Ontario Labour Relations Board
[1993] OLRB REP. SEPTEMBER 859
1269-92-R United Food and Commercial Workers, Local 459, Applicant v.Medical Centre Holdings (Leamington Ltd.), Responding Party v. Group of Employees, Objectors
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. M. Sloan and R. R. Montague.
APPEARANCES: Richard A. Blair, Jeff Andrew, Gene Collard and Brian Neathe for the applicant; Theodore Crljenica and Allan Nicholson for the responding party; no one appearing for the Objectors.
DECISION OF VICE-CHAIR, K. G. O'NEIL AND BOARD MEMBER, R. M. SLOAN; September 30, 1993
- This is an application for certification in which the parties have been unable to agree on the appropriate bargaining unit. There are no other issues outstanding between the parties. The bargaining unit sought by the applicant is as follows:
all employees, save and except registered nurses, the Administrator and persons above the rank of the Administrator, of the employer in Leamington.
The respondent is of the view that R.N.'s should also be included in the bargaining unit, i.e. the appropriate unit is an all-employee unit.
The parties made oral and written submissions about both the facts and the law applicable to this case. The evidence before the Board in this dispute is the transcript of examinations of several employees before a Board appointed examiner, which we have carefully considered.
The responding party ("the medical centre") is alternately described as a clinic by the applicant and a doctor's office by the responding party. The building in which the medical centre operates comprises offices of 13 doctors, including general practitioners and specialists, and also houses tenants who provide laboratory and x-ray services to the medical practitioners. There were apparently 26 employees at the time of the application, falling into two general groups, referred to by the parties as the clerical employees and the nurses. The eighteen clerical employees, 14 full-time and 4 part-time, would fall into the proposed bargaining unit. The addition of the 8 nurses, two full time and 6 part-time, would create the all-employee unit argued for by the respondent. Some duties of each group are never done by members of the other group, but there is an area of duties agreed to be primarily the function of the clerical group, which nurses also perform, which takes up a significant portion of the nursing group's time. The dispute centres around what effect that area of overlap should have in the determination of the appropriate bargaining unit.
There are six distinct functions of the clerical group: 1) Maintenance of medical charts in the file room (three employees). 2) Writing and checking charts (done by two employees on a rotating basis). When not writing and checking they work at the reception desk. 3) Dicta typing (two full-time employees); the remainder of the dicta typing duties are performed by two of the receptionists in the upstairs offices, referred to as clinics by the parties. 4) Assisting the officer manager. There is an assistant to the office manager who spends 80 per cent of her time at this job, and 20 percent at the reception desk. She also fills in for the dicta typists. This job is primarily concerned with billings, clarification of OHIP numbers and other related matters. 5) Reception. There are five employees at front reception where patients are greeted, phone calls are answered and appointments are booked. Enquiries and mail are dealt with through the front reception as well. 6) Secretary/receptionist (upstairs clinic) - four employees serve in this capacity which involves the provision of administrative support to three separate clinics situated in the upstairs area of the medical centre, performing a variety of secretarial and clerical functions. Two of these secretary/receptionists also perform dicta typists duties.
The parties are agreed that nurses do not do writing and checking, dicta typing, or work assisting the office managers. The evidence is uncontroverted that the nurses' role in retrieving matters from the file room is limited. The areas of overlap are primarily referable to the category of reception duties. In this we include greeting patients, answering phone calls, booking appointments and entering them into the computer, answering general inquiries and escorting patients to an examining room. Of this list of overlapping duties the parties are in agreement that answering phones is the primary responsibility of the reception staff which the applicant seeks to represent and that walking patients to the examining room is primarily a function of the nurses. It is also common ground that the groups cover for each other in these duties when one or the other is busy, which happens on a fairly frequent basis. Nurses cover for some clerical breaks. Either nurses or clerical staff may walk people back to the labs run by the tenants of the building. Employees in both groups fill out certain types of forms for patients as necessary.
The duties of the nurses that are not overlapping except to the limited extent indicated below, are those which relate to the actual provision of medical examination and/or procedures by the doctors at the medical centre, including assessment of the urgency of patients' conditions. The nursing functions performed by the nurses include a wide range of injections, assisting with inserting and taking out sutures, assisting in minor surgery including the removal of moles and polyps, vasectomies, coloscopies, colposcopes, and cryosurgery, assessment of patients and the performance of electrocardiogram tests. Much of the nurses' work on the phones is qualitatively different from that of the clerical employees in that nurses give advice or information of a medical nature that the clerical staff is prevented from doing. This includes the communication of test results, and assessment of the level of urgency of a patient's condition on the phone. Clerical staff turn to nurses for direction in regards to patients when they are unsure and routinely refer questions with medical content to the nurses. Some clerical staff occasionally do tasks normally solely the province of R.N.'s such as drying equipment, doing dipstick urine analysis and weighing patients. One witness said this occurred when the nurses are extremely busy. It is clear that the majority of the clerical group never do these latter tasks, and that the only primary function of the nursing group that members of the clerical group do with any regularity is walking patients to the examining room.
