Ontario Nurses' Association v. Toronto General Hospital, 1986 CanLII 1535

Ontario Nurses' Association v. Toronto General Hospital

[1986] OLRB Rep. December 1855

3066-85-R Ontario Nurses' Association, Applicant, v. Toronto General Hospital, Respondent

BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members B. L. Armstrong and I. Stamp.

DECISION OF THE BOARD; December 15, 1986

I

1. This is an application for certification. When the matter initially came on for hearing the parties spent much of the day discussing outstanding issues with the assistance of a labour relations officer, and consequently the case never came back for a formal hearing before the Board. The parties agreed to make written submissions on the remaining issue in dispute between them.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3. For ease of reference, the applicant Ontario Nurses' Association will be referred to either as "ONA" or "the union" and the respondent will be referred to simply as "the employer" or "the Hospital".

4. The parties have agreed upon the description of the unit of employees appropriate for collective bargaining. That bargaining unit is framed as follows:

All registered and graduate nurses of the respondent in the Municipality of Metropolitan Toronto, regularly employed in a nursing capacity for not more than twenty-four (24) hours per week, save and except head nurses, head nurses/occupational health department, persons above the rank of head nurse, head nurse/occupational health department, staff development personnel, registered nursing assistants, non-registered nursing assistants, operating room technicians, and employees in bargaining units for which any trade union held bargaining rights as of March 18, 1986.

We should note that this particular bargaining unit (with exceptions not here material) could be described as the "standard part-time nurses' unit" - by which we mean that, over the years, parties have routinely agreed upon a unit framed in this way, and on applications for certification the Board has routinely found such units to be appropriate. They have therefore become an established component in the initial bargaining structure for public hospitals. This part-time unit mirrors and complements the standard description of a full-time nurses' unit.

5. The problem in this case is not the description of the bargaining unit. That is agreed upon and consistent with the Board's past decisions in the hospital industry. The question raised by the Hospital in this case concerns the composition of the bargaining unit on the date of the application and, in particular, how to treat a number of "casual relief nurses" who work on an irregular basis to fill in gaps in the Hospital's roster. The vast majority of these employees were not actually at work on the application date and, it would appear, that they benefit in varying degrees by the casual employment opportunities offered by the Hospital. According to the Hospital's submission, there is no guarantee that preferred shifts will be offered nor any guarantee that the Hospital will not cancel shifts scheduled where staffing changes are required due to patient work load (etc.). There is no obligation either way. The Hospital asserts that "the majority of nurses do not seek inclusion on a master schedule and, therefore, either wait for a call from the staffing office or call in and indicate availability in a given week".

6. The Hospital contends that these nurses working on a part-time casual/call-in basis should be treated as part of the part-time bargaining unit, so long as they have indicated their willingness to work on a part-time basis and have proven their availability to work, by actually working within the twelve-month period immediately preceding the application. In the Hospital's submission, that is the group within which the union must seek majority support if it is to establish its right to certification. In support of that proposition the Hospital relies upon the decision of the Board in Board of Education for the City of York, [1985] OLRB Rep. May 767. That case involved "supply teachers" who fill in on a part-time, sporadic, or "as needed" basis when regular classroom teachers are not available. The Hospital contends that the approach in the York case is applicable here, because the nurses "on call" have a similar casual employment relationship with the respondent hospital.

7. We shall have more to say about that later. First we should say something about the so-called "30/30 rule" which ONA urges us to apply and the Hospital argues should not be applied in this case. That was the focus of their dispute and their written submissions.

II

8. Section 7 of the Act requires the Board to "ascertain the number of employees in the bargaining unit at the time the application is made"; however, there are no legislated criteria to guide the Board in this task. The determination as to whether a person is or is not to be treated as an employee in the bargaining unit on the application date is left to the Board to decide, and of course, there is really no difficulty in respect of those individuals who are both employed and actually working on the application date. The problem arises in the case of persons who might have some claim to employment status for certification or collective bargaining purposes, but who were not actively at work on the application date and may not even be scheduled to return to work for some time thereafter. Persons on sick leave, maternity leave, long-term disability, Workers' Compensation or layoff may fall into this category. So could persons employed on an irregular or contingent basis by a firm whose employee needs fluctuate from day to day. In the case of a bargaining unit of part-time employees there is the related question of how one determines whether someone should be classified as "part-time" - bearing in mind that an individual's work hours may fluctuate depending upon the season, the market, or the employer's particular needs.

