Canadian Union of Public Employees v. The Toronto General Hospital
[1986] OLRB Rep. April 566
2204-85-R Canadian Union of Public Employees, Applicant, v. The Toronto General Hospital, Respondent, v. Ontario Public Service Employees Union, Intervener
BEFORE: Paula Knopf, Vice-Chairman, and Board Members W. H. Wightinan and L. Lenkinski.
APPEARANCES: C. M. Mitchell, C. Wilkey and H. 0 'Regan for the applicant; Wallace M. Kenny, J. Rundle, 0. Gibson and H. Schoonover for the respondent; no one appearing for the intervener.
DECISION OF PAULA KNOPF, VICE-CHAIRMAN, AND BOARD MEMBER L. LENKINSKI; April 10, 1986
1This is an application for certification.
2The parties first came before a differently constituted panel of this Board which certified the applicant under section 6(2) of the Labour Relations Act on January 8, 1986 for the following bargaining unit, pending final resolution of the composition of the bargaining unit:
all employees of the respondent in the Municipality of Metropolitan Toronto regularly employed for not more than twenty-four (24) hours per week, 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.
The interim certification left pending for final resolution the issue of whether students employed during the school vacation period ought also to be included in the bargaining unit. The applicant seeks their inclusion while the respondent submits that they ought to be excluded.
3To facilitate the resolution of the question of the composition of the bargaining unit, the previous panel directed the parties to exchange "pleadings" and "productions" prior to the resumption of the hearing. In accordance with this direction, the parties exchanged statements of material facts and documentation in support of their positions. As a result of this exchange and the co-operation of counsel for the parties, the Board was presented with an agreed statement of the facts of the case. The professionalism and the competence of counsel in their preparation and presentation of the case were of great assistance to the Board in expediting the hearing process and focusing the issues of the case. The agreed facts are set out below.
4The Hospital has a history of employing students during the school vacation period on job classifications which fall within the full-time bargaining unit represented by CUPE Local 2001. The part-time bargaining unit, now represented by CUPE, mirrors the classifications which are found in the full-time collective agreement.
5While the parties are not in agreement over the exact figures which were supplied and relied upon by the Hospital, the Union takes the position that the following figures are not relevant to the substantive issues and thus has refrained from entering into a challenge of their accuracy. The figures presented were that in 1985, a number of students (approximately 143) were hired for the summer for job classifications which fall within the CUPE Local 2000 full-time bargaining unit. A number of these students (approximately 64) were returning from the previous year. An indeterminate number of those students had been employed by the Hospital for three or more summers previously.
6In 1984, approximately 153 students were hired to work during the school vacation period in CUPE job categories. Approximately 42 of those students were returning for a second year. Approximately 53 of these students had been employed during the summer months by the Hospital for at least two previous summers.
7In 1983, approximately 179 students were employed during the school vacation period in CUPE job categories. Approximately 41 of those were returning for a second summer and approximately 46 had been employed by the Hospital for at least two previous summers.
8In 1982, approximately 164 students were employed during the school vacation period.
9Students hired during the summer to relieve are paid lower wages than those who regularly perform the jobs. Part-time employees employed in CUPE job categories are paid at the same rates negotiated between the Hospital and the Union for full-time employees in the appropriate job categories and their movement through the wage grids is consistent with the terms negotiated for full-time employees. But the students relieving in these jobs had, previous to the summer of 1985, been hired at 75% of the regular base wage rates paid to full-time or part-time employees in the appropriate job category. Returning students employed the previous summer would be employed at 85% of the base wage rate for the appropriate job category. If returning for three or more years, the students were paid at 95% of the base wage rate for the appropriate job category.
10In the summer of 1985, all students hired were paid at 75% of the base wage rate for the appropriate category and the 10% increase in the second and third summer of such employment was discontinued. Persons rehired who had already received the 10% increase in previous years had their wage rate red-circled.
11At all material times, students have been receiving the same benefits as the part-time unit of employees.
12Regular part-time Hospital employees who are called upon to perform summer relief in their job classification are paid at their regular rate of pay and are not reduced to the appropriate summer student rates.
13The Hospital admits that departments prefer to use students to fill in for relief purposes during the summer months, instead of regular part-time employees, due to the lower costs and minimal disruption to established schedules.
14Some regular part-time employees who work throughout the year are students. In 1985, approximately 10% or more of the students who had been categorized as summer relief were then considered regular part-time employees for the course of the year. Summer students who are not terminated at the end of the summer are transferred to temporary, part-time or full-time status and from that point onward are not considered or treated as summer students.
