United Steelworkers of America v. University Hospital, 1996 CanLII 11124

[1996] OLRB Rep. July/August 694

4142-94-R United Steelworkers of America, Applicant v. University Hospital, Responding Party

BEFORE: ChristopherAlbertyn, Vice-Chair, and Board Members W H. Wightman and K. S. Brennan.

APPEARANCES: James Hayes, Jeffrey M. Andrew, George Ross, Debbi Harley, Freda Northover, Ca role Sutherland and Bill Gibson for the applicant; Frank Angeletti and Paul Faguy for the responding party.

DECISION OF CHRISTOPHER ALBERTYN, VICE-CHAIR, AND BOARD MEMBER W. H. WIGHTMAN; July 11, 1996

1. This is an application for certification filed under the Labour Relations Act prior to its 1995 amendment, hence not subject to the current provisions concerning the certification process.

2. There is one issue in dispute between the parties: the description of the appropriate bargaining unit. The union seeks to be certified for a group of secretaries employed by the hospital, known as GFT secretaries (or "GFTs"); the hospital contends that they do not constitute a distinct group suitable for a separate bargaining unit. The parties have agreed that if the Board finds that the GFT secretaries constitute an appropriate bargaining unit, then a certificate to that effect should be issued to the applicant, and, if the Board finds that that is not an appropriate bargaining unit, then the application should be dismissed because the applicant does not have sufficient support within the larger clerical unit proposed by the hospital.

3. The responding party will at times be referred to as "University Hospital", or "the hospital" or "the employer".

4. The responding party is a large hospital in London, associated with the Medical Faculty of the University of Western Ontario. At the time of the application it employed approximately 2,700 people. University Hospital has recently (October 1995) merged with Victoria Hospital to form a single large hospital for the City of London. The merger occurred subsequent to the filing of the certification application on February 21, 1995. That development will not influence this decision, which will be founded upon the circumstances that existed on the date of the certification application.

5. The hospital serves approximately half a million patients a year, most of whom are outpatients. About 75% of the patients come from outside of the City of London. It is a community and a teaching hospital with an affiliation agreement with the Faculty of Medicine of the University of Western Ontario. As a teaching hospital, it tends to deal with more specialized, more acute kinds of care. University Hospital itself now has approximately 2,500 employees, of whom about 400 are unionized, and about 2,100 are not. The 400 unionized employees are in the service or maintenance sector.

6. In evidence the employer produced a current breakdown of the existing bargaining units within the new merged structure of Victoria/University Hospital. While our decision is based upon the facts and circumstances that existed on the date of this application (February 21, 1995), our decision will impact upon current circumstances at the hospital. For that reason we note the current bargaining units at Victoria/University Hospital. At Victoria Hospital there are 4 bargaining units: registered nurses (approximately 1,100 employees); service employees (1,000); clerical employees (400); and technical employees (500). There are 900 employees who are not unionized (including doctors and management). At University Hospital, using management's categories, there are 400 employees in the service employees bargaining unit (represented by the Service Employees' International Union). That unit is composed of housekeeping, dietary and maintenance employees and porters. The other hospital employees are not unionized, including the GFTs whom the union seeks to represent through this application. The other categories of employees are the following (with approximate numbers of workers in each): 900 registered nurses; 500 clerical employees (of whom 99 are GFTs - the group who seek a bargaining unit in this case); 400 technical employees and 300 others (doctors and management).

7. GFT secretaries make up less than 4% of the hospital's employees, and less than 25% of its clerical and administrative employees. The category of clerical and administrative employees (referred to by the employer as "the SOS group" - the Secretarial and Office support staff) includes the following: clerk typists; dicta-typists; secretaries; medical secretaries; GFT secretaries; program secretaries; communications and financial clerks.

8. The term "GFT" is an abbreviation for 'Geographic Full-Time' secretary, a category of secretary created when the hospital was originally staffed in 1972. That description no longer has any meaning. In about 1993 the GFT secretaries, through their association, the GFT Secretaries Association (sometimes referred to hereafter as "the Association"), considered a job title name change to a name which more appositely described their particular work. They recommended to management the substitution for their job title of the term, "Medical Administrative Assistant". That suggestion was not adopted, and the title "GFT Secretary" remains. What makes a secretary distinctively a GFT secretary has less to do with geography than with the fact that she provides secretarial and administrative support for a specific specialist physician (a GFT physician), rather than for the hospital itself. The GFTs are employed by the hospital, although, for each of them, their day-to-day work is done for a specific physician. The physicians for whom the GFTs work are dispersed throughout the hospital, and each such physician has his/her own financial arrangement with the hospital.