No specific skills are required to be hired into the clerical positions at the medical centre, whereas certification as a registered nurse is required to be hired as a nurse. Skills such as dicta typing and computer operation are involved in the performance of some of the clerical jobs; most of these skills are acquired through on the job training. Each of the members of the proposed bargaining unit, with one exception, commenced work in the filing room and progressed into the other functions. The exception to this was a long-term employee who started work at the reception desk.
The parties do not agree on whether or not the nursing certificate is actually required by the College of Nurses or the Health Disciplines Act for the functions the nurses perform. However, there is no dispute that it is a qualification for the job. There was testimony from a registered nurse to the effect that she would immediately report to management any non-nursing personnel found performing nursing functions.
There is substantial mobility and job interchange between each of the clerical jobs but none into the R.N. group. The writer/checker position is permanently rotated with the reception position and clerical staff fill in for each other on days off, vacations and illness. Members of the applicant's proposed bargaining unit do not fill in for nurses. There is some coverage of clerical positions by nurses for breaks or short absences in the absence of other alternatives.
Direct supervision and scheduling of the clerical group is done by Fernanda Gillis, the office manager. She in turn reports to the administrator, Allan Nicholson, who has overall responsibility for both groups. Scheduling for the nurses and the clerical staff is done separately. Nurses' schedules coincide with the schedule of the doctors to whom they are assigned, whereas clerical employees are scheduled at all hours that the clinic is open. Nurses are not allowed to go home at the end of the day if a doctor has not completed an examination whereas a member of the proposed bargaining unit could. Part-time nurses are cancelled when doctors are on vacation. Staff meetings are open to all staff, but attendance by nurses was generally by a representative. Although a group of clerical employees raised salary issues at a staff meeting not long before this certification application, there is no significant history of negotiation about terms and conditions of employment with either group per se.
As to salary and working conditions, there is a range of $13.00 to $14.00 per hour for nurses and $7.50 to $12.00 for the clerical personnel.
The union's submissions include the following salient points as to the applicable law:
(a) It is submitted that the question that the Board is to determine in the course of the exercise of its discretion pursuant to Section 6(1) of the Act is whether the "unit which the union seeks to represent encompasses 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." See Hospital for Sick Children, [1985] OLRB Rep. Feb. 266. Counsel suggested that the serious labour relations problems have to be at a level of the irrational or unduly disruptive of labour relations. The union's argument referred to "intractable" problems as the kind that would lead to the rejection of the applicant's proposed unit.
(b) Counsel argues that the Board has made it very clear that it is not interested in defining the best possible unit or the better of two possible units, but merely whether the unit advanced by the trade union is an appropriate one for purposes of collective bargaining. In this regard, the union asserts that the Board's approach recognizes that the range of "appropriateness" is extremely broad. If the applicant had requested an all-employee unit it could be appropriate but where it has not it should not be forced upon it, counsel submits.
(c) A primary concern expressed by the Board in determining the appropriateness of a proposed bargaining unit is the extent to which the proposed unit will enhance employees' collective bargaining rights pursuant to section 3 of the Act, and more expressly, the degree to which the proposed unit will enhance access to meaningful collective bargaining opportunities. In this context, counsel argues the Board has noted the importance of the employees' right to self-determination in collective bargaining, and as a result, the Board has paid considerable attention to the employee's expressed wishes with respect to the unit proposed by the trade union.
(d) It is submitted that the practical effect of the Board's jurisprudence developed in light of these considerations is to set an extremely low "standard of review" by the Board of the appropriateness of the proposed unit. It is submitted that the jurisprudence creates a heavy presumption in favour of the unit proposed by the applicant, and casts upon the respondent a substantial onus to establish either that the proposed unit is not viable in its own terms, or that any labour relations problems would be occasioned by its adoption would be of a particularly serious nature. It is submitted that there is no evidence in this case to support either branch of the suggested onus on the respondent.
(e) In determining the appropriateness of a proposed unit, the Board will consider the collective bargaining practices in a given area. Union counsel argues that it is the long-standing and unwavering practice of the Board in the health-care field to recognize that separate units are appropriate for persons employed in a nursing capacity and other employees of the employer. Counsel says that the proposition that nurses bargain separately from other employees is no longer in question. It is said that the potential conflict between professional obligations and normal labour relations considerations or practices, such as the exercise of the right to strike, support this.
