[1994] OLRB Rep. February 178
2690-93-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. 601192 Ontario Ltd. c.o.b. as Simcoe Terrace, Responding Party v. Christian Labour Association of Canada, Intervenor
BEFORE: S. Liang, Vice-Chair, and Board Members F. B. Reaume and E. G. Theobald.
DECISION OF THE BOARD; February 18, 1994
This is an application for certification in which a pre-hearing representation vote was requested, and has been held. By decision dated December 17, 1993, following the taking of that vote, the Board directed any party wishing to make representations as to the outstanding dispute relating to the appropriate bargaining unit, to file such representations by December 31. The Board indicated that if no party requested an oral hearing, the Board may issue a further decision on the basis of the material before it.
No representations have been received further to the Board's direction. The Board does have, however, written representations which followed the meeting with a Labour Relations Officer in which the dispute relating to the bargaining unit arose.
Having regard to those representations, and the material before it, and the absence of a request for an oral hearing, the Board is satisfied that it can decide the issue in dispute on the basis of the material before it.
The nature of the dispute is whether the appropriate bargaining unit should be a single unit, or whether there should be two bargaining units. The applicant, which seeks to displace the bargaining rights of the intervenor, and the respondent assert that the appropriate bargaining unit is:
all employees of 601192 Ontario Limited c.o.b. as Simcoe Terrace in the City of Barrie, save and except supervisors, persons above the rank of supervisor, and office and clerical staff.
- The intervenor asserts that the appropriate bargaining units are the following:
(a) all registered and Graduate Nurses and Registered and Graduate Nursing Assistants of 601192 Ontario Limited c.o.b. as Simcoe Terrace in the City of Barrie, save and except supervisors and persons above the rank of supervisor and office and clerical staff.
(b) all employees of 601192 Ontario Limited c.o.b. as Simcoe Terrace in the City of Barrie, save and except supervisors, persons above the rank of supervisor, office and clerical staff, Registered and Graduate Nurses, and Registered and Graduate Nursing Assistants.
Even if we accept all of the facts relied on by the intervenor in support of its position as true, we are satisfied that the bargaining unit proposed by this applicant is appropriate for collective bargaining.
There is no dispute that the collective agreement between the intervenor and the respondent contains a recognition clause which describes the bargaining unit in exactly the same terms as the unit sought by the applicant. This recognition clause combines bargaining rights which were acquired by the intervenor by way of three separate certificates granted by the Board over the course of approximately five years (in 1987, 1989 and 1992). The last of these related to a unit of registered and graduate nurses employed in a nursing capacity, and was granted on October 27, 1992.
It is not entirely accurate to state, as the intervenor has, that the "Board's long-standing practice is to recognize registered nurses as professional employees, and to exclude them from an "all-employee" bargaining unit unless these professional employees have indicated their desire to be represented by the same trade union which acquires bargaining rights for the all-employee bargaining unit." It has been the case that the Board has not generally required the inclusion of registered nurses in a bargaining unit relating to the health care sector against the position of an applicant. In such a case, the Board has made a determination that a unit which excluded such registered nurses was appropriate for collective bargaining.
Where as here, the applicant has requested the inclusion of registered nurses in the unit, the Board's task again is simply to determine whether this unit is appropriate in the sense that the employees share 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" (Hospital for Sick Children, [1985] OLRB Rep. Feb. 266).
The intervenor suggests that the interests of the registered nurses and registered nursing assistant is distinct from that shared amongst the rest of the employee complement. In this respect, the Board has also observed that real life collective bargaining has shown that it is possible to group together for collective bargaining purposes a group of employees with quite diverse skills, education, training and aspirations:
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 simply, 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 has also observed that in an application to displace an incumbent trade union, the established bargaining structure is prima facie appropriate, particularly where there has been a long, well established collective bargaining relationship: see, for instance, Reitzel Heating & Sheet Metal Ltd., [1988] OLRB Rep. Dec. 1310.
With these general observations in mind, we turn to the particular facts of the bargaining history at this workplace, as outlined by the intervenor. In granting full-time and part-time certificates to the intervenor in 1987 and 1989, the Board found that an "all-employee" bargaining unit which included registered nursing assistants was appropriate for collective bargaining. The respondent and the incumbent union then subsequently combined this unit with a unit of registered nurses. The intervenor states that the negotiation of the combination of these units came about, among other things, because the registered nurses wished to be represented in the same bargaining group with the registered nursing assistants. It asserts that these two groups share a community of interest. It also suggests that their interests are distinct from those of the rest of the employees. Apart from relying on its general understanding of the Board's practices (which we do not find entirely accurate) to support this decision, the only concrete factor it refers to is a difference in work area as between the RN/RNA's and the other employees.
On these facts, we are satisfied that the combined unit is one which demonstrates a sufficiently coherent community of interest such that the employees can bargain together on a viable basis. Although the history of the combined unit is relatively brief, it is clear that the RNA's have bargained together with other employees since 1987 without apparent difficulty. Given the intervenor's assertions regarding the community of interests as between the RN's and RNA's we see no reason why the combined unit would not be viable as well. Further, we find nothing in the facts relied upon by the intervenor to demonstrate that such a bargaining structure would cause serious labour relations problems for the employer (which incidentally supports such a structure).
The intervenor requests that the ballots cast by the registered nurses be counted in such a way that their wishes be taken into account, to some extent, separately from those of the other employees. Having found the bargaining unit proposed by the applicant to be appropriate for collective bargaining, we do not find such a proposal to have any merit. Within this unit, the wishes of all employees in the bargaining unit as to their preferred bargaining agent have been tested by way of a secret ballot in which all affected employees have had the opportunity to vote; within this unit, each employee's wishes will be given equal weight.
The Board therefore directs that all ballots cast in the pre-hearing representation vote be counted.