9. The physicians are part of the hospital's teaching function. About 75% of the physicians employed at the hospital have no teaching responsibilities. The GFT secretaries work for about 25% of the physicians, i.e. those who have teaching responsibilities. Other secretaries work directly for the hospital and are allocated work according to the hospital's clerical requirements. The physicians for whom GFTs work are specialists engaged in private clinical practice, teaching and research in association with the Faculty of Medicine at the University of Western Ontario ("the university"). Secretarial and most administrative employees of the hospital, other than GFTs and a few clerical employees, are paid out of the normal operating budGFT of the hospital. GFT secretaries and a small number of other clerical employees, are paid by the hospital as its employees, although the sources of funding of their salaries are fourfold: the Clinical Education BudGFT of the hospital from the Ministry of Health; training and research funding which is made available to the university through the Ministry of Health and the Ministry of Colleges and Universities; the physician's personal expense of practice; and the hospital global budGFT.

10. The relationship between the physicians, for whom the GFTs work, and the hospital requires some explanation. The physicians are in a position somewhat equivalent to tenants in their relationship with the hospital. Each physician negotiates his/her own financial arrangements with the hospital, or a new physician will negotiate his/her relationship with a department of physicians, who, as a group, negotiate a particular financial arrangement with the hospital. The physicians (or department of physicians) contribute different amounts in respect of the opportunity to conduct their medical businesses and research associations with the hospital. In return for the consideration paid by the physician or department of physicians concerned, the hospital provides medical and office equipment and all necessary employees and professional help, including one or more GFT secretaries. A physician's office and medical equipment and supplies, which are not provided by the hospital, are generally purchased or leased independently by the particular physician or department of physicians.

11. GFT secretaries are one classification among many within the job category, 'secretary's within the hospital. The full list of secretarial positions within the hospital includes over 80 classifications. Each secretarial position falls within a particular job grade, and the GFT secretaries' job grade is the same as that of certain other secretarial positions.

12. During the course of the hearing, at counsel's request, we directed counsel for both parties to the issues we considered would best focus our consideration of the matter in dispute between them. Our basic inquiry is whether the GFT secretaries should be separated from the general body of clerical and administrative staff at the hospital for the purpose of collective bargaining - in other words, whether, on their own, they constitute an appropriate bargaining unit. To assist in our inquiry, we suggested that the parties might direct their evidence and argument to the following points of possible relevance to our consideration of whether or not the GFTs are a distinctive group, and whether or not that distinctiveness is sufficient to constitute them as an appropriate bargaining unit: qualifications; duties; work environment; supervision and discipline; terms and conditions of employment, e.g. wages, vacation entitlements, etc.; the circumstances leading to termination of employment and the differences in job security; any ancillary terms of employment - particularly the suggestion that GFTs receive additional income from their 'own' physicians; the filling of GFT vacancies; the role of the GFT Association, of which more below; the functional dependence/inter-dependence with other hospital employees, particularly clerical employees; and information concerning other bargaining units. We have already mentioned the information concerning other bargaining units above. Our description of the evidence in respect of the other categories of possible distinctiveness follows.

Qualifications

13. The qualifications typically required of GFT secretaries are the following. They should have completed a two-year Community College Medical Secretarial Program or obtained a Medical Administration Assistant Certificate or its equivalent in formal medical-business training. The GFT secretary should have a minimum of 2 years experience in a specialist physician's office. She (at material times to this application there were no male GFTs) should have the ability to work independently, with experience of word processing and computerized OHIP billing (preferably WordPerfect 5.1, WP Office, Reference Manager and the Don Wallace Automated OHIP Billing System). The GFT should be able to communicate effectively and professionally with all staff, patients and others, and she should be able to work independently and maintain confidentiality. Most GFTs are required to have the ability to manage research accounts.

14. These qualifications are slightly different from those required of other medical secretaries. The GFTs qualifications are somewhat superior to most other secretarial positions, but they are not so different as to suggest an acute or marked distinction.

Duties

15. The duties of GFT secretaries are fully described in a document dated February 1993. produced as Exhibit 3, Tab 24 at the hearing. That description includes the following duties: managing the physician's office efficiently and effectively; prioritizing and organizing work; answering and dealing with the physician's telephone calls and reception responsibilities; typing of in-patient and outpatient summaries, consultation notes, research manuscripts, grant applications, committee reports, general reports, minutes, correspondence; scheduling of the physician's day-to-day operations, including out-patient appointments, hospital admissions, laboratory and diagnostic tests, surgeries, dictatyping, teaching, meetings, and the physician's travel; filing documents and records; preparing billings of the physician's consultations to CHIP and to other agencies; communicating with patients, staff and associates.