(f) Conversely, counsel argues, it is the universal practice of the Board in the health care sector to exclude registered nurses from service, technical or paramedical units except where such a unit has been requested by the trade union and is otherwise viable. The union states that the Board's standard practice in this respect extends to Registered Nurses' Assistants. The work of the latter employees is considerably more closely integrated with the work of registered nurses (considered to be 50 percent in Hospital for Sick Children) than is work of any of the employees in the applicant's proposed unit. In the health care area, the Board has not found that the multiple overlap of functions between R.N.'s and R.N.A.'s and a general team approach toward the provision of health care by whole groups of professionals and paraprofessionals invalidate a unit excluding R.N.'s.
(g) Counsel submitted that although the Board will consider overlap of function in the course of determining the viability of a unit, such overlap must be of such a serious nature as to present intractable labour relations problems were the proposed unit to be accepted. For example, in Strathroy Middlesex Hospital, the viability of a proposed unit was rejected on the grounds that, inter alia, persons' bargaining unit status would be based on their professional accreditation notwithstanding that they were performing identical work in identical classifications and that because, given the extent of the overlap, it would be difficult to determine who would be in the bargaining unit. Counsel maintains that no such considerations exist in the present application. The union maintains that the overlapping duties are incidental to the nursing duties and are not significant as the employees are in no way interchangeable.
(h) Counsel argues that the significance of a qualification or credential in a bargaining unit description context is whether or not the credentials reflect a labour relations reality. Referring to Strathroy-Middlesex, counsel says that the question remains whether an employer's practices and history of representation shows a realistic distinction by professional qualification or not? Are they a significant part of the labour relations reality. In the context of this medical centre the applicant suggests they are.
- The respondent's main points may be summarized as follows:
(a) The general principles applicable in the hospital industry should not be taken for granted in this situation. Counsel stresses that this is not a hospital, nursing home, or clinic but a doctor's office, a business. As neither counsel was able to find any previous authority dealing with a doctor's office, respondent counsel urged us to handle this as a case of first impression - to consider the impact a decision in this case would have on smaller situations such as four doctors and two nurses.
(b) Counsel urged the Board to find that it does not make sense to have two bargaining units in one office because there is major overlap between the two kinds of employees and no distinct community of interest. Counsel describes the business as that of serving the patient and in that respect the two kinds of employees overlap entirely in his submission.
(c) The employer stresses that this is not a facility covered by the Hospital Labour Disputes Arbitration Act and therefore strikes are a possibility, bringing into play the traditional concerns about fragmentation and jurisdictional disputes being enforced through strikes.
(d) The employer urged the Board not to transfer the jurisprudence in hospitals and elsewhere of giving separate R.N. units to the context of a doctor's office. Counsel asserts that this would produce fragmentation, with all its negative effects. Counsel asserts that it is quite common for R.N.'s to be represented by one bargaining agent with the service unit in nursing homes. Counsel says that any tension between the professional and labour relations obligations of nurses is an issue for the College of Nurses and not one for the Board in the context of a bargaining unit determination.
(e) Counsel outlined the community of interest between the two groups in some detail and urged us not to divide that common interest. He stressed that the two groups of employees work together extremely closely in the same area with the same patients. The administrator is in charge of hiring both kinds of employees and is ultimately responsible for the supervision of both. Employer counsel urged upon us the analogy of production facilities where skilled trades are found in the same unit as unskilled workers and their different level of skill is reflected in their pay differential. Counsel says that the differences in hours of work and scheduling are not an indication of a separate community of interest but a reflection of the practical reality of having to schedule with their own backup in mind. Respondent counsel underlines that with the exception of the pay scale, the terms and conditions of employment are identical or very similar. Counsel asserts that neither group works more closely with the doctors and that the doctors assign tasks to both groups. One of the main serious problems that the employer envisions with a division between two units is that the doctors will not be able to give the same orders to either type of employee depending on who is most easily available.
(f) In terms of community of interest, employer counsel asked us not to make anything of the fact that more support staff attend office meetings than R.N.'s, since all staff are invited. Counsel asserts that there is nothing in the record to support the suggestion that the administration of the centre has been divided into two groups by the employer.
(g) As to the functions performed by the nurses, counsel maintains that none of them require an R.N. certificate, including giving shots. Counsel points out that there are exceptions to the idea that there is no overlap in functions as to the "nursing duties" as for instance the fact that some of the support staff clean up the rooms and clean or dry instruments. He suggests that the overall picture is that the staff is a team and when someone needs spelling off, staff spell each other off. Counsel gave the example of receptionists being present in the doctor's office during pap tests when nurses were not available. Counsel points to examples in the evidence where it was estimated that only 35 per cent of the nurses' time at work was true nursing, leaving 65 to 70 per cent overlap of duties. Even the union witness said that she spent 40 per cent of her time doing reception work and in the 60 per cent of time that she said was nursing she included walking patients to and from the waiting room.
(h) Counsel listed the duties that overlap, which focus around the reception area where patients have contact with the staff, rather than the billing room or the writing and checking area, as set out above. Very important in the respondent's submission is the fact that doctors do not distinguish between R.N.'s or clerical staff when asking for certain tasks to be performed such as getting a file, booking an appointment or calling for test results.
