Practical Nurses Federation of Ontario v. The Mississauga Hospital, 1991 CanLII 6105

[1991] OLRB Rep. December 1380

3103-90-R Practical Nurses Federation of Ontario, Applicant v. The Mississauga Hospital, Respondent v. United Steelworkers of America, Intervener

BEFORE: M. A. Nairn, Vice-Chair, and Board Members W. A. Correll and K. Davies.

APPEARANCES: Douglas Wray, Terrence Whyte, Verna Steffler, Gail Bennett and Otalene Shaw for the applicant; Vincent Johnston, Nancy Myers and Mary Kuzyk for the respondent; Jonathan Eaton and Brando Paris for the intervener.

DECISION OF VICE-CHAIR M. A. NAIRN AND BOARD MEMBER, K. DAVIES; December 5, 1991.

1. This is an application for certification.

2. The applicant had not previously been found to be a trade union within the meaning of section l(l)(p) of the Labour Relations Act (the "Act"). On the first day of hearing the panel heard the parties' evidence and submissions with respect to that issue and on March 22, 1991 the panel ruled that it was satisfied that the applicant was a trade union within the meaning of the Act.

3. The next issue concerned the description of the bargaining unit. The applicant (the "trade union", or the "Federation") seeks to represent all registered and graduate nursing assistants employed by the respondent in Mississauga save and except Assistant Unit Administrator, and persons above the rank of Assistant Unit Administrator.

4. The respondent's position initially was three-fold. First the respondent (the "hospital") sought to exclude any reference to the term graduate nursing assistant. Secondly, the respondent argued that the bargaining unit sought by the applicant is not an appropriate unit in that it is restricted to nursing assistants. It is the position of the respondent that an appropriate bargaining unit would be what will be referred to as the "service" unit. Thirdly, the respondent argued that an appropriate bargaining unit would consist of a full-time employee bargaining unit and a separate part-time employee bargaining unit.

5. It is the position of the intervener (the "Steelworkers") that the bargaining unit sought by the applicant is an appropriate bargaining unit.

6. At the outset of the hearing the respondent agreed to include "graduate" nursing assistants in any description of an appropriate bargaining unit. The parties were agreed that the panel should proceed to hear the issue of whether or not the applicant's proposed bargaining unit, described as one including only registered and graduate nursing assistants ("RNA's"), was an appropriate bargaining unit description. They were further agreed that any issue about whether the bargaining unit should be structured as two separate units including full-time and part-time employees respectively should await the outcome of the first issue. This decision then deals only with whether the applicant's proposed bargaining unit described to include only registered and graduate nursing assistants (the "RNA" unit) is an appropriate bargaining unit description.

7. On the final day of hearing the panel received a letter from the Service Employees International Union seeking leave to intervene in the proceedings. No one appeared at the hearing on that day in support of that request, although it is not apparent that the trade union had notice of the hearing date. The panel provided the parties with a copy of the letter and indicated that it was not prepared to adjourn the proceedings on the basis of the representations contained in the letter, but that a copy of any decision would be forwarded to that trade union.

8. The respondent is a full service community hospital employing approximately 2300 employees. Currently there are two groups of employees represented in collective bargaining. The first is a group of stationary engineers (a bargaining unit of approximately 6 employees). In addition there is a full-time and a separate part-time bargaining unit of laboratory employees. This latter group comprises approximately sixty employees in total and is represented by the Ontario Public Service Employees Union. The bargaining units proposed by the respondent ( full-time and part-time) would cover more than 500 employees including approximately 165 RNA's. The job classifications included in the respondent's proposed units are beltline checker, carpenter, cleaner, cook I, dietary aide-cafeteria, dishmachine operator, electrician, instrument aide-operating room, maintenance mechanic, operating room technician, orderly, orthopaedic technician, painter, plumber, porter, printer, S.P.D. assistant, sanitation aide, storeskeeper, storesperson, and unit aide.

9. In 1990, the Steelworkers applied to be certified for the service unit (as proposed by the respondent herein). That application was opposed by a group of RNA's. A pre-hearing representation vote was held. The Steelworkers were not successful in obtaining majority support and the application was dismissed. At that time the RNA's opposing the application took the position that they lacked any community of interest with the other employees in the proposed bargaining unit.

10. Following the Steelworkers unsuccessful application, the hospital retained a consultant to inquire into and report to the hospital with respect to the employment concerns of those employees in the service unit. By virtue of a decision of the nursing advisory committee (made up of members of management responsible for the nursing division of the hospital) those employees who reported through nursing division were not included in the consultation. The members of the nursing advisory committee felt that communications with the employees in this division were good and that their participation in the consultation was unnecessary. That consultation did take place and a report was provided to the hospital. It sets out at some length the apparent sources of dissatisfaction within the service group including the identification of priorities and recommendations for change. A recommendation to create a service group staff committee excludes anyone from nursing division.

11. Of those classifications included in the hospital's proposed service unit, six report through the hospital's nursing division. They include instrument aide - O. R., orderly, orthopedic technician, operating room technician, unit aide, and RNA's. While the report of the consultant indicates that only the RNA staff did not participate in the survey these other employees were not consulted either.

12. Since July 1988 the hospital has recognized a formal organization of RNA's. The group's mandate is to raise and discuss any issues concerning their employment within the hospital. The group holds monthly meetings at which time a member of nursing management is present. Following each meeting a representative of the group and a representative of management meet to review and discuss any issues that have been discussed at the group meeting. The RNA group has formulated and presented wage and benefit proposals for RNA's at the hospital, has intervened on behalf of an RNA who had lost her job, and has had input into the development of the job description for the RNA position. Currently it would appear that the hospital also recognizes a similar group for registered nurses ("RN's") and a Unit Administrator group (persons who are excluded from the Labour Relations Act by virtue of the exercise of managerial functions). Although the evidence is not clear, it would appear that the hospital may recognize or is in the process of recognizing certain other groups of employees with a similar mandate.

13. The hospital operates from the concept referred to as total patient care. This concept recognizes that a patient presents with more than simply one particular physiological or psychological problem and care is provided on a multi-disciplinary basis. Those individuals that would normally fall within a paramedical bargaining unit such as physiotherapist, occupational therapist, speech and language therapist, or respiratory therapist are all available to each unit in the hospital to perform an assessment of the patient particular to their specialty and to work in a collaborative team setting with the physicians and nurses to ensure the optimum treatment and care of the patient.

14. The applicant is a newly created trade union organized to represent all registered practical nurses or registered nursing assistants and other allied personnel eligible for collective bargaining in Ontario. Over the years at various health-care institutions local organizations of registered nursing assistants have been created. However this would appear to be the first organization of RNA's which would purport to encompass the provincial jurisdiction. The history leading to the creation of the applicant follows somewhat the development of trade union representation of nurses in Ontario. The Ontario Association of Registered Nursing Assistants (OARNA) has existed to represent the professional interest of RNA's in the province for some time. The employment of individuals as RNA's (or certified nursing assistants) has existed since the late 1930's and over the years standards and criteria have been developed with respect to education and the performance of the work. In 1963 the College of Nurses of Ontario was created to formulate and regulate the standards of practice of both nurses and nursing assistants in Ontario. Over the years within OARNA there has been considerable discussion about the creation of a separate trade union entity to represent RNA's in collective bargaining. Just one example occurred in 1980 when a group of RNA's sought legal advice through the auspices of OARNA as to the likelihood of obtaining representation rights for a bargaining unit comprised solely of RNA's. They were advised that their chances were not good in light of a number of earlier decisions of the Board to that effect.

15. RNA's expressed opposition to the Steelworkers campaign at Mississauga Hospital on the basis that they did not feel they had issues in common with the other employees in the service unit. While some of this was based on the view that they are "professionals", there is also a sincerely held belief that issues of their own concern have not been adequately represented as part of the larger service unit. More recently, there have been changes in the Standards of Practice formulated by the College of Nurses of Ontario resulting in RNA's performing some tasks previously performed only by RN's. The focus of the standards has shifted to recognize that the RN and RNA, while working interdependently in the provision of health care, also work independently. The standards are now structured to outline the minimum skill expectations of RNA's and RN's while also recognizing that individuals may perform at a higher skill level where appropriate. Currently a major review of the legislation applicable to the self-regulating health care professions is underway. Representatives of the applicant anticipate that new legislation will recognize additional self-regulating health care professions (for example, midwifery) and will rationalize the legislation currently affecting others. In combination these factors have increased the RNA's appetite for collective bargaining outside the service unit and through the auspices of their own trade union and the Federation was created in February 1991.

16. The parties do not dispute that the employees in the bargaining unit proposed by the applicant share a community of interest. They are all employed in the same job classification, perform similar if not identical tasks, share the same working conditions, and the same terms and conditions of employment. RNA's are employed on 16 of 25 units in the hospital. By and large RNA's are not employed in specialty areas such as the emergency room, the intensive care unit or the recovery room. In these areas the condition of the patient is such that the skills necessary for care are those held by RN's. RNA's are assigned to units in both acute and chronic care areas in the hospital. They receive a patient assignment and are responsible for the care of the patients, including the ongoing nursing assessment and the implementation of the nursing care plan in effect for that patient. Depending on the condition of the patient, an RN and RNA may both be assigned to their care. There is a small pool of RNA's who float between units as required to cover absences.

