[1993] OLRB REP. SEPTEMBER 827
1140-92-R Practical Nurses Federation of Ontario, Applicant v. Englehart & District Hospital Inc., Responding Party
BEFORE: K. G. 0'Neil, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.
APPEARANCES: Douglas J. Wray, Barbara Parker, Laurie Lafrainboise and Otalene Shaw for the applicant; Allan Shakes and Jackie Leroux-Thomas for the responding party.
DECISION OF K. G. O'NEIL, VICE-CHAIR, AND BOARD MEMBER D. A. PATTERSON: September 20, 1993
- This is an application for certification which involves the issue of the appropriateness of a bargaining unit composed entirely of registered and graduate nursing assistants as follows:
all employees of Englehart and District Hospital employed as registered or graduate nursing assistants in the Town of Englehart, save and except head nurses and persons above the rank of head nurse.
The respondent says that this unit is inappropriate and the Board should include registered nursing assistants in either a service or a paramedical unit.
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 in abbreviated form as Mississauga Hospital, South Muskoka and Strathroy-Middlesex. A similar application in Wingham & District Hospital, Board File 2610-92-R, was heard in the same week as this case.
At the outset of the hearing, the Board canvassed the issue of the list of employees who would fall into the applicant's proposed bargaining unit. There were no disagreements on what employees were included on the list for the purposes of the count.
Facts
The parties stipulated facts which were not disputed in any important respect. These are summarized below.
The respondent is a 35-bed hospital in northern Ontario with 84 employees. There are 14 RNA's, three of them full-time. All of the 11 part-time RNA's are job sharing. The full-timers work a 12 hour shift while the part-timers work a combination of 4 and 12 hour shifts. All the RNA's work on one nursing unit. There is no operating room or other specialized units as one would find in a larger hospital, other than an emergency room, where no RNA's work.
The applicant's bargaining unit would consist of 14 RNA's. The respondent's proposed service unit would include the RNA's for a total of 38 employees in total, 12 full-time and 26 part-time, inclusive of 3 full-time and 3 part-time ambulance attendants. The respondent's alternative paramedical unit would have twenty-one people, seven from lab, radiology and physiotherapy, together with the 14 RNA's. A nursing unit, including RN's and RNA's, would have consisted of 26 employees. Although the possibility of a combined nursing unit was discussed at the hearing, since that time an RN - only unit has been certified on an interim basis.
The RNA's work under a head nurse who is a registered nurse. To provide full-time and part-time coverage, the RNA's are scheduled in combination with registered nurses of whom there are 8 full-time and 4 part-time, exclusive of the head nurse.
There is no employee association at this Hospital. Other than the recent certification of an RN unit on an interim basis, there are no trade unions with bargaining rights at this hospital, and no trade union had held bargaining rights before this application.
There are no orderlies employed at the Hospital. There is one part-time ward clerk who also works part-time as a service co-ordinator, a management position. The applicant does not claim the ward clerk as in the RNA unit. Other classifications at the Hospital are dietary aide, housekeepers, and one maintenance person. Dietary and housekeeping employees work different hours under a different supervisor. There are 11 office and clerical employees, 4 full-time and 7 part-time.
There is one person listed as an RNA who also does work in the central supply room (CSR) and x-ray which would be outside of the bargaining unit sought by the applicant. The parties agree she is not employed as an RNA when doing so. This person is someone who had worked for many years as a full-time RNA. To reduce the amount of heavy work as an RNA she commenced job-sharing her full-time RNA position and worked that way for three to four years. When part-time work became available in CSR and x-ray she picked up those extra hours. Her status at the date of application was that she was job-sharing her full-time RNA job and picking up extra hours in CSR and x-ray, work for which RNA qualifications are not required. There are 2 other employees who have RNA classifications but who are not now employed in an RNA job.
There is no one working in this Hospital in RNA work who is not qualified as an RNA or a graduate nursing assistant.
For the history of the RNA classification and qualification and how that has changed over time we were referred to the decision of the Board in Mississauga Hospital, cited above. We were also given four examples of collective agreements with RNA-only bargaining units, being agreements between the Toronto Hospitals and SEIU, Local 204, Victoria Hospital Corporation and London and District Service Workers Union, Local 220, Brockville General Hospital and CUPE, Local 252/03 and the Women's Christian Association of London and London and District Services Workers Union, Local 220.
The respondent underlined that because the Hospital is so small by necessity everyone works very closely together. Even management does things like work in the stores department. The Hospital does not recognize RNA's as a separate group within the Hospital.
The CSR department is composed of two part-time attendants who are RNA qualified and a manager. When hiring CSR attendants, the Hospital looks for RNA qualifications, but employment in that job is not considered employment as an RNA. Both the CSR attendants also do part-time work in the radiology department which does not require RNA qualification. As noted above, one of these people is job-sharing a full-time RNA position. The other transferred out of the RNA classification 10 to 11 years ago and has not worked as an RNA since.
Similarly, the hospital requires RNA qualification for the position of physiotherapy aide, which is not considered employment as an RNA. The current physiotherapy aide is an RNA who transferred seven years ago and has not worked as an RNA since. There is one full-time physiotherapist and a three-quarter time Physiotherapy aide. A full-time RNA has recently started doing vacation and sick leave relief for the aide.
The current nursing unit clerk is qualified as an RNA but moved out of RNA work into the clerk position over a year ago. A full-time ambulance attendant was also formerly employed as an RNA before qualifying as an ambulance attendant about 10 years ago. Since then she has not worked as an RNA.
About a year ago, one full-time RNA started doing part-time pulmonary and hearing testing for local industry four hours a week, after which she finishes the day as a regular RNA shift.
