Practical Nurses Federation of Ont. v. Strathroy Middlesex General Hospital, 1992 CanLII 6772

Ontario Labour Relations Board

[1992] OLRB Rep. October 1103

0440-92-R Practical Nurses Federation of Ont., Applicant v. Strathroy Middlesex General Hospital, Respondent

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members F. B. Reaume and H. Peacock.

APPEARANCES: Michael A. Church, Denis Ellickson, Gail Bennett and Janet Hedmen for the applicant; Allan Shakes and Glenna Houliston for the respondent.

DECISION OF LOUISA M. DAVIE, VICE-CHAIR, AND BOARD MEMBER F. B. REAUME; October30, 1992

1. This is an application for certification. For ease of reference the two parties to this application will be referred to as the "trade union" or "PNFO", and "the employer" or "the Hos­pital".

2. Prior to the hearing in this matter the parties reached agreement on all matters in dis­pute between them with the exception of the description of the bargaining unit. The parties have agreed that if the applicant's proposed bargaining unit is found to be appropriate, that bargaining unit would include both full-time and part-time staff. Having regard to that agreement, and the parties further agreement with respect to the employees on the list, the parties were advised by the Labour Relations Officer that there were 52 employees in the bargaining unit for purposes of the count.

3. The only issue which remains outstanding is the appropriateness of the bargaining unit sought by the trade union. The PNFO desires to represent:

all employees employed as registered or graduate nursing assistants by the Strathroy Middlesex General Hospital in the Town of Strathroy, save and except head nurse and persons above the rank of head nurse.

This will be referred to as the RNA only unit.

4. The Hospital opposes this description of the bargaining unit. It asserts that it is not appropriate to restrict the bargaining unit to registered and graduate nursing assistants (RNA's). In these proceedings it has argued in the alternative that the appropriate bargaining unit is either a unit which comprises both RNA's and a number of other "service" employees such as ward clerks, maintenance employees, housekeeping aides, etc. (the "service unit" option); or alternatively a unit which comprises both RNA's and a number of other "paramedical" employees such as occu­pational therapists, physiotherapists, respiratory technologists, laboratory technicians etc. (the "paramedical unit" option); or alternatively a unit which comprises both RNA's and registered and graduate nurses (the "nursing unit" option).

5. The trade union has only recently been found to be a trade union within the meaning of section 1(1) of the Labour Relations Act ("the Act"). (See The Mississauga Hospital, [1991] OLRB Rep. Dec. 1380 (hereinafter referred to as "Mississauga Hospital")). Its history as a trade union and its relationship to the Ontario Association of Registered Nursing Assistants ("OARNA") was detailed in Mississauga Hospital, supra, and need not be repeated here. Suffice it to say that it is a trade union which seeks to represent in collective bargaining primarily the interests of RNA's. The Board in Mississauga Hospital found at paragraph 15 of its decision that the PNFO was created in February, 1991 inter alia to meet "the RNA's appetite for collective bargaining outside the service unit and through the auspices of their own trade union". The Board also found that membership in the PNFO was not restricted to RNA's stating at paragraph 14 that the PNFO "... 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".

6. Although membership in the PNFO is not restricted to RNA's, since Mississauga Hospital the PNFO has applied for and been granted a number of certificates in which the Board has accepted the agreement of the parties to restrict the bargaining unit to RNA's. Each of those certificates was granted without a hearing. Since the Mississauga Hospital decision there has only been one other case in which the appropriateness of an RNA only bargaining unit has been liti­gated (see the decision of the Board in South Muskoka Memorial Hospital, [1992] OLRB Rep. April 520 (hereinafter referred to as "South Muskoka")). This then is the second occasion within recent times in which the Board has been required to consider further the decision of the Board that issued in Mississauga Hospital and adjudicate upon the issue. Prior to the decisions in Mississauga Hospital and South Muskoka the Board had historically treated RNA's as being included in a service bargaining unit (see most recently Hospital for Sick Children, [1985] OLRB Rep. Feb. 266). Each of these decisions and the concepts and principles enunciated therein figured prominently in the submissions of both parties and will be referred to in greater detail.

7. The respondent employer is a relatively small hospital with a total employee comple­ment of approximately 338 persons. The parties are agreed that approximately 286 of these persons are eligible to be represented by a bargaining agent and bargain collectively pursuant to the provi­sions of the Act. It was further agreed that those eligible to participate in the collective bargaining process can be broadly grouped as follows: 42 office and clerical employees, 29 paramedical employees, 49 service employees, 64 registered or graduate nursing assistants, and 102 registered and graduate nurses.

8. As of the date of the making of this application all of the employees of the respondent were unorganized.

9. The parties did not call viva voce evidence in this case as there was little dispute between them about the factual context within which the case must be decided. There was dis­agreement about the characterization to be placed on certain facts and the significance or weight to be attached to various facts.

Submissions of the Trade Union

10. The applicant relied primarily on the decisions of the Board in Mississauga Hospital and South Muskoka and the arguments advanced by the PNFO in those cases. Counsel relied on the evolution of the qualifications and responsibilities of the RNA set out in those decisions, the RNA's role in providing direct nursing care to patients, the RNA's community of interest within their own group and with the nursing department, and the RNA's right to organize and be repre­sented by the trade union of their own choice in support of the trade union's position that an RNA only unit is appropriate in these circumstances. It was stated that the submissions which the trade union made to the Board in South Muskoka and Mississauga Hospital were equally applicable to the case before us. As counsel so succinctly put it, "this was our argument then and this is our argument now.".

