[1993] OLRB REP. SEPTEMBER 914
2610-92-R Practical Nurses Federation of Ontario, Applicant v. Wingham and District Hospital, Responding Party
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.
APPEARANCES: Douglas J. Wray, Cathy Skim, Phyllis Barfoot and Otalene Shaw for the applicant; Allan Shakes, Lloyd Koch and Gordon Baxter for the responding party.
DECISION OF K. G. O'NEIL, VICE-CHAIR, AND BOARD MEMBER H. KOBRYN: September 22, 1993
- This is an application for certification in which the applicant seeks a bargaining unit composed solely of Registered and Graduate Nursing Assistants (an RNA only unit) as follows:
all employees employed as registered or graduate nursing assistants by the Wingham and District Hospital in the Town of Wingham, save and except Nursing Co-ordinators and persons above the rank of Nursing Co-ordinator.
For the recent history of the applicant union's organizing of RNA's, and the context in which the parties argued this case, see The Mississauga Hospital, [1991] OLRB Rep. Dec. 1380, South Muskoka Memorial Hospital, [1992] OLRB Rep. April 520 and Strathroy-Middlesex General Hospital, [1992] OLRB Rep. Oct. 1103, referred to below as Mississauga Hospital, South Muskoka and Strathroy-Middlesex. A similar application in Englehart & District Hospital, Board File 1140-92-R, was heard during the same week as this case.
- At the outset of the hearing, the Board canvassed the list of employees with the parties. The parties agreed that Karen Ann Coultes and Martin Cretier should be off the list of employees agreed to be in the bargaining unit sought by the applicant.
Facts
The parties proceeded by stipulating facts, which were not in dispute in any significant respect, rather than calling oral evidence.
There are 68 beds in the hospital, 25 chronic and 43 active. The hospital has a total of approximately 247 employees. There are about 50 RNA's, approximately 14 full-time and 34 part-time.
A Director of Patient Care is in charge of the Nursing and Pharmacy departments of the hospital. There are seven nursing units in the hospital: obstetrics, medical/surgical, intensive care, pediatrics, geriatrics, the emergency room and the operating room (the OR). RNA's work in all these units. Each unit has a co-ordinator, an RN who leads a team composed of RN's and RNA's. There are 55 RN's employed by the hospital.
There are two people on the agreed list, one full-time and one part-time, whose classification is O.R. Tech (RNA). This classification is considered part of the nursing department and its agreed inclusion on the list of employees for this application indicates agreement that the incumbents are employed as RNA's. RNA qualifications are required for the position and incumbents also work as RNA's in the emergency room.
There is no one without the RNA qualification employed as an RNA in this hospital. RNA's have moved from RNA jobs to jobs that do not require RNA qualifications. In this category, in the last 18 years, one RNA moved to each of physiotherapy aide, laboratory aide, ward clerk and portering. The last of these occurred over four years ago. As well, a fifth moved in February, 1991 to the Central Supply Room (CSR) and does relief work as an ORT (agreed to be in the bargaining unit proposed by the applicant). Other than this relief work, none of the RNA's who have left RNA work have moved back into the RNA unit.
The hospital cites the above movement and other aspects of its use of RNA qualified employees as examples of problems with job mobility it sees with the bargaining unit proposed by the applicant, and filed various job descriptions to illustrate its point. The ORT who moved to work in the CSR, considered part of the nursing department, has among his job functions the responsibility to assist in the operating, recovery and emergency rooms in emergency situations. The previous person in the CSR job came from housekeeping and was not an RNA. In February, 1991, when the position was filled by the former ORT(RNA) cited above, the job description was redone to have utilization of that position in other areas and provide expertise in CSR. As qualifications for the position, the hospital now prefers an RNA with ORT experience. The current incumbent is on call for O.R. a significant amount of time and worked close to 40 hours in O.R. in 1992. The ORT's also do relief in the CSR (as do RN's if someone is absent and they are familiar with the work).
There are other jobs, such as physiotherapy aide, with a patient care component such as moving people with casts where preference is given to candidates with RNA qualifications so well. This is because of the knowledge of body mechanics and observation skills that RNA's have. However, physiotherapy aides are not on the list of employees agreed to be in the unit proposed by the applicant. Preference is also given to candidates with RNA qualifications for lab aide jobs which have some functions analogous to patient care, venipuncture, for example.
