[1994] OLRB Rep May 550
3899-93-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CA W-Canada), Applicant v. Glazier Medical Centre, Responding Party v. Group of Employees, Objectors
BEFORE: S. Liang, Vice-Chair, and Board Members J. A. Rundle and B. L. Armstrong.
APPEARANCES: Raj Dhaliwal for the applicant; Jason Hanson, Irene Wolfe and David Russell for the responding party; Linda Barry and Monique Gauthier for the objectors; Sharon Faulds for Ontario Nurses Association.
DECISION OF THE BOARD; May 24, 1994
1. This is an application for certification in which by brief written decision dated April 19, 1994, the Board certified the CAW for the following bargaining unit:
all employees of Glazier Medical Centre in the City of Oshawa, save and except physicians, registered and graduate nurses employed in a nursing capacity, assistant administrators, supervisors, and persons above the rank of assistant administrator and supervisor.
2. We now provide our reasons for our determination with respect to the bargaining unit.
3. This application was made on February 14, 1994. Previously, on February 3, 1994, the Ontario Nurses' Association also made an application for certification with respect to a unit of employees (the registered and graduate nurses) employed by the Glazier Medical Centre ("the employer" or "the Centre"). On March 22, another panel of the Board considered the application by the ONA, found that the parties had agreed to a bargaining unit description consisting of the registered and graduate nurses, found having regard to this agreement that this bargaining unit was appropriate for collective bargaining and determined that subject to clarification of the proper legal name of the Centre, the ONA was to be issued a certificate (Glazier Medical Centre, Board File No. 3780-93-R dated March 22. 1994 as yet unreported), [now reported at [19941 OLRB Rep. Mar. 249].
4. By letter dated March 29, the Centre applied for reconsideration of the decision in Board File No. 3780-93-R.
5. On April 18, the parties to this application for certification appeared before this panel to hear and determine the outstanding issues with respect to this matter.
6. Prior to April 18, counsel for the Centre wrote to the Board requesting that the Board adjourn the hearing of this matter, pending the determination of the request for reconsideration.
After considering the written submissions of the Centre and of the applicant, the Board (differently constituted) refused this adjournment.
7. On April 18. the Centre renewed its request that the Board adjourn the hearing in this matter. After hearing the submissions of the parties, the Board once again refused the adjournment. The Board saw no reason to delay the disposition of the application before us until the panel deals with the reconsideration request in Board File No. 3780-93-R. The decision in Board File No. 3780-93-R is a presumptively valid and final determination by the Board on the matters contained therein. Further, the parties which are affected by the application before us, in which we include the applicant and the employees in this workplace, are presumptively entitled to have their rights determined in an efficient and speedy manner by the Board.
8. In requesting an adjournment of this matter, the Centre, in essence, wishes to suspend the effect of that prior decision as they affect the litigation of the matters before us. This is because in the application before us, the Centre takes the position that the appropriate bargaining unit should include the nurses which were the subject of Board File No. 3780-93-R. Having reviewed that decision and the written submissions made by the Centre in support of its request for reconsideration, it is far from clear to us that there are any compelling labour relations reasons for the Board to delay its disposition of the application before us because of that reconsideration request or to treat the decision in Board File No. 3780-93-R as anything but final and conclusive. Although there may be cases where it may be reasonable to do otherwise, we do not find this to be such a case.
9. As we stated above, another panel of the Board has determined that the ONA is entitled to represent for collective bargaining purposes, a group of registered and graduate nurses employed by the Centre. To the extent that the Centre proposes that the unit for which this applicant ("the CAW") seeks certification include these nurses, clearly this would not be appropriate. Although (for reasons unknown to us) the Board had not as of April 18 sent a formal certificate to the parties in Board File No. 3780-93-R, there has been a determination that the ONA is to be the bargaining agent of the registered and graduate nurses. To include the nurses in another bargaining unit represented by another bargaining agent would be inconsistent with this determination and inconsistent with the concept of exclusive bargaining agency which is contained in the Act.
10. [Since the April 18 hearing before this panel, the Board has now released its decision on the request for reconsideration in Board File No. 3780-93-R (on April 27, 1994), denying that request.]
11. The remaining dispute between the parties concerns the inclusion of a group of medical technologists and technicians. The bargaining unit proposed by the CAW is the following:
all employees of Glazier Medical Centre in the City of Oshawa, save and except medical physicians, registered and graduate nurses, assistant administrators, supervisors and persons above the rank of assistant administrator and supervisor.