(i) Counsel stressed that the receptionists have face to face contact on a continual basis with the R.N.'s and the M.D.'s. They are not in any way separate from the R.N.'s or M.D.'s in their work. They are working together in a health related field to provide the same service to the same patients. Although there is no job mobility without going back to school from clerical to nursing jobs, there is a fluidity in terms of the duties that are assigned to them. We are asked to find that the overlap is much more than filling in for breaks. Counsel described it as a team dealing with patients from the time they call or come in, in preparation for the doctor doing whatever is needed medically.
(j) The respondent describes the overlap of duties as a mine field for jurisdictional disputes. Counsel asks what the employer is to do if answering phones becomes bargaining unit work and nurses are not allowed to do it? What about computers, or greeting patients at the desk? Counsel stresses that this case involves the offices of 13 doctors in a town of 15,000 with the public going in and out. Counsel refers to the potential for two sets of negotiations and to the prospect of rotating strikes.
(k) Counsel refers to section 73.1 of the Bill 40 amendments which deal with strike replacements and asks rhetorically how the employer will decide if there is a violation when there is so much overlap that it is impossible to split the workforce in two. Counsel argues that it is not just the creation of costly arbitrations that should concern the Board but the difficulty of making the Act itself function.
The applicant replies that this is not an industrial setting with skilled and non-skilled employees but a group of non-professionals who are not required to perform duties like giving injections and do not have the same level of education or income as those with the nursing credentials. Counsel asserts that the clerical group want to bargain without the R.N.'s. Counsel urges us to be mindful of the impact for collective bargaining on the group of non-professionals if they are forced to bargain together with a group of professionals with whom they do not wish to bargain. Counsel maintains that in the face of the Board's jurisprudence that has given a tremendous amount of recognition over the years to the fact that the bargaining interests of R.N.'s and support personnel are not the same, the Board should not accede to the respondent's request. Counsel stresses that there will not be a proliferation of competing interests to tie the hands of the employer. Counsel urges us to find that the fact that collective bargaining carries with it the seeds for disagreement such as over what is bargaining unit work does not equal the destruction of good labour relations.
Union counsel argues that in a world where often people want to be in a bargaining unit with people with higher wages because of the upward pull, an important statement is being made by these employees who are asking to be certified without professionals in their bargaining unit. It is a fundamental reflection of the disparate community of interests that they have, in counsel's submission.
Decision
Throughout the Board's jurisprudence, there have been many descriptions of the balancing of interests, both public and private, which is necessary to the determination of the appropriate bargaining unit in a certification application. Employee and trade union rights to self-determination and access to collective bargaining are often in tension with the Board's responsibility to fashion the appropriate basis for rational collective bargaining, including the reduction of structurally based labour relations problems, including, but not limited to, undue fragmentation. Classic statements of the Board's approach are set out in Ponderosa Steak House, [1975] OLRB Rep. Jan. 7, paras. 10 through 12, Hospital for Sick Children, (1985] OLRB Rep. Feb. 266, paras. 12 through 24 and the Board of Education for the City of Toronto, [1986] OLRB Rep. June 900, paras. 21 to 24, among others. As was observed in Stratford General Hospital, [1976] OLRB Rep. Sept. 459, in any one case these themes unfortunately only describe conflicting impulses and do not provide concrete solutions. Both counsel accepted the formulation in Hospital for Sick Children, supra, as an appropriate crystallization of the Board's approach, i.e. does the unit the applicant seek to represent encompass 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. The interplay of the conflicting impulses, as applied to any particular fact situation, is dealt with in the context of the Board's jurisprudence to the effect that the Board is not primarily concerned with finding the ideal or most appropriate unit. See, among others, Homewood Health Centre, [1992] OLRB Rep. Feb. 181 and U-Need-A-Cab Limited, [1989] OLRB Rep. Dec. 1275.
Two of the cases cited to us in argument, West Lincoln Multilevel Health Facility, [1988] OLRB Rep. Nov. 1185 and King Nursing Home, [1987] OLRB Rep. Oct. 1257 deal with the question of whether or not R.N.'s should be excluded from all employee bargaining units in nursing homes. In the King Nursing Home case the applicant wanted an all-employee unit, while the respondent argued the R.N.'s should be excluded from the unit based on community of interest grounds. By contrast, in West Lincoln Multilevel Health Facility the positions were reversed; the applicant wanted the R.N.'s excluded, while the respondent argued for their inclusion, based on concerns about undue fragmentation. Although the structure of the two workplaces was different, (one was a nursing home, and the other a combined nursing/rest home) the R.N.'s in question were both R.N.'s in nursing home roles. The two decisions read together mean that the Board may consider the inclusion or the exclusion of R.N.'s to be appropriate, depending on the particular combination of factors argued and in evidence, including what unit the applicant wishes to represent. See also Provincial Nursing Home Limited Partnership, [1993] OLRB Rep. July 642.