The only full-time ward clerk is an RNA. The qualification is helpful since it involves knowledge of medical terminology and the nursing documentation system. The ward clerk does part of the auditing and quality assurance of the nursing record system and surveys patient records. Since the ward clerk job is a Monday to Friday job, rather than involving shift work, it is attractive to some RNA's who need or want a change from shift work.
The cardiology technologist does blood collection much like the lab aide. Although the hospital looks for experience and education in electrocardiography rather than RNA qualifications, the current incumbent has RNA qualifications.
Nursing orderlies also perform some patient care functions, although there are many duties that can only be performed by certified people such as RN's and RNA's, for example, charting. As qualification for the orderly position, the hospital looks for a recognized course for orderlies (not an RNA course). The number of orderlies has been reduced in the hospital over time and they are now used primarily in chronic care areas for the care of male patients. The union says that orderly jobs are posted and no RNA who has recently applied for an orderly job has received one. The hospital says that there have been RNA's employed as orderlies in the past.
RNA's work as orderlies when the Hospital is short-staffed, which is on a fairly consistent basis. There were 20 shifts between October and December, 1992 when RNA's replaced orderlies for complete shifts. There were also times when RNA's helped out for less than a complete shift. RNA's continue to be paid as RNA's when they are doing relief work as orderlies. RNA's and orderlies currently receive the same wages, pending implementation of a pay equity plan. The union believes there are at least 600 RNA shifts per month. In its view, this makes the number of shifts worked as orderlies rather small in comparison.
The hospital's housekeeping department employs a porter who transports patients around the Hospital. RNA qualifications are not required for this position, but an RNA transferred into it in 1988, because it is a Monday to Friday job. When she transferred, the current incumbent made it clear she wanted to come back to the nursing department if the portering job was phased out.
The Hospital's proposed alternative bargaining units are a service or a paramedical unit. As to the clarity note for the standard paramedical unit, the employer observes that the parties might have to discuss exactly which positions were in and out. For example, the ECG technicians have been included in a service employee bargaining unit in some hospitals, while in the paramedical in others. Another borderline classification is lab aides. A service group including the RNA's would be 127, of which 48 would be RNA's. The paramedical unit would be 18 and the office and clerical would be 17. Addressing the respondent's proposed paramedical or service unit for the RNA's, the union says that employees in the other relevant classifications work in different areas, perform different functions under different supervision and have different shifts and wages.
In terms of employee organizations, the Hospital was non-union until December, 1992, when the Ontario Nurses Association (ONA) was certified as bargaining agent for a unit of RN's. No other union had attempted to organize the RNA's or service workers before this application.
There has been an RNA committee comprised of RNA~s employed by the Hospital for approximately 30 years. Its executive is elected by the RNA's. The committee meets on a monthly basis internally as specific problems arise. The Hospital provides facilities and allows people to attend meetings, sometimes on paid work time. The chair of the committee meets with the Director of Patient Care if necessary. The Hospital has access to the minutes of the meetings which are left in a binder in the nursing office. One of the things the RNA committee does is select RNA's to sit on various committees like the Occupational Health and Safety and Personnel Policy Committee. The Hospital underlines that the RNA committee is not a Hospital committee and it has the right to accept or reject nominations from the RNA's. There was no indication that the right to reject had ever been exercised.
The Hospital does not consider its dealings with the RNA committee as evidence that it recognizes RNA's as a separate group; it describes the committee's activities as meetings of a special interest group. The Director of Patient Care might be invited to attend if the committee was looking at new procedures for example, but there is no management attendance unless invited. The hospital makes the point that the committee is not structured around the shape of the bargaining unit that the union is proposing, referring to the fact that two RNA qualified people who are not employed as RNA's attend those meetings. Apparently there are also a number of other RNA qualified people who are not working as RNA's who do not attend RNA committee meetings. The union also points out that last year, when the Director of Patient Care spoke to the RNA committee about added nursing skills, a porter with RNA background was asked to leave because she was not an RNA, in light of the topic.
The RNA's have participated as a group in responding to the proposed hospital-wide pay equity plan by way of a complaint to the Pay Equity Commission through their committee. A review officer was sent to the Hospital to meet with the Hospital and RNA's. Since they were a non-union group, the Commission provided legal counsel to the RNA group. Preparation of a job facts sheet was co-ordinated and approved by the RNA's through the RNA committee for the purposes of that complaint. The pay equity plan had not yet been implemented or finalized at the time of hearing as it had not received Hospital approval. Consequently, no money had been paid out under it. However, a pay equity settlement was dealt with by a specially convened RNA only meeting. RNA's voted amongst themselves in the hospital board room to accept it.