11. In keeping with this theme the trade union asserted that given the jurisprudence of the Board in the past year, the employer must explain why this Hospital is any different from the hos­pitals in Mississauga Hospital and South Muskoka so that the proposed unit is not appropriate. Similarly, the PNFO proposed unit was variously characterized as "their RNA unit" or "its stan­dard unit" together with the assertion that the unit had, from the trade union's perspective, become standard. In this regard it was asserted that the Board's precedents in South Muskoka and Mississauga Hospital together with the various agreed upon RNA only bargaining unit certificates assisted the PNFO in establishing the appropriateness of the bargaining unit sought in this case.

12. Factually the trade union argued that there was little to distinguish this Hospital and this case from the facts found in Mississauga Hospital and South Muskoka. The RNA's are part of the nursing department and wear a name tag stating "nursing department". The RNA's administer direct nursing care under the supervision of a medical practitioner and/or a registered nurse. Like RN's, and unlike other staff at the Hospital, the RNA's cover the Hospital twenty-four hours a day, seven days a week. Unlike "service" employees RNA's must come to the job as "qualified" and "certified" and can't become qualified through on the job training.

13. With the exception of one operating room (O.R.) technician there are no RNA's employed who are not certified and registered by reason of having completed the appropriate col­lege courses. Generally the operating room technicians are RNA qualified and RNA certification is currently a required qualification for that position. The PNFO seeks to represent those O.R. technicians who are RNA qualified. It appears however that it does not seek to represent O.R. technicians who are not RNA qualified. At the time of the application there was one operating room technician who had been "grandfathered" and who was not a registered or graduate nursing assistant. This person is expected to retire shortly. Her name does not appear on the list of employ­ees agreed upon by the parties. From the trade union's perspective it does not seek to represent this person as the PNFO does not seek to represent "operating room technicians". The PNFO argues that it does not seek to represent RNA's in the O.R. technician position. Rather it seeks to represent RNA's "employed as" or performing the work functions of an RNA. The applicant argues that an O.R. technician performs such work functions and falls within the bargaining unit proposed if she is RNA qualified.

14. Similarly, the trade union also stated that although there are some employees in the Hospital who hold a RNA certificate who are employed in "non-RNA" capacities, (some in addi­tion to their employment as a part-time RNA) the trade union does not seek to represent RNA's not "employed as" RNA's. It does not seek to represent RNA's (that is to say persons who are qualified and certified as RNA's) when those persons perform work outside the proposed bargain­ing unit i.e. as ward clerks. Thus for example it intends to treat those RNA's who perform both RNA work within the proposed bargaining unit and other work outside it as any other part-time employee. The trade union would represent the RNA only when and if the person worked within the RNA classification. In this regard it was submitted that it is significant that although there is movement of employees out of the RNA unit (as RNA's obtain either temporary or permanent full-time or part-time positions as ward clerks, activation therapy assistants, porters etc.), there is no similar movement into the RNA unit.

15. Finally the applicant noted the proposed bargaining unit had numerical viability insofar as it comprises in excess of fifty persons. It was submitted that a homogeneous RNA group of this size could and should be permitted to bargain as a unit and be represented by the bargaining agent of its choice. Counsel for the PNFO argued that although employees within the group perhaps had a community of interest with the registered nurses who also provided direct patient care, that does not detract from the fact that the unit proposed in and of itself is appropriate and viable. Reference was made to the fact that the registered nurses are typically and historically represented by their own bargaining agent, the Ontario Nurses' Association ("ONA") in a registered nurses only bar­gaining unit. The ONA does not seek to represent and does not accept into membership persons other than registered and graduate nurses. In addition it was asserted that the placement of RNA's and RN's in the same unit could result in conflicts as statutory provisions and the College of Nurses and its published Standards of Nursing Practice indicate that the registered nurses have supervisory responsibility with respect to RNA work.

Submissions of the Employer

16. In its arguments the respondent also referred to both Mississauga Hospital and South Muskoka asserting that the facts of this case were distinguishable. It was disputed that the ratio of those decisions indicated that an RNA only unit was appropriate. Instead, the employer submitted that these cases stood for no more than the proposition that an RNA only unit was appropriate given the specific facts and circumstances that existed in each of those cases, but that in different facts and circumstances a unit of RNA's together with some other grouping of employees might be appropriate. It was argued that the facts and circumstances of this case were different and that such other grouping was appropriate.

17. The employer submitted that the onus was on the PNFO to show the proposed bargain­ing unit was appropriate. It was argued that this onus was not shifted merely because recent juris­prudence of the Board did not discount the possibility that an RNA only unit could be appropriate in particular circumstances. From this Hospital employer's perspective both Mississauga Hospital and South Muskoka were cases which departed from existing jurisprudence and were "fact spe­cific".