Both parties to this dispute cited King Nursing Home cited above, in support of their submissions, the employer for the proposition that an appropriate bargaining unit would include the nurses and for the proposition that one should not assume that one health care context was transferable to another. In that case the Board said that it was not prepared to assume that the hospital context of exclusion of R.N.'s from all employee bargaining units was applicable in the nursing home sector. The union, on the other hand, refers to the case for the statement made by the Board at the end of the decision to the effect that it did not wish the decision to be taken to mean that the Board considers it appropriate in other circumstances to include R.N.'s in all employee units in the nursing homes.
The fact situation before us is relatively novel. We were referred to no cases dealing with either doctor's offices or clinics, as the parties in turn characterized the facility we are dealing with. There is much that distinguishes this facility from hospitals and other public health care institutions. The distinguishing factors include the lower level of complexity of the facility, the private aspect of the business as opposed to the public nature of a hospital or other health care institution, and the fact that the parties agree that the Hospital Labour Disputes Arbitration Act (HLDAA) is not applicable. There is also the probability that the nursing work in hospitals, nursing homes, homes for the aged and health units (given 24 hour nursing care or itinerant nursing in those contexts) is carried out more often in the absence of a physician and thus with more independence, than in the medical centre. On the other hand, there is much about the facility that appears similar to an out-patient clinic in a hospital, in terms of the medical care provided and the tasks performed by the employees. For example, most of the clerical functions are closely analogous to those of ward clerks. The medical centre is clearly a health-care facility in the ordinary sense of the words. Although there is the absence of the specific legislation applicable to hospitals, nursing homes and homes for the ages, doctors and nurses are individually regulated by the same statutes when working in the medical centre as when working in public institutions. Thus there are important distinctions as well as important similarities between this and the health care contexts more common in the Board's jurisprudence to date.
The parties' argument revolved around what weight should be given to the Board's history of granting separate bargaining units to R.N.'s in many health care contexts where the applicant has requested it. The applicant relies on the following cases for the proposition that that practice is too well-established to be departed from in this case, particularly where the employees in question do not wish to bargain with their R.N. colleagues: Hospital for Sick Children, supra, Porcupine General Hospital, [1987] OLRB Rep. Mar. 423 at para. 4, Wellesley Hospital, [1974] OLRB Rep. Jan. 55 at para. 10 and Essex Health Authority, [1967] OLRB Rep. Nov. 716 at para. 12. The respondent, by contrast, says there is no established practice applicable to a doctor's office and that the high degree of overlap between the two groups of employees shows that it would be a mistake to transfer the practice from the traditional contexts, as it would cause serious labour relations problems in this workplace. Furthermore, the respondent relies on King Nursing Home, supra, Eastern Ontario Health Unit, [1976] OLRB Rep. Nov. 687 and The Board of Education for the City of Toronto, [1986] OLRB Rep. June 900 for support for its proposition that it is not necessarily appropriate to exclude R.N.'s and other professionals from all-employee units.
The union’s underlying premise that it is the unquestioned practice of the Board to exclude R.N.'s from all employee units unless the applicant wants them included, is based on cases like Porcupine General Hospital, cited above, which give support to the idea that R.N.'s would be granted their own unit if a union with craft or craft-like history applied for one, leaving the rest of the employees to be organized by another bargaining agent. Since the unit applied for here is identical to what would be left if the R.N.'s had been organized first in an R.N. only unit, the effect of the union's argument is really that we should use the same configuration, regardless of which group seeks certification first. A number of observations about this argument are in order.
Firstly, the long term wisdom of granting R.N. only units even in the traditional contexts, at least in light of their community of interest with other professional and para-professional groups, has been questioned in several recent decisions of the Board. See Hospital for Sick Children, supra, at paras. 36 to 38, Mississauga General Hospital, [1991] OLRB Rep. Dec. 1380 at para. 42, South Muskoka Memorial Hospital, [1992] OLRB Rep. Apr. 520 at paras. 6,15 and 18 and Strathroy-Middlesex General Hospital, [1992] OLRB Rep. Oct. 1103 at para. 33. As evidenced by King Nursing Home, supra, where the applicant wishes to represent R.N.'s together with other employees, the Board will grant such a unit, in the absence of evidence of serious labour relations problems. Moreover, as catalogued in Hospital for Sick Children there are other health care contexts in which nurses and other equally well-trained professionals bargain successfully with nonprofessional colleagues and professional colleagues with less formal training than they, such as in provincial psychiatric hospitals.