12. In the alternative to its position that the unit include the nurses, the Centre proposes that the unit exclude classifications listed as Registered Technologists, X-ray Assistants, EKG/Phlebotomy, Registered X-ray Technicians, Registered Ultrasound Technologists, Registered Echo Technologists, and Lab Assistants. It is supported in this by a group of medical technologists and technicians who appeared before the Board to make representations on the bargaining unit issue. For ease of reference, the group of employees whom the Centre wishes to exclude from the proposed unit shall be referred to in this decision as the "medical technologists".
13. The Centre and the group of employees state that the medical technologists are professionals regulated by health professions legislation. Employees in these classifications do not have any functional overlap in their work with the office and clerical personnel that form the bulk of the proposed unit. There is no overlap of work, there is a separate line of supervision, and they work in discrete areas of the medical centre. The exclusion of the medical technologists will cause no labour relations difficulties because of the clear lines of demarcation between the groups. There will, for instance, be no artificial barriers to job opportunities nor potential for jurisdiction dispute issues to arise. In fact, it is asserted, there is much more overlap between the nurses' duties and the duties of the clerical staff than as between the medical technologists and the clerical staff.
14. The concerns of the medical technologists and the office and clerical staff are very different. The medical technologists must be licensed by its regulating body. Malpractice insurance is an important concern. Health and safety issues are also important concerns since the technologists often deal with highly infectious patients and body fluids. The technologists are involved in continuing education. There is a different company policy respecting job postings for the medical technologists and for the office and clerical staff. There is also a different notice requirement for termination of employment by an employee. There is a different pay scale.
15. In sum, it is asserted that the bargaining unit proposed by the CAW will cause serious labour relations problems because of the great differences in the interests of the medical technologists and the other employees in the proposed unit.
16. In response, the CAW did not take serious issue with the facts as set out by the Centre and by the group of employees. It submits that it is not unusual for a union to represent a very diverse group of employees in one unit, including employees who have special licenses. For instance, the CAW represents bargaining units which include licensed electricians and professional engineers. The Board's cases are replete with references to large bargaining units containing employees with very different interests. The bargaining process is capable of dealing with these problems.
17. Having considered the facts and submissions relied upon by the Centre and by the medical technologists, we were satisfied and found that the bargaining unit proposed by the CAW is appropriate for collective bargaining, and issued a certificate accordingly.
18. In a recent decision, the Board reviewed the nature of its task in determining an appropriate bargaining unit, in The Governing Council of the Salvation Army in Canada and Bermuda, ~1994] OLRB Rep. Jan. 85). In that decision, the Board stated:
Several years ago, in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the Board undertook a review of its traditional approach to bargaining unit determination. The Board noted at paragraph 14:
It will be seen that the statutory language has remained basically unchanged for more than four decades, and in the early years it provided the basis for making broad distinctions for bargaining unit purposes between such groups as: "white collar" office and technical employees, and "blue collar" production employees; skilled tradesmen (electricians, plumbers, sheet metal workers, etc.), and unskilled or semi-skilled workers; part-time employees and full-time employees; employees working for an employer in one plant or municipality and employees in another plant or municipality; and so on. However, these fairly simple, and then unexceptional distinctions, do not apply so easily today. Collective bargaining has extended beyond its traditional "blue collar" industrial base, into the public sector and to increasingly sophisticated and diverse job hierarchies. Real life collective bargaining experience has outstripped some of the conventional wisdom and has shown that the collective bargaining system
can exhibit quite a variety of structures, which, at one time, parties might have considered unconventional or inappropriate. Ontario Hydro, for example, has a province-wide bargaining unit, encompassing a broad range of employee classifications, and thousands of employees, ranging from unskilled workers to highly trained technicians. A typical municipal "inside workers" (white collar) bargaining unit may include occupations ranging from filing clerks, to computer programmers, economists and planners with a considerable amount of post-secondary or even graduate training [see the Board's decision in The Regional Municipality of Durham, Board File 1818-84-R, decision released November 20, 19841. The Ontario Civil Service bargaining unit contains thousands of employees ranging from clerks and typists to sophisticated scientific and technical personnel - and, incidentally, the staff of a number of provincial psychiatric hospitals (see: Owen Sound General and Marine Hospital, [1978] OLRB Rep. May 445, where the Board noted that in the government sector nurses, paramedicals, service employees, and clericals are all in the same unit, even though under the Labour Relations Act, they have typically been segregated into separate units). While at one time common opinion and industrial relations practice might have supported fairly rigid (almost "class") divisions between employee groups, modern collective bargaining seems to be able to thrive quite well in many contexts without such rigid distinctions. It is no longer as easy as it once was to say that it is "inappropriate" to group together for collective bargaining purposes, employees with quite diverse skills, education, training, position in the job hierarchy or probable aspirations.