There is an RNA school attached to the hospital, which has been associated with it for 50 years. Many of the employees of the hospital were students at that school. The RNA's as a group offer a bursary for students at that school, an indication of the major interest in the school among employees of the hospital.
RNA salaries and benefits have been implemented in this hospital in line with the centrally bargained service bargaining unit settlement which includes RNA's in most of the hospitals participating in central bargaining. The Hospital stressed the inter-relationship between the RNA's and other positions in the Hospitals.
As to the relevant facts not specific to this hospital, both parties referred to the findings of fact in the cases cited above, which need not be repeated here, although we have considered them. As well, the hospital made reference to the fact that there are only 16 out of 220 hospitals in the province which do not have a collective agreement with a service employees unit.
The Parties' Submissions
Both parties adopted the submissions made in support of their respective positions in the earlier jurisprudence cited and that portion of their arguments will not be set out in detail here although we have carefully considered those submissions.
The union argued that an RNA unit should generally be considered an appropriate unit, absent some peculiar facts which make it not so. They argue that the particular facts at Wingham and District Hospital are closer to those in Mississauga Hospital and South Muskoka than to Strathroy-Middlesex all cited above at paragraph I of this decision.
The union argued on the particular facts at this hospital, community of interest for RNA's was strongest among the RNA's themselves. The next strongest would be with the RN's, but a nursing department bargaining unit is no longer available since the RN's were recently certified for an RN-only bargaining unit. The union maintains that any other configuration strains the concept of community of interest beyond the breaking point.
In considering the hospital's proposed alternatives, the union refers to the hospital's organizational chart. Counsel observes that the traditional service unit would include employees from a variety of the hospital's departments, and not include all of any. The union views the paramedical unit as equally "irrational" since the RNA's fall under the aegis of the Director of Patient Care, while others in the paramedical unit would be under the Director of Rehabilitation, while still others would be under the Director of Radiology or Laboratory. The union argues that the organizational chart demonstrates its point that community of interest is strongest in the group it proposes and the alternatives would be "stretching it".
On the question of fragmentation, the union made the same argument set out in Mississauga Hospital para. 22, cited above, to the effect that the concerns underlying the issue of fragmentation are lessened considerably because of a number of factors peculiar to hospitals and employees with professional certification. Compulsory interest arbitration rather than strikes or lock-outs means there is no risk of work stoppage as a result of bargaining in this industry. The need for certification to perform RNA work means there will be no significant interchange between the RNA classification and other hospital jobs. The potential for jurisdictional disputes, it is submitted, is primarily with RN's and exists throughout the industry. The alternative bargaining units would not change this fact. As to the extra cost of bargaining with an added unit, the union does not see that as sufficient reason to deny the requested unit.
Union counsel refers to the fact that the hospital is largely unorganized and argues that the numbers of employees in any of the other proposed units mean it is unlikely the RNA's would be able to be represented by the union of their choice in the alternative configurations. Counsel observes that in 85 years there has been little appetite for collective bargaining. The RNA's now want to be organized; it is submitted that this should not be contingent on the wishes of employees who have not shown any appetite for collective bargaining.
In general, the union argues that there are far more similarities than differences between the case before us and South Muskoka. Union counsel argues that the size of the hospitals is about the same. Like South Muskoka ONA now represents the RN's. The RNA's there were also dealt with separately for pay equity purposes.
Counsel argues that the facts that distinguish Strathroy-Middlesex from Mississauga Hospital and South Muskoka do not exist at Wingham and District Hospital. Referring to four distinguishing facts, counsel says:
a) RNA qualified people are not included in the unit unless they are employed as RNA's. Counsel argues that that alone is enough to suggest that the Board should reach a conclusion different from that in Strathroy-Middlesex.
b) In Strathroy-Middlesex the Board expressed concern about uncertainty about who was in and out of the bargaining unit. Counsel states that there is no uncertainty here. The parties had no difficulty deciding who falls within the applicant's proposed unit. Counsel says the situation is the opposite of Strathroy-Middlesex. the respondent has already acknowledged that there may be uncertainty with its proposed alternative service and paramedical units.
c) The Board in Strathroy-Middlesex also expressed concern about people moving in and out of the proposed unit. No one has moved into the RNA unit from elsewhere in the hospital, and there are legal barriers to that because registration is required by law to perform RNA work. Of 200 employees only a handful were RNA's and moved to different jobs. This makes it extremely rare for an RNA to move out of the requested unit.