As well, in many situations where it has had the opportunity, the Board has expressed the idea that the effect of craft unionism on bargaining unit structures has not been particularly desirable, and is to be limited wherever possible. See in particular Kidd Creek Mines, [1984] OLRB Rep. Mar. 481 and [1986] OLRB Rep. June 736 and TV Guide Inc., [1986] OLRB Rep. Oct. 1451. This is because it leads to fragmentation and other undesirable structural barriers to harmonious collective bargaining. (The applicant here makes no claim to craft status for these employees, but argues for divisions created by a craft-like R.N. unit in the past.) As well, even where a craft configuration is well established, a non-craft union is not entitled to rely on that configuration. See a discussion of the example of operating engineers in hospitals in York Central Hospital, [1978] OLRB Rep. April 382.
The respondent's argument, although not framed in these terms, amounts to saying that what it proposes is properly analogous to an office, clerical and technical unit, one of the Board's other "standard" units. We note that the Board's view of the "standard" office and clerical unit has also evolved. See, for instance, Motor Coach Industries, [1992] OLRB Rep. June 744, where the Board did not separate the office and clerical workers from the plant workers, albeit at the applicant's request. Moreover, where what is referred to as "standard" units are sought to be applied to a non-standard workplace, the Board will not apply them simply because they are called standard. See for instance Creed's Storage Ltd., [1985] OLRB Rep. Feb. 238, where the applicant sought separate office and plant units and the Board found that the interchange between the two groups was too extensive to find that two separate bargaining units were appropriate. It is clear from the decision that the Board considered that an all-employee unit would have been appropriate instead.
We return to the first prong of the formulation from The Hospital for Sick Children. Is the applicant's proposed unit a unit of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis? As mentioned in Canada Trustco Mortgage Company, [1977] OLRB Rep. June 330, there are levels of community of interest, which range from that of all the employees in the enterprise to smaller groupings, depending on the circumstances. The applicant here says there is sufficient community of interest among the clerical and administrative employees to bargain while the respondent sees the community of interest of all the employees as one non-severable concept.
We are persuaded that there is a sufficient community of interest within each group to say that either the clerical group alone or an all-employee unit could form a coherent group for bargaining. Although the nature of the primary functions (as they were referred to throughout the evidence) of each group is substantially different, they are both providing different aspects of a health care service to the patients. The skills of the employees are very different, but are complementary, so they are not a barrier to being one cohesive bargaining group. The administration of the medical centre is centralized in the administrator, which supports the idea of the coherence of the larger group. Although we note the applicant's argument about the potential for tension between the professional obligations of an R.N. and the right to strike, we do not consider that potential to amount to a conflict of interest, or an indication of lack of sufficient community of interest to bargain together. Nor do we consider the different levels of education required to be enough reason to conclude that there is not sufficient community of interest for the two groups to bargain together. See the discussions in Eastern Ontario Health Unit, [1976] OLRB Rep. Nov. 687 and lmperial Clevite Canada Inc., [1983] OLRB Rep. Oct. 1670 on related points. Nor do we take the arguments concerning the preference of the clerical group to bargain without the nurses to be evidence of lack of community of interest, even if we take it at its highest as a manifestation of self-determination.
However, there are two separate reporting streams for the two groups and the scheduling and similar administrative functions are not merged; these factors support the coherence of each separate group alone. The extent of the functional interdependence between the two groups supports the community of interest of the larger group, but does not exclude the viability of the smaller group. The groups are clearly working closely together in providing, as we said above, different aspects of a health care service to the same group of patients. However, there are areas of each group's work which are quite severable from the other. Prominent examples of this are the file room and writing and checking work of the clerical group and the work with minor surgery of the nursing group. Even in the area of reception duties, which shows the greatest degree of interdependence, all witnesses seemed clear on what was a primary function of which group. Although there are duties of the nursing group (such as washing instruments or weighing patients) which are done on occasion by a small number of the clerical group, there was a clear area of nursing functions which are not interchangeable, for example assisting with minor surgery, giving injections and removing sutures.
We conclude from this that the applicant's requested unit meets the first prong of the formulation from Hospital for Sick Children's, supra. We turn now to the second prong. Does the unit proposed cause serious labour relations problems for the employer?
The respondent argues that the labour relations problems that will be caused by the unit proposed are a recipe for chaos. The problems argued are set out above. They relate primarily to the area of overlap of duties and the potential for strikes and jurisdictional disputes in and between two potential bargaining units.
