Christian Labour Association of Canada v. King Nursing Home Ltd., 1987 CanLII 3102

Ontario Labour Relations Board

[1987] OLRB Rep. October 1257

0212-87-R Christian Labour Association of Canada, Applicant v. King Nursing Home Ltd., Respondent

BEFORE: Robert J. Herman, Vice-Chair, and Board Members B. L. Armstrong and J. A. Rundle.

APPEARANCES: Hank Kuntz, Ed Pypkar and Maynard Wilvoet for the applicant; T. F. Stone, Janice King and Mrs. King for the respondent.

DECISION OF ROBERT J. HERMAN, VICE-CHAIR AND BOARD MEMBER B. L. ARMSTRONG; October 7, 1987

1. In a prior decision dated June 22, 1987, the Board, pursuant to its discretion under sec­tion 6(2) of the Act, certified the applicant on an interim basis as bargaining agent for two bargain­ing units of the respondent.

2. The parties were in partial agreement with respect to the description of the appropriate bargaining units. They disagreed as to whether graduate and registered nurses ought to be includ­ed. The applicant submitted that graduate and registered nurses ought to be included on com­munity of interest grounds. The respondent submitted they ought to be excluded on the same grounds.

3. As part of our prior decision, the Board invited written submissions with respect to this issue. Both parties availed themselves of this opportunity. Although notice of the application was posted in the workplace, advising employees that the applicant was seeking an "all employee" bar­gaining unit (including the graduate and registered nurses of the respondent), no employee filed written representations or appeared at the hearing in order to address this issue. None of the nurses asserts that s/he should be excluded from the applicant's proposed bargaining unit.

4. The sole issue remaining for the Board, then, is whether to include the graduate and registered nurses in the applicable bargaining units. We can succinctly set out the position of the respondent by quoting an excerpt from the written representations it addressed to the Board:

'The Respondent takes the position that graduate and registered nurses should not form part of an 'all employee' unit for a number of reasons. Without reiterating submissions made to the Board, they include a community of interest and the Board's consistent practice, particularly in the health care sector, in certifying graduate and registered nurses in separate bargaining units in accordance with its mandate under Section 6(1) of the Ontario Labour Relations Act. There are no particular facts in the instant case which would support any change in this practice. By illustration, the graduate and registered nurses are sufficient in number so that they would not be disenfranchised from their right to Union representation if excluded. Therefore, their exclu­sion in the instant case is justified.

In addition to representative certifications cited by me at the hearing on May 15th, I have now conducted a review of certifications issued by the Board in the health care sector involving vari­ous Hospitals and Nursing Homes whose employees are represented by the Applicant, the Canadian Union of Public Employees, Service Employees International Union (including Lon­don and District Service Workers) and Ontario Public Service Employees Union back to 1984 to ascertain the Board's practice regarding the exclusion of graduate and registered nurses from all employee' units.

That review confirms my submissions to the Board and is consistent with the text of Sack and Mitchell (second edition) at page 165, paragraph 3:3410 to the effect that service units invariably exclude nursing staff and other technical personnel. In those certificates where such persons have not been specifically excluded it is impossible to ascertain whether or not there were any incumbent graduate or registered nurses and no doubt those bargaining unit descriptions would be consistent with Board practice in refusing to exclude classifications where no incumbents where employed as of the date of application. At the same time, the majority of bargaining units where no specific exclusion is provided were settled by the agreement of the parties. In such a case, I have found no precedent to support the position of the Applicant in the instant case where the Board has dealt with the specific issue in this case."

The respondent does not suggest that any of the individuals in question ought to be excluded on the grounds that they exercise managerial functions or are employed in a confidential capacity within the meaning of section 1(3)(b) of the Labour Relations Act. As the representations above indicate, the respondent challenges their inclusion on community of interest and past practice.

5. Turning first to whether past practice supports the respondent's view "that service units invariably exclude nursing staff and other technical personnel", we are unable to conclude that past practice supports the necessary exclusion of the registered and graduate nurses. The text of "Sack and Mitchell (second edition) at page 165", to which we were referred, deals on its face with the Board practice with respect to hospital bargaining units, and not bargaining units in the nursing home sector. We are not prepared to conclude, absent any evidence or submissions on this point, that the two sectors ought to be treated identically.