9. To cope with these practical problems, the Board has, over the years, developed a number of "rules" or "standardized approaches" concerning the way in which it should go about its task of ascertaining the number of employees in the bargaining unit on the application date. For example, to distinguish between full-time and part-time employees, the Board typically looks to the individual's work record in the seven weeks immediately preceding the application date. If during four of those weeks, s/he worked less than twenty-four hours per week, s/he will be considered part of the part-time bargaining unit even if in the week of the application s/he may have worked more than twenty-four hours (see: Trenton Memorial Hospital, [1980] OLRB Rep. Jan. 116). Similarly, in the construction industry where employment is typically transitory, so that workers are "here today and gone tomorrow", the Board has determined that the employee complement, for certification purposes, should consist only of those individuals actually at work on the application date - fully realizing that this number may well be different the day before, or the day after. For example, if the application date is a rainy day, the union may even find that its members are not at work so that the application must be dismissed. This particular "rule of thumb" has been accepted and applied by unions and employers in the construction industry for thirty years - and for very practical reasons: anything else would lead to costly and time consuming litigation on every certification application, causing delay which would severely prejudice the establishment of bargaining rights purportedly guaranteed by the statute. (See the discussion in Smiths Construction Company, [1984] OLRB Rep. March 521.)

10. In most non-construction situations, the Board has been disposed to apply what has now come to be known, colloquially, as its "30/30-day rule" in order to decide how many persons should be considered "employees in the bargaining unit at the time the application is made". Persons not actually at work on the application date will ordinarily be included in a bargaining unit for the purposes of the count if they meet the "test" which was summarized in the York decision as follows:

11. In order to meet the requirements of the 30/30-day rule, an employee not actually at work on the application date must have worked at some time in the 30-day period immediately preceding the application and work, or be expected to return to work at some time in the 30-day period immediately after the application date. Of course, like all rules, this one could be considered somewhat arbitrary; however, the fact is that it has withstood the test of time (at least 30 years), and without it or some similar arbitrary rule, it would be impossible to expeditiously process the hundreds of certification applications which come before the Board every year. The 30/30 rule has been regularly and routinely applied in a variety of industrial contexts to the obvious advantage of parties who must make or respond to certification applications. No rule is written in stone; but there is a substantial onus upon any party seeking to persuade the Board to depart from this well-established, useful, and well-accepted practice. That is what the respondent and OPSEU urge the Board to do in the instant case.

In this regard, the Board was merely restating the views expressed earlier in Board of Education for the City of Toronto, [1983] OLRB Rep. Feb. 273, where the Board had this to say:

24. Thus, to be included as an employee in the bargaining unit for the purposes of the count, a person who was not at work on the date of the application must generally have been at work at some time during the one month period prior to the application date and have returned to work (or have been expected to return to work) within the one month period following the application date. (See also Brewers Nursing Home, [19811 OLRB Rep. July 852; Irwin Toy Limited, [1970] OLRB Rep. Dec. 912; Keynorth Limited, 11970] OLRB Rep. July 477; Mobile Cartage and Distributors Ltd., [1968] OLRB Rep. Nov. 814; and West Elgin District High School Board, [19681 OLRB Rep. July 379.) This longstanding practice of the Board enables the parties to ascertain in advance of the hearing the persons who will be included for purposes of the count (see Sydenham District Hospital, 11967] OLRB Rep. May 135). A further reason for the existence of the practice is that it tends to exclude from the count persons who have not been at work during the trade union's organizing campaign and have not had an opportunity to express their support for or opposition to the trade union (see Bertrand & Frere Construction Co. Limited, [1965] OLRB Rep. July 292). See also Sherman Sand and Gravel Ltd., [19781 OLRB Rep. May 460....

25. Board practices such as the seven week rule (described in Westgate Nursing Home Inc., [1981] OLRB Rep. April S03), and the thirty day rule described above, are guidelines, not hard and fast rules. However, since such guidelines are known, accepted and relied on by unions and employers alike, there is a substantial onus on any part requesting the Board to depart from such practices (see Trenton Memorial Hospital, [19801 OLRB Rep. Jan. 116, and Sherman Sand and Gravel Ltd., supra). In the circumstances of the instant case, the Board does not find it appropriate to depart from its normal practice of applying the thirty day rule....

