[1985] OLRB Rep. July 1137
0151-85-R Ontario Nurses' Association, Applicant, v. McKellar General Hospital, Respondent
BEFORE: Harry Freedman, Vice-Chairman, and Board Members I. M. Stamp and B. L. Armstrong.
DECISION OF THE BOARD; June 20, 1985
This is an application for certification in which the parties have agreed to waive their right to a formal hearing before the Board and have requested the Board deal with the application before it based upon the material filed in this matter and the parties' written submissions.
The applicant and the respondent were parties to two collective agreements on the date of the making of this application, one relating to a full-time bargaining unit and the other relating to a part-time bargaining unit. The bargaining units are described in those agreements as follows:
"Full-time
ARTICLE A - RECOGNITION
A. 1 The Hospital recognizes the Ontario Nurses' Association as the sole and exclusive bargaining agent for all graduate and registered nurses employed by McKeller General Hospital at Thunder Bay engaged in direct nursing care of patients, save and except the Director of Health Services, Head Nurses, and persons above the rank of Head Nurse and those persons regularly employed for less than an average of five (5) tours per week.
Part-time
ARTICLE A - RECOGNITION
A. 1 The Employer recognizes the Ontario Nurses' Association as the sole and exclusive bargaining agent for all graduate and registered nurses employed at McKeller General Hospital in a nursing capacity on a regular schedule of not less than one (1) but not more than (4) tours per week save and except the Director of Health Services, Head Nurses and persons above the rank of Head Nurse."
It is common ground between the parties that the respondent employs graduate and registered nurses in a nursing capacity on a casual basis, that is, on a basis that excludes them from both of the collective agreements between the parties. While the applicant did acquire bargaining rights for the nurses employed on a casual basis by reason of a certificate issued by the Board to the predecessor of the applicant on September 7, 1967, the parties are agreed that as of the date of the making of this application, the applicant did not have bargaining rights for those nurses for whom it now seeks bargaining rights through this application.
The respondent objects to this application on the following grounds:
"The respondent opposes the application for certification on the following grounds:
(i) The original certificate did not exclude casual nurses;
(ii) The Applicant and its predecessor agreed to exclude those nurses it now seeks certification for;
(iii) The applicant is therefore barred and estopped from now seeking certification for a group of nurses whom it has voluntarily agreed to exclude from the part-time unit;
(iv) The appropriate procedure given all the circumstances is for the Applicant to first seek through negotiations to amend the existing recognition clause in the part-time Collective Agreement.
(v) If the Board, notwithstanding the foregoing, wishes to consider the application on its merits and if the Association has the necessary membership support, the Respondent submits that the Applicant should not be issued a third certificate which would fragment the normal bargaining structure for nurses in the hospital but rather should direct the parties through negotiations to amend the existing recognition clause of the part-time Collective Agreement accordingly."
In our view, the objections raised by the respondent have no merit. The respondent does not assert any basis for establishing an estoppel against the applicant seeking to once again obtain bargaining rights for the casually employed nurses of the respondent since the respondent does not even suggest any detriment arising from the applicant's or its predecessor's conduct. Furthermore, the applicant can only amend the existing recognition clause in the collective agreements with the agreement of the respondent. The applicant cannot compel the respondent to amend the collective agreements. The applicant can only legally compel the respondent to bargain with it in respect of nurses employed by the respondent on a casual basis if the applicant has obtained the right to do so under the Labour Relations Act, either by certification or voluntary recognition. Since the respondent does not assert that it has agreed to recognize the applicant as the bargaining agent for the employees in question, the only route open to the applicant to collectively bargain on behalf of those employees under the Labour Relations Act is through certification. As for the last submission of the respondent, the Board does not have the authority under the Act to do what the respondent suggests. The Board, in this proceeding, can only either dismiss the application for certification or issue a certificate to the applicant. It cannot, in a certification application, direct the parties to the proceeding to change their current bargaining structure.
Having regard to the submissions of the parties, and since it appears to the Board that the employees for whom the applicant seeks bargaining rights are the only nurses employed by the respondent for whom no trade union holds bargaining rights, the Board finds that all graduate and registered nurses employed by the respondent at Thunder Bay engaged in direct nursing care of patients, save and except the Director of Health Services, Head Nurses, persons above the rank of Head Nurse, and those persons for whom the applicant or any other trade union held bargaining rights on April 19, 1985, the date of this application, constitute a unit of employees of the respondent appropriate for collective bargaining.
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 the bargaining unit, at the time the application was made, were members of the applicant on April 30, 1985, 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 purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.
The Board, while certifying the applicant in respect of the bargaining unit described above, does recognize that a better collective bargaining structure might exist for these two parties if there were less than three bargaining units of nurses employed by the respondent. It is open to the parties to agree, at any time, to amend their collective agreements in order to reduce the number of bargaining units represented by the applicant and thereby create a more comprehensive bargaining structure.