Service Employees Union, Local 204 Affiliated with A.F. of L., C.I.O., C.L.C. v. Extendicare Diagnostic Services Division of Extendicare Limited
[1982] OLRB Rep. March 371
0722-81-R Service Employees Union, Local 204 Affiliated with A.F. of L., C.I.O., C.L.C., Applicant, v. Extendicare Diagnostic Services Division of Extendicare Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Kevin M. Burkett, Alternate Chairman, and Board Members F. W. Murray and M. J. Fenwick.
APPEARANCES: Naomi Duguid and Allen Ferens for the applicant; Donald J. McKillop, Q.C., Dawn Jeffrey and Joyce Allin for the respondent; no one appeared for the objectors.
DECISION OF THE BOARD; March 11, 1982
11. This is an application for certification.
22. The company operates a diagnostic services division from eleven laboratory locations throughout Metropolitan Toronto. Medical diagnostic testing services are offered to the public and in addition the service is provided to the company's own and other nursing homes. The union has applied to be certified as bargaining agent for the employees working within the company's diagnostic services division.
33. In a decision dated August 17, 1981, the Board found all employees of the respondent in Metropolitan Toronto save and except supervisors, persons above the rank of supervisor, office and clerical employees and sales staff, to be a unit appropriate for collective bargaining. The Board appointed a labour relations officer to meet with the parties and inquire into whether or not seven persons whose names are shown on Schedule A are employees of the respondent who fall within the bargaining unit and whether or not another seven persons whose names are shown on Schedule B are employees of the respondent who fall within the bargaining unit. The Board also satisfied itself of the applicant's entitlement to a vote regardless of its ultimate determination with respect to the challenged employees. The Board then directed the taking of a representation vote with the ballots cast by those whose status had been challenged to be segregated.
44. A vote was held on September 29, 1981. Seventy-three persons cast ballots. Thirty-five ballots were cast in favour of the applicant union. Twenty-nine ballots were cast against the applicant union and nine ballots were segregated pending the completion of the Board Officer's inquiry and a determination by the Board as to whether the persons whose ballots had been segregated are employees within the bargaining unit. The Board Officer convened a meeting of the parties on October 19, 1981, at which the issues between the parties in respect to the challenged individuals were clarified. It has now been agreed between the parties that only six of those who cast segregated ballots may be employees of the respondent in respect of whom examinations are required.
55. The issue to be determined in this decision is whether two of those whose ballots have been segregated, and a number of others whose ballots have been counted, are "hospital employees" within the meaning of the Hospital Labour Disputes Arbitration Act, R.S.O. 1980, c. 205, and whether, if "hospital employees" they should be in a bargaining unit, with employees who are not "hospital employees". The background to the issue before us is sketched in the Board's December 21, 1981 interim decision in this matter as follows:
"4. During the course of the inquiry into the employee status of two of the persons' whose names had been included on Schedule B it was revealed that these two persons spent all of their working time at the Highbourne Nursing Home. It is not disputed that Mrs. Murgatroyd takes blood samples from nursing home residents and Ms. Watts performs electrocardiograms on nursing home residents. The Board examinations in respect of these two persons were conducted on October 26, 1981. By letter dated November 16, 1981 the applicant union took the position that these two persons are 'hospital employees' within the meaning of the Hospital Labour Disputes Arbitration Act and therefore, should be excluded from a bargaining unit composed of employees who are not 'hospital employees' within the meaning of the Act. The applicant union argued that the transcript of the examination of these two individuals should be released as soon as possible and a decision made on the basis of the evidence contained in the transcripts. The applicant argued further in its letter of November 26, 1981 that if any additional evidence is required it should be heard by the Board and not by a Board Officer. If either one of these two persons are excluded from the bargaining unit the applicant takes the position that on the basis of the vote it would then be entitled to interim certification. The respondent, by letter dated November 18, 1981 asked the Board not to expand the scope of the issues in dispute and requested a hearing on the issue. In a subsequent letter dated December 1, 1981 the respondent argued that the applicant should have moved sooner and, further, if the Board accedes to its request it will be permitting, contrary to long-standing Board practice, an alteration to the terms of reference of the examinations as well as an alteration to the bargaining unit decision of the Board.
The Board convened a hearing for the purpose of entertaining the submissions of the parties in respect of this matter on Monday, December 14, 1981. At the hearing counsel for the respondent company advised the Board that in addition to the two persons. identified by the union as 'hospital employees' there are a number of other 'hospital employees' who have been included in the bargaining unit and who have voted and had their ballots counted.
The Board ruled at the hearing that:
The issue of the status of Ms. Watts and Mrs. Murgatroyd as 'Hospital employees' within the meaning of the Hospital Labour Disputes Arbitration Act was raised in a timely fashion.
It is satisfied that arguably there are strong policy reasons for not including 'hospital employees' within a bargaining unit of employees not covered by the Hospital Labour Disputes Arbitration Act.