18. The focus of the employer's submissions revolved around the issue of undue fragmenta­tion identified in both Mississauga Hospital and South Muskoka. It was asserted that to grant an RNA only unit in these circumstances where no other employees of the Hospital were yet orga­nized was to at a minimum increase by one the number of bargaining units typically or historically found in hospitals. Counsel submitted that in a hospital setting prior to Mississauga Hospital and South Muskoka and at least since the Board's decision in Stratford General Hospital, [1976] OLRB Rep. Sept. 459, the Board had with some consistency recognized bargaining units consisting of:

a) registered and graduate nurses

b) paramedical employees

c) all service employees (including RNA's)

d) office and clerical employees, and

e) where appropriate stationary engineers.

19. Counsel for the Hospital argued that due to the unique nature of institutions within the health care sector and the many "professional" or "specialized skills" employees working within the health care sector, there had developed a proliferation of small bargaining units of employees with specialized skills or departmental focus. The Johnson Commission report of 1974 identified a number of problems in the health care sector as a result (at least in part) of that development. In 1976 the Board itself sought to bring some stability or rationalization to the structure of bargaining units in the health care sector in its decision in Stratford General Hospital. The respondent argued that to find as appropriate an RNA only bargaining unit in an otherwise unorganized hospital would increase the very fragmentation sought to be avoided in Stratford General Hospital and such subsequent decisions of the Board as the Hospital for Sick Children, supra. As counsel stated "the Stratford General Hospital decision is being undone" if the Board in this case were to find an RNA only unit to be appropriate.

20. With respect to the issue of fragmentation the Hospital asserted a number of labour relations problems or concerns caused when there is a multiplicity of smaller units. These included the added costs of bargaining with a number of smaller units, the increased likelihood of jurisdic­tional disputes, the restrictions placed on employee mobility within the Hospital as movement between bargaining units and bargaining agents becomes restricted, the increased likelihood of competition between bargaining units including both competition between bargaining units within the Hospital and the potential competition and consequent "leap frogging" between RNA only units at this and other hospitals and the "service" units at other hospitals which include RNA's etc.

21. Factually the respondent referred to particular facts and circumstances which it was sub­mitted distinguished this case from the South Muskoka and Mississauga Hospital decisions, and in any event supported a much broader bargaining unit rather than the one sought by the PNFO. Counsel for the employer asserted that unlike the situation in Mississauga Hospital, this Hospital had not done anything to set the RNA's apart as a separate or distinct group. Rather there is a sin­gle staff association at the Hospital which represents all staff. This association has an executive and consists of all the different parts of the Hospital including RNA's. Representatives of management are not part of that association. The association regularly discusses matters relating to labour rela­tions and personnel with management including for example the Hospital's policy with respect to bereavement leave, payment in lieu of benefits for part-time employees, part-time vacation poli­cies etc. Similarly, and unlike the case in Muskoka Hospital the Hospital here has not set the RNA's apart by, for example, deducting association dues (OARNA dues) for its RNA's notwith­standing that a request to do so has been made.

22. We were also referred to various occasions in which RNA qualified employees success­fully applied for temporary or permanent full or part-time positions outside the proposed bargain­ing unit. Thus, for example, one RNA had been given the option of electing to be laid off or accepting a relief "porter" position. She elected to work in the porter position. At the time of the application that individual RNA was therefore employed as a porter. We note that the name of this RNA certified "porter" appears on the agreed upon list of employees.

23. At the Hospital there have also been a number of instances in which RNA's moved to ward clerk positions (for reasons of health, work related injuries or personal preference) or were hired as part-time relief to provide back-up for the regular part-time ward clerk. At the time of the application there was one RNA qualified employee who in addition to her work as a part-time RNA also worked as a ward clerk on a part-time basis. This was not the first occasion that this had occurred, and other examples in which RNA's successfully applied for other or additional part-time work outside the proposed bargaining unit such as a storekeeper, or part-time activation ther­apy assistant were provided. It was argued that this movement of employees from the bargaining unit pointed to a community of interest with "some other area".

24. With respect to salary and benefits and other terms and conditions of employment the employer "looks to" the centrally bargained S.E.I.U. and C.U.P.E. "service agreements" with other hospitals as its benchmark. Similarly, it looks to the centrally bargained ONA agreement as a benchmark for its registered and graduate nurses and the OPSEU paramedical agreement for the paramedical employees. There does not however appear to be any consistency in grouping the var­ious classifications at the Hospital for purposes of determining benefit levels. For example, for pur­poses of weekend and shift premiums all employees except the registered nurses receive the same premium amounts. All employees including the registered nurses receive the same insurance cov­erage and pay the same proportionate percentage amount for such insurance coverage. For pur­poses of vacation entitlement on the other hand the RNA's entitlement is the same as the "ser­vice" and "clerical" employees, and is different from the registered nurses and paramedical employees.

25. The Hospital made extensive submissions about the interaction of the RNA's with other employees who assist in some manner in providing medical care or services to the patients at the Hospital. These ranged from the RNA's interaction with housekeeping staff who clean a patient's room, the dietary staff who deliver food trays distributed to patients, the physiotherapist who attends patients on the floor and the registered nurses with whom the RNA's work and from whom the RNA's may receive directions about patient care. We need not detail the interaction between various employee classifications at the Hospital. We note simply that employees at this Hospital appear to perform the tasks which one would typically expect an employee in those classifications in a hospital to do.

