Ontario Labour Relations Board

[1981] OLRB Rep. February 225

1746-80-R Association of Allied Health Professionals: Ontario, Applicant, v. Toronto East General and Orthopaedic Hospital, Inc., Respondent, v. Ontario Public Service Employees Union, Intervener #1, v. Service Employees International Union, Local 204, Intervener #2, v. Group of Employees, Objectors.

BEFORE: Pamela C. Picher, Vice-Chairman, and Board Members C. G. Bourne and M. J. Fenwick.

APPEARANCES: Catherine Bowman, Lynda Mason and Lydia Lizinski for the applicant; C.G. Riggs and A. G. Prowse for the respondent; Raj Anand and Pauline R. Seville for intervener #1; Tom Chris for intervener #2; Gail Low, Susan Logan, Gerald Dancyger, Bella Streiner, Glenna Lewis; Glenda McNeilly, Rita Valter and Susan Morris for the objectors.

DECISION OF THE BOARD; February 19, 1981

[1]. This is an application for certification.

4. The applicant union, hereinafter referred to as "AAHP", has applied to be certified as the exclusive bargaining agent for a bargaining unit of all paramedical employees at the respondent's hospital. The unit would include both paramedical employees employed in what may generally be described as a technical capacity (such as technologists, technical assistants and laboratory assistants employed in the hematology, radiology, nuclear medicine, respiratory, electrocardiograph, pharmacy and photography departments) as well as paramedical employees employed in a professional capacity (such as social workers, physiotherapists, psychologists, pharmacists, occupational therapists and dieticians).

5. The paramedical employees employed in a technical capacity are currently represented by intervener #1, Ontario Public Service Employees Union. The scope clause of the collective agreement does not extend to paramedical employees who may be broadly described as being employed in a professional capacity.

6. Through its application for certification, AAHP seeks both to displace the incumbent union as the bargaining agent of the technical paramedical employees and to become the exclusive bargaining agent for the professional paramedical employees. In the course of its displacement it is attempting to enlarge the existing bargaining unit.

7. In a displacement application for certification the Board will generally exercise its discretion under section 7(2) of the Act to order a representation vote among the employees in the incumbent's bargaining unit even if it is satisfied that more than fifty-five per cent of the employees in the bargaining unit are members of the applicant. In the representation vote the Board asks the employees to make a choice between the two competing unions.

8. In an application for certification where the union requests the taking of a pre-hearing representation vote the Board determines a voting constituency pursuant to section 8(2) of the Act. If it appears to the Board that not less than 35 per cent of the employees in the voting constituency are members of the applicant trade union, the Board directs that a representation vote be taken among the employees in the voting constituency.

9. Where there is a request for a pre-hearing representation vote on a displacement application, the Board's standard practice is to require the applicant to accept as a voting constituency the bargaining unit represented by the incumbent union. (See, for example, Ethyl Canada Inc. [1979] OLRB Rep. Oct. 985; The Wellesley Hospital [1976] OLRB Rep. Feb. 45; Roland Lefebvre Lathing Limited [1966] OLRB Rep. May 140.) If the applicant seeks to enlarge the bargaining unit the Board will establish two voting constituencies, the incumbent unit as one and the add-on segment as the other. To be entitled to a vote in each, the applicant must demonstrate membership support of 35 per cent in each voting constituency. (See Ethyl Canada Inc., supra).

10. After a pre-hearing representation vote has been taken the Board determines the appropriate bargaining unit. Normally the bargaining unit found to be appropriate in a displacement situation is the incumbent's bargaining unit. The Board may amend the unit, however, in the event the applicant wins to vote, or votes if more than one voting constituency has been established. (See Roland Lefebvre Lathing Limited, supra.) In Wellesley Hospital, supra, however, the Board refused the company's request to carve out of the incumbent's unit a group of employees. The Board expressed the view that when an applicant wins a displacement vote it is at least entitled to the same unit as was represented by the incumbent union.

11. In the instant displacement application, AAHP has not requested a pre-hearing vote. Accordingly, the Board does not need to determine a voting constituency pursuant to section 8(2) of the Act.

12. The Board is required under section 6(1) of the Act to determine the unit of employees that is appropriate for collective bargaining. If AAHP's application were not a displacement application but rather a fresh application relating to employees not already represented by a trade union, the Board, in all likelihood, would consider the broad, all paramedical employee unit applied for by AAHP to be appropriate. (See the Board's decisions in Stratford General Hospital, [1976] OLRB Rep. 459, and Hôpital Montfort [1980] Rep. Nov. 1647).

13. In a displacement application, however, the Board's general practice is to view the established bargaining structure as prima facie appropriate, particularly where the parties have themselves incorporated it into a collective agreement. In Milltronics Limited [1980] OLRB Rep. Jan. 56 the Board refused to accede to the employer's submission that a unit larger than the existing unit was appropriate. At p. 58 the Board said,

Usually.., a "raiding union must "take" what the incumbent union has.

(See also Electrohome Limited, [1967] OLRB Rep. Dec. 854).