As to occasional moves, such as the Central Supply Technician being on call for the Operating Room, and RNA's filling in for absent orderlies, the union argues that this should be of no significance for the determination of the appropriateness of the bargaining unit. In their submission the conclusion that it is done with such regularity as to constitute a serious labour relations problem is not open to the Board on the facts of this case. The union submits that this is a matter for bargaining and that it will not be the party to make this a problem; the union wants its people to be able to pick up extra hours elsewhere if they want to.
d) On the matter of the existence of an employee association, the union argues these facts are closer to Mississauga Hospital and South Muskoka because of the RNA only committee. The union observes that the employer had not set up the structure in either Mississauga Hospital or South Muskoka. The important thing in the union's submission is that the RNA's have a structure, they raise their concerns and the hospital has recognized them to the extent of giving them facilities and letting them go to meetings. What recognition an employer gives a group before an application for certification should not be determinative in any event, in the union's submission. If an employer does not give voluntary recognition, a group has to come to the Board for certification. The union argues that it would be an absurdity if an employer could defeat an application for certification by saying they had not recognized a group earlier.
In summation, the union argues that these facts are not substantially different from Mississauga Hospital and South Muskoka, and therefore a similar result should obtain. The union maintains the RNA's are numerically viable and the employer has not demonstrated any convincing serious labour relations problem. Whatever other units might be appropriate, the union argues its proposed one is among them.
The hospital, by contrast, argues that these facts are like those at Strathroy-Middlesex and that decision should be followed.
The employer argues that Stratford General Hospital, [1976] OLRB Rep. Sept. 459 appropriately stopped the proliferation of hospital bargaining units, and that the structure it set up cut across the normal hospital organizational chart in much the same way as its proposed alternative units would. Reporting lines are not a factor which stands out in the earlier Board jurisprudence. The hospital argues that taking RNA's out of a service unit devastates the traditional service worker unit. Where as here there are obvious community of interest lines with classifications which would fall into the service or paramedical units, like physio-aide and nursing orderly, the unit with a narrower community of interest should not be considered appropriate by the Board. The employer argues that it should not be criticized for acknowledging the uncertainty in the parameters of the paramedical unit. It is said that the service unit usually organizes first and then the paramedical unit, if it is organized, is more like a tag-end unit.
Because of the number of positions that require or prefer RNA qualifications in this hospital, the employer argues that mobility of employees within the hospital favours a unit other than the RNA-only unit. The hospital argues that the 4 permanent moves out of the RNA unit should be seen in terms of 4 out of the 48 RNA's in the unit, not 4 out of all the employees in the hospital. The employer observes that seniority rights would be an obstacle to continued mobility in the hospital, because it knows of no collective agreement where someone outside the bargaining unit has as many rights as someone within it to post into bargaining unit positions. As to RNA's moving in and out of the bargaining unit, the hospital observes that the CSR technician is working in the bargaining unit proposed when he works relief as OR Technician. Although this union may not oppose job mobility, there is no guarantee a service unit will not be organized. Another union might feel differently.
The Hospital cited Milton Hospital v. CUPE Local 815, September 30, 1987, an arbitration award where a board of arbitration considered the Board's decision in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 in coming to the conclusion that the community of interest of a ward clerk was greater with RNA's than with office staff.
The employer refers to The Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371 for the type of drawbacks it sees with the applicant's proposed unit:
impeding mobility, increased potential for jurisdictional disputes, together with the time, trouble and expense of negotiating and administering several collective agreements. The employer underlines that the 1974 Johnston Commission's recommendations were that there should only be 3 standard bargaining units in the hospital sector: nursing, service and paramedical. As well, the hospital argues that the Bill 40 amendments provide a thrust toward consolidation of bargaining units, which should support the broader units.
The hospital argues that here the RNA committee was probably spawned by the interest generated in the RNA school associated with the hospital. This is not the same as Mississauga Hospital; it does not include the dynamics of negotiating about wages for instance.