15There are a number of collective agreements in the hospital sector which exclude summer students from service-related bargaining units. But clearly the vast majority of collective agreements in the hospital sector do include part-time employees and students employed during the school vacation period together. A series of representative collective agreements were filed with the Board as examples of each type of agreement. To the parties' and this panel's knowledge, there is no separate unit in existence in the province which consists solely of students employed during the school vacation period in the hospital sector.
The Positions of the Parties
16Counsel for the Hospital conceded that the Board has established a general practice of including students employed during the school vacations together with part-time employees in one bargaining unit. However, counsel argued that the Inter-city Bandag (Ontario) Limited case, [1980] OLRB Rep. March 324, contains a recognition that the parties can agree to exclude the students from a part-time unit and thereby create an appropriate unit for collective bargaining. It was submitted that the Board ought not to fetter its discretion by refusing to consider the appropriateness of a unit of part-time employees without the summer students in the absence of an agreement of the parties.
17Counsel for the Hospital further argued that the Board's concern over excluding summer students from a part-time unit is a result of a concern over fragmentation and preventing the students from forming a viable unit on their own. However, it was submitted that since approximately 150 students are hired per year into the Hospital, this creates a large enough group to create a viable entity to represent the interests of the group at the bargaining table. Further, it was argued that the preamble of the Labour Relations Act and section 3 stand for the principle that representation of employees should be performed by an agent which is "freely designated" by the party. In this situation, counsel for the Hospital pointed out that, given the time of the application, none of the students who were employed during the school vacation were present to indicate what their free choice would have been with regard to the certification of the Union. This was said to constitute a "disenfranchisement" of those employees which ought to be considered in an analysis of what would create an appropriate unit.
18Counsel for the Hospital further argued that the existence of a number of collective agreements in the hospital sector which exclude students from the part-time units indicates a recognition that the interests of students and part-time employees may not coincide. It was said that there are different interests between the part-timers and the students because the students are concerned only with an accumulation of the maximum amount of money to further their education. On the other hand, the part-timers would be more concerned with work schedules and working conditions. Similarly, it was said that conflicts could arise between part-time employees who may want a smaller number of hours where students would want a maximum number of hours per week. It was also argued that there would be conflicts between the part-timers and the students with regard to the accumulation of seniority because students would never be able to accumulate the kind of seniority that could compete with part-timers with regard to promotion, layoff or long-term benefits. It was also argued that there could be competition between part-time employees and students with regard to the same jobs for relief during the summer period. Thus, it was argued that the students would be better off bargaining as a separate bargaining unit. Finally, counsel for the Hospital argued that, given the nature of the health care sector and the fact that there can be no strikes or lockouts, the Board ought not to be concerned about the viability of a bargaining unit because the unit has recourse to resolution of bargaining issues through arbitration.
19In support of its submissions, counsel for the Hospital relied on the following cases in addition to the one quoted above: Pluminer Memorial Hospital, [1979] OLRB Rep. May 433, and Toronto Airport Hilton, [1980] OLRB Rep. Sept. 1330.
20Counsel for the Union submitted that the Hospital's argument runs against the clear line of authorities of the Board which express concern about the viability of separating summer students from part-time employees. It was pointed out that the practice of including the two groups together has been recently commented upon with favour by the Board in Elizabeth Fry Society of Ottawa, [1985] OLRB Rep. July 1026. It was argued that the Hospital has not shown any compelling evidence to deviate from the established practice.
21With regard to viability, it was submitted by counsel for the Union that the viability of a bargaining unit is not a matter of size but rather a matter of whether the students have a strong enough attachment to employment, given the short duration of the summer period, to establish a viable bargaining unit. Further, it was submitted that there was no evidence before the Board to establish that the part-time and summer students could not create a viable bargaining unit together or that there was any real evidence of conflict of interest between the groups. Even if there were internal conflicts, it was said that it is common for there to be different interests within a bargaining unit and that the Union's responsibility under section 68 of the Labour Relations Act to properly represent all employees could well deal with such conflicts. On the other hand, counsel for the Union argued that because there is a fifty per cent turnover in the number of summer students each year, the group constitutes a "very tenuous" group of employees that would not have effective access to collective bargaining if it was severed from the part-time unit. The fact that these employees are denied the right to strike or lockout but given access to arbitration to resolve bargaining unit issues was submitted to be an irrelevant consideration in the question of viability.
22Finally, counsel for the Union cited two recent authorities of the Board in support of the appropriateness of grouping the two sets of employees together. Westhurne Industrial Enterprises Ltd., [1985] OLRB Rep. Jan. 130 and Temspec Inc., [1985] OLRB Rep. May 756. Finally, St. Raphael's Nursing Home, [1977] OLRB Rep. Sept. 580 was said to stand for the proposition that part-time employees and students share a community of interest and that no evidence before this Board should compel a finding that the students employed at this hospital during the school vacations do not share a similar community of interest with the part-time employees represented by CUPE.