It is prepared to make a determination as to whether the two employees referred to by the trade union as 'hospital employees' and those who may be identified by the company as 'hospital employees' are in fact 'hospital employees' within the meaning of the Hospital Labour Disputes Arbitration Act.
It is not prepared to rely on the trascripts of the examinations conducted for another purpose in making its determinations in this regard.
- Having made these rulings the Board hereby advises the parties that it will hear all evidence and argument in respect of whether or not Ms. Watts, Ms. Murgatroyd and those identified by the respondent as 'hospital employees' are 'hospital employees' within the meaning of the Hospital Labour Disputes Arbitration Act and if so whether they should be excluded from the bargaining unit determined by the Board in this case to be appropriate for collective bargaining. The Registrar is directed to list this matter for hearing."
66. At the February 2, 1982 hearing to deal with this, the Board advised the parties that it would hear evidence and argument in respect of whether or not Ms. Murgatroyd and Ms. Watts are "hospital employees" and would make a determination in respect of their status before proceeding further. If either one of these two is found to be a "hospital employee" and excluded from the bargaining unit, thereby causing her ballot not to be counted, it will be necessary to hear evidence and argument in respect of the nine employees whom the respondent maintains are identical in status to Ms. Watts and Ms. Murgatroyd. If, however, neither one of these two is found to be a "hospital employee" there will be no need to proceed further.
77. Ms. Barb Murgatroyd works for the respondent two days per week as a vena puncture technician, taking blood samples from the residents at Highbourne Nursing Home. She does not perform any other work for the respondent employer. She commences her work at about 6:45 a.m. and proceeds on the basis of requests made by medical doctors responsible for the medical care of the nursing home residents. She is usually finished taking the required samples about 11:00 a.m. at which time she takes the samples from the Nursing Home to the Extendicare Diagnostic Service lab which is located next door at 400 The East Mall. She reports to Marion Gord, the charge technician, who accepts the samples and discusses whatever difficulties Mrs. Murgatroyd may have encountered in carrying out her responsibilities. The actual testing is done by Extendicare Diagnostic Services Division employees at either 400 The East Mall or at a central lab on Bathurst Street. Extendicare Diagnostic Services operates a fleet of cars to courier samples and test results between its satellite laboratories, its central lab and its customers. The supplies and equipment which Ms. Murgatroyd uses at the Highbourne Nursing Home are supplied by Extendicare Diagnostic Services. She was hired by Extendicare Diagnostic Services to work at Highbourne Nursing Home. She is paid by Extendicare Diagnostic Services.
88. Ms. Ann Watts works seven hours per week performing cardiograms on the residents of the Highbourne Nursing Home. She too was hired by and is paid by Extendicare Diagnostic Services and uses supplies and equipment provided by Extendicare Diagnostic Services. Ms. Watts does not perform any other work for Extendicare Diagnostic Services. The cardiogram charts are taken by Ms. Watts from the Highbourne Nursing Home to a cardiologist located in the adjacent building at 400 the East Mall. A cardiologist, who is retained by Extendicare Diagnostic Services, reads the cardiograms. Whenever Ms. Watts or Ms. Murgatroyd are unavailable to carry out their duties, replacements are provided by Extendicare Diagnostic Services.
99. The union argues that on the statutory definition of "hospital employee" the identity of the employer is irrelevant. The definition is framed in terms of "the operation of a hospital" and accordingly, it is the position of the union that anyone who is regularly employed in job functions which are necessary to the operation of a hospital is a "hospital employee" within the meaning of the Hospital Labour Disputes Arbitration Act. The union argues that both Ann Watts and Barb Murgatroyd spend virtually all of their working time in the nursing home performing duties which are critical to the health care of the residents. In these circumstances, the union takes the position that the extent of the Extendicare Diagnostic Services organization and the fact that Extendicare provides the supplies and equipment is irrelevant. The union asks the Board to find that these two persons are "hospital employees" within the meaning of the Hospital Labour Disputes Arbitration Act.
1010. The company argues that, on the evidence, control over these employees is exercised by Extendicare Diagnostic Services, the skills required, as evidenced by the supplying of replacements, is provided by Extendicare Diagnostic Services, and the Administration of the overall testing function is the responsiblity of Extendicare Diagnostic Services and not Highbourne Nursing Home. Having regard to these facts, the company asks us to conclude that the persons whose status is in dispute, organizationally at least, are employed, not in the operation of a hospital, but in the operation of a laboratory testing service. The company submits that the function performed is one which should also cause the Board to conclude that these persons are not employed in the operation of a hospital. The company argues that under the Nursing Homes Act R.S.O. 1980, c. 320, which governs the operation of nursing homes in the province of Ontario, a nursing home is not required to do either bleeding or electrocardiograms. The company argues that while these functions are not necessary to the operation of a nursing home, they are necessary to the operation of a laboratory testing service. Where the evidence suggests that on both an organizational and functional basis the persons whose status is in dispute are not employed in the operation of a hospital, and considering the practicality of having two employees of Extendicare Diagnostic Services bargaining under the Hospital Labour Arbitration Act and the remainder not, the company submits that the Board should find them not to be "hospital employees" within the meaning of the Act.