The hospital maintains that allowing this unit will be an invitation for each group with a separate professional qualification to apply for a separate bargaining unit. This is seen as a large problem in the province in general as there are under 50 paramedical bargaining units out of a possible 220 hospitals. The hospital underlines that the new Regulated Health Professions Act, (Bill 43 c.18, S.O., 1991) which has received Royal Assent, but has not been proclaimed in effect as yet (with the exception of some transitional provisions) accentuates this problem, since a number of groups which were not self-regulating professions will become so under the new legislation.
The hospital reiterated the general arguments it made in Strathroy-Middlesex as to the disadvantages of the RNA only unit. On the subject of the potential for jurisdictional disputes, the hospital says that it is possible that RNA's would be upgraded to do medications and result in disputes with the RN unit. Since RNA's already replace orderlies, the hospital argues there could be conflicts with a service unit. In Mississauga Hospital the Board's reservations about an RNA-only unit were mitigated by the fact that the positions with some overlap of duties with RNA's would soon be deleted. Here there is a major continuing overlap in the hospital's view.
The employer points out that there is evidence of similarity of skills between RNA's and service workers, something about which the Board in Mississauga remarked there was no evidence.
The hospital also made reference to The Municipality of Metropolitan Toronto, [1992] OLRB Rep. March 315, on the problems of fragmentation in an intermingling situation.
The hospital suggests that, if this application is dismissed, the RNA's could get another bargaining agent, or PNFO could organize allied personnel. The hospital notes that, in contrast to Mississauga Hospital, where the RNA's had opposed an application by the Steelworkers to represent a service unit which included RNA's, there is no such history here.
The union replies that none of the 48 RNA's have ever been anything but RNA's; 4 out of the hospital's 2]7 employees once were RNA's. The bargaining unit should not be denied because in 18 years 4 people moved out of it, submits counsel. Whether people who have not worked as RNA's for years should be able to come back is something that can be bargained about; it is not the type of serious labour relations consequence that should deny the unit in the union's view.
After 85 non-union years, what some other union will do is speculative, in the union's submission, and should not be relied on by the Board. As to the references to Bill 40 in the employer's argument, union counsel submitted that those amendments were not intended to make it more difficult to organize.
The union argues that if there are consequences for these RNA's choice of this bargaining agent that should be their decision. It should not lie in the mouth of the employer to say they should be represented by someone bigger. The employer's points about central bargaining would apply even if the applicant organized every employee in the hospital, and thus should not be relied on in the union's submission.
[Paragraphs 46 to 73 omitted: Editor]
Thus, we have considered the various aspects considered to be serious labour relations problems by the employer in this case. We do not consider any of them to be more extensive than the ones considered by the Board in Mississauga and South Muskoka, where they were not found sufficiently serious to deny similar units. We do not find that there is the imprecision in the definition of the bargaining unit found in Strathroy-Middlesex or such frequent interchange with other classifications that the unit should be denied. In sum, we find the facts sufficiently close to those in Mississauga and South Muskoka that the unit applied for should be granted as we are not persuaded a different approach is warranted in this case.
Although the decisions in Mississauga Hospital and South Muskoka are fact-specific, the constellation of facts in those cases is not necessarily particularly unusual in the hospital sector, as evidenced by the facts of this case and those in Englehart & District Hospital. The tenor of the earlier decisions indicate that the Board was willing to consider new options - to take a new look at a bargaining unit historically considered inappropriate. To that extent the decisions represent, as we said earlier, a departure from the Board's usual rejection of department and classification based bargaining units. However, it is our view that the departure is based on extremely specific circumstances - limited to the situation of historical anomaly described in these cases - of difficulty of finding an appropriate fit for the RNA's in the traditional service unit in light of the evolution of their role in the hospital sector in the direction of the RN's and is not a rejection of the validity of the Board's usual approach. Given those particular circumstances, the consideration of section 3 rights (Mississauga Hospital, para. 48 and South Muskoka para. 16) tips the balance to allowing the RNA unit to be found to be an appropriate bargaining unit despite the potential problems set out by the employer in this case and in the previous cases.
For all the above reasons, we find the unit applied for to be the appropriate bargainir'Q unit for the purposes of this application.
There are no other issues outstanding between the parties. The applicant has the required support of more than fifty-five per cent of the employees in the bargaining unit. A certificate will issue to the applicant.
DECISION OF BOARD MEMBER W. N. FRASER; September 22, 1993
I disagree with the decision of the majority that an application for a unit of RNA's is appropriate. I am opposed to fragmentation of the bargaining relationship in the health care sector.
I would have dismissed the application.