17. The evidence relating to the issue of the community of interest of the RNA's with other employees in the employer's proposed bargaining unit focussed on the other classifications also included within the nursing division (see paragraph 11). The hospital is organized into six areas of responsibility. The nursing division reports to the Vice President of Patient Care. The human resource, communication and educational services for the hospital report through the Vice President of Human Resources. The Dietetic Services including the kitchen staff report directly to the President of the hospital. The diagnostic, laboratory and paramedical services report through the Executive Vice President. Included in that area are those employees who would usually come within a "lab tech" bargaining unit or a "paramedical" bargaining unit in the hospital sector. The materials management division of the hospital includes the printing, portering and stores services which report through the Vice President of Finance. Finally, the Facilities Management Department includes the construction and maintenance services for the hospital and reports through the Vice President of Ambulatory Care. Apart from those employees who report through the nursing division there was no evidence to suggest that the skills of other employees in the proposed service unit were similar to the skills utilized by the RNA's. The terms and conditions of employment are only somewhat different, for example, the RNA's are employed on a twenty-four hour basis whereas the construction and maintenance employees are employed on the day shift only. The reporting structures differ as set out above.

18. The evidence with respect to those classifications reporting through nursing division discloses the following. The qualifications for orthopaedic technician indicate that the RNA qualification is an asset. The qualifications for operating room technician require the RNA qualification plus additional training. Six or seven orderlies are employed in the hospital. Three are employed in the emergency department where no RNA's are employed. It would appear that two orderlies are employed on psychiatric units in the hospital and that on those units the orderlies have a patient assignment and do have some responsibility for charting as would both RN's and RNA's. There is also at least one orderly employed on a chronic care unit. The use of orderlies in the hospital has declined. Orderlies are supervised by the RN on duty or the Unit Administrator. Orderlies are not self-regulating. Their responsibility is to the employer who monitors performance and sets standards and expectations for care. The hospital employs approximately six unit aides to perform support tasks for the RN's and RNA's on the units.

19. The evidence supports the conclusion that there is some overlap of function among the RNA's, orderlies, and RN's. There are also certain overlaps in function among the RNA's, the unit clerks, and the RN's. It was agreed by the parties that the position of unit clerk was a clerical position and would fall outside either proposed bargaining unit. Unit clerks are available on various units in the hospital for the purpose of transcribing doctor's orders, contacting various support disciplines and completing other paper work.

20. It was the position of the applicant that the test for an appropriate bargaining unit is one of viability. The applicant asserted that the evidence in this case supports the conclusion that a bargaining unit of RNA's is viable. It pointed to the fact that the hospital already recognizes an RNA group with whom it deals in respect of terms and conditions of employment. Furthermore the hospital acknowledges a separate community of interest of those employees who did not participate in the consultant's survey and report following the defeat of the Steelworkers organizing attempt in 1990. In addition, the applicant relied on a number of collective agreements filed as exhibits wherein the bargaining unit is described as including only RNA's. The applicant challenged that there is any community of interest between RNA's and other classifications of employee within the service unit and points for example to the classifications of plumber, cook, dietary aide, electrician and painter. The applicant does not deny that there is a community of interest between the RNA's and the orderlies but argued that it is insufficient to conclude that the RNA's share a community of interest with the larger service group proposed by the respondent. The applicant argued that the RNA group on its own is sufficiently viable that while they may have a community of interest with other employees it is insufficient to deny them the bargaining unit that they seek.

21. The applicant argued that in reviewing the Board's cases there are three reasons that have been given to support the inclusion of RNA's in the service unit. The first reason is history. The second is reference to community of interest and the third is a desire to avoid fragmentation. The applicant reviewed each of those reasons and commented that with respect to history, the decision in Hospital for Sick Children supra acknowledged that the rationale for that history is not entirely clear. The applicant referred to the decision in Toronto General Hospital [1972] OLRB Rep. Jan. 33 where the Board found an all employee bargaining unit excluding RNA's to be appropriate based on the agreement of the parties and on the history of collective bargaining at that institution.

22. With respect to avoiding undue fragmentation the applicant argued that the decisions reveal four underlying concerns. The first is to avoid a multiplicity of bargaining units and consequent disruption for the employer. The applicant argued that by virtue of the fact that the parties' bargaining relationship is governed by the Hospital Labour Disputes Arbitration Act disruption is not an issue because the process of negotiations is, if necessary, resolved through interest arbitration. The second reason behind the aversion to fragmentation is to avoid restricting job opportunities between small bargaining units. The applicant argued that this is not an issue in this case as there is no interchange of RNA's into other classifications, nor employees into the RNA group given the particular nature of the qualification and training. A third reason to avoid fragmentation is to avoid jurisdictional disputes. The applicant argued that to the extent there is potential for jurisdictional disputes it is with the nurses and that potential would exist in any event. The respondent conceded that the nurses would constitute a separate bargaining unit. The fourth reason underlying the fragmentation argument the applicant asserted is the administrative convenience for an employer, that is, to avoid having to deal with a number of bargaining agents and at different times. The applicant argued that in this case the evidence supports the conclusion that the human resources group deals with both union and non-union groups already and there is no evidence that this hospital has had any difficulty or contemplates difficulty merely if the applicant were certified. The applicant relies on the fact that the hospital has already recognized a formal RNA group in an organized structure within the hospital.

23. Finally the applicant argued that the Board has a broad discretion under section 6(1). The search is not for the most appropriate bargaining unit. It points to the discussion in the Hospital for Sick Children supra, decision. The applicant also relies on section 3 of the Act and the Board's recognition that there is some weight to be given to the right of self-determination of the employees, and that an inference can be drawn from the fact of the application made that the employees concerned have chosen the applicant as their bargaining agent.

24. In support of the applicant's position, the intervener argued that there is no undue fragmentation associated with the applicant's proposed bargaining unit. It argued that the RNA's have a distinct community of interest from others in the service unit. The RNA's have an ongoing relationship with patients and their employment is care oriented whereas other employees provide support services to the hospital and as such are task or service oriented. The intervener submits that if the inclusion of RNA's in a service unit is as a result of a historical anomaly and the manner in which bargaining has developed then that ought not to prevent the applicant from seeking this unit at this point in its history.

25. In response the employer accepts that the RNA's have a community of interest. The respondent however relied on the history of the Board placing RNA's in the service unit and argued that there is a heavy onus on an applicant seeking to depart from a long standing practice of the Board, particularly in light of the Board's aversion to fragmentation. The respondent argued that avoiding disruption in the workplace by minimizing the multiplicity of bargaining units continues to be a factor notwithstanding that the parties are subject to the Hospital Labour Disputes Arbitration Act. The respondent also argued that individuals in the positions of orthopaedic technician or operating room technician who have an RNA background may have their job opportunities limited if transferring between an RNA bargaining unit and a separate service unit. In addition, the respondent pointed to the fact that persons employed in the position of operating room technician or orthopaedic technician could be individuals holding the qualification of RNA. If such an individual was included in the bargaining unit sought by the applicant and was working with a technician without the qualification, the respondent would be placed in the position of dealing with employees in the same classification where one was represented by a trade union and the other not. Counsel for the applicant acknowledged that such an individual would be included in the bargaining unit as described by the applicant and that the applicant was willing to represent such an individual. The evidence of Gail Bennett on behalf of the applicant indicates that in its organizing the applicant did not seek to represent these individuals but only those individuals employed as RNA's by the hospital. It would clearly not be appropriate to include individuals holding the RNA qualification but employed in a different capacity in a bargaining unit of RNA's for the reasons expressed by the respondent.

26. The respondent pointed to the overlap in function between the work performed by orderlies and RNA's as evidence of potential jurisdictional difficulties (although the respondent does not dispute the proposition of the applicant that the classification of orderly is a declining role in the hospital). The respondent points to a community of interest existing between the RNA's and the other classifications of employee that report through the nursing division of the hospital. The respondent argued that any comparison of the level of patient care is not an appropriate criteria in determining the appropriateness of the bargaining unit in that the concept appears to mean different things to different people. The respondent pointed to the fact that other employees in the hospital also perform direct patient care (such as paramedical employees). The respondent argued that no conclusions could be drawn from the fact that the nursing advisory committee decided not to participate in the consultant's survey. In essence, the respondent argued that there is no new or sufficient evidence to indicate that the Board should depart from its previous practice of finding that the service unit proposed by the respondent is an appropriate bargaining unit and a finding that an unit of only RNA's is inappropriate. The respondent suggested that to do otherwise would be a clear signal to the labour relations community that bargaining unit configurations would no longer have some predictability and would not fulfil the Board's public policy role.

