[1994] OLRB Rep. January 85
2618-93-R; 2619-93-R Ontario Public Service Employees Union, Applicant v. The Governing Council of the Salvation Army in Canada and Bermuda, Responding Party
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members W. A. Correll and E. G. Theobald.
APPEARANCES: Chris Dassios, A. Lokan, E. Ogibowski and Kim Simcoe for the applicant;
David Cowling, Capt. M. Fisher, Capt. Larry Jones, Capt. Carson Durdle, Capt. Karyn Kerr and
Reginald Rambarran for the responding party.
DECISION OF THE BOARD; January 5, 1994
I
The Board was advised that the proper name of the respondent employer is "The Governing Council of the Salvation Army in Canada and Bermuda". That is the correct designation for the legal entity which undertakes the social and community programs in which the employees affected by this application are employed. Accordingly, the name of the respondent is hereby amended to read: "The Governing Council of the Salvation Army in Canada and Bermuda".
For ease of reference, though, we may sometimes refer to the respondent simply as "The Salvation Army" or "the employer".
II
- This is an application for certification which was filed together with a related application to combine bargaining units. The provisions of the Act to which reference will be made are as follows:
5.- (1) Where no trade union has been certified as bargaining agent of the employees of an employer in a unit that a trade union claims to be appropriate for collective bargaining and the employees in the unit are not bound by a collective agreement, a trade union may, subject to section 62, apply at any time to the Board for certification as bargaining agent of the employees in the unit.
6- (1) Subject to subsection (2), upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.
7.-(1) On application by the employer or trade union, the Board may combine two or more bargaining units consisting of employees of an employer into a single bargaining unit if the employees in each of the bargaining units are represented by the same trade union.
(2) On an application under subsection (1) that is considered together with an application for certification, the Board may do the following:
Combine the bargaining unit to which the certification application relates with one or more existing bargaining units if the certification application is made by the trade union that represents the employees in those existing bargaining units.
Combine the bargaining unit to which the certification application relates with other proposed bargaining units if the certification application is made by the trade union applying for certification for the other proposed bargaining units.
Combine the bargaining unit to which the certification application relates with both existing and proposed bargaining units if the certification application is made by the trade union that represents the employees in those existing bargaining units and that has applied for certification for the other proposed bargaining units.
(3) The Board may take into account such factors as it considers appropriate and shall consider the extent to which combining the bargaining units,
(a) would facilitate viable and stable collective bargaining;
(b) would reduce fragmentation of bargaining units; or
(c) would cause serious labour relations problems.
(4) In the case of manufacturing operations, the Board shall not combine bargaining units of employees at two or more geographically separate places of operations if the Board considers that a combined bargaining unit is inappropriate because the employer has established that combining the units will interfere unduly with,
(a) the employer's ability to continue significantly different methods of operation or production at each of those places; or
(b) the employer's ability to continue to operate those places as viable and independent businesses.
(5) In combining bargaining units, the Board may amend any certificate or any provision of a collective agreement and may make such other orders as it considers appropriate in the circumstances.
(6) This section does not apply with respect to bargaining units in the construction industry.
In the certification application, the union seeks to establish its right to represent a group of the respondent's employees who are currently unrepresented. The union claims that the majority of these employees support certification, and that it may therefore be certified to represent them. Once certified (or certifiable), however, the union seeks a further direction under section 7 of the Act, to combine the newly-organized group, with a group of employees whom it already represents.
The union already represents a full-time employee bargaining unit which is described in the parties' collective agreement as follows:
ARTICLE 2- RECOGNITION
2.01 The Employer recognizes the Union as the sole bargaining agent of all employees of The Salvation Army Booth Industries employed in the Municipality of Metropolitan Toronto, save and except head of counselling, senior work supervisor, persons above the rank of head of counselling and senior work supervisor, secretary to the Administrator, bookkeeper, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.
2.02 "Employee" as used in this Collective Agreement shall mean those persons described in the bargaining unit set forth in Clause 2.01.
The union's objective is to create one large bargaining unit encompassing all of the employees of the respondent that the union represents.
These related applications came on before the Board, together, on November 29, 1993. The Board first dealt with, and granted, the certification application. Our reasons for that determination will be set out below.
Following the Board's oral ruling on the certification application, the parties advised that they were agreed upon an order combining the two bargaining units (i.e., the newly-certified group and the group already represented), but requested that the Board remain seized in the event that there was any difficulty.
III
The Certification Application
There is no dispute that the application for certification was timely - that is, that the employees to which it relates were currently unrepresented.
There is no dispute that the applicant is a "trade union" within the meaning of the Act.
However, the parties do not agree on the description of the unit of employees appropriate for collective bargaining.