Decision

26. We accept that all hospital employees are "involved" in the delivery of patient care. Notwithstanding that fact however, the employees within the various classifications referred to by counsel do not perform the same or similar tasks. The employees exhibit varying skills, have differ­ent education levels, have varying and different lines of authority within the Hospital's organiza­tion and as has already been noted work pursuant to varying conditions of employment in terms of hours, benefits, etc. As a result, we are not persuaded that the interaction which RNA's have with other employees at the Hospital to which the employer referred is any more helpful in resolving the issues placed before us than is the trade union's argument that the "status" of the RNA's favours a separate and distinct bargaining unit. The extreme positions of the parties with respect to these two matters merely highlight the typical tensions in cases in which the appropriateness of the bargaining unit is litigated. The conflict between the employer's concern that a work place not be unduly fragmented and the trade union's concern that the rights to employee self-determination in collective bargaining not be unduly impeded, must always be balanced. It is these concerns which underlie the Board's determination of an appropriate bargaining unit. In this regard we refer to the extensive analysis of the objectives, conflicts and tensions which must be considered in determining the appropriate bargaining unit contained in Mississauga Hospital, and the Hospital for Sick Children, supra and Stratford General Hospital [1976] OLRB Rep. Sept. 459.

27. In the case before us, in addition to the underlying conflict between the parties which pits the right to self-determination against the desire to avoid fragmentation, there is an added ten­sion. That tension focuses on the different interpretations and weight which the parties have attrib­uted to the Board's decisions in Mississauga Hospital and South Muskoka. Do the ratios of those decisions support the trade union's submissions that an RNA only unit is appropriate and that therefore the Hospital has an "onus" and is required to show why its circumstances are different and an RNA only unit is not appropriate in the present circumstances? Or do the ratios of the deci­sions support the employer's position that the cases were "fact specific" and that therefore the trade union has an '”onus” and is required to show that the circumstances here similarly warrant a departure from the Board's previously established practice of not granting an RNA only unit.

28. We do not find it particularly helpful to cast the issues with respect to the appropriate­ness of a bargaining unit in terms of "onus". Pursuant to section 6 of the Act the Board is obliged to find a unit that is "appropriate". That issue is rarely resolved on the basis of which party has the "onus" of proving something. Regardless of any question of "onus" or the "interpretation" which each of these parties seek to place on Mississauga Hospital and South Muskoka the test to deter­mine whether a proposed bargaining unit is appropriate continues to be one which focuses upon the viability of the collective bargaining structure. That principle was succinctly enunciated in the Hospital for Sick Children, supra, where the Board framed the approach which the Board has gen­erally applied in recent years in the form of the following question:

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.

29. The decisions in Mississauga Hospital and South Muskoka neither add to nor detract from that proposition. The approach articulated in the form of the relatively simple question asked in the Hospital for Sick Children has not changed as a result of recent cases in which it was deter­mined or agreed that the PNFO can be certified for an RNA only unit.

30. Mississauga Hospital explicitly referred to the Hospital for Sick Children. After quoting this passage the Board went on to note that the issue of "undue fragmentation" could relate to either "the viability of the proposed bargaining unit or to whether serious labour relations prob­lems will be created for an employer". It then determined the appropriateness of the proposed unit with reference to this objective of a viable collective bargaining structure stating:

31. 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.

32. 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 0 NA. [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.

(emphasis added)

31. In South Muskoka the Board referred to these paragraphs and summarized the thrust and effect of the Mississauga Hospital decision when it stated at paragraph 16:

…..the Board went to considerable length in Mississauga Hospital to make it clear in its decision that its conclusion with respect to appropriateness in that case was very much a product of the facts and historical background with which it was confronted, and that any "final" determina­tion about the bargaining units within which a group like the RNA's in the long run might come to be placed, was not something that the Board was purporting to make:

Clearly, therefore, what the Board was doing in Mississauga Hospital was to indicate a willing­ness to consider new "options" for the placement of RNA's that went beyond the traditional, and only, option that had been made available to that group in the past. That is the issue of "ap­propriateness", and the Mississauga Hospital case determines that there can be cases where, based on the facts, and the positions litigated by the parties before the Board, a bargaining unit comprised solely of RNA's might be found to be the “appropriate" one. But just as clearly, in the paragraphs quoted above, the Board did not purport to limit the field henceforward to one single option, or one single trade union....

(emphasis added)

32. In both Mississauga Hospital and South Muskoka the Board ultimately determined that an RNA only unit in the context of the facts and circumstances at those hospitals did not cause undue fragmentation which would lead to a non-viable bargaining unit or serious labour relations problems for the employers.

33. The Board in both those cases however also determined that the historical evolution of bargaining units in the health care sector did not in and of itself automatically place the RNA's in a traditional "service" unit. Given the facts and circumstances at those hospitals, and the evolution

of the skills, training and nature of work performed by the RNA's there was no natural "fit" for the RNA's within the service unit.

