Christian Labour Association of Canada v. Geri-Care Nursing Home of Caressant Care Limited
[1986] OLRB Rep. October 1335
0583-86-R Christian Labour Association of Canada, Applicant, v. Geri-Care Nursing Home of Caressant Care Limited, Respondent
BEFORE: Judith McCormack, Vice-Chairman, and Board Members F. W. Murray and R. R. Montague.
APPEARANCES: Ron Rupke and Hank Kuntz for the applicant; Edward V. Johnson and Gerry McKerral for the respondent.
DECISION OF THE BOARD; October 7, 1986
This is an application for certification in which the applicant seeks to be certified for a unit of part-time employees of the respondent. The respondent's full-time employees are also represented by the applicant by virtue of two certificates issued by the Board on February 18, 1986 and April 9, 1986, for employees of the rest home and nursing home respectively. At that time the parties agreed upon separate bargaining units for the two groups of full-time employees.
The parties are now in dispute as to the description and composition of the unit or units of part-time employees appropriate for collective bargaining. In accordance with its usual practice, the Board appointed a Labour Relations Officer to enquire into and report on (a) the community of interest between the employees in the nursing home and the rest home and (b) the community of interest between the employees who are regularly employed for not more than twenty-four hours per week and students employed during the school vacation period regardless of their location in the rest home or nursing home. On September 8, 1986 the Board held a hearing to entertain the parties' submissions on the matters remaining in dispute.
At the hearing the parties confirmed that they had agreed to have part-time employees and students included in the same bargaining unit. As a result the only outstanding issue in this regard was whether there should be separate bargaining units of part-time employees in the rest home and nursing home. The applicant proposes one inclusive unit while the respondent argues that separate units are appropriate.
The parties also agreed to rely on the facts as set out in a previous examination with respect to the full-time employees conducted by a Labour Relations Officer on August 13, 20 and 21, 1985 together with an agreed statement of facts describing changes in the work place which had occurred since that time.
The respondent is the operator of a nursing home and rest home in Harriston, Ontario. The two facilities are contained within the same building although they have separate entrances and are different in terms of interior decor. They include separate blocks of bedrooms, separate parking areas, separate call bell systems, separate dining areas, separate bathing facilities and separate staff lounges although the rest home staff may use the nursing home staff lounge on occasion. The two facilities are separated by doors with alarms which must be deactivated by pressing a sequence of numbers, although one paging system serves both homes.
Both homes come under the direction of one Administrator. Below her is a Supervisor for the rest home and a Director of Care for the nursing home. Although there are separate offices, it appears that the nursing home office is where the overall typing and administration is handled, with the rest home office handling billing and some paper work for that area alone. Employees from both homes are paid by the same numbered company and money paid by the residents in both areas goes into the same bank account.
The functions of the two facilities differ to some extent. While both provide care and assistance to residents, the nursing home provides a higher level of actual nursing care to a resident group which is generally more disabled than that of the rest home.
The differences in the nature of the care provided are reflected in the staffing of the two homes. The nursing home employs registered nurses, registered nursing assistants, health care aides, nurses' aides, cleaning, laundry, dietary and activity staff in contrast to the rest home which employs registered nursing assistants and house mothers. It also appears that functions in the nursing home are more differentiated. For example, the functions performed by a dietary aide, cleaner, and nurse's aide in the nursing home are performed to some extent by a house mother in the rest home. This differentiation may be partly because the nursing home is the larger facility.
The hours of work for employees are slightly different in the two facilities. Uniforms are worn by all nursing home employees and the registered nursing assistants in the rest home, while house mothers in the rest home wear street clothes. There are separate time sheets for the two homes although within the nursing home there are also separate time sheets for different groups of staff such as the dietary staff. Vacation requests, hiring, discipline, and staffing are dealt with by the Supervisor of the rest home and the Director of Care of the nursing home respectively for their own areas, sometimes in consultation with the Administrator.
Although there are separate policy manuals for the two areas, there are also separate policy manuals for different groups of staff within the nursing home. It also appears that in many instances the policies contained in the nursing home and rest home manuals are either identical or similar, including policies on resignations, staff meals, sick leave, holidays, probation periods, evaluations (although different forms are used), personal conduct, and so forth. Wages for the registered nursing assistants, the only common classification, are the same in both homes.
There is no exchange of employees between the two facilities in terms of replacing each other. However, the nursing home staff prepare and serve all meals in the rest home as well. A maintenance employee works throughout the establishment and the rest home staff do the laundry for both facilities. Since the rest home now includes two areas which are physically located at both ends of the nursing home, rest home employees must pass through the nursing home in the course of their work on a regular basis. In addition the registered nurses and nursing assistants in the nursing home are essentially "on call" for emergencies in the rest home.
When there are job openings in either facility, it appears that in the past, employees in the other area have been given the opportunity to apply for the vacancies, although not necessarily in preference to outside applicants. However, if they are chosen (as at least three have been), they will start at a higher pay rate than if they had been hired from outside the work place. The evidence was that the three employees who had moved from one facility to another had given verbal resignations to their supervisors before moving, although their original records including their original employment applications were simply transferred to the new area.