27. Underlying the parties' positions in this case is the recognition that in the hospital sector the Board has, with some consistency, recognized a number of particular bargaining units as appropriate. These bargaining units are generally described as registered and graduate nurses, the service group (or all-employee unit), the paramedical unit, the stationary engineers, and office and clerical employees. The Board has historically treated the RNA's as being included in the service unit. That inclusion has most recently been discussed in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266. That decision would appear to both help and hinder the applicant in the instant case. There, the Canadian Union of Public Employees ("CUPE") filed an application for certification seeking to represent a bargaining unit of hospital "service" workers. The applicant included RNA's in its proposed bargaining unit. In response, the hospital proposed a bargaining unit that included employees in the "service" unit and in addition, paramedical and technical personnel. After lengthy proceedings the Board issued its decision and set out the concerns and approach of the Board in the exercise of its discretion in fashioning bargaining units. It will be useful to quote at some length from that decision:

Determining the Appropriate Bargaining Unit - In General

12. Prior to the passage of collective bargaining legislation in the early 1940's, there was no prescribed mechanism for the acquisition of bargaining rights. If a group of employees sought to form or join a trade union, and if they had sufficient bargaining power, they were able to compel their employer to meet and bargain. However, the only means of achieving recognition was to threaten a strike. A union had no statutory right to bargain on behalf of its members, and no statutory obligation to represent anyone else. Even if a bargain was struck, the agreement was not, in itself, a binding and enforceable contract. Its enforceability depended upon the parties' economic strength.

13. In 1943, borrowing from American experience, the Legislature passed the Ontario Collective Bargaining Act (SO. 1943, c.4). The new legislation provided a process whereby a trade union could become the exclusive bargaining agent for the employees in a "unit of employees... appropriate for the purposes of collective bargaining" which could be an "employer unit, craft unit, plant unit, or a subdivision thereof" (see section 13(5a)). Over the years, that language has not changed very much. Section 1 and 6 of the present Labour Relations Act read (in part) as follows:

6.-(1) Subject to subsection (2), upon an application for certification , the Board shall determine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.

l.-(1) In this Act,

(b) "bargaining unit" means a unit of employees appropriate for collective bargaining, whether it is an employer unit or a plant unit or a subdivision of either of them.

14. It will be seen that the statutory language has remained basically unchanged for more than four decades, and in the early years it provided the basis for making board distinctions for bargaining unit purposes between such groups as: "white collar" office and technical employees, and "blue collar" production employees; skilled tradesmen (electricians, plumbers, sheet metal workers, etc.), and unskilled or semi-skilled workers; part-time employees and full-time employees; employees working for an employer in one plant or municipality and employees in another plant or municipality; and so on. However, these fairly simple, and then unexceptional distinctions, do not apply so easily today. Collective bargaining has extended beyond its traditional "blue collar" industrial base, into the public sector and to increasingly sophisticated and diverse job hierarchies. Real life collective bargaining experience has outstripped some of the conventional wisdom and has shown that the collective bargaining system can exhibit quite a variety of structures, which, at one time, parties might have considered unconventional or inappropriate. Ontario Hydro, for example, has a province-wide bargaining unit, encompassing a broad range of employee classifications, and thousands of employees, ranging from unskilled workers to highly trained technicians. A typical municipal "inside workers" (white collar) bargaining unit may include occupations ranging from filing clerks, to computer programmers, economists and planners with a considerable amount of post-secondary or even graduate training [see the Board's decision in The Regional Municipality of Durham, Board File 1818-84-R, decision released November 20, 19841. The Ontario Civil Service bargaining unit contains thousands of employees ranging from clerks and typists to sophisticated scientific and technical personnel - and, incidentally, the staff of a number of provincial psychiatric hospitals (see: Owen Sound General and Marine Hospital, [1978] OLRB Rep. May 445, where the Board noted that in the government sector nurses, paramedicals, service employees, and clericals are all in the same unit, even though under the Labour Relations Act, they have typically been segregated into separate units). While at one time common opinion and industrial relations practice might have supported fairly rigid (almost "class") divisions between employee groups, modern collective bargaining seems to be able to thrive quite well in many contexts without such rigid distinctions. It is no longer as easy as it once was to say that it is "inappropriate" to group together for collective bargaining purposes, employees with quite diverse skills, education, training, position in the job hierarchy or probable aspirations.

15. Now obviously, the determination of the appropriate bargaining unit has immense practical and tactical significance. The unit determines the constituency within which the union must establish majority support if there is to be any collective bargaining at all. To put it another way, the unit determines the group of employees whose support must be solicited by their fellows if the objective of collective bargaining is to be achieved. A union cannot seek certification solely for those who have opted to join it. It is required by law to establish majority support in what this Board determines is an appropriate unit, and that may not be so easy to predict - as the present case indicates. Moreover, to the extent that the contours of the bargaining unit are unclear, there will be uncertainty about precisely how employees should go about organizing themselves in order to conform with what the law may require. There will also be the prospect of litigation, cost, and delay which may prejudice both the applicant union and the employees it seeks to represent (see the remarks of Laskin, J.A. in Nick Masney Hotels Limited, (1970) 1970 CanLII 478 (ON CA), 13 D.L.R. (3d) 289; 70 CLLC 26 14,010; and those of Estey J. A. (as he then was) in Re Journal Publishing Co. of Ottawa et al., and Ottawa Newspaper Guild et at. [1977] 1ACWS 817). Cost and delay will also be of concern to the employer, and to employees whose wages may be temporarily "frozen" by section 79 of the Act even if they are ultimately excluded from the bargaining unit. The situation is exacerbated in the instant case where the bargaining unit is large, and both parties have experienced some difficulty determining the precise perimeter of the unit, and how (if at all) it can be meaningfully and consistently distinguished from the lower levels of employees working normally (in the employer's terms) in "technical" job classifications.

16. Ideally, the determination of the bargaining unit should involve an informed exercise of the Board's judgement, based upon objective criteria, industrial relations experience, and a sensitivity to the statutory objects. Ideally, it should be a dispassionate enquiry focusing on what is sensible, workable and, in short, "appropriate". However, the Board cannot ignore the fact that in an adversarial model, unions and employers may both be tempted to frame their submissions with an eye to advancing, delaying or avoiding the objective of collective bargaining. That was an undercurrent in both parties' arguments from time to time. A union may seek to tailor its proposed unit in terms of its established supporters. An employer may seek to exclude pockets of likely union supporters, or argue for the inclusion of those whom the union may not have organized, or who are unlikely to have been receptive. And employers may even be tempted to raise bargaining unit issues as a means of delaying the certification application and interrupting the momentum of the union's organizing drive - particularly if there is to be a representation vote. A graphic example of these pragmatic/tactical considerations can be found in York Steel Construction Limited, [1980] OLRB Rep. Feb. 293, where the union initially sought a unit covering only the larger of two plants which an employer operated in a municipality. The employer asserted that the bargaining unit should cover both plants. Following a representation vote, it became known that the ballots cast in the larger plant gave the union a sufficiently wide margin that it could obtain bargaining rights for both plants, regardless of how the smaller plant had voted. The parties promptly reversed their positions. Such purely tactical considerations merely complicate the Board's task in particular cases.

17. Given that the definition of the bargaining unit can materially affect the ability of employees to organize, and that uncertainties concerning its contours can provoke costly litigation and potentially prejudicial delay, what then is the purpose of the concept of the "appropriate bargaining unit"? Quite simply, it is an effort to inject a public policy component into the initial shaping of the collective bargaining structure, so as to encourage the practice and procedure of collective bargaining and enhance the likelihood of a more viable and harmonious collective bargaining relationship. That objective is spelled out clearly in the Preamble to the Act. While the requisites for effective collective bargaining cannot always be defined with certainty, may necessitate a balance of competing collective bargaining values, and may, in any event, turn on factors beyond the Board's control, the discretion to frame the "appropriate" bargaining unit during the initial organizing phase provides the Board with an opportunity (albeit perhaps a limited one) to avoid subsequent labour relations problems. Now, of course, this is not necessarily the same thing as minimizing administrative problems for the employer or organizing problems for the union. The structures and policies that promote a maximization of the employer's business interests are not those that will necessarily describe a viable bargaining unit, or the only viable bargaining unit - particularly since those interests may include a desire to avoid collective bargaining altogether, or limit its effectiveness. The employer's administrative structures are relevant in determining the bargaining unit, but they are not necessarily to be taken as the conclusive blue print in deciding what is appropriate. Nor is it a matter of simply giving an applicant union what it wants. It is, as we have noted, a matter of balancing competing considerations, including such factors as: whether the employees have a community of interest having regard to the nature of the work performed, the conditions of employment, and their skills; the employer's administrative structures; the geographic circumstances; the employees' functional coherence, or interdependence or interchange with other employees; the centralization of management authority; the economic advantages to the employer of one unit versus another; the source of work; the right of employees to a measure of self-determination; the degree of employee organization and whether a proposed unit would impede such organizations; any likely adverse effects to the parties and the public that might flow from a proposed unit or from fragmentation of employees into several units, and so on.