The Decision
23It is clear that the Board has an established practice of grouping part-time employees together with students employed during the school vacation period in the same bargaining unit. The practice was first clearly enunciated in the Plummer Memorial Hospital case, [1979] OLRB Rep. May 433 where the Board said:
... Where students employed during the school vacation period are excluded from a bargaining unit of full-time employees and an application for part-time employees is filed it is the practice of the Board to include both the part-time employees and the students employed during the school vacation period in the bargaining unit. The Board's practice is predicated upon its belief that students employed during the school vacation period could not form a viable bargaining unit standing alone and even if they could, the result would be to create an unduly fragmented situation. While the Board is receptive to agreements of the parties in respect of bargaining unit descriptions it will not accede to these arrangements where the result is to do violence to its policies. The Board is of the view that the agreement of the parties in this case to exclude students employed during the school vacation period from a unit of part-time employees would do fundamental violence to the policy of the Board in this regard...
Thus, even in the face of an agreement by the parties, the Board was reluctant to sever the two groups.
24The position taken in the Plummer Memorial Hospital case, supra was relaxed somewhat in Inter-City Bandag (Ontario) Limited, supra, where the parties agreed to have separate units of summer students and part-time employees and the Board asked itself whether it could endorse such agreement. The Board concluded at paragraph 9:
It must be recalled that Plummer dealt with a part-time application. As can be seen, however, the Board's concerns expressed in Plummer over the availability for students of a viable bargaining structure (as well as the potential for fragmentation)~ have led the Board in subsequent instances to exclude from a full-time bargaining-unit description a non-existent category, i.e. part-time employees, contrary to its normal aversion to such a practice, and even to the agreement of the parties. Accordingly, the Board is of the view that its tandem principle relating to part-time employees and students ought to be less rigidly applied, and will do so both in dealing with full-time and with part-time applications. Where the parties are able to agree on the part-time/student question, whether it be to combine or sever the two groups (and whatever the employment history may be), the Board will, in the absence of special circumstances, accept that agreement.
But having reached that conclusion, the Board gave further advice and direction to the parties at paragraphs 10 and 11:
Where there is a history of hiring only one or the other of the two groups, the Board will tend, in the absence of agreement by the parties, to exclude the "existent", but not the "non-existent" group from a full-time unit. Where, however, a full-time unit excludes part-time employees and students, and an application is made for the part-time unit, the Board (again in the absence of agreement by the parties) will tend to keep the two categories combined, even though only one "exists", in order to avoid undue fragmentation.
Similarly, where both groups exist and there is no agreement between the parties, the Board will likely treat the two groups in tandem, having regard to the community of interest which often exists between the two, as well as the usual concern over fragmentation.
In the present case, therefore, the Board has no difficulty accepting the bargaining unit agreed upon by the parties to this application.
Thus, absent special circumstances, the Board will accept the agreement of the parties to sever the two groups. But, similarly, absent special circumstances, where there is a conflict, the
Board will include the two groups in one bargaining unit in order to avoid undue fragmentation and having regard to a perception that the two groups share a community of interest.
25This policy has recently been affirmed by the Board in Elizabeth Fry Society of Ottawa, supra at paragraph at 24 where the Board concluded:
... Balancing concerns about fragmentation with those of community of interest, the Board, early in its history, decided that the standard "part-time" bargaining unit should consist of not only part-time employees, but also students employed during the school vacation period. The Board has sometimes deviated from that approach to accommodate the agreement of the parties in particular cases, but in general "part-timers" and "students" have been grouped together. And whatever the merits or origins of this practice, it is now well rooted in collective bargaining practice and much too late to suggest that this way of describing a bargaining unit is "inappropriate" - at least in the absence of compelling evidence to the contrary.
26Similarly, the Board has recently affirmed that the "students" and "part-timers" share a community of interest in Westburne Industrial Enterprises Ltd., supra. Dealing with the question of the appropriateness of including the two groups, the Board concluded:
... There is nothing in the status of "student employed during the school vacation period" which precludes a part-time employment relationship during the school year. Indeed, such a combination is not unusual and, further, supports the Board practice of placing "students employed during the school vacation period" in a standard bargaining unit with "part-time employees
27Having reviewed the Board's established policy and its recent reaffirmation of such policy, we must also say that we are in full agreement with counsel for the Hospital that such practices and policies must always be open to challenge and be capable of being examined fully in the light of each case and each new set of facts that are presented. Otherwise, the Board would be seen to be fettering its discretion and failing to exercise its jurisdiction to determine the appropriate bargaining unit in cases such as this. Thus, we have accepted the Hospital's invitation to scrutinize the established policy of including summer students with part-time employees in one bargaining unit and have considered whether such a policy and practice should apply to this application.