14. In considering a displacement application for certification the Board has to be sensitive to the existence of an established bargaining relationship. The Board's practice of requiring the applicant to "'take' what the incumbent has" emanates from the belief that the employees in an existing bargaining unit should alone decide, as a separate group, whether they want to change bargaining agents. In Toronto Star Limited, [1974] OLRB Rep. July 416 the vice-chairman, in his dissent on another point, explained the rationale supporting the Board's general practice. At p. 417 he said,

The reason for holding as appropriate the bargaining unit described in the scope clause of a collective agreement in a displacement application is because of the continued viability of the community of interests of employees affected by the application. It would be contrary to the efficacy of a past history of viable collective bargaining to upset the integrity of that bargaining unit without first soliciting the views of the employees affected.

15. In Barnet-McQueen Co. Ltd., 59 CLLC ¶18,139 the Board was asked by the displacing union to find that a unit larger than the incumbent's unit was appropriate. The Board refused the request explaining that if it were to find a larger unit appropriate it would be possible for a union to displace another solely through its strength in the add-on portion of the unit and despite the views of the employees in the original or incumbent's unit. In Barnet-McQueen the Board dismissed the application because the applicant did not have sufficient membership support in the existing unit for a representation vote.

16. The instant case presents the Board with the reverse of the situation in Barnet-McQueen. The applicant union has in excess of 55 per cent membership support among the employees in the incumbent's bargaining unit. In the other segment of the enlarged bargaining unit for which it applies it does not have sufficient membership strength for a representation vote. If both the technical paramedical and professional paramedical segments were considered together as one bargaining unit, however, the applicant would have more than 45 per cent membership support.

17. Can the applicant union in a displacement application for certification sweep in a group of previously unrepresented employees solely on the strength of its membership support in the incumbent's unit and in the face of minimal support in the add-on group? Although the parties were unable to direct the Board to a case precisely on point, there are cases both from this Board and others which suggest that a displacing union should not be able to sweep in a group of previously unrepresented employees without sufficient and separate membership support in the add-on group.

18. In Electrohome Limited, supra, the Board commented at p. 857,

Had Local 804 in this case organized the additional employees it may well be that Local 804 would have been entitled to represent a bargaining unit which included a larger number of persons than was normally represented by the Amalgamated Workers Union [the incumbent]. However, Local 804 confined its organizing campaign to the unit of employees which was represented by the Amalgamated Workers Union and is not entitled to a unit which includes any additional persons. Therefore, since Local 804 has succeeded in defeating the Amalgamated Workers Union in the representation vote, Local 804 is... entitled to represent the employees formerly represented by the Amalgamated Workers Union.

19. In Chapples Ltd. [1974] OLRB Rep. Dec. 897 the applicant union applied to the Board for an amendment to its certificate to enlarge the bargaining unit. The Board noted that on a fresh application the requested bargaining unit might be deemed to be appropriate. Out of respect for the bargaining history of the parties, however, the Board refused the amendment stating that if the union wanted the additional segment of employees it would have to organize them.

20. The sweeping of unrepresented employees into an established bargaining unit is a question that has come before other tribunals in the context of applications made by existing bargaining agents for an amendment to an established bargaining unit.

21. In British Columbia Telephone Company, (1978) 2 Can. LRBR 387, the Canada Labour Board refused to amend the bargaining unit to include persons who had been excluded from the scope clause of the collective agreement. The union argued that the people in question would have been encompassed by the terms the original "all employee" certificate issued by the Board if their classification had been in existence at the time. The parties, however, subsequently decided to define the scope clause of the collective agreement by specifically listing the classifications. The Board held that it would not include a new group of persons in the bargaining unit without reference to the wishes of the employees sought to be included. In reaching its decision the Canada Board at p. 393 reasoned as follows:

We cannot accede to that position by the union. It flies in the face of a practical understanding and appreciation of collective bargaining realities and runs counter to fundamental principles expressed and incorporated in The Canada Labour Code. We accept the policy articulated by the British Columbia Labour Relations Board in Automatic Electric (Canada) Limited, supra, at p. 100.

The Board should not take a broad unit description, written a long time ago in a certification which served to get collective bargaining underway, and apply it in a literal fashion in the real-life employment environment which has been shaped by a later agreement by the parties about the precise scope of the unit. If, in fact, the effective unit specified by the collective agreement is a coherent and appropriate one and if the union has not violated its duty of fair representation in negotiating it, then this Board should accept that unit as the basis for further proceedings and if necessary vary the wording on the certification so that it will accurately reflect the current realities. If the union then wishes to expand the scope of its bargaining authority over a group of employees whom it has not hitherto represented . . . it should first organize these employees.

The Canada Board then went on at pp. 393-395 to elaborate the policy reasons behind its decision to decline to incorporate into the unit a new group of employees without reference to their wishes:

The reasons for this policy are multiple and do not need extensive elaboration. Among them are the following. First, the incorporation of employees previously unrepresented into a bargaining structure without reference to their wishes places easily foreseeable strains upon the relationship between the employer, the union and the employees.. . . The addition of employees to an established bargaining relationship without reference to their wishes creates immediate and foreseeable conflicts between them and employees in the established bargaining structure. This conflict can be expressed by employees who are added to the unit refusing to participate in internal union affairs, refusing to respect picket lines established by the union, and acting on behalf of extra-bargaining unit employees, or maybe even the employer, to undermine the authority and activities of the union. The predictable results are industrial unrest and an undermining of the role of trade unions in industrial society.