1111. The relevant definitions under the Hospital Labour Disputes Arbitration Act are:
"hospital" means any hospital, sanitarium, sanatorium, nursing home or other institution operated for the observation, care or treatment of persons afflicted with or suffering from any physical or mental illness, disease or injury or for the observation, care or treatment of convalescent or chronically ill persons, whether or not it is granted aid out of moneys appropriated by the Legislature and whether or not it is operated for private gain, and includes a home for the aged.
"hospital employee" means a person employed in the operation of a hospital.
There is no dispute that Highbourne Nursing Home is a hospital within the meaning of the Hospital Labour Disputes Arbitration Act. It is to be observed, however, that Highbourne is a Nursing Home within the meaning of the Nursing Homes Act; the Act governing the operation of nursing homes in the province of Ontario, and not a hospital within the meaning of the Public Hospital Act, R. S.O. 1980, c. 410; the Act which governs the operation of public hospitals in the province. We will have more to say with respect to this distinction in determining whether either Barb Murgatroyd or Ann Watts is a "hospital employee" within the meaning of the Hospital Labour Disputes Arbitration Act.
1212. The Board has never before been faced with a dispute as to whether an individual is a "hospital employee" within the meaning of the Hospital Labour Disputes Arbitration Act. In order to make this determination we must look to the language of the definition read in the context of a statute whose overriding purpose is to prohibit work stoppages occasioned by labour disputes. The legislature has determined that the need of the public to uninterrupted hospital services takes precedence over the right of certain individuals to resort to economic sanctions in support of collective bargaining objectives. It is against this backdrop that effect must be given to the definition of who is a hospital employee. This is not to say, however, given the statutory encroachment upon individual freedoms, that the Board should not be circumspect in applying the definition.
1313. We start by observing that the definition carefully avoids restricting the application of the statute to only those employed by a hospital. The definition extends to all persons "employed in the operation of a hospital." Given the purpose of the statute and the multiplicity of business arrangements under which an organization such as a hospital can meet its objectives, it is not surprising that the definition focuses, not on the identity of the employer, but on the function performed by those whose services are so important to society as to abridge their right to free collective bargaining.
1414. The term "hospital" as defined in the Hospital Labour Disputes Arbitration Act includes hospitals, sanitariums, sanotoriums, nursing homes and certain other types of institutions. Because it is a person's function which is determinative of whether that person is a "hospital employee" and because a number of different types of institutions are covered by the definition of "hospital" contained in the Hospital Labour Disputes Arbitration Act, we accept that when determining if a person is a "hospital employee" reference should be had to the type of institution within which or to which that person provides a service or performs a function and to the statute which specifies the services which that institution is required to provide. At the least, it is the uninterrupted delivery of these services which the Hospital Labour Disputes Arbitration Act is designed to ensure.
1515. A "hospital" is defined under the Public Hospital Act as:
…any institution, building or other premises or place established for the treatment of persons afflicted with or suffering from sickness, disease or injury, or for the treatment of convalescent or chronically ill persons that is approved under this Act as a public hospital.
A "nursing home", on the other hand, is defined under the Nursing Homes Act as:
…any premises maintained and operated for persons requiring nursing care or in which such care is provided to two or more unrelated persons, but does not include any premises falling under the jurisdiction of:
(vii) the Public Hospitals Act.
1616. Neither the Nursing Homes Act nor the regulations thereunder stipulate that a nursing home is required to provide facilities for the carrying out of routine laboratory investigations. In contrast, under the regulations to the Public Hospitals Act a hospital is required to be equipped with a clinical laboratory with facilities and staff able to make routine laboratory investigations necessary for the treatment of patients. Regulation 33(1) reads:
A hospital shall be equipped with a clinical laboratory with facilities and staff able to make routine laboratory investigations necessary for the treatment of the patients in the hospital.
By virtue of the combined operation of the Hospital Labour Disputes Arbitration Act and the Public Hospitals Act, the public is provided with uninterrupted access to clinical laboratory testing facilities. The medical staff of a nursing home has access to these facilities or to private facilities such as those maintained by Extendicare Diagnostic Services.
1717. Where, as in this case, the employees whose status is in issue are employed by an organization (Extendicare Diagnostic Services) which is not a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act and where, as in this case, the function they perform is not one which is statutorily required of the institution in respect of which they carry out their function, support is found for the conclusion that they are not employed in the operation of that institution within the meaning of the Hospital Labour Disputes Arbitration Act. Where, in addition, the institution has uninterrupted access to the function performed by the persons in dispute through the public hospital system or through alternate private suppliers, it is difficult to conclude, given the balancing of interests which must take place, that the legislature intended to deny those performing the function the right to engage in free collective bargaining.
1818. Having regard to all of the foregoing, we are forced to conclude that neither Barb Murgatroyd nor Ann Watts is a "hospital employee" within the meaning of the Hospital Labour Disputes Arbitration Act.