L. Aubry for the respondent; L. Greenspon for the Group of Objectors.
DECISION OF THE BOARD; November 25, 1980
The name "St. Louis De Montfort Hospital" appearing in the style of cause of this application as the name of the respondent is amended to read: "H 6pital Montfort".
This is an application for certification.
By a decision dated June 4, 1980 the Board directed the taking of a pre-hearing representation vote. In the face of two challenges made to the composition of the bargaining unit, the Board ordered that the ballots of those in dispute be segregated and that the ballot box be sealed pending the resolution of the matters in question.
The first challenge was made by the Hospital and relates to the employment status of Mr. Roge Favreau, the Chief Electroencephalograph Technician.
[The reasons for finding that Mr. Favreau does not exercise managerial functions and is not employed in a confidential capacity in matters relating to labour relations are omitted]
We turn now to the second challenge in this application. A group of objecting employees disputes the appropriateness of the bargaining unit applied for by the union and asserts that they should be carved out of the proper unit.
The union has applied to represent all paramedical employees of the respondent employed in the City of Ottawa save and except department heads, assistant department heads, persons above the rank of department head and assistant department head and persons covered by subsisting collective agreements. The respondent agrees with the union's proposed bargaining unit. The group of objectors, however, contends that they should not be included in the unit. The classifications of the objectors include pharmacists, physiotherapists, dieticians, social workers and psychologists. They fall into what was broadly described in Stratford General Hospital, [1976] OLRB Rep. Sept. 459 as paramedical employees employed in a professional, as opposed to technical, capacity. The objecting employees contend that as professional paramedical employees they should not be included in the same bargaining unit as technical paramedical employees. In the petition submitted to the Board they stated that their job duties, working conditions, skills and training were sufficiently distinct from those of the paramedical employees employed in a technical capacity that they should not be included within the same bargaining unit.
In Stratford General Hospital, supra, the Board addressed the question of the appropriate bargaining unit for paramedical employees in a public hospital. In that case, the applicant union, OPSEU, had applied to represent a unit of all paramedical personnel, similar to the unit applied for in this case. Another union, however, Association of Allied Health Professionals (AAHP), applied to represent a less comprehensive bargaining unit composed, in general terms, of paramedical employees employed in a professional capacity. The respondent Hospital endorsed the single unit proposed by OPSEU.
Prior to its decision in Stratford General Hospital, the Board had not developed a definitive policy with respect to paramedical hospital employees. Stratford General Hospital was the first case where nearly all of the groups having an interest in this question were present. In these circumstances the Board broadly described the issue before it as the appropriateness of one or two paramedical bargaining units for the purposes of collective bargaining in the public hospital sector. In making its determination in Stratford General Hospital, therefore, the Board established broad organizational guidelines giving direction to parties for the future.
After an extensive analysis of all of the occupations in question, the Board concluded that the appropriate unit was the single paramedical unit covering both professional and technical employees. At pp. 495-496, the Board set forth the basic principles the Board utilizes in deciding the appropriateness of bargaining units:
Another point worth making at the outset is the inherent tension between the Board's responsibility to fashion practical bargaining structures and the equally important concept of freedom of association expressed in section 3 of The Labour Relations Act, R.S.O. 1970, c. 232, as amended. In Ponderosa Steak House, [1975] OLRB Rep. Jan 7 the Board expressed this relationship well in writing:
A primary theme set out in The Labour Relations Act, and affirmed by the Board, is the principle of freedom of association....
In other words, the Act recognizes that it is desirable that employees be able to organize in a form that corresponds with their own wishes. Given this legislative policy favouring the right of selforganization, the Board must be careful that its determination as to the appropriateness of the bargaining unit has given proper weight to the wishes of the employees... . In giving due consideration to the wishes of the employees, the Board, in the absence of contrary evidence must assume that their wishes are expressed by the applicant union as the representative of the employees....
The right of self-organization, however, must at times compete with the need for viable and harmonious collective bargaining. Section 6 of the Act specifically requires the Board to determine, not just a unit of employees, but "the unit of employees that is appropriate for collective bargaining". In other words, the Board has a responsibility under the Act to create a rational and viable collective bargaining structure, even though the exercise of this responsibility may sometimes conflict with the right of self-organization.