26. We should also note that the Sydenham District Hospital case, mentioned above, involved a part-time bargaining unit in a hospital setting where the Board affirmed the 30/30 rule and applied it to part-time employees, noting that "this practice has been one of longstanding with the Board and was determined in order that the parties would be able to ascertain, in advance of a hearing which were [sic] dealt with by the Board in the Application". Indeed, apart from the York case or other cases involving occasional teachers, there are very few situations in which the Board has not followed its established practice. Counsel for the Hospital, in his submissions, does not point to a single instance, where the Board has applied his proposed "test" for the composition of a hospital or industrial bargaining unit. In contrast, the union points out that, for many years, in many sectors, organizing has been undertaken and certification applications processed in accordance with the Board's established practice. Hospitals have never been regarded as an exception. On the contrary, the Board has routinely applied the 30/30 rule.

27. In setting out what the parties and the Board refer to as the "30/30 rule", we have not ignored the fact that this guideline is a procedural construct, arising from the Board's own experience, and adopted in certification proceedings to facilitate the process and give some predictability to resolving the list of employees in full-time and pan-time bargaining units. By adopting this practice the Board has sought to make it easier for the parties appearing before it to come to their own agreement on the status of employees, and for employees and their unions to gear their organizing campaigns accordingly. These guidelines cannot, of course, be applied in an arbitrary way without regard to the case before the Board; and, it is recognized that one could plausibly draw the line in other ways, or try to fashion, in each case, individualized criteria which would most perfectly meet the particular circumstances under review. Every case could be viewed as a novel situation with the Board reviewing the circumstances of each employee, one by one, to determine whether s/he had sufficient connection to the work place, for collective bargaining purposes, to warrant inclusion in the bargaining unit. That approach might even generate, in particular cases, a "more perfectly representative" grouping of workers - at a cost, perhaps, of undermining the certification process itself, which would quickly become bogged down in litigation over the precise composition of the bargaining unit. With certification applications now numbering over a thousand each year, there is an obvious need for procedural certainty and predictability, in order to serve the expectations of the labour relations community and process certification applications in accordance with the spirit of the Act which is expressed in its Preamble:

WHEREAS it is in the public interest of the Province of Ontario to further harmonious relations between the employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees.

13. That is why the Board has always held that there is a substantial onus on any party requesting that the Board depart from established approaches which are known, accepted, and relied upon by unions and employers alike. Over the years, the Board has come to the view that the tug towards adjudicative perfection in particular cases must give way to administrative reality and the need for guidelines which will lead, in most cases, to established and predictable results without protracted litigation. The "30/30 rule" is such a guideline which is rooted in the Board's experience and (apart from the present case) has gained substantial acceptability in the labour relations community - even in situations involving public hospitals. lt is no accident that (except for occasional teachers) the respondent's submissions do not identify a single case in which, for the purposes of the count, the Board has departed from this approach whether in a hospital setting or otherwise. The fact that casual employees may have certain rights under negotiated collective agreements or the Board may take a more expansive approach in respect of persons not scheduled to be at work on the date a representation vote is ordered, does not alter that reality. Even Hurdman Brothers Limited, [1983] OLRB Rep. Feb. 238, referred to by the employer, does not deal with the position of casual part-timers.

14. The York case dealt with "occasional teachers" and declined to apply the "30/30 rule" in that context - thereby departing from the decision of an earlier panel of the Board in somewhat similar circumstances (see Board of Education for the City of Toronto, [1983] OLRB Rep. Feb. 273). In York, the Board decided that for the purposes of determining the count in certification applications involving "occasional teachers", the Board would treat as "employees" all occasional teachers who were on the employer's "call-in list" and had worked for at least one day in the year preceding the application - even though it was abundantly clear that many of those individuals probably would not be considered as "employees" at common law. They were, at best, prospective or potential employees and would not actually be employees in any accepted legal sense except when they were actually working. The fact that the Board did depart from its established practice in York despite an earlier precedent on point, underlines the fact that the 30/30 rule is not written in stone.

15. However, the situation in York is clearly distinguishable from the one currently before us in this case. In the first place, we should note that none of the parties in York suggested the application of the 30/30 rule. They all proposed (different) variations. They all rejected commonlaw tests and admitted that the Board should take into account for certification purposes individuals who would probably not be employees at common law. They urged the Board to adopt a test which makes labour relations sense in an anomalous situation. Whether the Board has done so remains a matter of debate.