The salaries and benefits for RNA's have generally been kept in line with service employees following the increases for SEIU and CUPE in their central bargaining with participating hospitals. One exception to this is vacation in which RNA's have higher vacation benefits up to 15 years of service, as do ambulance attendants.
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 hospitals which do not have a collective agreement with a service employees unit.
The hospital underlines that there is no history such as in the Mississauga Hospital, supra, where the RNA's had previously opposed an application for certification by the Steelworkers and then organized themselves.
The hospital also made reference to the new Regulated Health Professions Act. Although it has not yet been proclaimed, with the exception of some transitional provisions, it will give self-governance to more professions than the previous Health Disciplines Act did.
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 relies on the recent Board decisions of Mississauga Hospital and South Muskoka to argue that its proposed unit is an appropriate unit, and that on the test in the Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the Board should grant its unit. It stresses that the facts are different from those in Strathroy-Middlesex. The union also submits that the approach of the majority in that case is incorrect in that it goes back to historically anomalous reasons which do not hold up under closer scrutiny, and which were rejected in The Mississauga Hospital and South Muskoka.
The union canvassed the reasons that supported the historical approach and divided those into three categories. Firstly, dealing with the history of the Board's practice not to grant RNA-only units, the union submits that the practice was not invariable. In 1972 the Board gave a service unit which excluded RNA's at the then Toronto General Hospital. Twenty years later the RNA's are still covered by a separate collective agreement in one of the province's largest hospitals. The union argues that the examples given of collective agreements with RNA only units indicate that there are several long-standing collective bargaining relationships, an indication that such a unit can be viable. Nine certificates have now been given to this applicant in the last year, several on agreement of the parties. History has been changing. Moreover, the union argues that, in any event, the past should not be determinative on the issue of appropriateness of the bargaining unit.
The second reason traditionally given for not granting an RNA bargaining unit is community of interest. The union refers to the Board's jurisprudence on the variable degrees of community of interest ranging from that of all employees in one place of employment down to other possible divisions, as set out in The Ottawa Citizen, [1987] OLRB Rep. Aug. 1098. The union says, relying on Harlequin Enterprises Ltd., [1987] OLRB Rep. Feb. 226, that the real test is viability. The union submits that the question of community of interest is fundamentally one of degree in each case. When looking at the units proposed by the respondent, the union submits that the community of interest with the service unit is the most tenuous of the alternatives. It is argued that the service workers work in a different environment doing a different kind of work with different qualifications, wage rates and supervision. Although there might be more community of interest with other groupings in the hospital such as with RN's or paramedical staff, the union stresses that the main point is that the board does not have to choose the most appropriate unit. The issue is only whether the RNA unit is an appropriate unit.
The third reason traditionally given for not granting an RNA only unit is fragmentation. The union refers to The Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371 at paragraphs 16 and 17 and to Mississauga Hospital, at paragraph 22, as well as The Board of Education of the City of Toronto, [1970] OLRB Rep. July 430 and Simcoe County Association for the Physically Disabled, [1992] OLRB Rep. July 857. The underlying concept, in the union's view, is that there is a tension between community of interest and self determination on one hand and undue fragmentation on the other hand. These tensions were analyzed at length in Hospital for Sick Children, supra, and produced the oft quoted one-liner as to whether or not the unit is viable without causing serious labour relations problems to the respondent.
The union argues that to refuse the unit applied for would be to say to the RNA's who have organized themselves that they have to convince their coworkers that they also should be represented by this union in order to have their right to self-determination and organization. Counsel refers to paragraphs 44 to 46 of The Mississauga Hospital, where the Board discussed the question of appropriateness in the context of both the bargaining history of the RNA's and the right to self-determination expressed in section 3 of the Act.
The union distinguishes Strathroy-Middlesex Hospital, supra, on the facts set out at paragraph 49 of that decision and says those concerns do not apply on the facts of this case. The union is not asking for the inclusion of any RNA who is not qualified but working as an RNA nor anyone who is RNA qualified but not working as an RNA. The uncertainty of the parameters of the bargaining unit which concerned the Board in Strathroy-Middlesex do not exist at this Hospital, in the union's view. The bargaining unit is not loose or elastic. Union counsel submits that the respondent had no difficulty putting the list together, and the union has not questioned it.
The union underlines that all of the movement from and to the RNA classification consists of 7 people in more than a decade, describing this as a very short list over the last eleven years. There are three individuals who regularly work as RNA's but who on occasion do other work. Some RNA's job share full-time RNA positions.
The union asserts that these movements out of the RNA classification are not unusual and cannot by any stretch be considered serious labour relations consequences. Counsel says that vacation relief outside of the bargaining unit happens all the time in all kinds of bargaining units. Even management does bargaining unit relief on a temporary basis in many work places. The union queries rhetorically whether someone doing office and clerical duties part-time in addition to a manufacturing job would make the manufacturing unit inappropriate. Counsel argues that all of the other movements are promotions or moves on a permanent basis dating from several years ago and should not be relied upon as an obstacle to the bargaining unit requested. There are no people coming into the proposed unit. The union indicates it would not want to stop job mobility in any event, but rather wishes to protect and encourage job opportunities for the people they represent. The union does not agree that unless there are water-type compartments there are serious labour relations problems. Counsel offers the example of full-time and part-time bargaining units.
