Ontario Labour Relations Board
File No.: 1588-82-R Date: 1982-12-17
Re: Ontario Public Service Employees Union, Applicant, v. Ottawa General Hospital, Respondent.
Before: M.G. Mitchnick, Vice-Chairman, and Board Members W.H. Wightman and Stewart Cooke.
Appearances: Ross Wells, Virgery Vanier and Diana Forrest for the applicant; Paul S. Jarvis, Michael Lalonde and Raymond Thibault for the respondent.
Decision of the Board
1This is an application for certification.
2The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
3While it was apparent at the hearing that the applicant has sufficient membership support to entitle it to a certificate, it fell to the Board to decide which of two proposed bargaining units is appropriate. The applicant asked that the unit be described as:
All paramedical employees of the respondent at Ottawa, Ontario, regularly employed for not more than twenty-four (24) hours per week and students employed in the school vacation period, save and except persons covered by a subsisting collective agreement.
The respondent, on the other hand, argues that the appropriate unit is:
All medical laboratory technologists employees of the respondent at Ottawa, Ontario, regularly employed for not more than twenty-four hours per week and students employed as medical technologists during the school vacation period save and except laboratory scientists, clerical staff and persons covered by subsisting collective agreements.
The difference in positions arises out of the history of collective bargaining at this hospital.
4All of the employees affected by this application are what are normally referred to as "paramedical" employees by the Board. In order to avoid undue fragmentation, the Board normally likes to see a bargaining unit of all such employees, be they full-time or part-time, described as "all paramedical employees" of the hospital. See Stratford General Hospital, [1976] OLRB Rep. Sept. 459. The Board recognizes, however, that in some cases a history of trade union representation will have developed, usually before the Board's decision in Stratford General, which will render an otherwise appropriate bargaining unit inappropriate. The Board does not in such cases seek to impose the more general approaches to appropriateness in a way which will cause distortions to an already existing collective-bargaining structure.
5This issue was recently canvassed by the Board in Sudbury Memorial Hospital, [1982] OLRB Rep. November 1722. In that case a Local of the present applicant already represented full-time medical technologists and radiologists, and another Local represented all full-time "office, clerical and technical" personnel. The first unit, in other words, excluded those paramedical employees generally referred to as "professionals", and the second unit then picked them up along with office and clerical staff. When the applicant began to organize part-time staff, it relied on Stratford General in claiming a unit of all part-time paramedical employees as appropriate. The Board, however, accepted the argument of the hospital employer that the existing collective-bargaining structure overrode the general approach articulated in Stratford General, and commented, at paragraph 7:
The Board has, absent any unusual factors, generally followed a policy of having part-time units organized at the same time or subsequent to full-time units, "mirror" the full-time unit.
To do otherwise in that case would have produced the anomalous result of part-time "professional" paramedics bargaining in conjunction with the remaining part-time paramedics, while the full-time "professional" paramedics would have bargained with the full-time office and clerical staff.
6The applicant argues that the facts of the present case are distinguishable. The applicant currently represents both full and part-time radiologists and EEG and nuclear medicine staff, as well as the full-time medical technologists. All of the remaining paramedical staff, the "professional" group, are unorganized at both a full-time and part-time level, as are the office and clerical staff. In these circumstances, the applicant argues that it is simply filling in at the part-time level the remaining gaps in the Board's normal paramedical unit, and since the full-time "professionals" are not yet organized, there is in fact no full-time bargaining structure to "mirror".
7This is not a bad argument. The fact remains, however, that a bargaining structure does exist for the full-time medical technologists, and it is really the part-time medical technologists which the applicant has now organized in this case (the applicant has filed no membership cards for the "professional" employees that it asks the Board to include in its unit). That structure indicates that the "technical" paramedics have never involved the "professionals" in their bargaining at this particular hospital. The only group of employees remaining to be organized within that non-professional bargaining structure are the part-time medical technologists.
8The Board is extremely sensitive to the importance of avoiding, except for good reason, different bargaining-unit configurations for full-time and part-time employees of the same classification, because of the potential for collective-bargaining anomalies or distortions which that creates. It must be borne in mind that the same employee (and this may be particularly true in the health-services field) may be "part-time" one week and "full-time" the next. Given the history of collective bargaining which has already developed at this hospital, as well as the pattern of organization relating to the present application, the Board finds the bargaining unit proposed by the respondent to be the appropriate one (cf. K-Mart Canada Limited, [1981] OLRB Sept. 1250).
9The 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 the bargaining unit at the time the application was made were members of the applicant on November 30. 1982, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the