18. Some of the collective bargaining consequences of the bargaining unit determination were canvassed in Kidd Creek Mines Ltd., [1984] OLRB Rep. March 481. In that case, the applicant was seeking to represent a "craft" unit of about 100 certified electricians who were part of a maintenance department of 800 employees and an industrial work force of 2,800, all of whom were unorganized. The Board made the following general observations about the potential significance of a bargaining unit determination:

19. We may begin by observing that the notion of an "appropriate" bargaining unit is a labour relations concept with no common law antecedents and in the general case, no precise statutory definition. What it means, quite simply, is the group of employees whom it makes "labour relations sense" to lump together for the purpose of collective bargaining, and section 6(1) of the Act leaves the Board's discretion to fashion bargaining units largely unfettered. Yet the Board's determination is obviously of immense practical importance, not only for the immediate parties, but for the structure and performance of the collective bargaining system as a whole. The definition of the unit affects the bargaining power of the union and the point of balance it creates with that of the employer. It influences the potential scope and effectiveness of collective bargaining for dealing with different matters, and to some extent, even the substantive issues covered in the collective agreement. And, perhaps most important, the shape of the bargaining unit can profoundly influence the potential for industrial peace or collective bargaining discord. The more disparate are the interests enclosed with the unit, the more difficult it may be for the union to effectively represent the collectivity. Insufficient attention to these special interests generates internal strife, while too much attention to minorities may make it more difficult for a union to formulate a coherent package of proposals or make necessary concessions. On the other hand, there are dangers at the other extreme, as the Board noted in Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250:

20. Self-determination and community of interest often favour relatively small units, but these are not the only relevant factors in bargaining unit design. The Board must also strive to create a viable structure for ongoing collective bargaining and, to this end, undue fragmentation must be avoided. Consolidated bargaining offers several advantages over a fragmented structure. A proliferation of small units may result in unnecessary work stoppages. Each time one group goes on strike, other employees performing jobs that are functionally dependent upon the work normally done by strikers are brought to a halt. Even in the absence of functional integration, strikers may erect picket lines that keep other employees away from work. The likelihood of a strike occurring increases as the number of rounds of bargaining grows, and is further enhanced by competition among bargaining agents. Secondly, each of several units typically becomes a separate seniority district, enclosed by walls which impede the movement of employees between jobs. In addition, broader-based structures may lower the cost and thereby increase the availability of insurance schemes and benefit plans. A multiplicity of bargaining units also inevitably spawns jurisdictional disputes over the assignment of work and entails to cost of negotiating and applying several collective agreements. Finally, the existence of a single bargaining unit facilitates equitable treatment of employees doing similar jobs. A patchwork quilt of bargaining units is a receipt for industrial unrest - if only because in an integrated enterprise it takes only one collective bargaining breakdown to start the whole system unravelling.

The comments in Kidd Creek illustrate some of the problems which could arguably arise in some settings from an unduly fragmented bargaining structure - even if the group of employees who sought to organize themselves did indeed share a distinct or itentifiable community of interest.

19. Some of the same concerns underly the Board's analysis in Stratford General Hospital, [1976] OLRB Rep. Sept. 459, which involved an attempt by two unions to organize differently described but overlapping units of paramedical employees. The initial problem was the description of the appropriate bargaining unit. The Board recognized that in the special environment of a public hospital pharmacists, physiotherapists, social workers, etc. all had an arguably distinct identity stemming from such factors as their specialized training, outside professional or quasi-professional associations, and particular departmental focus. In this sense, each sub-group and each department could claim a distinct community of interest. However, the Board made it clear that this did not mean that each of these groupings, would constitute a separate bargaining unit for collective bargaining purposes. Such balkanization of bargaining would create serious administrative problems for the Hospital. Nor, for reasons set out at length, was the Board persuaded that technical, paramedical, paraprofessional and professional employees could, or should be distinguished for collective bargaining purposes, even though there were obviously important distinctions between the various sub-groupings based upon their level of education, responsibilities, degree of independence, and how far they had travelled on the "road to professionalization". The Board was of the view that for collective bargaining purposes, they could all comfortably co-exist within one paramedical bargaining unit.

20. In Kidd Creek (and Stratford General Hospital. to a lesser extent), it was suggested that an inappropriate or unduly fragmented bargaining structure could contribute to subsequent labour-management problems, tension within and between bargaining units, and an escalation if industrial conflict. Such outcomes are undesirable. If these problems can be avoided by more careful attention to the determination of the bargaining unit "at the front end", without prejudicing other collective bargaining or statutory objectives, then that attention is obviously warranted. On the other hand, if the potential for collective bargaining difficulties is less obvious or serious, or if the possible problems are less certainly connected with one bargaining unit definition as opposed to another, or if similar problems are likely to arise wherever the line is drawn, then the precise perimeter of the bargaining unit may be less important from a policy point of view.

21. None of this is new of course. The Board has long recognized that the structure and appropriateness of a bargaining unit cannot be determined with scientific precision. In any given situation there may not be only one uniquely appropriate bargaining unit. Quite the contrary. As we have already noted, the institution of collective bargaining has shown itself capable of accommodating a variety of bargaining structures, even in broadly similar circumstances, and in particular situations there may be several alternative and equally appropriate ways of framing the bargaining unit description. There may be varying degrees of "appropriateness", with one or more unit descriptions being appropriate, even though some other (usually more comprehensive) bargaining unit might also be appropriate. For example, a single plant unit may be appropriate but so may a multi - plant unit. Full time and part time employees can be segregated, but there are many situations where they have not been. This reality was discussed in the Board of Education for the City of Toronto, [1970] OLRB Rep. July 430, in a long passage to which we might usefully refer, and which also contains a review of the mechanics of the certification process.

22. After sifting the various facts the Board must determine "the unit of employees" that is appropriate having regard to the particular situation then before the Board. The only fetters on the Board's discretion to make a determination are the requirements contained in section 6(1) that the "unit shall consist of more than one employee", Albert Fuel Limited, 1969 October 3, Board File No. 16685-69-R, and that the unit of employees is appropriate for collective bargaining - there are no other requirements. The unit that is appropriate is the unit that emerges after all the facts have been considered.

23. The fact finding process is at all times directed toward and governed by the concept of appropriateness and the essence of appropriateness in the context of labour relations is that the unit of employees be able to carry on viable and meaningful collective bargaining relationship with their employer. It is the Board's experience that employees may in some cases subdivide themselves into small groups which may result in an unnecessary fragmentation or automization of the employees. Thus an employer faced with the possibility of lenghty, protracted and expensive bargaining and the further possibility of jurisdictional disputes among multiple bargaining groups represented by one or more trade unions may find it impossible to carry on a viable and meaningful collective bargaining relationship. The Board therefore is adverse to certifying employee groups where the result is undue fragmentation and in those circumstances the Board will find the unit proposed inappropriate on the basis that a meaningful and viable collective bargaining relationship will not result. See e.g. Waterloo County Health Unit, 1969 January OLRB Mthly Rep. 1016.

24. In finding appropriate bargaining units the Board must also be cautious that its determination as to what is appropriate will not impede the right of self-organization guaranteed in section 3 of the Labour Relations Act. The National Labour Relations Board in the United States has recognized in certain cases that its determination of appropriate bargaining units has "operated to impede the exercise by employees.., of their rights of self-organization...". Save-on-Drugs inc. 138 NLRB 1032 (1961); see also Quaker City Life Ins. Co., 134 NLRB 960 (1961). While great weight must be given to prior cases dealing with similar situations, those cases are not dispositive of the issue in any given case. Bargaining unit determination requires a case by case review of the facts and this is compelled by the working of section 6(1) which provides that the Board "Upon an application.., shall determine the unit of employees that is appropriate for collective bargaining…...".

25. It is readily apparent why plant units, or office and sales units are appropriate as a subdivision of an employee unit. There are however, cases where the lines of demarcation are not so readily apparent and that is particularly so in areas apart from private industry. For example, in the Canadian Union of Public Employees v The Governors of the University of Toronto February 1969 OLRB Mthly Rep. 1149; June 1969 OLRB Mthly Rep. 334, the applicant proposed a bargaining unit for all non-professional employees of the respondent in those libraries that fall within the jurisdiction of the University of Toronto Library while the respondent submitted that the appropriate bargaining unit was one encompassing all non-academic employees of the University of Toronto. The Board concluded that the non-academic or non-professional employees of the University Library was an appropriate bargaining unit. In that case a bargaining unit composed of all non-academic employees would also have been appropriate, and perhaps more appropriate as a subdivision of an employer unit. In arriving at its determination the Board was simply fact finding for the purpose of determining and describing an appropriate unit and as such considered the employer's organization and the extend of organization of employees with other factors. It was not choosing between or among appropriate units or more or most appropriate units. Its fact finding was governed simply by what in all the circumstances was appropriate. That is a process that is carried on in many of the situations confronting this Board in making bargaining unit determinations.

26. The Board's process therefore in determining appropriate bargaining units is not directed to certifying the more or the most appropriate bargaining unit - The Labour Relations Act only requires that the unit of employees be appropriate; the Act does not require labour organizations to seek representations in the most comprehensive or optimum groupings unless such groupings constitutes the only appropriate unit. CF. Federal Electric Corp. 157 NLRB 89 (1966); Bagdad Copper Company 144 NLRB 1496 (1963).

27. In conclusion we hold that where section 6(1) refers to "the unit of employees that is appropriate" it does not impose any requirement that the Board choose the more or most comprehensive unit - it only requires the Board to determine the unit of employees that is appropriate for collective bargaining having particular regard to the facts of the immediate application.