The union says that the other reason the Board did not certify the RNA unit in Strathroy-Middlesex was that, as set out at paragraph 52 of that decision, the Hospital had not sought to set the RNA's apart, but had dealt with the staff association as a whole. At Englehart & District Hospital there is no staff association at all which makes it distinguishable on this factor. In any event the union agrees with the dissent in that case that the regime before the union is certified is not what should determine what is an appropriate bargaining unit. In any event the union suggests that it is a leap in logic to use the comments in Mississauga Hospital and South Muskoka about the employer's own treatment of the employees to determine bargaining unit appropriateness. Its use in those cases was to say to the employer, "How can you suggest there are serious labour relations consequences if you yourself were treating them separately?" The union argues that the employer's own practice undermined the employer's argument in those cases but it would be a leap of logic to conclude in other cases that there will be serious labour relations consequences if they have not been treated separately before.
The union submits that other aspects distinguish Strathroy-Middlesex as well. Firstly, there are facts that were not referred to in South Muskoka and Mississauga Hospital such as that people move from job to job. The union asserts that it is not likely that this was actually different in the South Muskoka and Mississauga Hospital workplaces, but that in any event it is insignificant. Counsel queries why minor movement should create serious labour relations difficulty. The union suggests such a factor should not be relied on as a single criterion. It is argued further that such a proposition cannot be found elsewhere in the jurisprudence. The second distinguishing factor in Strathroy-Middlesex refers to the employer not treating RNA's separately as a group. The union argues that the fact that there is no association in this Hospital makes this a non-factor.
In summary the union says that a community of interest exists among the RNA's, the RNA only unit is an appropriate bargaining unit, and the employer can not point to any serious labour relations consequences that would necessarily result from the unit requested.
The employer referred us to the Strathroy-Middlesex decision where the employer made and the Board accepted the same arguments as they rely on in the present case. The employer points out that the Mississauga Hospital and South Muskoka cases were not intended to be conclusive for all situations. The employer argues that prior to Stratford General Hospital, [1976] OLRB Rep. Sept. 459, which is referred to in Strathroy-Middlesex, there had been a proliferation of bargaining units in the hospital sector. The Board tried to control that and determined the four general bargaining units outlined in paragraph 18 of the Strathroy-Middlesex decision. Those have been followed consistently over the years in the employer's view. We were referred to the Hospital for Sick Children, cited above, and Kidd Creek Mines, [1984] OLRB Rep. Mar. 481 and [1986]OLRB Rep. June 736.
The employer is concerned about fragmentation, as was the Board in those cases. The employer notes that even prior to 1976, the Board had declined to certify an RNA unit in EssexHealth Association, [19671 OLRB Rep. Nov. 716 and St. Joseph's General Hospital, [19681 OLRB Rep. Sept. 558. The industry has relied on that jurisprudence, which the employer says should not be disturbed. It has only been opened up since Mississauga Hospital.
The employer refers to paragraph 38 of the Hospital for Sick Children for the argument that it is too late to say that the RNA's can not be in the service unit. Any community of interest the RNA's have among themselves does not preclude the inclusion in the service unit in the employer’s view. Where unionized, RNA's are currently found in service units; the employer knows of no situations where they are represented in an RN or paramedical unit. Nonetheless, the respondent argued that because there were no other bargaining units in the hospital at the time of hearing, one could also fashion an alternate bargaining unit such as nursing or paramedical.
The employer refers to the report of the Hospital Inquiry Commission in 1974, which recommended three standard bargaining units in the hospital sector: service, nursing and paramedical. The employer submits that is the situation at the moment in many hospitals. The only exception may be that there are more office and clerical units forming.
The employer argues that it is a relevant consideration for the Board that there are only 16 units left outside of the current voluntary central bargaining arrangements in the hospital sector.
The employer argues that the Board and the government are both interested in reducing fragmentation. We were referred to the changes to sections 7 and 8 in the Bill 40 amendments to the Act, in effect since January, 1993. By the very fact that PNFO can only represent RNA's they are bound to contribute to fragmentation, asserts the employer. The employer acknowledges that there is no employee association as in Strathroy-Middlesex, but says that what is important is the use made of this issue in the Mississauga Hospital case. Further, it is a distinguishing factor from Mississauga Hospital, where the Hospital did treat RNA's separately.
The employer submits that the aspect of people moving in and out of positions in the bargaining unit proposed is similar to the situation at Strathroy-Middlesex and is a factor on which this case cannot be distinguished. The movement at the moment represents three people providing relief or doing temporary work. The employer submits that although that may not seem like a lot on an absolute basis, it is over twenty per cent of the bargaining unit that the union is asking for.
Noting that the salaries and benefits are generally now in line with the centrally bargained service unit settlements with the exception of vacation, the employer argues that to allow "carving out" from the long established service group is an invitation to proliferation, especially in the paramedical area, and especially in light of the new Regulated Health Professions Act (Bill 43, c.18, S.O., 1991). Once this is opened up, the hospital argues there is no telling where it would stop.
The employer stressed the specific problems in this Hospital. Firstly, it is a small hospital and a small group of RNA's. Proliferation has an added impact with limited funds in a small institution like this one. It is said that the cost of bargaining with more than one bargaining unit are potentially astronomical. There is no possibility of central bargaining and there will be the possibility for leap-frogging and competition between bargaining units.
The employer argues than an RNA only unit will impede movement within the Hospital and diminish the job opportunities of RNA's in the Hospital. If they were part of a service unit they could use their seniority in that unit, whereas the employer argues that in a separate RNA unit there will no more rights than someone coming in from the outside. It is submitted that it would also impede people moving from the RNA position elsewhere. This is because a collective agreement can not give a person rights outside the bargaining unit. On lay offs there will be no right to bump into other positions and no right to posting for available positions elsewhere. The employer cites potential problems with having benefits for such a small group whereas right now all the employees participate in the same benefit regime. The Hospital says it may be difficult to maintain equity between groups because there is another player and different dynamics.