The determination of what constitutes a viable collective bargaining structure requires the Board to consider matters of industrial relations policy, such as community of interest and fragmentation of employees...
- Pursuant to determining whether one or two paramedical bargaining units would be appropriate for the purposes of collective bargaining in the public hospital sector, the Board at pp. 496-502 evaluated the distinctions between the two groups of paramedical employees, distinctions which AAH P argued would justify two paramedical bargaining units:
The broadest principle of bargaining unit demarcation suggested in in this case was a "professional/technical" distinction.... Thus the first step in our decision is to see if this distinction reflects a significant difference between the two groupings proposed and assess whether it results in a practical bargaining unit demarcation....
Applying only these criteria to the facts at hand, we find that all of the occupations might merit the designation professional to a lesser or greater extent. All of the occupations require a not insignificant period of post-secondary education in a specialized institution that passes on the competence of a graduate, although important differences in the length and nature of training between occupations undoubtedly exist. Further, all the occupations are represented by associations that have promulgated codes of ethics to which members subscribe. As well, the associations have played important roles in the establishment of training programmes...
Therefore, while this initial and generalized approach to the professional/ technical dichotomy sheds some light on the competing interests that underlie this case, it does not reveal sufficiently distinct differences to support the request of AAHP. Indeed, if anything these two general criteria are supportive of the OPSEU application.
In becoming somewhat more specific... we find [Wilensky's] observation that there is a "process of professionalism" which some occupations complete and thereby come to be recognized as "professional" occupations very interesting....
It can be seen that all the occupations appear to be proceeding along this so called "process to professionalization" and after reviewing each occupation's progress we are of the opinion that specific points along the process do not provide a clear enough demarcation for bargaining unit determination purposes....
…But while general claims of professionalism do not, in our opinion, support two bargaining units, counsel to AAHP and many of its witnesses stressed the fact that the occupations sought to be represented by AAHP have direct contact with the patient; are treatment oriented; belong to the health care team; and exercise independent judgment. In effect these arguments really attempt to tailor the concept of a professional occupation to the health care industry. At the same time they get away from the qualifications of an employee and focus more on what the employee does. However after careful consideration we have concluded that these considerations neither alone nor collectively, provide a sufficiently clear line of demarcation....
We now wish to examine the term paramedical. The term is worth considering because it is a term by which many appear to allocate occupations in this field.. . and secondly, because we think it does not provide the most relevant common denominator. Eliot Friedson... writes:
"The term "paramedical" refers to occupations organized around the work of healing which are ultimately controlled by physicians... These characteristics are such that the paramedical occupations may be distinguished from established professions by their relative lack of autonomy, responsibility, authority, and prestige. .
We think Friedson's observations capture some of the most salient characteristics shared by the occupations affected by this application. The evidence clearly demonstrates that all the occupations are organized around the medical profession, and despite the ethical stance taken by some of the witnesses, we are satisfied that all the occupations are subordinate to that profession. They perform their work at the request of a doctor and the work to a greater or lesser extent is monitored by a doctor... The Board is also satisfied that all occupations are integrally related to the treatment process and while there may not be significant direct contact between all the occupations in the two groupings proposed by AAHP, all of the occupations sought to be represented by AAHP rely upon information and analysis provided by many of the other occupations and must be fully familiar with the significance of their activities. Therefore, in this sense there exists a functional interdependence between the activities of the two groups of occupations.
These common characteristics aside, the Board's aversion to fragmentation or preference for a more comprehensive bargaining unit cannot be ignored.. . . in the case at hand we have not found that we are confronted by two otherwise appropriate bargaining units but rather we view the fragmentation proposed by AAHP as another indication of inappropriateness. (See Corporation of the Township of Markham [1969] OLRB Report August 592).
On the basis of the above analysis, the Board in Stratford General Hospital concluded that one comprehensive bargaining unit, including paramedicals employed in both a professional and technical capacity, was the appropriate bargaining unit.
In the instant case, counsel for the employee objectors stated that the evidence the objectors could present on the duties and responsibilities of the people in the classifications involved would mirror the evidence presented in Stratford General Hospital. Accordingly, he did not attempt to distinguish Stratford General Hospital on facts of this kind.