[emphasis added]

28. Having set out the general framework for the Board's exercise of discretion with respect to bargaining unit configurations, the decision then recounts the submissions of a group of RNA's opposing their inclusion in the bargaining unit sought by CUPE, and concludes:

29. ... While it was sometimes difficult to distinguish her submissions respecting the bargaining unit configuration from those indicating opposition to unions per se, it is fair to say that the thrust of her argument was that the community of interest of the RNA's lay more with that of the RN's than with the members of the service bargaining unit.

30. While the Board does not in any way wish to minimize Ms. Barclay's concerns about the recognition of the "professional status" of the RNA's, the question before the Board involves the determination of an appropriate bargaining unit which reflects and will establish a viable collective bargaining structure. Protecting or promoting one group's claim to "professional recognition is not a dominant concern, nor is this Board's opinion respecting an employee's claim to "professional" status have much to do with the determination of an appropriate bargaining unit - in this context at least. Ms. Barclay's submissions must be weighed against the well-established collective bargaining practices in public hospitals across Ontario: for the purpose of collective bargaining, RNA's have regularly and routinely been included in the service bargaining unit, even though there might be a plausible claim to group them together with RN's or perhaps with paramedical/technical employees.

31. The precise rationale for this established practice is not entirely clear, and may have more to do with the historical evolution of collective bargaining in the health care sector than any calculated assessment of what would ultimately be the most rational "shape" for the collective bargaining structure. Registered nurses had an early and active appetite for collective bargaining through an organization (the Ontario Nurses' Association - "ONA") which catered exclusively to the interests and concerns of their own professional group. ONA was not interested in, or able under its constitution to represent anyone other than registered nurses, and, at the time, the role of the RNA may not have been as developed, defined, or regulated as it is today. RN's were regularly given their own separate bargaining unit. So it is today. While, in retrospect, and with the benefit of hindsight, RNA's might conceivably have been included in a bargaining unit with RN's or, alternatively, in a unit of paramedical employees (who typically organized, if at all, much later), the fact is that they were grouped together with nurses' aides, orderlies, and other employees without established professional standing. There is no evidence to indicate that this determination produced any collective bargaining or administrative difficulties, even though the result has been that for years and in numerous hospital situations RN's and RNA's working side by side have been in separate bargaining units. Indeed, the historical treatment of RNA's merely underlines the difficulties with the proposition that there is always and necessarily only one uniquely suitable "unit of employees appropriate for collective bargaining".

32. Human institutions are a product of their history. Collective bargaining institutions are no exception. It is now too late to say that the RNA's should not or cannot be appropriately included in the "service" bargaining unit. The overwhelming weight of established collective bargaining practice suggests precisely the opposite conclusion. Accordingly, despite Ms. Barclay's submission, the Board is not disposed to exclude RNA's from the service unit which the union seeks to represent.

33. Determining an appropriate bargaining unit in any given case requires the balancing of various factors. In this case the applicant is seeking a bargaining unit restricted to one classification of employee, something the Board has historically sought to avoid. RNA's do not enjoy the benefit of section 6(3) of the Act so as to be described as a craft unit. Their history of bargaining has been with other groups of employees (see Essex Health Association [1967] OLRB Rep. Nov. 716 and Toronto East General and Orthopaedic Hospital [1967] OLRB Rep. Apr. 54). In the hospital sector particularly a number of bargaining units have developed that are now fairly well established and well known. In a number of cases the Board has commented on the inclusion of RNA's in the service unit and has concluded that RNA's are appropriately included in the larger service unit. Where an applicant trade union has sought to include RNA's in the service unit over the objection of the employer or where the trade union and employer have agreed to include RNA's in the service unit over the objection of RNA's, the Board has generally included RNA's in the service unit (see for example Altamont Nursing Home [1971] OLRB Rep. July 361; Toronto East General and Orthopaedic Hospital [1967] OLRB Rep. Apr. 54; Smiths Falls Public Hospital [1973] OLRB Rep. July 394; and The Hospital For Sick Children, supra). There have however been situations where through various circumstances RNA's have not been included in the service unit (see for example McKellar General Hospital [1971] OLRB Rep. Jun. 312; The Wellesley Hospital [1974] OLRB Rep. Jan. 55; Toronto General Hospital [1972] OLRB Rep. Jan. 33. But see in Riverside Hospital of Ottawa [1971] OLRB Rep. Jan. 10 where the majority of the Board, Vice-Chair O'Shea dissenting, did not accept the agreement of the parties to exclude RNA's from an all employee bargaining unit).

34. In both Essex Health Association [1967] OLRB Rep. Nov. 716 and St. Joseph's General Hospital [1968] OLRB Rep. Sept. 558 the Board specifically declined to find that a unit of RNA's was appropriate. We will review both decisions.

35. In St. Joseph's General Hospital supra, the Lakehead Registered Nursing Assistants Bargaining Association was applying to be certified for bargaining units comprised of RNA's. The intervener, Building Service Employees International Union, Local 268 took the position that this application (and applications with each of the General Hospital of Port Arthur and McKeller General Hospital, all dealt with in the same decision) was untimely because the RNA's were covered by a collective agreement between the intervener trade union and the hospital. In two of the three workplaces the Board had previously certified the intervener to represent bargaining units of employees which included the classification of "nursing assistant" (which it was agreed became known as RNA). At the third, McKeller General Hospital, the Board issued a certificate for a bargaining unit comprised of all employees employed in sixteen named classifications (those that would fall within a "service" unit"). RNA's were not however one of the named classifications. At the time of bargaining for the first collective agreement in each of these cases no RNA's were employed by any of the hospitals. The classification of RNA was excluded from those collective agreements where the certificates had originally included them. Thereafter the hospitals did employ RNA's and the intervener trade union attempted to negotiate the classification of RNA into the collective agreement. It was not successful until the round of bargaining in question in these applications. The intervener relied on these collective agreements as constituting a bar to the applications being considered.

36. At the time both St. Joseph's Hospital and McKeller General Hospital recognized an informal association of RNA's. The Board concluded however that at the time of executing the collective agreements the intervener had not sought the support of any RNA's nor were the RNA's aware (whether from the intervener, the hospitals, or other source) that their inclusion in the bargaining units was being negotiated until after the collective agreements had been executed. Having learned of their inclusion the RNA's at the three hospitals created the applicant and filed the applications under consideration.

37. The majority of the Board in that case concluded that the applicant was not barred from making its applications for certification. The majority treated the execution of the latest collective agreements including the RNA's as equivalent to a first time voluntary recognition by the hospital of the representation of RNA's. In that the intervener represented no RNA's the majority found that the applicant was entitled to challenge the right of the intervener to represent them. The Board then went on to deal with the applicant's request for bargaining units at each hospital comprised of only RNA's. It noted that the applicant's constitution allowed it to take into membership only full-time and part-time RNA's employed in the Lakehead area. The Board then stated at paragraph 20 of the decision:

The Board has found, however, that registered nursing assistants by themselves do not constitute an appropriate unit of employees for collective bargaining (see Board of Health of the York County Health Unit Case, O.L.R.B. monthly report, November 1967, p. 716). The only appropriate unit would be a tag-end unit. That is to say, all those classifications of employees at the hospitals, including the registered nursing assistants, not already represented by a trade union.

34. There was no further discussion of the bargaining unit description issue. Given the applicant's restriction on membership the majority concluded there was no appropriate unit at these hospitals which the applicant could represent and dismissed the applications.

35. In Essex Health Association supra, the Union of Nursing Assistants applied to be certified for a bargaining unit of RNA's. The intervener, Building Service Employees International Union, Local Union 210 had been certified in 1948 to represent employees in various classifications including ward aides, orderlies, nurses' aides, but not including RNA's. The employer and intervener took the position that RNA's shared a community of interest with employees in the intervener's bargaining unit.

36. The comments of the Board both with respect to history and community of interest are interesting:

37. ... While it is quite apparent from the evidence contained in the Examiner's reports and the evidence viewed by the Board during its inspection of the hospital that the registered nursing assistants share a community of interest with registered and graduate nurses, it is equally apparent that they also share a community of interest with other hospital employees including unregistered nursing assistants, nurses' aides, orderlies, male attendants and psychiatric attendants, among others.

38. In addition, in the same way as the classifications enumerated above share a community of interest, such community of interest appears to be shared by other hospital employees, e.g., physiotherapists, occupational therapists, speech therapists, x-ray technicians, lab technicians, among others. However, the parties did not direct sufficient attention to this area to permit the Board to reach a definite conclusion. This much is certain, however, while registered nursing assistants as a classification are distinguishable for the purpose of identification, they are not severable from other classifications by reason of community of interest.

39. As stated above, the applicant also argued that registered nursing assistants are entitled to be considered as an appropriate bargaining unit for reasons similar to those applied by the Board in determining that units of registered and graduate nurses are appropriate for collective bargaining. In support of this argument, the applicant pointed out that not only are registered nursing assistants and registered and graduate nurses covered by the Nurses' Act but their functions in the hospital are very similar as the name of their classifications implies.