The employer cites difficulties with its committee structure having to deal with a number of union - management, negotiation and grievance committees. On committees that already exist, there are now representatives who represent more than just the RNA's. It may be necessary to add someone who represents just the RNA's.
The hospital also sees greater potential for jurisdictional disputes and says that elsewhere in the hospital sector, grievances related to lay-offs between bargaining units are on the increase.
The hospital underlines that there is a very close inter-relationship between all the people in the hospital in such a small setting. They note the comments of the Board in Municipality of Metropolitan Toronto [1992] OLRB Rep. March 315 at para. 44, dealing with an intermingling issue.
Returning to Strathroy-Middlesex the employer specifically refers to the portions of the decision dealing with the problems the Board found with the proposed unit (paragraphs 36, 38, 42 to 43 and 47). Although it is acknowledged that in this hospital there is no problem with defining who is employed as an RNA, the employer submits there was no problem with that in Strathroy-Middlesex either. The person on lay-off was allowed to bump into the porter position and she was on the list. She had been laid off from the bargaining unit but was working in another position. The OR tech was a grandfathered person.
The employer also stresses paragraphs 50, 51, and 35 of Strathroy-Middlesex and maintains this case is not distinguishable. If the application is rejected the RNA's can simply seek another bargaining agent. The hospital summarized that the bargaining unit applied for would cause hardships and that the situation here is distinguishable from South Muskoka and Mississauga Hospital. In particular undue fragmentation would cause serious labour relations problems at this hospital.
The union replies that much of the employer argument goes to re-arguing South Muskoka and Mississauga Hospital.
The union rejects the employer's argument about central bargaining as irrelevant in one hospital, commenting that even if the union signed up all the employees in the Hospital this argument would be available. It amounts to saying that it is better for the employer if PNFO were to organize all the unorganized Hospitals (or not to organize at all).
As to the point about the recent amendments to the Labour Relations Act, the union argues that there will not be many consolidations in Hospitals except between full-time and part-time units because of existing separate bargaining agents. The union argues that the Bill 40 amendments were not intended to make organizing more difficult.
Union counsel submits that the employer's other arguments amount to saying that there will be some costs and inconvenience if the bargaining unit is granted. This does not amount to serious labour relations problems. Particularly the union says that the points concerning the committee structure and benefits are not at all serious. As to job opportunities, the union says this is merely a threat that the employees will be worse off if they unionize, to which the union takes exception. Counsel argues that all the matters raised are matters for bargaining and that the union wants employees to have all the opportunities they had and more. He points out that it is not unusual to negotiate rights that may apply outside the collective agreement. Counsel submits that having to bargain about an issue such as lay-offs does not constitute a serious labour relations problem.
The union points out that the most likely potential for jurisdictional disputes - with the RN unit - exists even in the configuration set out in Stratford General Hospital, cited above, a point recognized in Mississauga Hospital.
As to a paramedical unit the union says it would need a specific fact situation to know whether it was appropriate - including information about reporting lines and job duties, e.g. whether employees did direct patient care.
As to the specific facts at Englehart & District Hospital, the union maintains that the only facts that are different from Mississauga and South Muskoka are the transfer from RNA's to other jobs which were not alluded to in Mississauga and the fact that the RNA's have not been treated as a separate group. Whether or not they are mentioned, they may not be actually different. In any event, there is no serious labour relations problem that flows from these facts that would justify a different result than in the Mississauga Hospital in the unions s view.
On the point about treatment of the RNA's as a separate group, the Englehart & District Hospital group is somewhere between Mississauga Hospital and Strathroy. In any event the union does not consider this a significant factor. Counsel concluded by arguing that when those two facts are isolated as the only aspects of this case which are distinguishable from South Muskoka and Mississauga, neither is so serious a labour relations consequence as to make labour relations sense as the determinative criterion as to whether or not the applicant is successful in its request for an RNA unit. The union argues that once the desire of the employees to organize is put into the equation there is no reason to deny what is in its view an appropriate unit.
Decision
The Board has thoroughly canvassed the relevant considerations in the cases referred to above. It is not necessary to set out an exposition of that case law. We have carefully considered all the cases we were referred to and have come to the conclusions set out below.
We understand the decisions in Mississauga Hospital and South Muskoka to be acknowledgements of the RNA's anomalous history in relation to collective bargaining unit structure. In Mississauga Hospital, the Board referred to a number of cases which express the idea that RNA's might be a better fit in some bargaining unit other than the service unit where they have traditionally found themselves. These include Board of Health of the York County Health Unit, [1967] Rep. April 62 where it was said that if the Board were faced for the first time with the problem of determining the appropriate bargaining unit for RN's and RNA's, it might well decide that employees who are concerned with direct patient care shared a community of interest which would entitle them to be in the same bargaining unit. More recently, in Hospital for Sick Children, the Board at paragraphs 36 to 38 dealt with the "established practice" of putting RNA's in the service unit. The Board there observed that that fact was the result of historical evolution around the established RN only unit, rather than "any calculated assessment of what would ultimately be the most rational 'shape' for the collective bargaining structure", and remarked that, with the benefit of hindsight, RNA's might conceivably have been grouped with RN's or paramedical employees. Nonetheless, the Board there found that it was also too late to say that the RNA's could not be included in the service unit. At paragraph 42 of Mississauga Hospital the Board reiterated that the nature of the work now performed by RNA's places them with a closer community of interest to either nurses or paramedical employees than the service unit. See similarly, para. 6, 15 and 18 of South Muskoka and para. 33 of Strath roy-Middlesex.