34. We disagree with the PNFO's submissions to this panel which suggest simpliciter that either Mississauga Hospital or South Muskoka stand for the proposition that where, in a hospital setting, this trade union seeks to represent an RNA only bargaining unit such unit will be found to be "appropriate". In our view, a careful reading of those decisions (including their specific refer­ences to the PNFO not being a craft union, RNA's not enjoying status as a craft, "claims of profes­sional status [not warranting] the fashioning of separate bargaining units", and bargaining units comprised of a single classification being one that would normally be found to be appropriate, as well as their indication that undue fragmentation continues to concern the Board) does not neces­sarily support such a conclusion or interpretation.

35. In our view the cases relied upon by the applicant stand for no more and no less than the fact that upon application of the Hospital for Sick Children's test the Board may find an RNA only unit to be appropriate. Such a unit is not necessarily or always inappropriate as advocated by the respondents in Mississauga Hospital or South Muskoka merely because, in the past the RNA's had "historically" been included in a service unit. All the circumstances, including the historical context of bargaining unit configurations in the health care sector, the rights to self-determination, the viability of the bargaining structure, undue fragmentation and its labour relations consequences etc. must be considered and balanced.

36. Having regard to the test in Hospital for Sick Children the Board in Mississauga Hospital found the employer hospital's own treatment of the affected employees as a single unit for purposes of employee relations to be a persuasive factor from which it could reasonably be con­cluded that a single classification bargaining unit of RNA's would not create a potential for serious labour relations problems at that institution. For purposes of labour relations the Hospital was already treating the RNA's in a manner that was separate and distinct from "service" employees without any apparent administrative difficulties or adverse labour relations consequences (see for example paragraphs 12 and 20 of the decision). Faced with circumstances in which the Hospital itself had already recognized and treated the group as a separate entity within its own organization the Board properly rejected the Hospital's suggestion that serious labour relations consequences would result in the certification of a unit which the Hospital was already treating as distinct. In addition, the Board properly rejected the suggestion that the RNA unit would be grouped with service employees for reasons relating solely to "history" of collective bargaining within the Hospi­tal sector.

37. To a lesser degree similar circumstances existed in South Muskoka. There, except for purposes of the RNA's wages and benefits determinations where the "service” collective agree­ments were tracked, the employer had for the most part dealt with the RNA's as either part of a broader nursing group (through the Nursing Communications Group) or as a separate and distinct group (as in its pay equity plan or through the voluntary check off of OARNA membership dues). Notwithstanding the fact that there were no apparent circumstances other than "history" which would cause the Board to group together in a single bargaining unit the RNA's and service employees, the employer in South Muskoka nonetheless advocated that position in arguing that an RNA only unit was not appropriate. It is not apparent from the decision that the Hospital asserted (and the Board accepted) that serious labour relations consequences would result at that institution if the bargaining unit sought was found to be appropriate.

38. In our view neither Mississauga Hospital nor South Muskoka stand for the proposition that a single classification, RNA only unit will always be found to be appropriate in a hospital set-

ting where this applicant applies for such a unit. Neither case indicates a willingness on the part of the Board to grant what can perhaps best be described as "craft-like" status to the PNFO in the same manner that the passage of time and the historical evolution of collective bargaining within the health care sector has created an anomaly in which one trade union (the ONA) can and does represent one classification (RN's) in the hospital sector.

39. Having duly balanced all of the considerations including a number of facts which distin­guish this case from Mississauga Hospital, we have concluded that application of the test enunci­ated in Hospital for Sick Children indicates that the bargaining unit sought by the PNFO in this instance is not appropriate.

40. We begin with the observation that the concept of an "appropriate" bargaining unit includes within it an element of policy. In fashioning bargaining units the Board endeavours to accommodate the potentially competing collective bargaining values to which both parties have referred. The right to self-organization and the desirability of avoiding fragmentation which may increase the potential for industrial disharmony are two such policy concerns (see Kidd Creek Mines, [1984] OLRB Rep. Mar. 481). In this regard we note that this application is with respect to employees employed within the hospital industry - an industry in which fragmentation of the work force into several bargaining units is already prevalent and the norm. The Board must be cognizant of that context. More specifically in the facts of this case the context also includes the fact that the employees at this hospital are presently unorganized.

41. In numerous decisions including Kidd Creek Mines and the Hospital for Sick Children the Board has indicated that fragmentation of a work force into several smaller bargaining units is not generally desirable. In this respect we are prepared to accept as a general proposition those assertions of the employer in this instance which outline the labour relations problems which flow from fragmentation. In this case some of those assertions were challenged by the trade union as having no application because these parties are covered by the Hospital Labour Disputes Arbitra­tions Act (HLDAA). We accept as valid some of those challenges. Thus for example there is no potential for a succession of work stoppages or strikes and their effects on other employees at the institution. In light of the requirement for interest arbitration found in the HLDAA, the spectre of "competition" between bargaining agents and bargaining units is also less significant. The cost associated with negotiating more collective agreements may increase but that factor alone does not in our view outweigh the rights of employees to be represented by the bargaining agent of their choice. We also recognize that there is at least a potential opportunity to address some of the employer's "fragmentation" concerns at the bargaining table.