Secondly, an accretion to a bargaining unit of employees who have been hitherto excluded from the bargaining structure without reference to their wishes can result in a lost of society's perception of the integrity of the collective bargaining system and its fairness. . .

The tradition of collective bargaining legislation in Canada, reflected in the provisions of the Code, contains the implicit understanding that a trade union becomes the bargaining agent for employees only through an expression of a desire for representation by a majority of employees it has not represented. To run counter to that tradition, in this case, where the union relinquished the benefits of the "all employee" description in its bargaining unit, would create a hostility to collective bargaining by the employees added to the bargaining unit and the understandable impression that the collective bargaining system under the Code was designed or being administered for the benefit of trade unions as institutions and not for the interests of employees. This would be even more emphatically the case in the circumstances of this application where the Board has received active representation and express communication by a large number of persons in the classifications sought to be added to the unit expressing a desire not to be represented by the applicant union.

. . . As in the Canadian jurisprudence referred to above, the American position is that

it is axiomatic that, where a classification has been historically excluded from a unit, it cannot be added by means of the accretion doctrine; i.e., without affording employees in that classification an opportunity to select or reject the bargaining representative. (Williams Transportation Company (1977), 96 LRRM 1597 (N.L.R.B.)

A third reason for the policy articulated in Automatic Electric (Canada) Limited as it applies to this case is that if the Board acceded to the union's request we would ignore the interests of employees who have grown to accept and expect that their employment relationship is regulated in a manner other than by representation by the applicant union.

22. In the instant case the paramedical employees, broadly described as being employed in a professional capacity, have been unrepresented by a trade union. The technical paramedical employees, on the other hand, have been represented by the incumbent. This is a bargaining framework with which the parties have become accustomed. In the Board's opinion it would be unfair, inappropriate and counter to sound labour relations to suddenly place the professional paramedical group of employees in a bargaining unit with the technical paramedical employees, thereby opening the door to their being represented by the applicant union, without giving them an opportunity to decide, as a separate group, if they want union representation.

23. There are limits to the principle of majoritarianism and in this case that principle must be tempered by the established bargaining history. Just as in Barnet-McQueen the Board would not allow an incumbent to be displaced solely on the strength of people in an add-on segment of an enlarged bargaining unit, so too in this case the Board will not allow the incumbent to sweep in previously unrepresented employees solely on the strength of their support in the incumbent's bargaining unit. In a fresh application for certification persons or even groups of persons who do not wish to be represented by a trade union may, nevertheless, be swept into a bargaining unit. In that situation, unlike the one before us, however, those persons will not have developed a history of being excluded from the particular bargaining unit in question. Where there is such a history, a balancing of interests requires that they not be swept into the unit without regard to their wishes.

24. For the reasons set out above the Board finds in this case that the incumbent's bargaining unit is the unit appropriate for collective bargaining. That bargaining unit is:

all paramedical personnel employed by Toronto East General and Orthopedic Hospital Inc. at Toronto, save and except charge technologists, assistant chief technologists, persons above the rank of charge technologist and assistant chief technologist, students in training, students employed after regular school hours or during the university or school vacation period, persons regularly employed for not more than 24 hours per week, office and clerical staff and persons covered by subsisting collective agreements with the Service Employees International Union, Local 204, the Canadian Union of Operating Engineers, and the Ontario Nurses' Association. (Hereinafter referred to as bargaining unit #1)

For the purposes of clarity "paramedical personnel" includes: technologists, formerly known as registered technicians, non-registered technicians, technical assistants, laboratory assistants employed by the Hospital in the hematology, radiology, medical laboratory, nuclear medicine, respiratory and electrocardiograph, pharmacy and photography departments.

25. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in bargaining unit #1, at the time the application was made, were members of the applicant on November 25, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

26. Pursuant to its discretion under section 7(2) of the Act the Board orders that a representation vote be taken of the employees of the respondent in bargaining unit #1. All employees of the respondent in bargaining unit #1 on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.

27. Voters will be asked to indicate whether they wish to be represented by the applicant or the incumbent union in their employment with the respondent.

28. For the reasons canvassed above the bargaining unit found appropriate by the Board in this case does not include the employees not covered by the incumbent unit. The Board will not sweep in this group of employees without regard to their wishes. The Board, therefore, will treat the add-on segment or the portion of the unit applied for by the applicant which does not correspond to the incumbent bargaining unit as, virtually, the object of a separate application for certification.

29. The Board is satisfied on the basis of all the evidence before it that with or without the inclusion of the challenged persons less than forty-five per cent of the employees of the respondent in the add-on bargaining unit (hereinafter referred to as bargaining unit #2) at the time the application was made were members of the applicant on November 25th, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 70(1) of the said Act.

30. The application as it relates to bargaining unit #2 is dismissed.

31. The matter is referred to the Registrar for the representation vote in the incumbent's

unit, bargaining unit #1.