[1995] OLRB Rep. November 1401

0247-95-R Canadian Union of Public Employees (Local 139), Applicant v. North Bay General Hospital, Responding Party v. Service Employees International Union, L. 478, Intervenor

BEFORE: Janice Johnston, Vice-Chair.

APPEARANCES: Geoffrey M. Laplante, Gerric La Fontaine and Jack Mayer for the applicant; Brian R. Gatien, Robert McGrath, Monique Menard and Linda McCarthy for the responding party; Sean Fitzpatrick, Andrew MacKenzie, Marry Perrault and Roger Lamothe for the intervenor.

DECISION OF THE BOARD; November 1, 1995

This is an application pursuant to section 64 of the Labour Relations Act (the "Act").
Effective April 1, 1995 the North Bay Civic Hospital (the "Civic") and St. Joseph's General Hospital (the "General") of North Bay were merged together to form the responding party, the North Bay General Hospital (the "employer"). The applicant, the Canadian Union of Public Employees Local 139 ("CUPE") represents approximately 275 workers at the Civic in an "all-employee" bargaining unit. This unit includes office and clerical workers, service workers and nursing staff amongst others. The intervenor, the Service Employees International Union, Local 478 ("SEIU") represents approximately 185 employees at the General in three bargaining units. There is a full-time service unit, a part-time service unit and an office and clerical unit which includes full-time and part-time workers.
The parties were able to reach agreement on all issues except one. They signed the following Minutes of Settlement:

MEMORANDUM OF AGREEMENT

B E T W E E N:

Service Employees International Union, Local 478

('Union")

and -

Canadian Union of Public Employees (Local 139)

("Union")

and -

North Bay General Hospital

("Employer")

In the matter of Board file no. 0247-95-R, the parties agree as follows:

The parties agree to the following:

a. there has been a sale of a business (or sale of businesses) within the meaning of s.64 of the Act;

b. there has been an intermingling of employees within the meaning of s.64(6) of the Act;

c. the Board will conduct a vote or votes where employees will be asked to choose between the two Unions;

d. the Board will decide whether to conduct one vote for a single all employee bargaining unit or to conduct two votes for two bargaining units: an office and clerical unit and a service unit;

e. regardless of the outcome of the vote, the seniority lists of the two Unions will be dovetailed in the new bargaining unit or units;

f. the vote will be held as quickly as possible after the Board decision is issued;

g. the employees in the St. Joseph's Treatment Centre and the Nipissing Detoxification Centre covered by the OLRB certificates dated 11 March 1991 and 6 November 1993 respectively will not be affected by the vote or votes, will not be affected by the dovetailing of seniority lists, will maintain their separate collective agreements and will continue to be represented by the Service Employees International Union, Local 478.

The voting constituency or constituencies for the above-noted vote or votes shall be as described in Schedule "A" to this Memorandum. The parties agree that the persons listed in Schedule B are not entitled to vote for the purposes of this Application.
a. Following the issuance by the Board of a final outcome in the above-noted vote or votes, the winning Union or Unions shall meet with the Employer to discuss the disputed classifications listed in Schedule B.

b. In the event that a winning Union and the Employer cannot reach agreement on the disputed classifications listed in Schedule B, either party may submit the issue to arbitration or the Labour Board for final resolution.

c. The parties agree to amend their recognition clause(s) in accordance with any agreements or decisions reached pursuant to paragraph 3.

Dated this 12th day of October 1995 in the City of North Bay.

"Anita Bouvier" "Robert F. McGrath"

Service Employees International North Bay Hospital

Union, Local 478

"D. Ivanochko"

Canadian Union of Public Employees

(Local 139)

SCHEDULE "A"

One bargaining unit/voting constituency:

All employees of North Bay General Hospital, in the City of North Bay, save and except

professional medical staff, graduate nursing staff, undergraduate nursing staff, graduate pharmacists, undergraduate pharmacists, graduate dieticians, student dieticians,

supervisors,

persons above the rank of supervisor,

technical personnel, secretary to the President/C.E.O., secretary to the Vice-President of Human Resources, secretary to the Vice-President of Finance, secretary to the Vice-President of Operations, secretary to the Vice-President of Patient Services,

Human Resources Assistant

secretary to the Director of Occupational Health,

employees of the Nipissing Detoxification Centre and St. Joseph's Treatment Centre covered by the OLRB certificates dated 11/3/91 and 6/1 1/93

and persons covered by subsisting collective agreements.

