[1986] OLRB Rep. January 176

2204-85-R Canadian Union of Public Employees, Applicant, v. The Toronto General Hospital, Respondent

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members F. C. Burnet and L. Collins.

APPEARANCES: Helen O'Regan, Lorenzo Roidi, Stephen D. Owens and Roman Schyngera for the applicant; Wallace Kenny, David Gibson and Elizabeth Ryan for the respondent.

DECISION OF THE BOARD; January 8, 1986

1. The name of the respondent is amended to "The Toronto General Hospital".

2. This is an application for certification.

3. The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.

4. Except with respect to the emphasized words, the parties agree that the following describes a unit of employees of the respondent appropriate for collective bargaining:

all employees of the respondent in the Municipality of Metropolitan Toronto regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except professional medical staff, graduate nursing staff, undergraduate nurses, registered nursing assistants, paramedical personnel, office and clerical staff, supervisor, foreman and assistant chief engineer.

Except for the substitution of the words "paramedical personnel" for the words "graduate pharmacists, undergraduate pharmacists, graduate dieticians, technical personnel, physiotherapists, occupational therapists", this description is a mirror image of the bargaining unit description in the parties' existing collective agreement covering full-time employees. For the purpose of clarity, the term 'paramedical' includes such classifications as occupational therapists, speech therapists, speech pathologists, physiotherapists, therapeutic and administrative dietitians, registered and non-registered pathological technologists, radiological technologists (radiography), radiological technologists (nuclear medicine), registered and non-registered respiratory technologists, registered and non-registered EEG, ECG and opthamology technicians, registered and non-registered ultrasound technologists, glaucoma technicians, ear-nose and throat technicians, cardiovascular technicians, electro-encephalographists, electrical shock therapists, laboratory technicians, laboratory assistants, electronic technicians, psychometrists, pharmacists, pharmacy technicians, psychologists, remedial gymnasts, medical records librarians, social workers, child care workers, nutritionists, dental health educators and bio-medical technicians. The Board notes the agreement of the parties that "paramedical personnel" also includes psychometry technicians, chiropodists, parental instructors, audiologists, research assistants, dental assistants, perfusionists, clinical instructors, medical photographers, technical assistants, entrostomol therapists, respiratory therapists, hyperbaric controllers, hyperbaric attendants and health records administrators.

5. When this application came on for hearing, the respondent took the position that "students employed during the school vacation period" do not share a sufficient community of interest with those whom the parties agree fall within the appropriate bargaining unit as to warrant their inclusion in that unit. If students do fall within the appropriate unit, the respondent took the position that the Board ought to direct a representation vote and defer taking that vote until the summer period when such students would be employed in substantial number by the respondent. The parties were unable to agree on the facts relevant to a determination of either of these issues.

6. Counsel for the respondent stated that it employs in excess of 4,000 persons. Between 700 and 800 of these are employed in the full-time "services" unit presently represented by the applicant. It employed 219 persons in the bargaining unit described above as of the application date. None of those is a student working during the school vacation period, although some may be students working part-time while they attend school. Counsel advised that if students working part-time during the school year remain at the hospital on a full-time basis during the school vacation period, these are treated as somehow falling into a special category covered by the collective agreement with respect to the full-time unit. Thus, the only "students employed during the school vacation period" who are unrepresented are those who are not otherwise employed by the respondent when the school vacation period begins. Counsel advised that between 150 and 200 such students have been employed each summer in the past, and the hospital expects to employ students in those numbers next summer. Historically, approximately 50% of those employed as students during the school vacation period are returnees from a prior summer. Students are employed during the period May through to the end of August; their numbers peak in July. They fill in in the classifications worked by employees in the full-time services unit; they report to the same supervisors and perform the normal duties of those classifications. They are not eligible for any of the benefits available to full-time employees, and receive lower wage rates than full-time employees.

7. The applicant challenges the number of students whom the respondent says can be expected to be employed (other than pursuant to the provisions of the agreement covering full-time services employees) during the school vacation period, saying it is significantly lower than 150. The parties were unable to agree on what linkages there were, if any, between the wages and benefits received by part-time workers and those received by students employed during the school vacation period. They were also unable to agree on the relationship between the matters referred to in the recital of facts of counsel for the respondent and certain grievances and settlement agreements which the applicant said had occurred under the collective agreement covering the full-time services unit with respect to the status of part-time workers and students.