This background does not diminish the fact that Mississauga Hospital and South Muskoka represent departures from the Board's well-established usual approach, which is to not grant bargaining units defined by department or classification - a fact about which the Board in those cases was not sanguine. That general approach is one of the ways the Board has traditionally expressed its aversion to fragmentation. This was well explained in Kidd Creek Mines, [1986] OLRB Rep. June 736 as follows:
For many years the Board has been exceedingly reluctant to define bargaining units on the basis of employee classifications or employer departments, because of the high potential for fragmented bargaining which that creates (see, for example: Cryovac Division, W. R. Grace & Co. of Canada Limited, [1981] OLRB Rep. Nov. 1574; Toronto East General and Orthopaedic Hospital, [1981] OLRB Rep. Nov. 1672; University of Ottawa, [1981] OLRB Rep. Feb. 232; and Westeel-Roscoe Company Limited, [1979] OLRB Rep. Nov. 1125). Even in the newspaper industry where departmental unionization has existed in the extreme (based initially upon craft distinctions which predated the current legislative framework), the Board has indicated that it might be less receptive to a continuation of these entrenched organizing patterns of the paste because computerized technology had revolutionized the structure and content of work in the newspaper business. (See Hamilton Spectator, [1981] OLRB Rep. Aug. 1177). Most recently, in T. Eaton's Company Limited, [1984] OLRB Rep. May 755 and Simpson's Limited, [1984] OLRB Rep. Sept. 1255, the Board reiterated its view that dividing an employer's business into bargaining units based upon departments would not be conducive to orderly collective bargaining. In Eaton's, for example, the Board refused to exclude a specialized department of computer salesmen from a broader "sales" bargaining unit, even though their skills, method of payment, and likely career opportunities were somewhat different from those of the other salesmen:
Concerns about the consequences of fragmentation are not idle speculation, nor have they escaped attention in other jurisdictions. Because of the problems associated with the proliferation of bargaining units in industrial enterprises, the policy in a number of provinces has now shifted away from the recognition of craft units or other similar subdivisions of employees. Following the recommendations of the Woods Task Force in 1968, Parliament amended the Canada Labour Code to delete the provisions (similar to section 6(3)) protecting craft bargaining units, and the circumstances in which an existing unit can be splintered are now closely confined (see Feed-Wright Limited, [1979] 1 Can. LRBR 296; Atomic Energy of Canada Ltd. (1978), 1 Can. LRBR 92; and Cablevision Nationale Ltde (1979), 3 Can. LRBR 267 and cases referred to therein). In British Columbia, craft units can be certified only if they are "otherwise appropriate" for collective bargaining, and the British Columbia Labour Relations Board has shown a marked disinclination to endorse craft bargaining units in a manufacturing context. Even in the construction industry where craft unionism reigns supreme, the Ontario Legislature has intruded. In 1978, the Legislature imposed a system of province-wide bargaining by trade in place of the fragmented system of employer by employer bargaining which existed before. There is now a developing consensus that orderly collective bargaining is not enhanced by fragmenting an employer's work force into a number of competing bargaining units (for a thoughtful analysis of the issues see Paul C. Weiler: Reconcilable Differences: New Directions in Canadian Labour Law, Carswell's 1980 at pp. 151-178). Finally, since this Board may not have the power to later consolidate or rationalize the bargaining structure (as the Federal and B.C. labour boards can do), we should be particularly careful in fashioning the bargaining unit in the first place.
These are considerations that are no less relevant today. The question before the Board in this case concerns the weight to be given to those considerations in the face of the recent history of RNA-only bargaining units before the Board, in particular the three decisions referred to above in which the issue was litigated.
The Board is obliged to consider the merits of each case and not apply general approaches, even those as well established as the one outlined above, without regard to the details of the case before it. As the Board has said throughout its bargaining unit jurisprudence, fashioning an appropriate bargaining unit is an exercise in balancing competing interests of both the parties and the public.
One set of competing considerations is the desirability of predictability set against the need to be sufficiently open to changes in the workplace and in organizing patterns. The laudable desire for predictability should not be allowed to harden to the extent that it prevents the natural evolution of workplaces to find expression in bargaining unit structures. As the Board indicated in Stratford General Hospital, cited above, the search is for a test of appropriateness that stands up to the dynamism of occupational change. Related considerations led the Board in South Muskoka to lament the possibility of a spate of litigation about the issue of RNA bargaining units but to affirm the proposition that an RNA only bargaining unit could be appropriate in circumstances like those before it.
The basic task remains - to determine if the bargaining unit requested is viable without causing undue fragmentation or other serious labour relations problems. The Board's jurisprudence has made it clear that the search is not for the most viable or ideal bargaining unit, but for a viable unit. (However, when the Board is dealing with competing applications, preference for the more appropriate unit may well be a factor.) The cases demonstrate that there is a range of viable bargaining units. The outer limits of that range are defined by a number of factors which include the history of the industry, size of the proposed unit in relation to the whole operation (See K-Mart Canada Limited, [1981] OLRB Rep. Sept. 1250 at para. 20) as well as the absolute number of units (See Ryerson Board of Governors of Polytechnical Institute, cited above at para. 22).