Clarity note #1

The parties agree that new or changed positions of a managerial or confidential nature may be referred to the Board under the Act and agree to be bound by the Board's decision.

Clarity note #2

For the purposes of clarity, the following positions are not included in the "technical personnel" exclusion: recreational therapists and rehabilitation assistants (physiotherapy assistants, speech pathologists assistant, occupational therapist assistants), and are to be covered by the scope clause.

Two bargaining units/voting constituencies:

All office and clerical employees of North Bay General Hospital, in the City of North Bay, save and except

secretary to the President/C.E.O., secretary to the Vice-President of Human Resources, secretary to the Vice-President of Finance, secretary to the Vice-President of Operations, secretary to the Vice-President of Patient Services, Human Resources Assistant, secretary to the Director of Occupational Health,

technical personnel

supervisors and

persons above the rank of supervisor and persons covered by subsisting collective

agreements.

Clarity notes: 1) as above

as above

All employees of North Bay General Hospital, in the City of North Bay, save and except

office and clerical employees, professional medical staff, graduate nursing staff, undergraduate nursing staff, graduate pharmacists, undergraduate pharmacists, graduate dieticians, student dieticians, supervisors, persons above the rank of supervisor, technical personnel,

employees of the Nipissing Detoxification Centre and St. Joseph's Treatment Centre covered by the OLRB certificates dated 11/3/91 and 6/11/93 respectively and persons covered by subsisting collective agreements.

Clarity note 1 as above

Clarity note 2

SCHEDULE "B"

Buyer - Materials Management - G. Mountain
Accident Prevention Officer - Occupational Health and Safety Services - N. Smith
Financial Analyst - Finance - L. Gravelle
Civil Technologist - Engineering Services - B. Pinder
Clinical Ancillary Analyst - Information Systems - R. Kovacs
Financial Analyst - Information Systems - C. McGrath
Computer Support Specialist II (Applications) - Information Systems - Vacant
Computer Support Specialist II (Technical - Information Systems - K. Peplinski
Computer Support Specialist III (Technical) - Information Systems - R. Laing
Costing Coordinator - Case Costing - A. Brunette
Health Records Administrator, Coding & Quality Improvement - Clinical Records -Dube
Health Records Administrator, utilization Management/Data Analyst - Clinical Records - S. Fortin
Secretary - Quality Improvement - S. Simard
Secretary, Director Clinical Coordination - Patient Services - S. King
Secretary, Director Transition - Patient Services - S. Allen
HRIS Coordinator - J. Lecuyer
Staffing Coordinator - D. Hogan
Benefits Administrator - E. Mann
Benefits Administrator - Vacant
Receptionist - G. Tamdeau
Secretary to 5taffing Coordinator - M. Bennett
Payroll Clerk (McLaren site payroll) - Vacant
The only issue in dispute therefore, is the appropriate bargaining unit description. At the hearing scheduled for this matter the parties indicated that there were no factual disputes and proceeded directly to submissions. At the outset, counsel on behalf of the responding party indicated that the employer wished to remain neutral on the issue of bargaining unit configuration.
SEIU argued that there should be two bargaining units. One for full-time and part-time service workers and one for part-time and full-time office and clerical workers. Counsel argued that this bargaining unit configuration was appropriate. He pointed out that it reflects the history of bargaining at the General and is also reflective of the employee preference at the General. In his view, there are no issues of viability or stability in this case as both CUPE and SEIU have a lengthy history at their respective locations and the employer has not expressed any concerns with regard to either of the two options being proposed concerning the appropriate bargaining unit structure.
Counsel on behalf of CUPE agreed that the Board should give a great deal of weight to employee preference. However, he argued that the employees who CUPE represents want to continue in an all employee unit and do not want to split up the office and clerical workers and the service workers into two separate units. If the Board finds that two bargaining units are appropriate and directs a vote on that basis, counsel argued that it would be effectively splitting the unit without giving the employees any choice in the matter. Counsel suggested that it is in the interests of the employees and that it makes labour relations sense to maintain one strong bargaining unit.
Section 64(1) of the Act provides, in part, as follows:

64.(1) In this section,

"business" includes one or more parts of a business; ("entreprise")

"predecessor employer" means an employer who sells his, her or its business; ("employeur precedent")

"sells" includes leases, transfers and any other manner of disposition; ("vend")

"successor employer" means an employer to whom the predecessor employer sells the business. ("employeur qui succede")

(1.1) This section applies when a predecessor employer sells a business to a successor employer.