8. In these circumstances, we invited counsel for the respondent to present his alternate argument: that, assuming that students fall within the unit applied for, the Board should direct a representation vote and defer the taking of that vote until the summer, when students will be employed. Apart from the assumption that students would be included in the bargaining unit, counsel was advised we would assume for the moment the truth of all the allegations of fact he had made. After hearing the submissions of counsel for the respondent with respect to this argument, we ruled orally as follows:

The respondent argues that inclusion in the unit sought by the applicant of students employed in the school vacation period is inappropriate. In the alternative, if students are to be included, counsel argues the Board should exercise its discretion to direct a vote and to defer conduct of that vote to the summer. If the appropriate bargaining unit includes students, then assuming, without deciding, that the facts on which counsel relies are all true, we would not exercise our discretion in the manner advocated by counsel for the respondent, on a "build-up" or analogous principle: see Filkon Food Services Limited, [1981] OLRB Rep. Dec. 1770 and 1771.

While the propriety of including students in the unit sought remains to be determined, it is apparent that the answer to that question cannot affect the applicant's right to certification. We therefore invite the parties' submissions on:

(a) whether the Board should grant interim certification for the otherwise agreed unit excluding, for the time being, students employed in the school vacation period and,

(b) the manner in which determination of the bargaining unit dispute should proceed.

Counsel for both parties agreed it would be appropriate to grant interim certification, having both been advised of the level of membership support shown by evidence before the Board. The Board is satisfied that, whether or not students employed during the school vacation period are included in the bargaining unit, more than fifty-five per cent of those employed on the application date in the bargaining unit described in paragraph 4 hereof were members of the applicant on December ii, 1985, the terminal date fixed for this application and the date which the Board determines under section 103(2)(j) of the Act to be the time for ascertaining membership under section 7(1) of the Act.

9. The Board hereby certifies the applicant pursuant to section 6(2) of the Act for all employees of the respondent in the bargaining unit described in paragraph 4 hereof excluding, pending final resolution of the composition of the bargaining unit, students employed during the school vacation period.

10. After reviewing with the parties the manner in which determination of this dispute about bargaining unit composition might proceed, the Board determined that it should give directions with respect to an exchange of "pleadings" and "productions" prior to a rescheduled hearing before a panel of the Board. The Board's directions in that regard were and are as follows:

(1) Each party shall deliver to the other and to the Board:

(a) a statement of the material facts on which it relies in connection with the matters in issue, set out in sufficient detail that the statement contains all that would be brought out in (and could, therefore, stand in place of) the expected evidence-in-chief of all of its witnesses at hearing;

(b) copies of all documents on which it relies, except:

(i) documents too voluminous or otherwise impractical to copy; and

(ii) documents not in its possession, custody or power.

(c) a list of all documents on which it relies which fall into either of the categories described in subparagraphs (i) and (ii) of paragraph (b) above, together with particulars of the place and reasonable times at which each document in the first category can be examined by the opposite party prior to hearing, and particulars of the person(s) in whose possession, custody or power the documents in the second category may be found.

(2) The respondent shall deliver its statement of material fact, list of documents and copies of documents to the Board and to the applicant on or before January 24, 1986.

(3) The applicant shall deliver its statement of material facts, list of documents and copies of documents, with respect both to the issues of fact raised by the respondent in its material and disputed by the applicant and with respect to additional issues of fact it proposes to raise, on or before February 7, 1986.

(4) If the respondent wishes to respond at hearing to issues of fact raised in material delivered by the applicant pursuant to paragraph (3), its supplementary statement of material fact, list of documents relied upon and copies of documents relied upon with respect to any such issues must be delivered to the applicant and the Board on or before February 21, 1986.

(5) All outstanding issues in this application shall be scheduled for hearing on the earliest available dates in March 1986, after consultation with the parties' representatives.

(6) Neither party shall adduce evidence of facts or documents not included or specifically referred to in materials exchanged in accordance with these directions, except with the consent of the Board and, if the Board deems it advisable to give such consent, it may do so on such terms and conditions as it considers advisable.

11. This panel is not seized with the issues outstanding. The matter is referred to the Registrar for relisting in accordance with paragraph (5) of the directions given orally December 21, 1985 and reproduced in the next preceding paragraph.