42. Nonetheless we accept that generally undue fragmentation of a work force is not desir­able. It is for that reason that single classification bargaining units are not normally found to be appropriate. Similarly, concerns about fragmentation and its effects upon job mobility and oppor­tunities to perform specific work functions have significantly limited the expansion of craft union­ism outside the construction industry (see for example Kidd Creek Mines, supra). Although frag­mentation need not necessarily result in an increase in craft unionism, an acceptance of craft unionism or "craft-like" bargaining units must inevitably result in fragmentation with its conse­quent results. This is particularly so in this case where the work force is presently unorganized and a shaping of this initial bargaining unit will undoubtedly influence the shaping of any subsequent bargaining units. The shaping of this unit will also affect any collective bargaining negotiations with respect to RNA's and other employees at this hospital who may in future seek to bargain collec­tively.

43. Together with the circumstance that this application arises in a factual context wherein

none of the other employees at this hospital are organized there are a number of circumstances which highlight:

(a) the inappropriateness of the proposed bargaining unit at this institu­tion;

(b) the concerns for granting a single classification, craft-like unit (RNA's "employed as" RNA's); and

(c) the distinction between this case and Mississauga Hospital.

44. First there are the present circumstances as they relate to, for example, the operating room (O.R.) technicians. At the time of the making of the application there were persons employed in the position of O.R. technician who were RNA qualified and at least one who was not RNA qualified. The trade union seeks to represent only those employees in the O.R. technician position who are RNA qualified. The PNFO's position is that RNA qualified O.R. technicians are included in the bargaining unit description as they are "employed as" RNA's. The non-RNA quali­fied O.R. technician on the other hand is not to be included in the bargaining unit. At the time of the making of the application therefore this position places the Hospital in a situation where it is required to deal with employees in the same classification where one employee is represented by the trade union while another is not.

45. The fact that the Hospital now requires RNA qualification or that the non-RNA quali­fied incumbent obtained the position when RNA qualification was not required by the Hospital (and in any event is expected to retire soon) cannot detract from the difficulty which the PNFO's position underscores when it seeks to have the Board fashion a bargaining unit description in rela­tionship to the qualifications held by employees within the unit (registered or graduate nursing assistants) or the work functions with which such qualifications are typically associated ("employed as" RNA's). For example, if the Hospital "waived" the RNA certification qualification for a par­ticular employee who was otherwise qualified to fill the O.R. technician position (either through experience or education such as perhaps a Licensed Practical Nurse trained outside Ontario), or if the Hospital for whatever reason chose not to require RNA qualification, it is not apparent from the bargaining unit description and the PNFO's position before us whether such employees are to be included in the bargaining unit and represented by the PNFO. This difficulty which perhaps results from an overlap in functions in the O.R. technician and RNA classifications was either not present or not addressed in any detail in the Board's earlier decisions relating to this issue.

46. With respect to this problem there can be little doubt that the PNFO's proposed unit includes and is intended to include those RNA's employed in "nursing" functions. The question then becomes what is included within that nursing function rubric. As with the case of the OR. technician, from the PNFO's perspective it obviously includes the O.R. technician classification. With respect to other classifications in the Hospital however the position is less clear. Although the PNFO asserts before us that it does not for example seek to represent RNA qualified employees when such employees are employed as ward clerks, it can't be determined with any degree of pre­cision or certainty from the bargaining unit description sought what the parameters of the unit include.

47. To further highlight the difficulty with determining the boundaries of the bargaining unit description at this institution (and the potential for serious labour relations consequences) and by way of another example we refer to those instances where RNA qualified persons perform work in (for lack of a better word) "different" capacities. Again the problems associated with defining what "employed as RNA's" includes are apparent for at this hospital RNA certified, qualified employees are not employed only as ward clerks. For example RNA's are or have also been "por­ters" and "activation therapy assistants".

48. In determining the appropriateness of a bargaining unit the Board does not typically look to the employee list. The issue of bargaining unit description is generally dealt with first and is distinct from the issue of who falls within that description. Indeed typically the list is not settled until after the bargaining unit description has been settled. In this instance however the parties have already agreed on the list of employees to be considered by the Board for purposes of the count (the parties were advised of that "count" by the Labour Relations Officer.) That agreed upon list discloses examples of the very problems associated with defining a bargaining unit description with reference to qualifications and work functions as it includes not only the 0. R. technicians who are RNA's, but it also includes the RNA qualified employee working as a "por­ter" at the time of the application.

49. There are thus two aspects of the PNFO's position which are particularly troublesome and which show the unit defined in its present terms to be inappropriate at this hospital. The union's inclusion of the RNA qualified porter and exclusion of the "grandfathered" O.R. techni­cian who is not RNA qualified suggests that the bargaining unit as described may not encompass all employees within a particular classification but only those who are RNA qualified. It also indi­cates that within this hospital the definition of persons "employed as" RNA's may be somewhat loose and elastic (perhaps because of overlaps in functions of classifications) thereby increasing the potential for collective bargaining conflicts and jurisdictional disputes.

50. As RNA's at this hospital also perform work in these "different" capacities there is also a greater potential that if the Board finds this unit appropriate, employees at the Hospital may be represented by this bargaining agent for only part of their overall employment with the Hospital. This hospital has presented a history which discloses that its RNA's regularly work in such differ­ent capacities either in addition to, or instead of, their RNA "nursing" functions. In those instances where the RNA qualified employee works in addition to her part-time employment as an RNA this has the result that the employee would be represented by one trade union while per­forming certain work functions on behalf of the employer, but that same employee would be unre­presented (or represented by another trade union in the event another bargaining unit is certified at some future date) while performing other work functions for the same employer. The problems associated with such a state of affairs are not probably insurmountable. We find however that where, as here, such circumstances occur with such regularity and consistency a bargaining struc­ture which at its very inception creates such a situation is not appropriate. On the other hand a bar­gaining structure which seeks to avoid or minimize such potential problems by including within it classifications in which such other job opportunities and work functions are found is appropriate.