(2) If the predecessor employer is bound by a collective agreement, the successor employer is bound by it as if the successor employer were the predecessor employer, until the Board declares otherwise.

(2.1) If the predecessor employer is a party to any of the following proceedings, the successor employer is a party to the proceeding as if the successor employer were the predecessor employer, until the Board declares otherwise:

A proceeding before the Board under any Act.
A proceeding before another person or body under this Act, the Hospital Labour Disputes Arbitration Act, the Crown Employees Collective Bargaining Act, 1993 or the Agricultural Labour Relations Act, 1994.
A proceeding before the Board or another person or body relating to the collective agreement.

(2.2) If the predecessor employer has given or been given a notice relating to bargaining for a collective agreement or has requested the appointment of a conciliation officer or mediator, the successor employer is considered to have given or been given the notice or to have made the request, until the Board declares otherwise.

(3) If, when the predecessor employer sells the business, a trade union is the bargaining agent for any employees of the predecessor employer, has applied to become their bargaining agent or is attempting to persuade the employees to join the trade union, the trade union continues in the same position in respect of the business as if the successor employer were the predecessor employer.

(4) An interested person, trade union or council of trade unions may apply to the Board to determine,

(a) a question concerning the scope of bargaining rights of the trade union referred to in subsection (3); or

(b) a conflict in the bargaining rights of the trade union referred to in subsection (3) and another trade union representing employees of the successor employer.

(4.1) On an application under clause (4)(a), the Board may alter the composition of the bargaining unit for which the trade union referred to in subsection (3) holds bargaining rights.

(4.2) On an application under clause (4)(b), the Board may alter the description of a bargaining unit in a certificate issued to any trade union or the definition of a bargaining unit in a collective agreement.

(5) An interested person, trade union or council of trade unions may apply to the Board within sixty days after the predecessor employer sells the business for the termination of the bargaining rights of the trade union referred to in subsection (3).

(5.1) On an application under subsection (5), the Board may terminate the bargaining rights of the trade union only if it considers that the successor employer has changed the character of the business so that it is substantially different from the business of the predecessor employer.

(6) This subsection applies if the successor employer carries on one or more other businesses and the successor employer intermingles the employees of the business sold to him, her or it with those of another business. On application, the Board may,

(a) declare that the successor employer is no longer bound by the collective agreement to which the predecessor employer was bound;

(b) determine the unit or units of employees that are appropriate for collective bargaining;

(c) declare which trade union or council of trade unions, if any, becomes the bargaining agent for the employees in each of the bargaining units;

(d) amend, to the extent the Board considers necessary, any certificate issued to a trade union or council of trade unions or any bargaining unit defined in

any collective agreement; and

(e) define or redefine the seniority rights under any collective agreement of the employees concerned.

(7) where a trade union or council of trade unions is declared to be the bargaining agent under clause (6)(c) and it is not already bound by a collective agreement with the successor employer with respect to the employees for whom it is declared to be the bargaining agent, it is entitled to give to the employer a written notice of its desire to bargain with a view to making a collective agreement, and the notice has the same effect as a notice under section 14.

(8) Before disposing of any application under this section, the Board may make such inquiry, may require the production of such evidence and the doing of such things, or may hold such representation votes, as it considers appropriate.