40. Historically, registered and graduate nurses have never been included in bargaining units with other employees (except in one or two instances where they were included by agreement of the parties). The Registered Nurses' Association, while it has not been recognized as a trade union, appeared to satisfy the needs of registered and graduate nurses without the benefits of collective bargaining under the Act. The Board gave effect to the history of separation of registered and graduate nurses from other hospital employees, which distinguished the registered and graduate nurses from employees who had historically bargained collectively.

41. While registered and graduate nurses had bargained separately and apart from other hospital employees, through the agency of the Registered Nurses' Association, to improve their working conditions, it is only in recent times, however, that such separate bargaining has been under the authority and pursuant to the provisions of The Labour Relations Act. In addition, by reason of their special skills, which are shared by all registered and graduate nurses, they are distinguishable from other hospital employees. By analogy to the provisions of section 6(2) of the Act and their history of exclusion from hospital bargaining units, the Board, pursuant to the provisions of section 6(1) of the Act, found units of registered and graduate nurses to be appropriate for collective bargaining.

42. The registered nursing assistants, however, have a different history. From the evidence before us, it would appear that the classification of certified nursing assistants first received recognition during the 1940's. As the nature and quality of training developed and improved, the classification of certified nursing assistants became known as registered nursing assistants. The registered nursing assistants were consistently included in bargaining units represented by the intervener union since 1951 when the Board commenced describing units on an "industrial" or "all employee" basis. It has been part of the Board's regular practice to include registered nursing assistants (formerly certified nursing assistants) in "all employee" hospital bargaining units since 1951.

43. The applicant argued that registered nursing assistants share a greater community of interest with nurses than with other hospital employees. This argument was dealt with by the Board in an application by Canadian Union of Public Employees for a unit which included registered nursing assistants in the Board of Health of the York County Health Care Unit Case O.L.R.B. Monthly Report, April 1967, p. 34, and in an application by Nurses' Association York County Health Unit for a unit of registered and graduate nurses in the Board of Health of the York County Health Unit Case, O.L.R.B. Monthly Report, April 1967, p. 62. In those cases, the Board stated its position at p. 63 as follows:

The applicant stated that it organized itself to represent registered and graduate nurses only, having regard to the Board's history of excluding these classifications from bargaining units. In addition, the applicant did not consider taking into membership registered nursing assistants because of the Board's history of including registered nursing assistants in bargaining units with other employees. It is to be noted that the usual hospital bargaining unit includes registered nursing assistants but excludes nurses.

If the Board were to accede to the respondent's request in this case the Board would have to find that the Canadian Union of Public Employees, which seeks to represent registered nursing assistants and had a history of representing them, is no longer entitled to do so, and, in addition, if the Board agreed with the respondent's position the Board would have to find that the applicant in the instant case would be compelled to represent registered nursing assistants even though it does not desire to do so and its constitution does not provide for their admittance to membership.

Having regard to the fact that the applicant's constitution was prepared in light of the Board's practice of including registered nursing assistants in bargaining units with other employees, and the fact that the Canadian Union of Public Employees has a long history of representing that classification, the Board is not prepared in this case to compel the applicant to take registered nursing assistants into membership. While it may be that if the Board were faced for the first time with the problem of determining the appropriate bargaining unit for registered nurses and registered nursing assistants, it might well decide that employees who are concerned with direct patient care would share a community of interest which would entitle them to be bargained for in the same bargaining unit. Moreover, it must be recognized that in addition to nurses and registered nursing assistants there are other employees concerned with direct patient care such as orderlies, nursing assistants who are not registered, and other classifications. However, the Board is not prepared to disregard its long history of including registered nursing assistants in bargaining units with other employees and apart from any other consideration, this history of bargaining has developed the community of interest which existed between the registered nursing assistants and other hospital employees. In addition, the Board is not prepared to find, on the evidence of this case, that the registered nursing assistants' functions are substantially different from the functions performed by them in a hospital, and, accordingly, the community of interest of the registered nursing assistants in this case must be determined having regard to the long history of their inclusion in "all employee" bargaining units for hospitals, and the history of representation of registered nursing assistants by the Canadian Union of Public Employees in such "all employee" bargaining units.

16. Academic attainment and the exercise of special skills are not sufficient in themselves to cause the Board to separate the persons who exercise special skills from bargaining units which include other employees. Of greater importance is the manner in which the skills are exercised. If the special skills are exercised in conjunction with persons in other classifications who exercise related skills or as part of a team, which includes other classifications, such interdependence is of greater importance than the mere nature of the skills. There are other classifications in addition to registered nursing assistants who would be eligible for inclusion in "all employee" hospital bargaining units in accordance with the Board's present practice. A tag-end unit to the bargaining unit represented by the intervener would include all other such classifications.

17. We must therefore determine, pursuant to section 6(1) of the Act, whether the unit applied for by the applicant is appropriate. Since the registered nursing assistants share a community of interest with other employees in the bargaining unit represented by the intervener, a "tag-end" unit to the intervener's bargaining unit would be appropriate. However, such tag-end unit would include persons other than registered nursing assistants, and the applicant is precluded by its general by-law from taking such persons into membership, and, accordingly, is not eligible to be certified for a tag-end unit. Because of the community of interest shared by the registered nursing assistants with other hospital employees and because of the history of including registered nursing assistants in bargaining units with other hospital employees, the Board in this case is not disposed to find that registered nursing assistants constitute a unit of employees of the respondent appropriate for collective bargaining.

18. It is not clear why RNA's were originally excluded either at the McKeller General Hospital or at Essex Health Association. In both the bargaining units were described by naming particular classifications. We note that the result in these cases is not only to preclude participation in collective bargaining by RNA's at that particular point in time but also to preclude their participation through the auspices of the bargaining agent of their choice.

19. The tension in describing an appropriate bargaining unit configuration in light of the employee right in section 3 of the Act to join a trade union of one's choosing was discussed in Stratford General Hospital, [1976] OLRB Rep. Sept. 459 at para. 13:

Another point worth making at the outset is the inherent tension between the Board's responsibility to fashion practical bargaining structures and the equally important concept of freedom of association expressed in section 3 of The Labour Relations Act, R.S.O. 1970 C.232, as amended. In Ponderosa Steak House (1975) O.L.R.B. Rep. Jan. 7 the Board expressed this relationship well in writing:

"A primary theme set out in The Labour Relations Act, and affirmed by the Board, is the principle of freedom of association. The preamble to the Act makes it clear that it is the intention of the Legislature to encourage collective bargaining "between employers and trade unions as the freely designated representatives of employees". More specifically, section 6(1) of the Act expressly provides that the wishes of the employees as to the appropriateness of the unit are to be considered by the Board. In other words, the act recognizes that it is desirable that employees be able to organize in a form that corresponds with their own wishes. Given this legislative policy favouring the right of self-organization, the board must be careful that its determination as to the appropriateness of the bargaining unit has given proper weight to the wishes of the employees. An earlier decision of the Board, The Board of Education for the City of Toronto, July O.L.R.B. Monthly Report 30, clearly endorses such an approach. In giving due consideration to the wishes of the employees, the Board, in the absence of contrary evidence must assume that their wishes are expressed by the applicant union as the representative of the employees. This point was made by the Board in Board of Health of the York-Oshawa District Health Unit, 1969 June O.L.R.B. Monthly Report 340.

The right of self-organization, however, must at times compete with the need for viable and harmonious collective bargaining. Section 6 of the Act specifically requires the Board to determine, not just a unit of employees, but "the unit of employees that is appropriate for collective bargaining". In other words, the Board has a responsibility under the Act to create a rational and viable collective bargaining structure, even though the exercise of this responsibility may sometimes conflict with the right of self-organization. This responsibility was recognized by the Board in the McMaster University case, 1973, February O.L.R.B. Monthly Report 102, and in the Board of Education for the City of Toronto case, supra.

The determination of what constitutes a viable collective bargaining structure requires the Board to consider matters of industrial relations policy, such as community of interest and fragmentation of employees. Community of interest may be a requisite for viable collective bargaining, since the representation of disparate employee groups by one bargaining agent may put impossible strains upon it as it performs its role in the bargaining process. At the other extreme, a too narrow definition of community of interest may create undue fragmentation of employees, leading to a weak employee presence at the bargaining table, or the possibility of jurisdictional disputes among competing bargaining groups. It should be observed, however, that the Act does not create any presumption in favour of the most comprehensive unit of employees, even though these employees may have a community of interest. Section l(1)(b) of the Act states that ""bargaining unit" means a unit of employees appropriate for collective bargaining, whether it is an employer unit or a plant unit or a subdivision of either or them".

This provision makes it quite clear that the determination of appropriateness does not always lead to the conclusion that the most comprehensive unit is also the most appropriate unit. Consideration of the wishes of employees, and of industrial relations policy, may very well dictate that a smaller bargaining unit is the appropriate unit. This point was clearly made in Board of Education for the City of Toronto case, supra.