51. Once again these issues were not addressed in Mississauga Hospital or South Muskoka. Thus, in Mississauga Hospital it appears that concerns with respect to the restriction of job oppor­tunities beyond the typical nursing function RNA classifications were not present as "the applicant argued that this [was] not an issue in [that] case as there [was] no interchange of RNA's into other classifications, nor employees into the RNA group given the particular nature of the qualification and training." (See paragraph 22 of the decision). Each of these factors distinguish this case from the cases relied upon by the PNFO. These factors highlight some of the practical labour relations consequences which this employer faces if the Board were to find the proposed bargaining unit appropriate. Those labour relations consequences were not present in Mississauga Hospital where the employer was already dealing with the RNA's as a separate and distinct group without any apparent difficulty.

52. We have a distinctly different situation before us. This hospital has not sought to set the RNA group apart from other employees. In fact the opposite is true. RNA's are presented with job opportunities which appear to go beyond the RNA classification such as ward clerk, store­keeper, activation therapy assistants, porter etc. In addition, a single staff association at the Hospi­tal represents all employees including RNA's, RN's, paramedical and service employees. The existing labour relations structure was one of the factors considered by the Board in Mississauga Hospital (the apparent lack of an overlap in functions in classifications, the lack of interchange and the consequent absence of possible impediments to other job opportunities, the earlier steelwork­ers organizing campaign, etc. were some other factors). There is nothing in the existing structure through which employee concerns are raised at this hospital which provides any degree of assur­ance that labour relations problems will not result if the Board finds as appropriate a bargaining unit comprised of a single classification.

53. On balance we are not persuaded that the unit sought is appropriate. The test pro­pounded in Hospital for Sick Children is in our view not satisfied in these circumstances. Although the employees within the proposed bargaining unit share a community of interest and have numeri­cal viability that in and of itself does not meet the Hospital for Sick Children test. Having balanced all of the circumstances we conclude that the proposed unit does not constitute a viable bargaining unit which would not at the same time cause serious labour relations problems for the employer.

54. Before leaving this part of our decision we wish to address the PNFO's submissions that if we were to find that an RNA only unit is not appropriate we would in effect be making "a right hand turn" from the two cases relied upon by the PNFO. We note that our determination herein reflects the different factual context with which we are faced. Moreover, in both Mississauga Hospital and South Muskoka the Board noted that the issues raised by a proposed RNA only bar­gaining unit were by no means clear cut. Although unfortunate, litigation may be necessary as both the Board and the parties in the health care sector grapple with the issues. The Board in South Muskoka made extensive reference to the American jurisprudence and experience in the area of health care sector bargaining units and indicated that the issue was by no means settled. Indeed, the Board in South Muskoka concluded its review of both the Ontario jurisprudence and the expe­rience in other jurisdictions with the observation:

……Where all of this will lead in the future remains to be determined by the Board, on the basis of how trade unions and employees in this sector seek to organize, and the compelling nature of the propositions advanced before it.

17. Such a case-by-case approach, while unhappily litigious (initially), would appear, in a situa­tion like the present, to be an appropriate way for the Board to proceed.

The Alternative Units Proposed

55. In this case the Hospital has asserted that there is a more natural "fit" or accommoda­tion of the interests of all parties in a broader bargaining unit which includes RNA's and a number of other employees. It has proposed various options as "appropriate". To assist the parties we note only that on the material before us the various options proposed by the Hospital did not appear inappropriate. We have decided however that it is not necessary for us to determine which of the options proposed by the Hospital is to be preferred. There is no application for certification before us for a bargaining unit described in such terms and the PNFO has not adopted as appropriate any of the options urged upon us by the employer. Moreover, having regard to the membership evidence filed the addition of even one non-RNA qualified employee (whether that person is a "ser­vice" employee, a "paramedical" employee, or a "nursing" employee) to the PNFO's proposed bargaining unit will result in the ordering of a vote. If the number exceeds one it could result in the dismissal of this application.

56. It is well established that the Act requires the Board to determine "an" appropriate bargaining unit and not necessarily the "most" appropriate bargaining unit. The test in Hospital for Sick Children indicates that if the union seeks to be certified for a bargaining unit which is "appro­priate" (viable without at the same time causing serious labour relations problems) the Board will certify the applicant notwithstanding that some other unit may be "more" appropriate. In this case the applicant has not suggested any alternative position. We therefore conclude that since the bar­gaining unit applied for is not appropriate this application is dismissed.

DECISION OF BOARD MEMBER HUGH PEACOCK; October 30, 1992

1. I dissent.

2. I agree that the Board must have regard to "fact-specific" considerations, and that the test of appropriateness, absent craft status on the part of the applicant, is the viability of the collec­tive bargaining structure it proposes.