There is extensive Board jurisprudence on the issue of appropriate bargaining unit configuration. This issue is dealt with in the context of applications for certification, applications to combine bargaining units, and, as in the case at hand, applications to determine if there has been a sale of a business. As was pointed out by counsel, due to the circumstances in this case, the Board need not consider issues such as: the access of employees to collective bargaining; the stability and viability of the proposed bargaining unit structure; and the community of interest amongst the various employees. Both counsel argued that the employees their clients represent, preferred to maintain the existing structure as they know it. Therefore "employee preference" as it has been expressed in the unique facts of this case, is of little assistance to the Board. It is impossible to give weight to this factor when there are competing views and they, in effect, cancel each other out.
Therefore, I am left with a choice between two long-time viable bargaining structures. In determining an appropriate bargaining unit configuration the Board has historically given preference to broader based bargaining units. In Bestview Holdings, [1983] OLRB Rep. Aug. 1250, the Board stated:
Self-determination and community of interest often favour relatively small units, but these are not the only relevant factors in bargaining unit design. The Board must also strive to create a viable structure for ongoing collective bargaining and, to this end, undue fragmentation must be avoided. Consolidated bargaining offers several advantages over a fragmented structure. A proliferation of small units may result in unnecessary work stoppages. Each time one group goes on strike, other employees performing jobs that are functionally dependent upon the work normally done by strikers are brought to a halt. Even in the absence of functional integration, strikers may erect picket lines that keep other employees away from work. The likelihood of strike occurring increases as the number of rounds of bargaining grows, and is further enhanced by competition among bargaining agents. Secondly, each of several units typically becomes a separate seniority district, enclosed by walls which impede the movement of employees between jobs. In addition, broader-based structures may lower the cost and thereby increase the availability of insurance schemes and benefit plans. A multiplicity of bargaining units also inevitably spawns jurisdictional disputes over the assignment of work and entails the cost of negotiating and applying several collective agreements. Finally, the existence of a single bargaining unit facilitates equitable treatment of employees doing similar jobs.
In Stratford General Hospital, [1976] OLRB Rep. Sept. 459, the Board observed:

Even where the Board has found that two competing applications propose appropriate bargaining units, it has exercised a discretion in favour of the more comprehensive bargaining unit in finding "the" appropriate bargaining unit for the purposes of section 6(1).... Surely where there are competing applications, the Board can be more concerned with the ideal characteristics of collective bargaining structures in that, whatever the decision, employees will not be denied access to the collective bargaining process.

It is also of assistance to note that in Salvation Army, [1994] OLRB Rep. Jan. 85 in addressing the issue of appropriate bargaining unit structure in the context of an application for certification the Board stated:
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 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 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.
Accordingly, for all of the reasons noted in the jurisprudence it is appropriate to give preference to the broader based unit. Therefore, pursuant to section 64(6) of the Act, I conclude that the appropriate bargaining unit configuration is that proposed by CUPE and set out as the first option in Schedule "A" to the Memorandum of Agreement.
In accordance with the agreement of the parties therefore the Board makes the following declarations and directions:

A sale of a business (or businesses) within the meaning of section 64 of the Act has occurred;
There has been an intermingling of employees within the meaning of section 64(6) of the Act;
A representation vote will be conducted to determine which union shall represent the employees of the employer in the following bargaining unit:

All employees of North Bay General Hospital, in the City of North Bay, save and except

professional medical staff, graduate nursing staff, undergraduate nursing staff, graduate pharmacists, undergraduate pharmacists, graduate dieticians, student dieticians,

supervisors,

persons above the rank of supervisor,

technical personnel,

employees of the Nipissing Detoxification Centre and St. Joseph's Treatment Centre covered by the OLRB certificates dated 11/3/91 and 6/11/93

and persons covered by subsisting collective agreements.

Clarity note #1

The parties agree that new or changed positions of a managerial or confidential nature may be referred to the Board under the Act and agree to be bound by the Board's decision.

Clarity note #2

The voting constituency shall consist of all employees of the employer who fall in the bargaining unit set out above who are employed as of October 12, 1995 and who continue to be so employed on the day of the vote.
Regardless of the outcome of the vote the seniority lists of the two unions will be dovetailed in the new bargaining unit.

This matter is referred to the Manager of Field Services for the purpose of appointing a Labour Relations Officer to prepare a voters' list and conduct the vote. For the purposes of the voters' list, I note that the parties have agreed that certain persons listed in Schedule "B" to the Memorandum of Agreement are not entitled to cast a ballot.
In the event that there are any difficulties in implementing this decision, I shall remain seized.

Canadian Union of Public Employees (Local 139) v. North Bay General Hospital, 1995 CanLII 10020

Case Summary

[1995] OLRB Rep. November 1401