6. Neither party was able to direct the Board to a prior decision where the Board specifi­cally considered whether it was appropriate to exclude registered and graduate nurses from a ser­vice unit in a nursing home. Prior cases where the Board has done so, have either been on agree­ment of the parties or without reasons being given for such exclusion. Similarly, those cases which have included registered and graduate nurses in such units have not specifically canvassed the com­munity of interest considerations relevant to the determination (see, for example, Villacentres Limited, [1973] OLRB Rep. Dec. 646). In short, we cannot conclude that past practice with respect to this issue has been either invariable or clear. Further, to the extent that prior decisions seem to favour the exclusion of the registered and graduate nurses, they do not provide any ration­ale or analysis of why such exclusion is appropriate or why inclusion would be inappropriate, and accordingly provide little guidance. This is not a situation where the applicant might have been hindered in its organizing by reliance upon past practice, as in the instant proceeding it is the appli­cant who seeks the wider "all employee" bargaining unit. In summary then, the purported "prac­tice" or "precedents" relied upon by the respondent do not point, unequivocally, to the conclusion it urges upon us.

7. We turn next to whether we ought to exclude these individuals on community of inter­est grounds. No viva voce evidence was led at the hearing. The parties were content to provide the facts by way of submissions and agreement with the submissions. However, other than submissions of a general nature (for example, the statement that registered nurses are distinguishable and separable from other employees in a service bargaining unit) the respondent provided no facts nor made any submissions with respect to the usual community of interest factors. We were not told how the nursing home operates, nor were we told the duties and responsibilities, and conditions of employment, of the nurses and R.N.A.'s. The only submissions in this vein were with respect to the history of bargaining and past practice, which matters we have dealt with above, and which do not appear to support the exclusion of the individuals in question. The Board must decide whether it is inappropriate to include registered and graduate nurses, when the respondent submits that it would be inappropriate to do so on community of interest grounds, but provides no facts or asser­tions to suggest why in this particular bargaining unit community of interest and labour relations considerations demand such exclusion.

8. In determining the appropriate bargaining unit, we accept as correct the approach artic­ulated by the Board in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, where the Board wrote (at paragraph 23 therein):

"Does the unit which the union seeks to represent encompass a group of employees with a suffi­ciently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer."

This approach has been approved and applied in subsequent Board cases: TV Guide Inc., [1986] OLRB Rep. Oct. 1451, Harlequin Enterprises Limited, [1987] OLRB Rep. Feb. 226 and The Ottawa Citizen, a Division of Southam Inc., [1987] OLRB Rep. Aug. 1098.

9. In the instant case, we are satisfied that the employees in the "all employee" bargaining unit sought by the applicant union exhibit the necessary community of interest so that they can bar­gain on a viable basis. Neither the evidence before us nor the parties' arguments persuade us to the contrary. No factors were raised which suggest that the registered and graduate nurses would not have a sufficient community of interest with the other employees the parties agreed ought to be in the unit or that further fragmentation of the bargaining structure would be desirable. As we noted above, no facts or argument were presented to the Board suggesting how inclusion might cause serious labour relations problems for the employer. Neither was any evidence addressed to the usual factors considered by the Board as set out in, for example, Usarco Limited, [1967] OLRB Rep. Sept. 526.

10. In these circumstances, we are satisfied that the bargaining units applied for are appro­priate, and they ought to include the registered and graduate nurses. We do not wish this decision to be taken to mean that the Board considers it appropriate in other circumstances to include reg­istered and graduate nurses in an "all employee" unit in a nursing home. That question remains to be canvassed and considered in a proceeding in which the Board has before it the relevant factual context.

11. Accordingly, the Board finds that the following two bargaining units are appropriate for collective bargaining:

Bargaining Unit #1:

all employees of the respondent in Bolton, save and except the administra­tor, the director of care, supervisors and persons above the rank of supervi­sor, office and clerical staff, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period,

Bargaining Unit #2:

all employees of the respondent in Bolton regularly employed for not more than 24 hours per week and students employed during the school vacation period save and except the administrator, the director of care, supervisors, and persons above the rank of supervisor, office and clerical staff.