The applicant disagrees, saying, by way of example, that any problems created are much less likely to be serious than the problems created throughout the health care sector by the placement of R.N.'s and R.N.A.'s in separate units. The union cited U-Need-A-Cab, supra, for the standard of review of serious labour relations problems. The Board had this to say, in the context of finding that a pure driver unit was appropriate, even though the respondents' preferred unit, which would have included independent contractors, would likely also be appropriate:
What are the "problems" that the respondent identifies as flowing from the creation of a pure drivers unit? Its workforce would be divided into at least two bargaining units and perhaps one or two others depending upon how one treats office staff should they ever indicate any appetite for collective bargaining. That would be inconvenient. But it would be no different from most other organized industrial enterprises where blue collar and white collar employees are typically divided between part-time and full-time workers creating a minimum of four bargaining units, and hospital employees are divided into part-time or full-time units of service workers, technical workers, and office workers. The Board's inclination is not to multiply the number of bargaining units, but the collective bargaining reality is that there are many situations where its own policies (particularly separating full-time and part-time workers) have done just that, and there is little empirical evidence that collective bargaining has suffered for it. Similarly, as we have already mentioned, there are many examples of very large bargaining units, encompassing quite different employee groupings without obvious evidence of collective bargaining difficulties, and some very small units (registered nurses in a nursing home for example), that seem to survive. The unit proposed by the union here is neither irrational, nor even accepting the employer's best case, likely to be unduly disruptive to its labour relations.
Although we disagree with the applicant that this passage can be taken to mean that the proposed unit has to be irrational in some larger sense before it will be rejected, we do agree that it underlines that inconvenience is not enough to create a serious labour relations problem.
Although at one level, any labour relations problem is serious, this is not the sense in which the term is meant in the Board's jurisprudence. It is clear that there is a category of potential problem which the legislation provides for or the Board finds to be within the range of acceptability, and a difficult to define boundary beyond which the problems are considered so inherent in the structure that the Board should take its opportunity at the front end to avoid them. The balancing of interests referred to above permeates the whole exercise of determining the appropriate bargaining unit, including evaluating the labour relations problems anticipated.
The union relies on the Board's long-standing jurisprudence that there may be more than one appropriate bargaining unit in a workplace. From this it flows that there will often be more than one unit found to be appropriate in any given workplace. Here, the maximum units flowing from the union's request is two. Thus, there is no potential of proliferation of units with the current grouping of classifications. However, there is an equally long-standing jurisprudence which speaks of the advantages of broadly based bargaining structures. (See among others Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371 and Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250. These advantages underlie the fact that it is fair to say that outside the construction industry the Board's most "standard" unit is the all-employee unit (within a given municipality). Obviously there are many well accepted appropriate units that are less comprehensive. However, it is not a given that more than one unit will always be found to be appropriate.
The union also highlighted section 3 rights as part of its argument that the Board's standard of review of appropriateness is quite low. It is important to underline that the aspects of the Board's jurisprudence which speak of the focus on the applicant's unit in the absence of serious labour relations problems does not mean that "anything goes". The emphasis on the applicant's unit is in the absence of serious labour relations problems. Nor does the jurisprudence's acceptance that the most ideal bargaining unit is not required mean that the standard of review is at the very low level the applicant argues. The Board has a serious responsibility to use the opportunity at the "front end" to foster healthy collective bargaining as far as it is able in structuring a bargaining unit.
We are urged to look elsewhere in health care for models of what the applicant seeks. However, one of the predominant aspects of the other models is the history of piecemeal development of the various bargaining units in the hospital sector along lines which have resulted in anomalies and difficulties which hindsight finds difficult to rationalize on any comprehensive basis. The Board's concerns about many of them have been mitigated somewhat by the prohibition against work stoppages in the HLDAA (see Strathroy Middlesex cited above) or the fact that in the already fragmented structure of hospital bargaining, the placement of certain positions in one bargaining unit or another could not be seen to create further serious labour relations problems, (see Hospital for Sick Children cited above). We are not prepared to rely on that history in this sufficiently distinct context, to say that the hospital context demonstrates that serious labour relations problems are unlikely in this medical centre.
The labour relations problems anticipated by the respondent relate to the overlap in functions of the two groups of employees, described above. They include the potential for jurisdictional disputes and other difficulties such as discord over definition of bargaining unit work at the negotiating table, dislocation of work assignment in the medical centre, related costly arbitrations and other legal proceedings and the prospect of two sets of strikes over these issues. Although we reject the respondent's characterization of these problems as chaos, these are serious labour relations problems. They are not merely matters of convenience, although undoubtedly successful negotiations would mean they were not intractable. Although, in a new situation, there is always an element of speculation involved, there is no reason to believe that the structural conflicts, grievances and jurisdictional disputes over bargaining unit boundaries, increasingly present elsewhere in the health care context, would not arise here as well. As mentioned earlier, there is not the buffer of the HLDAA to mitigate concerns over work stoppages over these avoidable problems.
The union argues that the overlap in duties is not anywhere serious enough to warrant separate bargaining units. Although it is tempting to categorize the duties involved in the reception of patients and dealing with them on the phone as peripheral or incidental to the nurses' role, it is not easy to do so in this office context. More importantly, even if incidental in content, the evidence shows that these duties are not incidental in terms of time, taking up at least 40 percent of the nurses' time (the most conservative estimate). We are cognizant of the fact that R.N.'s and R.N.A's and other groups in health care arguably share an equal amount of overlapping work and are in different bargaining units in many situations. There are many historical reasons for this, but the situation is not without its problems, as the recent cases on topic have pointed out. In any event, in other contexts, this amount of overlap would be considered the kind of functional integration that argues against separate units.