Further, counsel for the objectors did not argue that the unit applied for by the applicant union in this case was inappropriate. He conceded that if the objectors were seeking certification for themselves as a separate bargaining unit then, on the basis of Stratford General Hospital, one comprehensive unit would be appropriate. Counsel placed his argument on the footing that unlike the situation in Stratford General Hospital, the professional paramedicals involved in this application do not want to be represented by any union at all. Counsel argued that section 3 of The Labour Relations Act guarantees to every person the freedom either to join or not to join a trade union. On this basis, counsel stated that the Board should give effect to what he said was the unanimous desire of the professional paramedicals at Hopital Montfort not to be represented by any trade union by carving them out of the proposed unit. We should note at this point, however, that the petition from the objectors dated March 17, 1980 did not state that the employees didn't want to be represented by a union but rather hat they did not want to be included in a bargaining unit with paramedical employees employed in a technical capacity.
As recognized by the Board in Ponderosa Steak House, [1975] OLRB Rep. Jan. 7 and as reflected in section 6(1) of the Act, the Board in determining the appropriate bargaining unit, may ascertain and give weight to the wishes of employees as to the appropriateness of the unit. Specific examples of when the Board would conduct a vote to determine the wishes of the majority to decide the bargaining unit in question may be found in sections 6(3) and 6(4) of the Act. Section 6(3) stipulates that a unit of professional engineers shall be deemed by the Board to be appropriate but that if the majority of the professional engineers want to be included in a bargaining unit with other employees then the Board may so include them. Section 6(4) of the Act establishes the same situation for dependent contractors. As well, section 6(2) of the Act slates that certain craft units shall be found by the Board to be appropriate. The Act, however, does not contain a similar provision for paramedical professionals. Furthermore, even in these sections relating to professional engineers and dependent contractors, the Board does not base the appropriate bargaining unit determination on the question of whether or not they wish to be represented by a union in the first place but rather on their wishes with respect to the scope of the bargaining unit.
Within the contemplation of The Labour Relations Act every employee is free to participate in the decision as to whether or not he will be represented by a trade union. When the representation vote was taken in this case on June 18, 1980, all of the professional paramedical employees who voted exercised this right. At that point they were provided with an opportunity to choose whether or not they wanted to be represented by OPSEU. Their collective voice may have greater or lesser strength depending on their numerical position in the bargaining unit found by the Board to be appropriate. The fact that they may voice an opinion different from others in the bargaining unit does not of itself justify the establishment of a separate bargaining unit. As the Board noted in Stratford General Hospital, that would conduce to fragmentation that would undermine collective bargaining in the public hospitals. Moreover, the fact that when the vote is counted the professional employees may not have supported a majority in favour of the union would not make their situation any different from that of any minority in a democratic process. More importantly, it should not affect the merits of a determination as to which unit of employees is appropriate for the purposes of sound and viable collective bargaining.
In Stratford General Hospital the Board gave full consideration to the arguments and views of all the groups before it including paramedical employees employed in a professional capacity. The Board not only concluded that one comprehensive unit was appropriate but expressed the opinion that the smaller unit of professionals would be inappropriate in view of the fragmentation it would cause. It would follow on the same reasoning that in this case a smaller unit of paramedicals employed in a technical capacity would similarly cause undue fragmentation. In Windsor Western Hospital Centre Inc., [1979] OLRB Rep. May 463 the Board endorsed the conclusion in Stratford General Hospital that one comprehensive unit was appropriate. The Board in Windsor Western Hospital reached this conclusion notwithstanding the fact that it had stronger evidence on the question of professionalism from the objecting psychologists and psychometrists than was apparently before the Board in Stratford General Hospital.
Consistent with its decision in Stratford General Hospital and Windsor Western Hospital, the Board concludes in this case that the comprehensive paramedical unit applied for by the applicant union is the unit appropriate for collective bargaining. The Board therefore dismisses the claim of the objecting employees that they be carved out of the unit applied for by the applicant union.
The Board directs, therefore, that all segregated ballots be mixed in with the rest of the ballots in the ballot box and that all ballots be counted.
The matter is referred to the Registrar.