Association of Allied Health Professionals: Ontario v. Perth District Health Unit, 1991 CanLII 6010

[1991] OLRB Rep. November 1314

2201-91-R Association of Allied Health Professionals: Ontario, Applicant v. Perth District Health Unit, Respondent v. Canadian Union of Public Employees, Inter­vener

BEFORE: Janice Johnston, Vice-Chair, and Board Members J. A. Rundle and P. V. Grasso.

APPEARANCES: James Fyshe, Catherine Bowman, Lynn Keays, Janice Parsons and Jennifer Lea­ney for the applicant; John W. T. Judson, Margaret Szilassy and Randy Brown for the respondent; Helen O'Regan for the intervener.

DECISION OF THE BOARD; November 15, 1991

1. This is an application for certification.

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. The parties met with a Labour Relations Officer on October 25, 1991 and subject to the matter outlined below agreed that:

all paramedical employees of the respondent in the County of Perth, save and except supervi­sors, persons above the rank of supervisor and persons employed in any bargaining unit for which any trade union held bargaining rights as of September 27, 1991.

CLARITY NOTE:

For the purposes of clarity, the term "paramedical" includes 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, prenatal instructors, audiologists, research assistants, dental assistants, perfusionists, clinical instructors, medical photographer technical assistants, entrosto­mol therapists, respiratory therapists hyperbaric controllers, hyperbaric attendants, health records administrators

constitute a unit of employees of the respondent appropriate for collective bargaining.

4. It is the position of the intervener (also referred to as "CUPE") and the respondent (also referred to as "Perth" or the "employer") that the applicant, the Association of Allied Health Professionals (also referred to as "AAHP") is barred from making the current application for certification.

5. The parties were able to agree to a number of facts without the necessity of the Board hearing evidence. On April 8, 1970 CUPE acquired bargaining rights for the following bargaining unit:

all employees of the respondent in Perth County employed in its Health Unit, save and except chief health inspector, persons above the rank of chief health inspector, and persons covered by a subsisting collective agreement between the respondent and the Nurses' Association Perth County Health Unit.

6. The current application for certification concerns persons employed as occupational therapists and physiotherapists. At the time the Board issued the certificate to CUPE there were no persons employed in this capacity by Perth. It was agreed that CUPE never had bargaining rights for employees in these positions, subject to the dispute in this case. The collective agreement between CUPE and Perth expired on December 31, 1990. In the most recent negotiations and in prior negotiations CUPE has sought to include these employees in their bargaining unit. Up until the current negotiations this was resisted by Perth.

7. On July 8, 1991 CUPE filed an application pursuant to section 106(2) of the Labour Relations Act (the "Act") concerning the employees in question (Board File No. 1250-91-M). Let­ters dated October 24, 1991 by representatives of CUPE and Perth reflect an agreement between the parties. They read as follows:

October 24, 1991.

Mr. John W.T. Judson,

Lerner & Associates,

P.O. Box 2335,

80 Dufferin Avenue,

LONDON, Ontario.

N6A 4G4

Dear Mr. Judson: Re: C.U.P.E., Local 3308 & The Perth District Health Unit - O.L.R.B. File #1250-91-M & Intervention File #2201-91-R

Further to our recent conversations, I have been directed by C.U.P.E., Local 3308, to conclude this matter based on the following agreement.

The classification of Speech Pathologist, Physiotherapist, Occupational Therapist and the Non-Management Nutritionist, shall become members of the bargaining unit and further to this, that the classification of Aids Co-Ordinator, Health Educator, Management Nutritionist and Epide­miologist shall be excluded from the terms of the collective agreement and that the new collec­tive agreement between the parties shall be amended to reflect these changes.

May I please receive from you written confirmation of your agreement and with that we would be prepared to withdraw our request to the Ontario Labour Relations Board, under file number 1250-91-M

Awaiting your reply. I remain,

Yours truly, "Roger D. Neeley", Roger D. Neeley,

Representative, CUPE

RDM/ed

cc: J. Anderson

O. LeBel

TA. Inniss

B. Muller

October 24, 1991

Mr. Roger D. Neeley

Representative

Canadian Union of Public Employees

Local 3308

826 King Street

2nd Floor

London, Ontario

N5W 2X5

Dear Sir:

Re: Perth District Health Unit and CUPE, Local 3308

Further to our recent discussions in this matter, and further to your letter of October 24, 1991, I wish to confirm that my client, Perth District Health Unit, agrees the above matter shall be resolved on the basis that the positions of Speech Therapist, Physiotherapist, Occupational Therapist and the non-management Nutritionist, shall be accepted as recognized in the CUPE bargaining unit. In turn, I confirm that CUPE has agreed that the positions of AIDS Educator, Health Educator and Epidemiologist are excluded from the CUPE bargaining unit.

I trust this resolves the matter.

Yours very truly

John W.T. Judson

JWTJ/jb

cc: Ms. T. A. Inniss -File Number 1250-91-M

cc: Perth District Health Unit

8. The Perth District Health Unit provides public health service. It has three components:

public health inspection; preventative health which includes education; and home care. A medical Director oversees the entire operation and the three functions operate out of one location (there are some branch offices as well).

9. The home care program is fully funded by the Province but administered by Perth. The public health functions are funded by a formula whereby the Province, the County of Perth and individual cities such as Stratford and St. Mary's, share the costs. In addition to the bargaining rights held by CUPE, bargaining rights are also held for nurses employed by Perth.