But unfortunately, these themes merely describe conflicting impulses in any one case and do not provide concrete solutions. [Rational] solutions lie in the careful examination of evidence for significant differences in [community] of interest between occupational groupings bearing in mind the structural requirements for effective collective bargaining and labour relations. At the risk of being repetitive we think it important to observe that it is natural for certain groups of employees to be apprehensive about the outcome of collective bargaining if their occupation does not dominate a bargaining unit in sheer numbers and seldom is the Board confronted with applications for certification affecting employees with identical interests, abilities and backgrounds. Thus, if the Board was to be preoccupied with these apprehensions an unmanageable proliferation of potentially ineffective bargaining units would be the likely result. Accordingly, the Board must concern itself with only significant differences between employee interests and these significant differences must result in practical bargaining unit demarcations - practical in the sense that demarcations must provide efficient answers to like cases; there must be reasonable assurance that they can withstand the passage of time; and practical in the sense that sound collective bargaining relationships can be built upon them.

[emphasis added]

39. In Stratford General Hospital, supra, the Board adopted the more comprehensive paramedical bargaining unit (including technical employees) acknowledging the Board's preference for a more comprehensive unit. We note that that occurred in the context of two competing applications for certification wherein the Board also acknowledged that:

where there are competing applications the Board can be more concerned with the ideal characteristics of collective bargaining structures in that whatever the decision, employees will not be denied access to the collective bargaining process. (paragraph 19).

In that case recognition of the right of self-organization and the consequent opportunity to participate in the collective bargaining process was provided for and on balance the Board could then fashion a more ideal bargaining structure. We are less confident that by adopting a more comprehensive bargaining unit the same balance can be struck in the case before us.

40. It is clear that the RNA's at this institution oppose being included in the service unit. As well there is no evidence of any appetite for collective bargaining on the part of paramedical employees or nurses and more particularly, none that seeks to include RNA's. The latter is perhaps not surprising in light of the very history of collective bargaining in the hospital sector notwithstanding the remarks in 1985 in Hospital for Sick Children regarding the community of interest between RNA's and these other employees in the hospital setting. Where does that leave this group of employees in their ability to assert their interest in collective bargaining?

41. At an early point in history the Board recognized a separate bargaining unit for registered and graduated nurses. RNA's (or certified nursing assistants) were employed to perform at a substantially lower skill level compared to nurses and compared to the level of skill expected of RNA's today. Although "service" employees were organizing, little if any organizing of paramedical employees was occurring. Subsequently those paramedical employees have sought to participate in collective bargaining and appropriate bargaining unit configurations for those various employees have been determined (see particularly Stratford General Hospital, supra). The fact that RNA's have historically been included in the service unit appears to be at least partly as a result of the Board having recognized nurses in a separate bargaining unit (see the quote from Essex Health Association at paragraph 37 herein).

42. However, today, much in the provision of health care has and is evolving. If one were to look anew at appropriate bargaining unit configurations in the hospital sector it is readily arguable that the evolution of skills and training and the nature of the work now performed by RNA's places them with a closer community of interest to either nurses or employees in the paramedical bargaining unit rather than with employees in the service unit. As stated in Stratford General Hospital, (and recognized in Hospital for Sick Children see para. 37) there exists a functional interdependence between the activities of these various groups of employees. However while recognizing that current reality one must also function within, and take account of the historical context.

43. Over time RNA's have undergone a "process of professionalization" not unlike nurses and those employed in paramedical classifications (see the discussion in Stratford General Hospital, supra at paras. 14 and 15 and the comments in Hospital for Sick Children, supra at paras. 19, 36 and 37). No doubt this process has also affected the RNA's approach to collective bargaining. However we agree with the discussion in Stratford General Hospital and Hospital for Sick Children that claims of professional status do not warrant the fashioning of separate bargaining units.

44. The Board has long recognized that RNA's share a community of interest with other employees in a "service" or "all-employee" bargaining unit. It has also recognized that RNA's may well share a community of interest with RN's or paramedical employees, but that by virtue of trade union organizing and collective bargaining history, the RNA's have found themselves included in the service unit. In light of that history to include RNA's in a service unit and on the evidence before us, the unit proposed by the respondent is not inappropriate. As made clear in Hospital for Sick Children, supra it is now too late to say that RNA's cannot be appropriately included in a "service" bargaining unit. However, that is not the issue before us.

45. It is now well established that the Act requires the Board to determine not the "most" appropriate bargaining unit but "an" appropriate bargaining unit (see as well for example K-Mart Canada Limited [1981] OLRB Rep. Sept. 1250). In Hospital for Sick Children, supra, the Board stated that the objective is a viable collective bargaining structure and then summarized the issue this way:

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.

We note that issues of undue fragmentation can relate either to the viability of the proposed bargaining unit or to whether serious labour relations problems will be created for an employer.

46. Does the applicant's proposed bargaining unit create undue fragmentation and serious labour relations problems for the employer? This too must be considered in the context of the history of collective bargaining in the hospital sector and also in light of section 3. Part of that collective bargaining history now includes ongoing attempts by groups of RNA's to participate in collective bargaining outside the service unit and through a bargaining agent chosen to represent their felt needs and concerns.

47. The bargaining unit sought by the applicant here clearly includes a group of employees with a sufficiently coherent community of interest that they can bargain together and do so on a viable basis. The applicant seeks to represent a group of employees totalling approximately 165 all of whom have similar skills and perform similar functions and enjoy similar terms and conditions of employment. This is a largely unorganized hospital wherein the employer already recognizes and has a history of dealing separately with this same group of employees in a less formalized manner but for purposes very similar to those in collective bargaining. While we might prefer that the RNA's, if opposed to being included in a service unit, be included in a bargaining unit with either RN's or paramedical employees, on balance, we are not persuaded, notwithstanding the Board's earlier decisions, that there is potential for serious labour relations problems in this institution, provided the bargaining unit is described as including those persons employed as registered or graduate nursing assistants. While we have some reservations about overlaps in function between RNA's and orderlies we are not persuaded that it is of a sufficient degree so as to overcome the otherwise viable nature of the bargaining unit. Three of seven orderlies are employed in the emergency department where no RNA's are employed (nor is that contemplated). The employer will still have to deal with the potential greater difficulty of overlaps in function between the RNA's and RN's. That potential currently exists throughout the health care sector. This conclusion may well be different in an institution where there exists a large complement of employees in classifications whose functions overlap. However that is not the evidence before us.

48. In coming to this conclusion we do not intend that anything more be taken from it than is necessary for the resolution of the dispute between these parties. A bargaining unit comprised of one classification of employee is not one that would normally be found to be appropriate. RNA's do not enjoy status as a craft. Both these factors are relevant to the current configuration of bargaining units in the health care sector. The multiplicity of classifications contained in a paramedical bargaining unit do not evidence this same historical anomaly faced by the RNA's. Therefore, it is doubtful that any sensible basis would exist for fragmenting that "usual" bargaining unit any further, particularly in light of the Board's comments in Stratford General Hospital, supra, (and see Toronto East General and Orthopaedic Hospital Inc., [1981] OLRB Rep. Nov. 1672). While the decision in Hospital for Sick Children, supra, places considerable weight on the bargaining unit configuration sought by an applicant it does not ignore concerns of undue fragmentation. In that RNA's do not have status as a craft there would seem to be no basis from which they could "carve out" their classification from existing bargaining unit configurations (Section 6(3) also creates a discretion in the Board where employees are already represented by another trade union to determine whether a "carve-out" would be appropriate in the circumstances of any particular case. See for example, Shelbourne Residence; Re O.N.A. [1991] OLRB Rep. Aug. 1005). To the extent that this decision speaks to bargaining unit configurations in a hospital setting and more particularly those involving RNA's it recognizes that a bargaining unit comprised solely of RNA's may be an appropriate bargaining unit while at the same time recognizing that a bargaining unit described as the "standard" service or all-employee unit including RNA's may well also be appropriate. The Board has already acknowledged that RNA's may also share a community of interest with either the RN's or the employees in the "paramedical" unit. In this case the applicant seeks to represent RNA's and while recognizing a continuing concern regarding undue fragmentation and its potential effects on both effective collective bargaining and legitimate employer concerns we are not persuaded that in this case they outweigh the equally compelling expression of these employees' section 3 rights.

49. Having regard to the above, we find that all employees employed as registered or graduate nursing assistants by the respondent in Mississauga constitute a unit of employees of the respondent appropriate for collective bargaining. The parties remain in dispute with respect to whether there should be separate bargaining units for full-time and part-time RNA's respectively. This matter is referred to the Registrar for the purpose of scheduling a hearing to deal with that and any other remaining issues. In order to expedite the further scheduling of this matter we note that this panel is not seized.

DECISION OF BOARD MEMBER W. A. CORRELL; December 5, 1991

The majority decision recognizes all registered or graduate nursing assistants employed as such at the Mississauga Hospital as a unit appropriate for collective bargaining.

1. I dissent from the majority decision because:

i) it goes against the many previous decisions of this Board without compelling reasons;

ii) it rejects the recommendations of the Johnston Commission and the consequences for collective bargaining in the Health Services sector;

iii) it has the potential at this hospital to lead to further bargaining unit fragmentation and problems of labour relations instability;

iv) it can ultimately disrupt the harmony of others sectors of the labour relations community;

v) the difficulty needs to addressed not on a short-term or narrow basis but on a longer term and broader study of needs and potential problems.