12. Formal certificates will issue forthwith.

DECISION OF BOARD MEMBER J. A. RUNDLE;

1. I dissent from the decision of the majority and would not have included graduate and registered nurses in the bargaining unit applied for by the applicant.

2. Does the Ontario Labour Relations Board (OLRB) act as an Arbitration Board, decid­ing issues based on the facts and circumstances of a given individual bargaining relationship, or should this Board make decisions based on a consistent and ultimately predictable interpretation of the Labour Relations Act? It is my strongly held view that since the OLRB has a much different role than an Arbitration Board, it must act in a consistent fashion to enable all parties affected by labour relations questions in Ontario to understand the rules of the game. If the ground upon which the labour relations framework is built is in reality shifting sands, the Board does nothing to further harmonious labour relations between employers and employees. Unpredictability of Board decisions can only lead to discord between the parties and a greater number of confrontations com­ing to the Board for resolution.

3. Precedent is therefore an important cornerstone of every decision we make. What is Board precedent, relative to the issues in this case? The Board has consistently decided that Reg­istered Nursing Assistants (RNA's) should be included in a service unit. On this issue, see Riverside Hospital of Ottawa, [1971] OLRB Rep. Jan. 10; Altamount Nursing Home Limited, [1971] OLRB Rep. July 361; McKellar General Hospital, [1971] OLRB Rep. June 312; Smith Falls Public Hospital, [1973] OLRB Rep. July 394 and Hospital for Sick Children, [1985] OLRB Rep. Feb. 266. The Board has consistently decided that RNA's should not be included in a Registered Nurses' (RN) bargaining unit. On this issue see The Wellesley Hospital [1974] OLRB Rep. Jan. 55.

4. A careful reading of the cases referenced above will reveal that the evidence has sup­ported an argument that a greater community of interest exists as between RNA's and RN's rela­tive to RNA's and service workers. Notwithstanding the facts and evidence adduced in these cases~ the Board felt bound by earlier precedents. In fact in Hospital for Sick Children the Board acknowledged that while in retrospect RNA's may well have been included in a bargaining unit with RN's, it was now too late to say that they should not be included in a service unit.

5. Therefore, notwithstanding clearly enunciated views as to how history might be re-writ­ten, the Board precedents are unambiguous.

RNA's are to be included with service Bargaining Units.

RNA's are not to be included with RN Bargaining Units.

Presumably the principles of logic can be applied to extrapolate upon these precedents. That is:

1. If RNA's cannot be certified with RN's, then it is obviously true that RN's cannot be certified with RNA's.

2. If RN's cannot be certified with RNA's and RNA's must be certified with service employees, then it also follows that RN's cannot be cer­tified with service employees.

3. This decision from which I strongly dissent jumps over these logical conclusions. The majority in its decision states that the respondent provides no facts or assertions in this particular bargaining unit concerning community of interest or labour relations considerations. Why does the Board conclude that viva voce evidence would provide anything more than what the Board heard in Hospital for Sick Children? That Board found as the evidence that if it were to decide again, RNA's may more appropriately be included with RN's. But the final decision, which was contrary to the evidence adduced, was based on past precedents. These precedents formed the basis of the facts and assertions of the respondent before this Board.

4. This decision changes precedent and therefore establishes a new precedent. I do not understand how the majority can state that it "does not wish this decision to be taken to mean that the Board considers it appropriate in other circumstances to include registered and graduate nurses in all employees' unit in a nursing home". The decision does stand for a distinct and new approach in nursing homes. To repeat earlier comments, Board decisions must be seen as the rules gov­erning the game. Harmonious labour relations could not be fostered unless this was so.

5. The earlier Board cases received evidence which would support a decision similar to that of this Board but declined to do so based on precedent. This decision cannot, therefore, be challenged on evidence relating to job duties or labour relations considerations. This decision can only stand for a distinction between Nursing Homes and Hospitals. This distinction must be so compelling and implicitly obvious that it outweighs the past decisions of the Board and required no specific evidence for the majority to so conclude. I am certain that the Unions involved in the nurs­ing home industry will be dismayed at this decision and what it stands for.

6. In conclusion, I would not have found that the differences between Nursing Homes and Hospitals, no matter how great, was sufficient to reverse the Board policy on these matters.