3. However, I find that the differences in the fact situation between this proposed unit and that of Mississauga Hospital or South Muskoka are insufficient to override the Act's presumption that employees' wishes for self-determination should outweigh the Board's policy concerns for fragmentation. It is not necessary for the two to be evenly balanced before conceding the employ­ees' interests. Indeed, the majority suggests the opposite: That even a degree of inconvenience for the employer is sufficient to tip the scales against the proposed unit.

4. Here the employer, used to dealing with an all-employee staff association (but not required to), would wind up negotiating with two representatives in place of one, in contrast to the 4 or 5 groups listed in paragraph 18 as the typical pattern of fragmented units now found in Ontario's general hospitals. This hardly qualifies, in my mind, as the "serious labour relations problem" standard the Board has established in Hospital for Sick Children, especially where as here, it is acknowledged, the group of employees exhibit "a sufficiently coherent community of interest" and have numerical viability.

5. Moreover, I am concerned at the weight which my colleagues give to the importance of shaping bargaining units in the mirror of the employer's existing employee relations structure in order to avoid the consequences of fragmentation. True, in Mississauga Hospital, the employer was found to be "already treating RNA's in a manner that was separate and distinct from "service" employees without any apparent administrative difficulties or adverse labour relations conse­quences ..." (paragraph 36). First, we lack any elaboration from this employer as to the nature of the difficulties it would face in dealing with an RNA only unit as distinct. Second, the majority approves of the Board's rejection in Mississauga Hospital of grouping RNA's with "service" employees for reasons relating solely to history of collective bargaining within the hospital sector. Later in paragraph 51, however, they go on to rely on the "history" argument, in regard to struc­ture at Strathroy Middlesex Hospital. This difference with the Mississauga Hospital case aside, the Board has said over and over in a variety of cases that the introduction of collective bargaining is meant to supersede, not conform to, the pattern of employee relations in a non-union setting. The employer's existing employee relations structure cannot be determinative of a bargaining unit issue, even in conjunction with other factors such as those dealt with here.

6. Similarly, far too much weight is given (in paragraph 42) to concerns for the impact the shaping of this unit may have on any subsequent bargaining units and collective bargaining negotia­tions. Confronted with an expression of desire to leave an in-house arrangement now and under­take genuine collective bargaining, the Board should not allow the desires of other employees to remain unorganized to serve as a drag on the RNA's expectations. What if no appetite for collec­tive bargaining develops on the part of the other groups? Does the Board wish to leave the impres­sion it views the certification of a "craft-like" organization as detrimental to the development of an environment in which broader-based collective bargaining can flourish?

7. In paragraphs 46 and following, much is made of the facts that the trade union seeks to represent one RNA employed as an operating room technician, that a person who is RNA quali­fied appears on Schedule "A" as a porter and other positions such as ward clerk (which the PNFO does not seek to represent) also are worked by RNA's from time to time. Placed before us on agreement, the job description for O. R. technician in Exhibit 1 lists the main responsibilities as fol­lows: "to function as part of the team in caring for the patient" and "to. assist with patient care pre­and post-operatively". With the possible exception of preparation and sterilization of equipment, the balance of the description points to a high degree of involvement with patient care rather than to a preponderance of technical duties much more remote from patient care. The position is part of the Nursing Department organizationally. The O. R. Tech reports to the Nurse Manager - O. R. according to the job description. With the retirement of the "grandfathered", non RNA qualified O.R. technician, it appears that this position will be filled by only an RNA qualified person. It is my conclusion that there is nothing untoward in the applicant's seeking to include this position in the unit of persons employed as RNA's. It is a fact, certainly, which distinguishes this case from Mississauga Hospital and South Muskoka. In no way can I agree, nevertheless, that the inclusion of the O.R. technician position in an all RNA unit sets up a presumption that a service unit, or even a nursing unit, is a more appropriate unit.

8. The inclusion of an RNA qualified person working as a porter (at the time of the appli­cation) in a bargaining unit of RNA's employed as such is much more troublesome. It poses the question for the applicant: Do you really mean to seek a job-specific bargaining unit description or not? For whatever reason, the applicant and the employer have agreed to include on the schedules RNA qualified persons who are employed in non-RNA capacities. While the Board would not nor­mally have regard to a list of names and positions for the purposes of framing a bargaining unit description, I understand how inconsistent the presence of a "porter" in a nursing unit may appear. Nevertheless, I must remind that the essential uses of the lists are to determine composi­tion and the count (not the bargaining unit description), the names are there by agreement of the parties and the parties are free to leave with a certificate and sort out the inconsistency on their own, if they feel the need to. As to the other positions held by RNA qualified persons such as ward clerks, etc. it is accepted that the PNFO does not seek to represent them. The "difficulty" facing the employer of having RNA's move to non-RNA positions and back is not unique to this hospital or to the hospital sector. Teachers and construction foremen come immediately to mind as persons who may regularly or intermittently leave and return to a bargaining unit. Once again, I must ask: Are these employees to be denied the collective bargaining representation they prefer because some may work at times in an unrepresented department?

9. In conclusion, I find that the differences relied upon by my colleagues with the two ear­lier RNA cases do not have the weight which would cause me to deny the clearly expressed prefer­ence of this particular group of employees.