On the basis of the evidence before us, we are not persuaded that these employees have separate communities of interest. Although there are obvious differences in the nature of their work,they are all engaged in the general area of geriatric care and those differences are insignificant in terms of establishing a meaningful collective bargaining relationship. The unification of the administrative structure at a point so close to bargaining unit employees, the similarity of their working conditions and the interdependence of the two groups with respect to such integral aspects of their work as meals, laundry and nursing emergencies all point to shared interests in the context of collective bargaining.
However, this does not dispose of the matter before us. Although community of interest is an important and compelling factor in the Board's determination of the appropriate bargaining unit, it is not the only element the Board considers. Another significant factor is the structure of other collective bargaining relationships in the work place. The Board has consistently followed a policy of having bargaining units of part-time employees "mirror" the full-time units. (See Ottawa General Hospital [1983] OLRB Rep. March 434, Sudbury Memorial Hospital, [1982] OLRB Rep. Nov. 1722 and Belleville General Hospital, [1983] OLRB Rep. Jan. 7.) As the Board pointed out in Ottawa General Hospital:
The 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 potentia] 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.
- In Sudbury Memorial Hospital, the Board noted as follows:
The Board has, absent any unusual factors, generally followed a policy of having part-time units, organized at the same time or subsequent to the full-time units, mirror the full-time unit. No cases were cited to the Board where the Board has done otherwise...
In the instant case, the parties had agreed to separate bargaining units for full-time employees only a few months before this application and are currently in negotiations for those units. Under the circumstances, it was difficult for the applicant to argue that two bargaining units for the part-time employees would not be a viable collective bargaining structure and in fact, the applicant conceded that separate bargaining units would not be an unworkable arrangement. However, the applicant argued that the more inclusive bargaining unit it had proposed was a more appropriate unit and that the changes in the work place which had occurred since the full-time certificates were issued were such as to provide the reasons for making an exception to the Board's general "mirroring" policy.
For the most part, the changes referred to by the applicant tended to further support the proposition that there was a community of interest between the nursing home and rest home employees. However, on the whole, these changes were not significant enough to convince us to depart from the Board's usual practice in this matter.
The applicant also argued to the effect that since there were no longer any full-time employees left in the rest home bargaining unit, in reality there was only one functioning full-time bargaining unit, that is, in the nursing home. Consequently there should only be one bargaining unit covering part-time employees. Once again, we are not satisfied that this fact alone establishes a reason to disregard the Board's usual practice. The applicant still retains bargaining rights for full-time employees who may be hired in the rest home in the future. Moreover, even if we were to adopt the applicant's position, the result would still be mismatched bargaining units because the full-time bargaining unit would cover only the nursing home whereas the part-time bargaining unit would cover both homes.
While the Board's "mirroring" policy is not inflexible, in the circumstances of this case it is also supported by the notion that some stability in labour relations is desirable. To determine that one unit would be appropriate for part-time employees several months after the parties have agreed on two units for the full-time employees does not strike us as a course of action which would either facilitate organizing or contribute to effective labour relations.
The Board has been accorded a broad discretion under section 6 of the Act to shape bargaining units which are appropriate for collective bargaining in each case whether or not such a bargaining unit is the most appropriate. (See University of Windsor, [1983] OLRB Rep. Mar. 478.) In the circumstances of this case, having weighed all the factors, the Board's view is that there should be separate bargaining units for part-time employees in the nursing home and the rest home.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The Board further finds the following to constitute units of employees appropriate for collective bargaining:
(1)Bargaining Unit #1
All employees of the respondent in its nursing home at Harriston, Ontario, regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, save and except supervisors, persons above the rank of supervisor, registered and graduate nurses, office and clerical staff and persons for whom any trade union held bargaining rights as of May 27, 1986.
(2)Bargaining Unit #2
All employees of the respondent in its rest home at Harriston, Ontario, regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, save and except supervisors, persons above the rank of supervisor, registered and graduate nurses, office and clerical staff and persons for whom any trade union held bargaining rights as of May 27, 1986.
In accordance with the Rules of Practice respecting applications for certification, the respondent employer has filed a list of employees in each bargaining unit, together with specimen signatures for the employees on each list. Having regard to the lists filed by the employer, and the finding of the Board with respect to the bargaining unit descriptions, the Board is satisfied that there were 31 employees in bargaining unit #1, and 9 employees in bargaining unit #2 at the time the application was made.
In support of its application for certification, the applicant union filed documentary evidence of membership in the form of cards, which consist of combination applications for membership and receipts. The union filed 33 cards, 20 of which coincide with the names of employees in bargaining unit #1, and 6 of which coincide with the names of employees in bargaining unit #2. The membership cards are signed by the employees, and the receipts are countersigned and indicate that a payment of one dollar has been made within the six-month period immediately preceding the terminal date for this application. The money was collected by more than one person and the membership evidence is supported by a duly completed Form 9, Declaration Concerning Membership Documents.
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 each bargaining unit at the time the application was made were members of the applicant on June 11, 1986, 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.
Certificates will issue to the applicant with respect to bargaining unit #1 and bargaining unit #2.