One of the constituent elements of viability is sufficient community of interest to bargain together effectively. We are convinced that on the facts of the case before us, the RNA's have demonstrated sufficient community of interest in this respect. They are a coherent group in terms of patient care job duties, conditions of employment and professional qualification and responsibilities. They all work on the same nursing unit with the same type of supervision. As a proportion of the hospital employees, they are a group of significant size. That the alternatives proposed by the employer would encompass larger proportions of the workforce does not turn the RNA group into one that lacks viability, either in terms of collective bargaining goals or number of employees. Thus, we have concluded that on the first prong of the test in Hospital for Sick Children, cited above, the requested unit is acceptable, i.e. it is a sufficiently viable unit of employees to bargain together.
Many of the employer's arguments related to the fact that the RNA's share a community of interest with employees who would fall into one of their proposed service or paramedical bargaining units. This was part of the focus of its evidence of employment of people with RNA qualifications in other classifications in the hospital. (This evidence was also directed at the area of labour relations problems which would be created by the unit proposed, which will be dealt with below.) We cannot disagree with the assertion that the RNA's also share a community of interest with employees in these other units. However, that does not detract from the fact that the RNA's also have a community of interest among themselves as a group as acknowledged in all of the recent decisions on RNA bargaining units, including Strathroy-Middlesex. The main thrust of the employer's objection is the contention that the community of interest of this group, like any group described by classification, is too narrow to prevent serious labour relations problems. We will deal with these concerns below.
We turn then to the second prong of the Sick Children's formulation - whether the granting of this unit would cause serious labour relations problems for the employer. The principal objection by the employer relates to fragmentation. As set out above, the employer says that RNA-only units contribute to a resurgence of fragmentation in the hospital sector that had been halted by the Board's approach in Stratford General Hospital. It is useful to note that although we are using the formulation from the Hospital for Sick Children, as has much of the bargaining unit jurisprudence since 1985, fragmentation was not the main issue in that case. It was clear that the disputed classifications would be assigned to one bargaining unit or the other, rather than potentially creating an "extra" unit in an already fragmented sector, as it is argued will be the undesirable result of granting the applicant's proposed unit in this case. The main issue for the Board in Hospital for Sick Children was how elastic the boundaries of interfacing bargaining units were. The Board concluded that in the margins between bargaining units, certain classifications could comfortably fit in more than one bargaining unit.
In considering the issue of fragmentation within the context of this application, it is useful to state what may be obvious: what amounts to undue (the kind that creates serious labour relations problems) fragmentation varies considerably depending on the history and context of both the specific parties and the industry of which they are a part. Even within the hospital sector, a particular objective will narrow or widen observers' tolerance for numbers of bargaining units. For instance, the 1974 report of the Johnston Hospital Inquiry Commission, which was charged, among other issues, with considering the viability of central bargaining, recommended three standard bargaining units in the hospital sector - lower than the number of bargaining units typically found in hospitals certified by this Board, both before the report and during the nearly twenty years since its release. The Board's decision in Stratford General Hospital, which considered appropriateness in the context of competing applications for certification, and in Hospital for Sick Children, resulted in the likelihood of 4 to 5 bargaining units in the hospital sector (not counting separate full-time and part-time units within those groupings). In the United States, up to eight units, even in small hospitals, is considered acceptable, and in Quebec numerous bargaining units may be found in hospitals. In industries whose experience is formed from close association with craft unions, tolerance of several bargaining units is higher, whereas in many industrial plants, more than one bargaining unit might be considered unusual. See Ottawa Citizen, 119871 August 1098 and the cases referred to therein.
Much of the hospital's submission on fragmentation was in fact a request that we take this opportunity to assist in the management of the hospital sector to further the goal of provincial bargaining. At present provincial bargaining is entirely voluntary, and is conducted by a central bargaining team for the participating hospitals in separate sets of negotiations with central negotiating teams from each of a number of unions, including SEIU, ONA and CUPE.
It follows from the employer's argument (and the Johnston Commission Report) that there are at least two elements of the structure of bargaining units which might facilitate central bargaining. One is a smaller absolute number of bargaining units per employer, and the other is a smaller number of bargaining agents across the hospital sector. We do not consider the latter aspect an appropriate consideration in shaping a bargaining unit, because it is incompatible with recognizing the employees' right to choose their own bargaining agent expressed in section 3 above, and now given more prominence in section 2.1 of the Bill 40 amendments. (See also the comments of the Board in Stratford General Hospital at para. 13 to the effect that the choice of a bargaining unit should not focus on the choice of bargaining agent.)
The former consideration, a smaller number of bargaining units, is largely subsumed in the Board's normal balancing of interests, including its aversion to fragmentation. On its own it is not particularly helpful in resolving this dispute, since it does not speak to which bargaining units should form the smaller number, just that there should be an absolute limit at some small figure. A desire for a particular selection of types of units within the small number of units speaks to the effect of fashioning units in one workplace on the labour relations structure of a particular sector. It also grows out of recognition of the reliance interest of parties in the community which is a byproduct of the predictability that "standard bargaining units" provide.
Having considered these aspects of the problem, we are of the view that to raise considerations of facilitating the many other parties in this industry in negotiating provincially to the level of a determining factor in any given case would be to unduly hamper the Board's flexibility in dealing with the particular parties before it. As well, the fact that there are only 16 hospitals left out of approximately 220 in the province where there is no service workers bargaining unit diminishes the field of potential impact at this stage in the history of provincial bargaining. Thus we have not given the argument about provincial bargaining the weight the hospital urged upon us, but have considered it as part of the general argument against fragmentation.
