[1984] OLRB Rep. February 281
1956-83-R The Canadian Union of Public Employees, Applicant, v. The Hospital For Sick Children, Respondent, v. Group of Employees, Objectors
BEFORE: R. O. MacDowell, Vice-Chairman and Board Members W H. Wightman and W F. Rutherford.
APPEARANCES: Helen O'Regan, Romeo Best, John Vanelli and J. Anderson for the applicant; F G. Hamilton, Q. C., J. E. Stibbards, Graydon McNair and Valerie Cassells for the respondent; Barry Edson, Fran Macaluso, Marilyn Becker and Robin A. Barclay for the objectors.
DECISION OF THE BOARD; February 14, 1984
I
This is an application for certification. It may affect a large number of the employees of Sick Children's Hospital. The original hearing notice to employees did not clearly identify the major issue in this case, and it is difficult to do so on the space provided on the notice form. The Board therefore directs that this decision be posted along with notices of the continuation of the hearing in this matter, in prominent places where they will come to the attention of the employees who may be interested.
In this application, the union (CUPE) has applied to represent a bargaining unit of hospital service workers. The unit includes such groups as: kitchen staff, cleaning staff, laundry staff, orderlies, nurses' aides, and so on. Service units of this kind are common in Ontario hospitals. CUPE represents service units at Toronto General Hospital, Toronto Western Hospital, and North York General Hospital. There are service units represented by the Service Employees' International Union at Toronto East General Hospital, Wellesly Hospital, and Mount Sinai Hospital.
Typically, such service units exclude technical and paramedical employees. In a recent case involving St. Joseph's Hospital in Sarnia (Board File 0448-83-R), the Board had occasion to set out what has become the "standard" or "normal" description of the appropriate "service" unit. It is based upon what has become the established practice in the province, and reads as follows:
All employees of [Name of Hospital] save and except professional medical staff, graduate nursing staff, under graduate nurses, graduate pharmacists, undergraduate pharmacists, graduate dietitians, student dietitians~ social workers, social work assistants, persons engaged in research work, technical personnel (including in this exception, graduate and undergraduate: audiologists, physio-, occupational, psychiatric and speech therapists, psychologists, psychometrists, computer programmers, biomedical repair technicians, certified and non-certified dental assistants, photography technicians and artists-medical illustrators, registered, non-registered and student; laboratory technicians, X-ray technicians, respiratory technicians, electrocardiogram technicians, electroencephalogram technicians, pulmonary technicians~ nuclear medicine technicians, ophthalmic technicians and laboratory assistants) supervisors, persons above the rank of supervisor, foremen, persons above the rank of foreman, chief engineer, office and clerical staff (including in this exception: ward clerks, admitting clerks, receptionists, safety and security officers, information clerks, mail clerks, cashiers, librarians and switchboard operators), security guards, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period.
The details will obviously vary from hospital to hospital depending on the particular paramedical or technical groups employed, but the point is: technical and paramedical employees are generally excluded from the service unit.
Technical and paramedical personnel are either not represented 'by a trade union at all or have their own separate bargaining unit.
II — Union Position
In this particular application, the union seeks to represent employees in what it describes as a "standard" service employee bargaining unit. The union does not seek to represent paramedical or paraprofessional employees such as dietitians, psychometrists, physiotherapists, audiologists, speech therapists, dental hygienists or social workers. The union does not seek to represent paramedical or paraprofessional employees such as dietitians, psychometrists, physiotherapists, audiologists, speech therapists, dental hygienists or social workers. The union does not seek to represent the technicians or technologists employed in the Hospital's medical departments or laboratories (X-ray, radiology, etc.). The union's position is that these technical and paramedical personnel do not share a community of interest with service workers, and should not be put in the same bargaining unit as service workers. The union submits that in dozens of hospitals across the Province, technical and paramedical employees have been routinely excluded from the service employee bargaining units on the agreement of the parties; moreover, until this case there has never been any real difficulty in drawing the line. The union argues that Sick Children's Hospital is not all that different from these other Ontario hospitals and it is absurd to suggest, for example, that social workers with postgraduate training should be bargaining together with dishwashers or orderlies. The union submits that until this case arose, no hospital ever considered putting laboratory and cleaning staff in the same bargaining unit.
The union's position is supported by a group of employees who appeared at the first hearing to voice their concerns. They argue that they have a separate community of interest and should not be included in the same bargaining unit as the service employees whom the union seeks to represent. Like the union, they argue that technical, paramedical or paraprofessional employees should not be "lumped in" to the service group with the so-called "standard unit" which the union proposes.
III — Hospital Position
- The Hospital, their employer, does not agree. The Hospital agrees that some paramedical/technical employees should be excluded, but submits that there is no rigid distinction between service, paramedical, and technical personnel. The Hospital argues that there are large numbers of technical personnel who should be included in the service bargaining unit that the union seeks to represent — regardless of what might be the practice at other hospitals. The Hospital asserts that it does not matter that these individuals may not want to be included in the bargaining unit, or that the union does not seek to represent them. In the Hospital's submission, they have an objective community of interest with the service workers and should, therefore, be included in that bargaining unit. The Hospital maintains that the practice in other hospitals is not very helpful because: the bargaining unit descriptions in those cases were based upon the agreement of those other hospitals and their unions rather than any decision of this Board; the unit descriptions themselves are not uniform; and, in any event, Sick Children's Hospital is a unique institution which cannot be compared with other hospitals.
IV — Decision
The Board is very concerned about the practical and procedural consequences of this case. Preliminary indications suggest that there are a large number of classifications in dispute involving as many as several hundred employees. The employer asserts that they should be included in the bargaining unit because they share a community of interest with other service workers, while the union argues that they should be excluded. To resolve these issues, could take numerous days of hearing, potentially extending over many months. The cost is obvious. The delay is undesirable. And meanwhile, the wages, working conditions and benefits of employees potentially affected by this application may be frozen pursuant to section 79 of the Act. We are concerned that whatever the merits of the parties' respective positions, this is not a recipe for happy employer/employee relations.
There are certification cases with bargaining unit problems that can best be resolved by the appointment of a Labour Relations Officer to meet with the parties and, if necessary, examine the positions in dispute. However, we do not think that approach is appropriate at this stage of the present proceeding. Rather, it is our view that this case should come before the Board for a further hearing to determine the extent to which, with the assistance of the Board and its Officers, the parties can narrow the matters in dispute between them. To this end, prior to the next hearing the parties should investigate and particularize the technical and paramedical classifications in dispute, together with the duties and functions performed by employees in those classifications. Since it is the Hospital which is seeking to expand the scope of the unit and sweep in employees whom the union does not want to represent and who, it would seem, are not normally included in a service unit, the Hospital should be in a position to particularize the facts upon which it relies and the reasons why its proposed unit is appropriate. It may well be that when both parties examine their positions, they will be able to narrow the issues in dispute between them so that extensive hearings will not be necessary. Likewise, it may be possible for the Board to resolve the status of certain employee classifications solely on the basis of the parties' submissions.
The matter is therefore referred to the Registrar to be re-listed for hearing. Attached and to be posted with this decision is a list of technical or paramedical classifications which the union argues should not be included in the service unit and which, it seems, the employer argues should be included.
[Appendix containing lists of classifications in dispute omitted.]