The Board signalled its intention to be more flexible and forensic about bargaining unit structure, then went on to say:
We are troubled by the fact that a largely administrative and policy-laden determination has mushroomed in some cases into an elaborate, expensive, and time-consuming process for deciding a relatively simple question: does the unit which the union seeks to represent encompass a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer.
[emphasis added]
If the unit applied for meets that simple test, it serves no purpose to litigate or consider alternative bargaining unit configurations.
19. Both in Hospital for Sick Children and in later cases, the Board has explored the tension between bargaining structures that facilitate organizing (one of the goals of the Statute), and bargaining structures that are likely to be more stable and effective in the long-run (another goal of the Act). The former objective points to smaller employee groupings which are more readily organized. The latter goal points to broader-based bargaining units that have the organizational mass and bargaining power to survive over time and in changing market conditions.
20. These goals must be harmonized within a framework that now recognizes that there is no single unique and indisputably "appropriate" unit. There are degrees of appropriateness; or to put the matter another way, sensible, alternative ways in which one can define the bargaining unit without triggering (as the Board in Hospital for Sick Children put it) "serious labour relations problems". A trade union need not seek to represent the most comprehensive or most appropriate bargaining unit; and as the applicant or moving party, the union has a degree of flexibility in deciding what unit to organize. As long as the unit it seeks does not generate serious labour relations difficulties for the employer, it will be granted the unit it applies for.
21. If there is one theme that has been constant in the Board's concerns, both before and after Hospital for Sick Children, it is the aversion to fragmentation: the sub-division of an employer's enterprise into a number of separate collective bargaining components - which become separate seniority districts, which can lead to jurisdiction or inter-employee rivalries, which can generate organizational problems if one or other fragment goes on strike, which can make work-sharing or technological change more difficult to accommodate, and so on. Accordingly, while smaller sub-divisions may be appropriate in the context of a particular case, and may be necessary to facilitate organizing (despite the collective bargaining "downside" described above), a broader, more comprehensive unit will also generally be appropriate. In other words, if a trade union seeks a more comprehensive bargaining unit, this larger unit will usually be appropriate, and will very likely be accepted on the Hospital for Sick Children test, unless there are serious labour relations problems with it which 4emonsrrably overwhelm the difficulties associated with fragmentation, or unless the larger unit applied for seems idiosyncratic or perverse. Indeed, unless the labour relations context is quite unusual, one would expect the more comprehensive bargaining unit to be presumptively appropriate, if that is what the union has organized and applied for; and it serves no purpose to engage in the exercise mentioned in the emphasized portion of the Hospitalfor Sick Children case reproduced at paragraph 18.
- More recently, in Burns International Security Services Limited, Board File No. 3340-
93-R dated April 7, 1994, as yet unreported, [now reported at [19941 OLRB Rep. April 3471the
Board once again reviewed the "Sick Kids" test, stating:
If the unit applied for meets that simple test, it serves no purpose to litigate alternative bargaining unit configurations, nor does the term "community of interest" usually provide much guidance to what is an appropriate bargaining unit. All employees share a "community of interest" by virtue of working for the same employer, and "real life collective bargaining" seems to be able to accommodate groups with quite different duties and conditions, who one might still argue had a separate "community of interest".
We agree with the views expressed in the above cases. We are satisfied that the group of employees whom the union seeks to represent in the case before us would not generate serious labour relations difficulties for the employer, even accepting the various factors as outlined by the parties which distinguish the two groups of employees. This unit is neither more diverse nor broader in scope than other units with which the Board is familiar, in municipalities, in hydro companies, and in various other workplaces, including units which have been newly created as a result of Board orders under section 7 of the Act. The portion of the unit excluding the medical technologists already includes such diverse employees as maintenance, switchboard and account clerk. The unit which the union seeks to represent encompasses a definable, stable group of employees working at a single location. We are satisfied that to the extent there are differences amongst the employees in this unit, they are differences which are capable of being accommodated within the collective bargaining process.