16. In York there was not just a fluctuating and often unpredictable complement of casual employees. There was no "core group" of regular employees either (see paragraph 57 of York), and the "occasional teachers" could not even readily associate for collective bargaining purposes with their professional peers whom they replaced because these permanent "contract" teachers are regulated by a different collective bargaining statute - "Bill 100": The School Boards and Teachers Collective Bargaining Act (1975). Because "occasional teachers" are excluded from Bill 100, they fall, by default, under the Labour Relations Act. Thus, in York the Board was called upon to consider a bargaining unit which would consist solely of casual workers whose employment pattern would necessarily be erratic. Under ordinary circumstances the Board would never consider or accept a bargaining unit of that kind. It would not be appropriate. It was only in this special context that the Board was moved (with some reluctance given the earlier City of Toronto decision) to depart from its usual approach based upon the 30/30 rule. The Board said:

We could adhere to the 30/30 rule, adopt one of the propositions urged upon us by the parties, or apply some other approach which accommodates the competing interests at issue. Any approach will necessarily be arbitrary and will entail some difficulties. However, even in this anomalous situation, we are persuaded that there must be a bright line test, or the rights of occasional teachers in this and other applications will be lost in a sea of litigation. The parties recognize the need for a uniform and standard approach. That is why they agree that this should be a test case. They disagree as to what the rule should be.. .There is something to be said for the proposition that, at some point during the school year, it may be possible to identify the core group of occasional teachers who will have a proven attachment to a particular school or board of education. But we are not disposed to engage in an arithmetic or statistical exercise. The situation is complicated enough already without considering, on a case-by-case basis, the precise point when the utilization of particular occasionals will be sufficiently frequent to generate a coherent and identifiable group.

Thus even in this anomalous situation, the Board recognized the need for a "bright line test" to give certainty and stability to the administration process; moreover, the Board was careful to underline the fact that the situation in York was exceptional:

Needless to say, this special approach has been adopted to meet the unusual circumstances of occasional teachers, and should not be construed as a signal that the Board will depart from its established practice in other contexts.

17. No approach adopted by the Board could ever achieve perfect decimal point democracy, or command the unqualified acceptance of partisans in particular cases; for the fact is, that the broader the bargaining unit constituency, the more difficult it will be to organize (particularly where the union has no right to know in advance who the employees are, and no protected right to organize on the employer's premises). Any proposition which expands the scope of the bargaining unit or renders its composition uncertain, will raise a barrier to the employees' right of self organization. On the other hand, the more narrow and certain the employee constituency, the easier it will be for them to identify their collective interests and establish a majority for collective bargaining purposes. Moreover, from an administrative point of view, if the composition of the bargaining unit is difficult to define in advance, or is open to debate on a case-by-case basis, with attendant delays, the right of self-organization may be undermined from a practical point of view by employee turnover or because the employees' initial appetite for collective bargaining has been frustrated by the delays in the certification process itself. Employees typically opt for collective bargaining because they believe it will improve their lot. If it takes too long to establish even their right to begin the bargaining process, their support may wane. As Laskin J.A. observed in Nick Masney Hotels Ltd. 70 CLLC ¶14,020:

"The Ontario Labour Relations Board deals in certification matters with fluid situations which cannot be judged by the more leisurely standards that operate in the prosecution of a claim for damages for a tort or a breach of contract where the situation is fairly well frozen when the tortor breach of contract occurred. Expedition is important to a union, to employees and to an employer since the certification is merely the first step in an often laborious collective bargaining process".

Estey C.J.O. later put it this way:

"the overriding principle invariably applied is that labour relations delayed, are labour relations defeated and denied".

18. It is these considerations which have prompted the Board to adhere, fairly rigidly, to its 30/30 rule as a means to accommodate the parties' competing tactical interests, recognize the potential interests of individuals not actually at work on the day the application was made, avoid litigation or gerrymandering and inject some certainty and predictability into the certification process. That "rule" has been routinely applied for decades, has gained general acceptability in the labour relations community, enables parties (and their counsel) to deal with certification applications in an orderly and expeditious way and, in our view, generally promotes the underlying objectives of the statute. Even in the hospital industry, where there has been extensive organizing over the last 20 years, we are not aware of any case in which the 30/30 rule has been abandoned or any practical problem which has been raised or has arisen as a result of its application. The fact is: it seems to work; and were it not for the York decision (which for the reasons set out above is distinguishable), counsel for the employer would be able to find little authority for treating this Hospital differently from other hospitals, nursing homes, or other employers which engage casual employees, and where the 30/30 rule has nevertheless been applied. Despite the thorough and thoughtful arguments of counsel for the employer, we are satisfied that we should apply it here. We are not persuaded that the circumstances here warrant any departure from the Board's established approach.

19. Having regard to the foregoing, the Board is satisfied on the basis of all of the evidence before it, that more than fifty-five per cent of the employees of the respondent in the bargaining unit set out above, at the time the application as made, were members of the applicant on March 25, 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 Act.

20. A certificate will issue to the applicant.