The union submits that section 3 considerations mean we should be guided by the employees' preference for bargaining without the nurses and that any problems are outweighed by these considerations. Counsel asked us to consider the degree to which the proposed bargaining unit would enhance access to meaningful collective bargaining opportunities. Although we are prepared to accept that the applicant's proposed unit accords with the preference of those it represents, we have no basis to find that it is necessary for access to meaningful collective bargaining. There is nothing in the material before us from which we can conclude that an all-employee bargaining would be a serious impediment to collective bargaining. Nor is there any applicable collective bargaining history of which we were made aware from which we could draw any general inferences to that effect. Health care workplaces in this province are organized to a very significant extent. The broader unit would be contained at the same site and is not particularly large in itself; thus, it does not present the obvious difficulties for organizing that multi-branch units have presented in other sectors. We have no indication of particular difficulties in this or other medical centres to act as a counterweight in our balancing of the interests involved here. In the circumstances, we are not prepared to find that access to organizing is a strong factor in this case. Nonetheless, it is worth noting that the Board's jurisprudence shows that where access to organizing is in jeopardy, it will be a factor of significant weight.
As to the aspect of self-determination per se, we have no basis on which to make a finding that these employees will be any less able to pursue their rights in the context of a broader unit or that their choice of bargaining agent as opposed to their preference for a particular bargaining unit, will be compromised.
For the reasons set out above, we are of the view that there are serious labour relations problems likely to be created by the proposed bargaining unit. In terms of Board decisions, this is a new area of the health care sector. We find that it is not appropriate in the factual circumstances of this case, in particular, the extent of integration between the two groups, to start off on the basis that R.N.'s should be excluded on a presumptive basis in the face of the labour relations problems indicated, as we have explained above. Thus, we find that the applicant's proposed unit is not the appropriate one for this application.
Given the applicant's level of support measured against the wider unit, this application is dismissed.
DECISION OF BOARD MEMBER RENE R. MONTAGUE; September 30, 1993
I am in total disagreement with the conclusion reached by the majority in this case.
I am appalled that it has taken from April 16, 1993 until mid-September to issue a decision on a certification application that was filed by the applicant on July 27, 1992. I will only say 'labour relations delayed is labour relations denied".
In this case the Board is asked to decide whether the unit proposed by the applicant is an appropriate bargaining unit. The Board is not being asked to find the most appropriate bargaining unit as has been found by the majority in its decision.
In my opinion, the majority decision is premised on assumptions only i.e. fragmentation, community of interest, and serious labour relations difficulties which will only come into play "if" and "when" the two (2) full-time nurses and six (6) part-time nurses decide to become unionized, and should not be the factor that the majority uses to reach their decision.
The majority decision clearly denies a group of office employees a choice of being organized by a trade union of their choice into a viable bargaining unit that would not cause serious labour relations problems. If it did, and then that presumption is a large leap of faith, is that not what collective bargaining is all about?
The one telling reason that R.N.'s should not be in the bargaining unit which is stated at paragraph 8 of the majority decision, which reads as follows:
“...There was testimony from a registered nurse to the effect that she would immediately report to management any non-nursing personnel found performing nursing functions."
(my emphasis added)
It is obvious that nurses view themselves as different and separate. Why should the Board find otherwise?
- At paragraph 10 of the majority decision it reads as follows:
”Direct supervision and scheduling of clerical is done by Fernanda Gillis, the office manager. Scheduling for the nurses and the clerical staff is done separately..."
It is obvious to me the respondent views two separate groups. Why should this Board do otherwise?
Therefore, the only reason the respondent is arguing to have an all employee unit is that there is a much greater chance to thwart this organizing drive by adding as many as possible into a bargaining unit thus lowering the support hopefully below the numbers required for certification which is exactly what has happened in this case. If one assumes that the applicant had support that with or without adding the R.N.s in the bargaining unit the applicant was certifiable, the respondent I suggest would not have objected. I suggest that if the majority had to decide whether to sweep the R.N.'s into the bargaining unit (without any R.N. support) they would not. Further, had the R.N.'s brought a certification application first they would have received an R.N. only bargaining unit.
I fully endorse the reasons expounded by the applicant's counsel at paragraph 12 of the majority decision. When one takes the majority decision and balances it against the rights of employees to freedom of association and the right to organize, one would have to agree with the applicant's position.
Finally, it is my opinion, that the majority based their decision solely on assumption and have ignored the real world of labour relations. I would have granted the applicant's proposed bargaining unit thereby facilitating access to collective bargaining rather than totally denying collective bargaining to employees who wish to join a union and thus participate.