Turning back to the specific parties before us, we have a workplace which had no bargaining units in place at the time of hearing (but has since acquired one). Where there is a relatively unorganized context such as this, the Board has a freer hand to shape the bargaining unit in a manner that combats fragmentation. However, at such a stage, whether or not fragmentation will occur is dependent on whether or not other employee groups ever organize. Thus, there is an irreducible element of speculation in evaluating the probable effects of fragmentation. We do not have any empirical evidence before us such as the U.S. study mentioned in South Muskoka at paragraph 12, to the effect that health care workers organize no more frequently in facilities where some workers engage in collective bargaining than they do in facilities where no bargaining units have been represented. Accordingly, we must rely on general principles in evaluating this area of the case. It remains a possibility that all the other employees will want to organize, that none of them will, or that some of them will.
The main spectre of undue fragmentation resulting from further organization of the hospital, other than the effects on provincial bargaining dealt with above, is the fear that a further endorsement of an RNA bargaining unit will be taken by various of the groups in the paramedical field, with much smaller numbers than the RNA's, as a signal that they too should be entitled to their own bargaining unit. As mentioned at paragraph 48 of Mississauga Hospital, however, there is no indication that the multiplicity of classifications contained in the typical paramedical bargaining unit face the same historical anomaly as the RNA's.
Besides not facing the same historical anomaly as RNA's, the paramedical unit has a fairly recent and specific history before the Board, as seen in Stratford General Hospital and Hospital for Sick Children, cited above, which indicates that generally groups identified only by their professional qualification will not be considered appropriate. In the same vein, none of the sub-groups in the paramedical area are likely to have the bulk - a large proportion of the total workforce - that RNA's have in the hospitals which have been dealt with in cases before the Board thus far, a major contributing factor to their viability as a bargaining unit.
We agree with the previous panels that growing professionalization per se is not reason enough to warrant a separate bargaining unit. This element of the Board's jurisprudence has not changed since Stratford General Hospital. We see the new Health Professions Regulation Act as another milestone in the process of professionalization of various work groups described in that case, and not something that greatly alters our view of paramedical bargaining units, nor something we are prepared to assume will produce increased efforts to organize separate units.
In Mississauga Hospital and South Muskoka, the Board was not persuaded that undue fragmentation would result from allowing an RNA-only bargaining unit although both decisions express reservations on the point. In Mississauga Hospital, this was influenced by the fact that the hospital had a history of dealing with the RNA's as a group on matters related to terms and conditions of employment. In South Muskoka, the Board found that the facts were sufficiently similar to those in Mississauga Hospital that the result should be the same. In Strathroy-Middlesex, the Board noted that some of the concerns related to fragmentation are diminished in the hospital sector because work stoppages are illegal at any time and did not consider the increased costs of bargaining with an extra unit sufficient in themselves to outweigh the rights of employees to be represented by the bargaining agent of their choice. At the same time, the Board there accepted as do we, the general proposition that undue fragmentation is not desirable and remarked on the effect of "craft-like" or classification bargaining units in this area.
The aspect of fragmentation which was mentioned most prominently in Strathroy-Middlesex was its effect upon job mobility and opportunities to perform specific work functions. The Board was persuaded in that case that the overlap in functions and imprecision in the outline of the bargaining unit made an RNA-only unit inappropriate in that workplace. The fact that circumstances where RNA's worked regularly and consistently both inside and outside the proposed bargaining unit, the Board felt that the balance weighed against the RNA's request. The decision does not indicate how regularly and consistently the state of affairs existed. It is clear that the barriers to mobility into the RNA classification have a lot to do with externally imposed registration requirements. Mobility out of the unit into the RN unit is structurally circumscribed for the same reasons. In the situation before us, mobility out of the unit into other classifications will not likely be further limited unless and until there is further union organization in the hospital and only if collective bargaining is not successful in dealing with the hospital's concerns.
There are three situations in this hospital where RNA's work both inside and outside the proposed bargaining unit: relief work, the industry testing work done by one RNA four hours a week, and the RNA who job shares her full-time RNA job and also works part-time in CSR and x-ray. We are not of the view that these instances represent motion in and out of the RNA classification to an extent which should be considered a serious labour relations problem in this case. In particular, the category of relief work by employees in other bargaining units is one that is very amenable to resolution at the bargaining table, and not the type of serious labour relations problem which would lead us to deny the unit. The issue of part-time work, some of which would fall inside and some outside the proposed bargaining unit, is similar and does not appear to be likely to create serious labour relations problems, limited as it is to one person picking up extra hours in work which is not as physically demanding as regular RNA work. Similarly, the fact that an RNA also does industry testing one morning a week does not appear a very significant factor. Even put together, these facts do not appear to us to create very serious problems. They do not create the kind of integration of work mentioned in Board of Governors for Ryerson Polytechnical lnstitute, supra, as creating the greatest potential for mischief, i.e. where the work performed in the two proposed units is integrated. The fact that individuals are capable of doing various tasks which may be organized into different bargaining units does not create integration of work. The examples of the use of RNA qualification in jobs not considered RNA work are not like the situation in Kidd Creek Mines, supra, for instance, where a number of trades people worked together side by side to solve maintenance problems. The x-ray technician, for example, may on occasion deal with the same patient, but quite separately from the work the RNA does on the nursing ward.
The situations described above also indicate, in the employer's view, a similarity of skills between RNA's and employees who would be included in the service unit, something the Board said in Mississauga Hospital had not been demonstrated in that case. The evidence before us does not disclose that the similarity in skills relates to core functions of these classifications, a factor which might give more concern. (There may be such a concern with RN's, but they now have their own unit in any event.) We do not view the similarity of skills shown by the evidence as more than the irreducible fact that there is necessarily some overlap in skills in any job involved in patient care. No one was proposing a bargaining unit limited to employees involved in patient care.