2. The reasons for my dissent follow.

3. The majority decision has reviewed the relevant Board decisions bearing on this case. The most significant of these are noted as Hosp ital for Sick Children, [1985] OLRB Rep. Feb. 266, and the decision quotes extensively from that decision; Kidd Creek Mines Ltd., [1984] OLRB Rep. Mar. 481; and Stratford General Hospital, [1976] OLRB Rep. Sept. 459. These are noted in this dissent to underline their importance in this matter and that the majority have clearly understood the history of this Board's record. The Board has not in previous decisions supported the concept that smaller units are better, or that units defined by classification or department are neat and orderly and the majority decision has recognized these concepts. The Board over the years has clearly decided that its responsibility lies in the area of understanding and promoting long term views of the collective bargaining scene and has made decisions on this basis. In Kidd Creek and Stratford General Hospital it was noted that fragmented structures for bargaining could add to labour-management problems. These decisions note that more attention at the "front end" of bargaining unit determination can aid immeasurably in the development and maintenance of long term labour relations harmony.

4. The Board has historically endeavoured to bring some order to the administration of labour relations in the Health Services sector with some considerable success. In the identification of bargaining units it has rejected units based on self-interest applications. It has attempted to identify units with a community of interest or by an acceptance of those units identified by the Report of the Hospital Inquiry Commission chaired by D. L. Johnston, November 1974 as appropriate for bargaining and interest arbitration in a central process.

5. The Johnston Committee recommendations were not restricted only to this subject but a major part of the report recommends a structure of bargaining and is worthy of quoting since it has been a main stay in the decision-making of this Board. "Public Hospital Employees should be grouped into three categories for the purpose of bargaining - Service; Nursing; Paramedical. Future certifications of bargaining units should recognize only these categories." This recommendation was made in response to the terms of reference established by the Minister of Labour for this Province. One of these directives was to examine:

"the feasibility of collective bargaining in respect of hospital employees being conducted on other than an individual hospital basis."

6. The report goes on to expand in Chapter IV on the recommended structure for bargaining. Obviously a great deal of time and study was devoted to this subject with input from many unions, hospitals and employer organizations. The report has many interesting and challenging concepts. The relationships described are not irrelevant to the scene today. Many of the identified proposals have been utilized and are still developing. Some of the concepts need further updating perhaps and could form the basis for an in-depth study and accelerate a more energetic development. It does note also that its recommendation on the three categories for bargaining is designed "to limit the amount of fragmentation that might accompany an increase in organizing activity in the paramedical field". In discussing the alternatives for structuring bargaining units within these groups no mention is made of RNA's as such except to place them without further comment into the service group. It would appear that at the time of the study RNA's had not perhaps developed their role in patient care to the current level. The report does conclude this part of its investigation with the further statement on page 42 as follows:

"Finally we believe that a proliferation of unions is not advisable in the hospital field and organizing and negotiation resources which are scarce enough at present should not be spread over multi-jurisdictional boundaries."

7. This has, in fact, become the reality. A recent arbitration award by R.D. Joyce Huntsville Hospital is instructive in this area of negotiations and it makes detailed and far-ranging recommendations for the refining and expanding of this process. Decisions to adopt bargaining relationships which depart from the historical norm should not be taken lightly. A longer range view is required for we are dealing with the longer term impact on future collective bargaining in this sector. The Board's policy to organize in a community of interest direction based on the Johnston Commission's recommendations has been successful although not perfect. The exceptions however should not dictate that the achievements to date should now be thrown out with the bath water.

8. The majority decision after reviewing the consistency and importance of the past decisions of the Board decides to turn in another direction. This turn hinges it would seem on a statement in paragraph 40 of the majority decision. The RNA's might be denied the opportunity of having a bargaining agent of their choice. Paragraph 40 asks, "Where does that leave this group in their ability to assert their interest in collective bargaining?". The RNA's, the majority fears, would be left out of the process of selecting a union to represent them.

9. The right to be included in the process was rejected by the RNA's when the union (the United Steelworkers of America) that chose to organize the unit was rejected as not wholly acceptable to them. The question then is not that they do not have a place in the process, "to assert their interest in collective bargaining", but becomes instead the right they have to a particular choice of a union. The right of a "particular" choice however would conflict with the Board's policy and the clear precedent of prior decisions over many years.

10. Can the Board now decide to ignore the past and accept a tinkering with precedent or decide instead that the credibility of the Board and the practicality of the current collective bargaining arrangement should be put at risk.

11. The decision does not accept as a real problem the risks of fragmentation of bargaining units. These risks are detailed in Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250. That award warns at paragraph 28 that favouring small units in the search to satisfy self-determination and community of interest arguments leads to more serious dangers in the overall harmony of labour relations. Fragmentation it states must be avoided if a viable structure for collective bargaining is going to exist and survive.

12. The majority decision quotes extensively from Bestview Holdings Limited, paragraph 28 at the majority's paragraph 18 on the subject of bargaining unit proliferation. They are important enough to summarize again. A proliferation of small units:

• results in unnecessary work stoppages (either through picket line activity or the back-up of flow-through work);

• increases the number of rounds of bargaining;

• encourages political competition between different unions jockeying for "a better deal";

• denies employees the opportunity to seek the lower benefit insurance costs available to larger units;

• complicates the development of fair wage structures throughout a total enterprise.

13. Fragmentation and proliferation of bargaining units also has a negative impact for unions. A smaller unit means reduced income from dues to finance the important functions of bargaining and rights arbitration. Fewer members will be available to fill the leadership needs and the potential that resource provides for growth and influence, internally and externally. Small units will be less able to provide pressure for reform of legislation and other political agendas external to the bargaining unit. The need to join other units in any council formed to overcome these shortcomings, wastes the energies of the union in internal conflict and a watering down of membership ambitions.

14. A further factor to be considered by unions and indeed the entire labour relations community is that of carve-out. While some remain confident that the Board can control such adventuresome forays, increased pressures may arise as a result of this decision and other decisions that may follow. In the instant case RNA's currently organized with other classifications will more than likely seek to be recognized "in the union of their choice" and may indeed be encouraged to do so by the RNA's own association. If they are frustrated in their attempts, members are likely to feel cheated and argue discrimination. The RNA's association in such circumstances will have to deal with their members on this subject as a professional group and, dealing with the inevitable membership and political pressures, consider the benefits of pressing for further tinkerings with the Board's past decisions.

15. Conceivably other groups in the industrial community who also perceive the need for a special bargaining unit could come forward seeking some form of carve out or other special privilege. The Board will then have the same policy decision to make; rely on past-practice and precedent (an argument weakened by this decision) or seek a more organized review of the problem on a longer term basis. The Board if undecided may have to follow the third alternative and continue with piece-meal, narrow-view decisions as the current pulls it along. The majority decision states at paragraph 48 that the circumstances of each case must be balanced against these other concerns. I am not persuaded, however, that in this case the evidence is so compelling as to overturn the years of Board past practice.

16. There are changes occurring in the Health Services field not the least of which is the gradual and steady change in the job responsibility of the RNA. I agree with the statement in the majority decision made at paragraph 42:

"However, today, much in the provision of health care has and is evolving. If one were to look anew at appropriate bargaining unit configurations in the hospital sector it is readily arguable that the evolution of skills and training and the nature of the work now performed by RNA's places them with a closer community of interest to either nurses or employees in the paramedical bargaining unit rather than with employees in the service unit... .However while recognizing that current reality one must also function within, and take account of the historical context".

17. I do not agree however with subsequent findings by the majority that through this decision there is no potential for serious labour relations problems at this institution. There is every potential for this within every department or sub-group not now organized in paramedical and service units. The very serious problem of separate bargaining with each of such units is more than evident here. At least two other unions have a serious interest in organizing at this institution. The will and wishes of those about to be approached may well be influenced by the precedent and example of this decision, that is to organize on a self-interest basis. As noted before, the Johnston Commission recommendations were very aware of these potential problems when they examined the structure of Health Service bargaining. Its recommendation to limit the number of bargaining units has successfully contained the inefficiencies of such a result. It is also easily discernible however that outside of this hospital this organization attempt is but one of many steps to be taken by RNA's and their Association to organize RNA's as separate units for bargaining throughout the Health Service sector.

18. I do not agree that fragmentation will not be a problem. Any success in this certification attempt could well be reflected elsewhere in this institution. Any weakening of individual union strength through organizing small units will create labour relations instability. Unions lacking funds, strong leadership and battling internal political currents within a larger entity will not improve or control the kind of harmonious relations this Act is supposed to develop and maintain.

19. This is not a small step to be taken. Board decisions should not contradict previous decisions and long term precedents without compelling reasons. This application should be rejected for reasons of maintaining prior Board decisions and supporting the current collective bargaining approach. A rejection of this application would reinforce the confidence of the community in the Board's long term dedication to stability in the field.

20. Let other government initiatives recognize that there are changes occurring in the Health Services sector and what remedies are required. Such a study would, with input from all interested parties determine how far those changes have gone and what major change is needed in collective bargaining structures and the recognition of different certification applications in the sector. That approach would recognize the importance of long term direction and balance between various interests. It would also underline the Board's determination to maintain stability and harmony in the Health Service sector's labour relations community.

21. I would reject this application for the above reasons.