28In the case at hand, we have a proposed bargaining unit that would include summer students with part-time employees. The facts establish that, like in the Westburne case, the summer students can often have their status changed to part-time if their employment relationship continues after the school vacation period. Further, the two groups share the same benefits. On the other hand, it may well be imagined that there could be differing objectives in the collective bargaining process between the summer students and the part-timers, but that is only a matter of speculation at this stage. There is no evidence that any actual conflicts or differences exist. Further, no evidence suggests that the two groups would be in a position of irreconcilable conflict in this particular hospital. There is no evidence before us that convinces us that the Union's statutory duty to represent the two groups could not be properly carried out.
29Further, we are not convinced that the summer students could be considered as a viable unit for collective bargaining on their own. While their numbers are unusually large compared to other sectors of employees, the numbers alone are not sufficient to create an effective voice at the bargaining table. Even given the high rate of return of students in subsequent summers, unless they are lucky or persuasive enough to negotiate their agreements during the course of the summer, it would be unrealistic to expect the unit to be available to instruct, negotiate or ratify terms of a collective agreement after the summer is concluded. This would put an unwarranted and inviable strain upon negotiations themselves and indicates the inappropriateness of such a unit in circumstances such as this.
30For all these reasons, we have concluded that in this particular case, an appropriate unit for collective bargaining at the Toronto General Hospital would be a part-time unit represented by the Union which includes students employed during the school vacation period. Thus, the Board will issue a certificate to the applicant for the following unit of employees:
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.
For the purposes 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 EEC, ECG and ophthalmology technicians, registered and non-registered ultrasound technologists, glaucoma technicians, ear, nose and throat technicians, cardiovascular technicians, electroencephalographists, 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.
31A formal certificate will now issue to the applicant.
DECISION OF BOARD MEMBER W. H. WIGHTMAN;
As argued by counsel for the respondent, and accepted by the majority of this panel, it is critical to the policy objective of "harmonious relations between employers and employees", as articulated in the preamble to the Labour Relations Act, that the Board not fetter its discretionary authority by applying its standard practices without regard for the merits of each case or without regard for the labour relations implications of the differences between the Hospital sector (publicly funded and subject to compulsory interest arbitration), and the construction industry, (frequent changes in the work sites and employers) and secondary manufacturing (for which, in large part, the scheme of the Labour Relations Act was designed).
Indeed, in some instances, such as police work, firefighting and the public service, a recognition of the importance of the differences has prompted the Legislature to devise totally separate labour legislation for each activity or sector.
I find two branches of the argument advanced by counsel to be most persuasive, the first of which relates to the question of community of interest.
While we know that a percentage of the students employed during the 1985 vacation period subsequently became temporary, part-time or full-time employees of the Hospital, we do not know what percentage this represents of the total complement of part-time employees. Whatever the numbers of part-time employees who are not perchance students, I am inclined to accept that their interests are more likely to focus on work schedules which accommodate to other employment or to family circumstances~ positioning themselves in line for appointment to full-time employment, or welfare and other fringe benefits.
By contrast the students employed during the school vacation period, while in some instances gaining value from the work experience, without exception would view work, however informative, as a means to an end of maximizing income in anticipation of the costs of schooling for the ensuing academic term. For these people any "benefit", whether in the form of welfare insurance or union membership, which serves to reduce take-home pay would be viewed in a negative light and hence in conflict with the aspirations of the part-timers.
This leads to the second branch of counsel's argument to wit: that the timing of this application effectively denies these prospective constituents of the bargaining unit sought by the applicant union any say as to whether they shall be represented by this or any other applicant.
We have evidence of several years' history of 150 or more students having been hired each summer. This very substantial accretion to the bargaining unit, which the majority find to have sufficient community of interest for collective bargaining, would seem to me grounds for deferring the decision until such time as their wishes could be given consideration. Failure to do so strikes me as a denial of natural justice and of the express guarantee that an agent will be "freely designated" by a majority of those it seeks to represent.
I am more inclined however to adopt the argument by counsel for the Union that student employees lack "a strong enough attachment to employment, or a labour union (my words), given the short duration of the summer period to establish a viable bargaining." (See paragraph 21 of the majority decision.) Indeed, the employment relationship is so transitory as to lead me to believe that the students would have no interest in establishing a bargaining unit, viable or otherwise.
Accordingly, as between a decision requiring the Union to apply for a unit inclusive of part-timers and students at a time when the bulk of the summer hirings had taken place or, if the membership evidence is sufficient, to order the deferral of a certification vote until such a time (precedent for which is to be found in unreported decision in Board File No. 1 150-82-R, Brenning Construction Limited), and a decision to treat the two groups as separate units, I would have preferred the latter and I would have so found.