10. The employer and CUPE took the position that the agreement reached by them, docu­mented in the letters dated October 24, 1991, was reached in the course of negotiations for the renewal of their collective agreement and acted as a bar to the current application by AAHP. The parties agreed that the section 106(2) application in and of itself was not a bar. It stands as evi­dence of CUPE's desire or position that the employees in question belong in their bargaining unit. Counsel for the respondent, characterized the agreement as one reached in the context of collec­tive bargaining and by its nature retroactive to January 1, 1991. In support of his contention that the Board should uphold this agreement and find that it acts as a bar to the current application counsel, referred the Board to Brayshaws Steel Ltd. 1971 CanLII 364 (ON CA), 26 D.L.R. (3d) 153. As was candidly conceded by counsel, this case is readily distinguishable from the facts of the instant case. Given the very dif­ferent factual context in the Brayshaw Steel case it is of limited assistance to the Board.

11. Counsel for the employer also raised the issue of fragmentation. Perth already has two bargaining units and counsel argued that to add a third would be an inappropriate further fragmen­tation of the employees into multiple bargaining units. In addition there appears to be some possi­bility that the employees employed in the home care program may be split off at some future date from the District Health Unit. As this event may or may not happen it is not necessary for the Board to consider the implications it may raise.

12. Counsel for the applicant argued that the application by CUPE pursuant to section 106(2) of the Act is irrelevant to these proceedings. Even if the Board had rendered a decision in that case it would merely have determined whether or not certain employees, employed in the dis­puted classifications, were employees for the purposes of the Act. It would not have resulted in the placement of these employees in the bargaining unit.

13. Counsel for the applicant took the position that the agreement of the parties reflected in the letters dated October 24, 1991 did not act as a bar to this application for certification. He pointed to the wording in the letter which indicated that the various positions "shall become" members of the bargaining unit. It was his position that this wording implied a future intention and he questioned the assertion that this agreement had retroactive application. There were no words to that effect in the October correspondence and counsel argued that it would be a curious result for the Board to conclude that employees could be bound by a collective bargaining agreement imposed on them retroactively. The issue of fragmentation was also submitted to be not relevant at this stage of the proceedings as the appropriate bargaining unit had already been agreed to by the parties, subject to the resolution of the "bar" issues. Even if the issue of fragmentation were rele­vant, counsel argued that Perth has always treated the employees covered by this application as a separate group. They had never been part of the nurses or CUPE bargaining unit therefore counsel questioned where the prejudice was in continuing to treat them separately.

14. After having carefully reviewed the submissions of the parties the Board concludes that neither the section 106(2) application nor the agreement reached between CUPE and Perth can act as a bar to these proceedings.

15. The Board has reiterated on many occasions that in applications pursuant to section 106(2) of the Act, the Board does not determine whether the persons who are the subject matter of the application, are employed within the bargaining unit. The issue is whether or not they are "em­ployees" within the meaning of the Act. A finding that an individual is an "employee" does not mean that that person belongs in a particular bargaining unit. That is a matter which can only be determined by a Board of arbitration (see re Miller et. al. and Algoma Steelworkers Credit Union Ltd. et. al., (1974) 1974 CanLII 860 (ON HCJDC), 6 OR. (2d) 676 (Ont. Div. Ct.); Nelson Crushed Stone, [1980] OLRB Rep. Oct. 1500; Northern Telecom, [1983] OLRB Rep. Jan. 95). Therefore while CUPE by applying pursuant to section 106(2) may be expressing an interest in these employees, it is not applying for bargaining rights for them and the Board could not make this determination. An application pursu­ant to section 106(2) cannot therefore act as a bar to an application for certification.

16. The agreement between CUPE and Perth to include the positions in question, and their incumbents, in the bargaining unit is reflected in the two letters dated October 24, 1991. We accept counsel for the applicant's assertion that it is inappropriate to assign retroactive intent to these doc­uments, which do not contain any stipulation that this was in fact the intention of the parties. In addition, counsel for the respondent argues that the agreement reflected in the letters was reached in the course of the ongoing negotiations for the renewal of the collective agreement. There is nothing in these documents that supports this assertion and in fact the agreement appears to have been reached in the context of the section 106(2) application. In any event, the Board declines to retroactively apply the agreement reflected in the October 24 letters. The agreement does not therefore act as a bar to this application (we are not to be seen as deciding by the above that even if the agreement had been signed in the course of negotiations it could act as a bar to an otherwise timely application for certification).

17. The only remaining issue to be dealt with is the issue raised by the employer concerning undue fragmentation of the employees. The circumstances under which the employer has chosen to raise this concern are somewhat unusual. It appears, and this was not disputed by the respon­dent, that the parties agreed that if the Board finds that the application for certification by AAHP is not barred (by the section 106(2) application or the agreement between CUPE and Perth) then the bargaining unit set out in paragraph three of this decision is appropriate. The employer is not proposing an alternative bargaining unit pursuant to the application for certification by AAHP, it is suggesting that the employees in issue should be included in the CUPE unit. However CUPE has not filed an application for certification for these employees.

18. It is well established by the Board's jurisprudence that in reaching a determination as to the appropriate bargaining unit the Board will recognize the wishes of the employees affected by the application. In this case, by signing applications for membership in AAHP, the employees have indicated a preference to be represented by the applicant in their employment relations with the respondent.

19. Having regard to the above therefore the Board determines that the bargaining unit proposed by AAHP, set out in paragraph three of this decision constitutes a unit of employees of the respondent appropriate for collective bargaining.

20. 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 the bargaining unit, at the time the application was made, were members of the applicant on October 15, 1991, 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.

21. A certificate will issue to the applicant.