The number of unrepresented employees affected by this certification application is less than two dozen. The union seeks a single bargaining unit, encompassing all of these unrepresented employees, regardless of the street address at which they work, and even though they provide somewhat different social and counselling services. The union describes this as a "tag-end unit", in the sense that it would take in all employees in the Community Mental Health Services program employed in Metro Toronto, with some exceptions not here relevant.
The employer urged the Board to create four separate bargaining units designated by street address and function, each of which would cover a handful of employees.
The union pointed out that the paycheques are signed by the Executive Director of the program who plays an active and pivotal role in decision-making, regardless of location. In the union's submission, the Executive Director was, and would continue to be, directly involved in any labour relations question of any importance; moreover, most of the employees are "counsellors" of one kind or another, engaged in social service functions which were not distinguishable for collective bargaining purposes.
The employer maintained that the locations were run separately, that they provided somewhat different social services, that they had different revenue sources (i.e., government agency grants), that there was little interchange of employees, that each location had a separate pay equity plan (we do not know why), and that one location might be considered to be a "hospital" under the Hospital Labour Disputes Arbitration Act ("HLDAA") (it has not, in fact, been so declared). Counsel for the employer pointed out that the "Booth Industries unit" currently represented by the union, was certified as a separate group about a dozen years ago.
After considering the parties' representations, the Board ruled that the more comprehensive bargaining unit sought by the union was appropriate for collective bargaining. We were not persuaded that there would be any serious labour relations problems arising from a unit encompassing this broader employee grouping. Indeed, the more comprehensive unit avoids the difficulties inherent fragmenting the bargaining structure - a problem addressed by recent changes to the Act governing the structure of bargaining units on certification, and permitting the combination of bargaining units to reduce their number.
In the Board's view, it made no collective bargaining or labour relations sense to sub-divide the employer's social service program into little islands of separate collective bargaining, each of which might have its own collective agreement, its own separate seniority system, its own access to first contract arbitration, its own strike, and so on; and of course, each of which could conceivably be represented by a separate trade union. In the Board's view, this kind of patchwork quilt of collective bargaining units was undesirable, and could be avoided by the more comprehensive grouping sought by the union. It made little sense to create fragmentation on the "front end" certification, then put the fragments together again, later, under section 7 of the Act.
IV
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, 1984]. 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.
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.
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.
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 subdivisions 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 demonstrably 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 Hospital for Sick Children case reproduced at paragraph 18.
In the instant case, we see no reason to reject the union's proposed unit, even though some dozen years ago, the smaller, Booth Industries grouping, was found to be appropriate in the setting of the time. The Board's approach has evolved since then, and so has the Statute which now "tilts" in favour of broader units if other statutory goals can be met as well (and now provides the means to combine bargaining units once found to be appropriate, applying the approach described above) -
The only troublesome aspect of the instant case is the plea that a part of the employer's organization might be found to be a "hospital" - as we understand it, because there is a consulting psychiatrist (not an employee) and the service of counsellors is directed to the clients' mental health.
However, as we understand it, there are no nurses involved, nor is it evident that the service involves the kind of medical care associated with what one usually considers to be a hospital. But the concern is, at present, entirely speculative, and even if one location were found to be a "hospital" within the meaning of the HLDAA, it is not at all clear that the situation would be so legally or functionally different in this fragment of the employer's organization that it demands a separate bargaining unit. Municipalities provide a variety of counselling services, and large ones, like the Municipality of Metropolitan Toronto, have within their ranks, and within the same bargaining grouping, employees covered by the HLDAA, and employees (the majority) who are not. We are not aware of any concrete collective bargaining problems arising from this mixing of employees - although, of course, the HLDAA "employees" may not have the right to strike.
For all of these reasons, the Board finds that the unit of employees appropriate for collective bargaining may be described as follows:
all employees of The Governing Council of the Salvation Army in Canada and Bermuda employed by Salvation Army Mental Health Services in the Municipality of Metropolitan
Toronto, save and except head of counselling, senior work supervisor, persons above the rank of head of counselling or senior work supervisor, secretary to the Administrator at Booth Industries, bookkeeper, students on placement, and persons for whom any trade union held bargaining rights as of October 19, 1993.
Clarity Note
For the purpose of clarity, the Board notes that Viola Brown, Secretary to the Administrator, and Gail McKnight, are excluded from the above-described unit because they exercise functions to which section 1(3) of the Act relates.
The Board is satisfied, on the basis of all the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on October 19, 1993, the certification application date, had applied to become members of the applicant on or before that date.
A certificate will issue to the applicant with respect to the bargaining unit described in paragraph 25 above.
V
As we have already noted, the parties have agreed that the newly-certified bargaining unit defined in paragraph 25 should be combined with the unit that the union already represents, defined in paragraph 5. It is so ordered.
We were told that the parties have a good collective bargaining relationship and that they should have no difficulty working out a collective agreement to cover the amalgamated employee grouping. Nevertheless, in accordance with the parties' agreement, we will remain seized in the event that there are any difficulties in this regard.