The Board also determines that the exclusion of registered and graduate nurses from this unit should be expressed in wording which mirrors the wording of the unit represented by ONA, adding the words "employed in a nursing capacity" to the bargaining unit description proposed by the applicant.
22. For the above reasons, the Board by decision dated April 19, 1994 found the unit set out in para. 1 above to constitute a unit of employees of the responding party appropriate for collective bargaining, and issued a certificate to the applicant.
23. Prior to the release of our reasons above, the Board received a letter from counsel for the employer dated April 29, 1994 requesting reconsideration of our decisions to 1) refuse the adjournment, and 2) grant the certificate to the applicant. This request is made pursuant to section 108(1) of the Labour Relations Act which states:
108.-(t) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
24. Although this section gives the Board a broad power to reconsider its decisions, the Board has stated that both section 108(1) and the realities of labour relations dictate that the premise from which the Board must begin is that its decisions should be final and conclusive for all purposes: see, for instance, Ontario Hydro, [19931 OLRB Rep. May 442. As the Board stated in that case:
the Board will not usually reconsider a decision unless an obvious error is identified; or a request for reconsideration raises important policy issues which have not received adequate attention or consideration; or the party requesting reconsideration proposes to present new evidence which it could not, with the exercise of due diligence, have obtained and presented previously, and which new evidence would, if accepted, have a material impact on the decision in question; or that a party seeks to make representations which it has had no previous opportunity to make.
25. The Board is satisfied that the arguments advanced in this request for reconsideration do not raise any of the circumstances which might warrant reconsideration. Nevertheless, we will address a few of the matters raised, in our discretion.
26. The request to reconsider the Board's refusal of the employer's adjournment request is, in fact, the third time that this issue has been argued by the employer. On April 7,1994, the employer requested that the Labour Relations Officer meeting and the hearing in this application be adjourned pending the result of the reconsideration request in Board File No. 3780-93-R. This request was denied by the Board in an endorsement dated April 12. The employer attended very briefly at the LRO meeting, and then withdrew. At the hearing before this panel on April 18, the employer renewed the request for the adjournment. The Board again refused this request, as set out in our reasons above.
27. The submissions made in this request for reconsideration do not cast any doubt on the correctness of our prior ruling on this issue, and on the ruling of the panel on April 12, and amount to re-argument of the matter on which the Board has already ruled.
28. The employer also submits that the applicant has not demonstrated membership support of more than fifty-five percent as required under section 9.1(2) of the Act. It states that the list of employees submitted by the employer disclosed a total of 129 employees, 109 of whom were at the relevant dates within the bargaining unit. This is not accurate. These lists disclosed a total of 129 employees, 93 on Schedule "A" (those at work on the certification application date) and 36 on Schedule "B" (those not at work on the certification application date). Of these 129 employees, 102 were determined by the Board to be employees in the bargaining unit on the certification application date (including employees who although not at work on that date, met the Board's "30/30 rule".) Of these, 60 employees were or had applied to become members on or before that date.
29. The employer submits that the Board ought to exercise what it terms a "residual mechanism" to order a representation vote even where the union has demonstrated membership support of over fifty-five per cent. It describes the circumstances of this case as exceptional enough to warrant the exercise of this mechanism. We are satisfied that there are no reasons to invoke the exercise of the Board's discretion in the case before us. There is no suggestion that the membership evidence is unreliable. The existence of a group of employees opposed to certification is not in itself grounds for the ordering of a vote.
30. The employer asserts also that "the Board should have granted the Responding Party an opportunity to address the challenges made to the Employee Lists by the CAW given that the Board refused to grant the Responding Party's request for an adjournment pending the outcome of the application for reconsideration on the ONA application". At the outset of the hearing, the Board indicated its understanding that the only remaining issue in dispute in this application was the appropriateness of the bargaining unit sought by the applicant. The Board invited the parties to make representations regarding the bargaining unit issue and, as well, to identify whether there were any additional issues in dispute. The employer raised the question of an adjournment, which we have dealt with above. There was no suggestion by the employer that it wished to take issue with the applicant's challenges to the list. In any event, the applicant's challenges were all based on the inclusion on the list by the employer of registered and graduate nurses, which, as we have indicated earlier, was addressed by the employer by way of its adjournment request. Even assuming therefore, that the Board would have been inclined to permit the employer to raise issues which had not been brought to the attention of the other parties during the LRO meeting, the employer had the full opportunity at the hearing before this panel to make any submissions regarding any outstanding issues.
31. For all of these reasons, the request for reconsideration is dismissed.