The related matters of overlapping functions with other classifications is also argued as a serious labour relations problem for the employer. This is seen as a problem both in respect of potential jurisdictional disputes and in the area referred to in Strathroy-Middlesex as imprecision in the outline of the bargaining unit. The potential for jurisdictional disputes is undoubtedly present. However, it would appear that the greatest danger is with the RN unit, which is something present throughout the hospital industry in Ontario and not capable of resolution in this dispute. We observe that placement of the RNA's in either of the respondent's proposed alternative service or paramedical units would not eliminate the potential for jurisdictional disputes. Jurisdictional disputes are possible between RNA's and classifications which would fall outside of either or both of the service and paramedical bargaining units, e.g. ward clerk, central supply attendant and x-ray. Indeed, there is no placement of the RNA's proposed to us which eliminates the possibility of jurisdictional disputes. Since there are no orderlies in this hospital, there is not the danger of jurisdictional disputes with that classification, something mentioned in Mississauga Hospital. The aspect of imprecision in the outline of the bargaining unit is not present here as it was in Strathroy-Middlesex; there are no anomalies such as people sought to be represented who did not have the RNA qualification.
Despite the above, it remains true that a separate unit of RNA's does nothing to reduce the potential for jurisdictional disputes, and this is a matter of concern. The Board's recent experience demonstrates that the opportunities for jurisdictional disputes in the hospital sector in this era of restructuring are real. It is also true, as remarked in the earlier decisions on this subject, that the most serious potential outcome of jurisdictional disputes - work stoppages - are not legal in this sector. This diminishes the concern to a certain extent. Jurisdictional disputes have nonetheless caused a great deal of expensive and demoralizing litigation in the Board's experience. Although there is room for hope that the new jurisdictional dispute processes created by Bill 40 will be able to contain this problem, the spectre of jurisdictional disputes is the most significant of the matters raised by the employer. However, we are not convinced that this is any larger a problem than in the fact situations underlying South Muskoka and Mississauga Hospital decisions. Those decisions, faced with essentially the same arguments, very recently in the history of the Board, did not find the potential for jurisdictional disputes to be sufficient reason to deny the RNA unit. With the exception of the lack of orderlies in this hospital, the cases are indistinguishable on facts relevant to the issue of potential for jurisdictional disputes. The lack of orderlies is a factor which reduces the risk somewhat in this hospital.
Another aspect of the facts before us, argued to be problematic overlap in functions, relates to the fact that the RNA qualification is required or preferred for a number of other classifications. Central to this and other hospitals' preference, we infer, is the fact that the RNA qualification is generally very useful for working in the hospital. It provides knowledge of relations with and care of patients which would likely be an asset to any hospital employee. This aspect of the use of the RNA qualification is in our view more supportive of the concept that the alternative bargaining units proposed might also be appropriate, an idea endorsed by all the recent cases on RNA units, rather than a barrier to granting this bargaining unit.
We have considered The Municipality of Metropolitan Toronto, cited above, referred to by the employer. This dealt with a situation of intermingling after a sale of a business. The union wanted to preserve a bargaining unit consisting of a number of departments of nurses, which the Board found would have created an island of nurses within the nursing division, creating various scheduling and other administrative problems for the employer. This is not the case on the facts before us.
The employer also emphasized in argument that this hospital is particularly small and that any impediments to mobility will create great difficulties. As well, it is argued that the additional costs of bargaining with an extra bargaining unit will have a proportionally greater effect because of the size of the employer. To the extent that the legislation speaks to this issue it says only that a bargaining unit may be made up of as little as two employees. While a small hospital undoubtedly has its particular problems, we are not persuaded that this factor should be determinative of the appropriate bargaining unit, given the many small organized workplaces in the province.
The employer also argues that the Bill 40 amendments contain indications of legislative intent to discourage fragmentation which the Board should consider as weighing against granting the unit sought. We agree that the portions of the amendments relating to combination of bargaining units and direction against separate full and part-time units are expressions of legislative intent to reduce fragmentation where different units may be represented by the same bargaining agent. As well, RNA's are not among the professions listed in the new section 6(4) of the Act which are deemed to be capable of creating units of employees appropriate for collective bargaining. However, the amendments also contain indications that the legislature intended to facilitate organizing and to protect the right of employees to be represented by a trade union of their choice. The policy considerations involved in reducing fragmentation at the stage of combining bargaining units are also not necessarily the same as at the (often earlier) stage of organizing, where the desire to limit fragmentation must be balanced against equally valid considerations related to access to bargaining and choice of bargaining agent. Thus we find that the Bill 40 amendments contain elements favouring each of the positions before us, and therefore are not of particular assistance in resolving the instant dispute.
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 Hospital and South Muskoka, where they were not found sufficiently serious to deny the unit applied for. 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 Hospital and South Muskoka that the unit applied for should be granted as we are not persuaded that 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 Wingham General Hospital. The tenor of the decisions indicate that the Board was willing to consider new options - in effect 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 bargaining unit for the purposes of this application.
As there were no other issues outstanding and the applicant has membership 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 JAMES A. RONSON; September 20, 1993
I cannot agree with the reasoning and decision of the majority. The reasons for the dissent of Mr. W. Correll in The Mississauga Hospital case, supra, are applicable in their entirety to the facts before us. I cannot improve upon them, except to comment that a recent addition to our Act (section 7) clearly points the direction which the Legislature wishes this Board to take with respect to fragmentation and multiple bargaining units (also see Strathroy Middlesex General Hospital, supra.
I would dismiss this application for the following reasons:
(a) It sets the groundwork for undue fragmentation of the working relationship between the employer and all of its employees; and
(b) It deviates from long established policies of the Board in the health care sector.