16. Many of these duties would be done by other secretarial and clerical employees. The particular combination of the GFTs' duties is distinctive, but other combinations of the same kinds of duties are performed by various categories of administrative and secretarial employees.

Work Environment

17. GFTs work for, and are accountable to, individual physicians. They are not alone in having that mediated relationship to the hospital. Other non-GFT secretaries, though few in number, also report directly to physicians.

18. GFT Secretaries are dispersed throughout the hospital. They tend to work alone, for a specific physician, as a personal, administrative and secretarial assistant.

19. GFT secretaries are not alone in working for (GFT) physicians who have an arm's length relationship to the hospital. Approximately 155 employees, including 99 GFTs, report to physicians. To all intents and purposes they share with the GFTs the features of relative isolation from other administrative employees, dependence upon the physicians and relative precariousness in their employment.

Supervision and discipline

20. The physicians, for whom the GFT secretaries work, are effectively their managers. When a physician decides that discipline is warranted s/he would typically consult with the hospital's Human Resources Department before taking any action. That is not always the case, but it is mostly. In this regard, GFT secretaries are treated no differently from other clerical or administrative employees, who would be subject to equivalent managerial discipline.

Terms & Conditions of Employment

21. The hospital is responsible for, and administers, the payroll of all employees, including the GFT secretaries. The hospital pays their salaries and benefits. The amounts contributed by the various physicians to the hospital in respect of the services provided by the hospital (medical and office equipment, consulting room space, GFT secretarial and other administrative assistance) are paid directly to the hospital and not to the GFTs themselves. The hospital treats the GFTs as its employees.

22. The physician employing a GFT secretary will have some say over her starting salary. The actual amount will be determined by agreement between the physician and the GFT secretary concerned. But, in advance of such agreement, the physician will consult with the hospital's Human Resources Department to determine where on the salary grid the GFT secretary should be placed. The HR Department will ensure that the GFT secretary employed is not paid a salary which will be at variance with that earned by GFT secretaries and other secretaries of equivalent qualification who are required to perform similar work of commensurate responsibility. GFT secretaries are classified as Grade 34 in the hospital's grading system. Once located on the staff salary grid, a GFT secretary will receive the increases and adjustments to salary and benefits which apply to all secretarial, administrative and clerical employees.

23. A pay equity plan was presented to all secretarial staff as one group, inclusive of GFTs. Under a job-to-job comparison for the purpose of establishing pay equity goals had they been treated as a distinct group, GFT secretaries would have received no pay equity adjustment had they been treated as a distinct group, but, as a result of grouping the GFT secretaries with other secretaries, the GFTs received the same adjustment as other secretaries.

24. All clerical and administrative employees, including GFT secretaries, are entitled to holiday and vacation benefits as provided by the hospital policy concerned. GFT secretaries GFT the same vacation entitlement as do other secretaries, except for secretaries to vice-presidents, who are given more vacation. Similarly, the hospital's leave of absence policy and its lay-off policy apply in the same way, and with equal force, to the GFT secretaries as they apply to other administrative and secretarial employees.

25. Hiring of GFT secretaries is somewhat distinct from that of other secretarial and administrative employees. The physician for whom the GFT secretary is to work has considerable say over the appointment. At times a physician will bring his/her own secretary with him/her upon taking a position at the hospital, and that secretary will become his/her GFT secretary. If a new physician does not bring his/her own secretary, and decides not to keep the incumbent GFT secretary, the GFT position will be posted at the hospital as are other clerical positions. Upon posting of a GFT vacancy, like other administrative positions, the hospital's Human Resources Department will screen the candidates, although the final decision on the selection will be made by the physician concerned. That would apply too to other appointments. The head of department or the individual manager, in consultation with the hospital's Human Resources Department, would make the actual selection of the person who will be appointed to the vacant position.

26. The formal procedure for the appointment of GFT secretaries to job vacancies is the same as that for all other employees. It is contained in the hospital's policy manual. It is also described in a memorandum dated December 2, 1993, which somewhat modifies the general procedure, as follows:

• Employee Relations provides the physician with the files of all candidates who meet the job requirements.

• The physician decides which candidates he/she will interview.

• The physician interviews those candidates.

• The physician selects the most senior person with all the qualifications.

• The physician notifies Employee Relations of the successful candidate.

[T]he salary range will be included in every job posting.

27. Hours of work of GFTs, like other administrative, clerical and secretarial employees, are determined by the provisions of the hospital's policy manual. The hospital-wide overtime policy applies to all employees, although managers or physicians may make adjustments as required. Should a GFT secretary work overtime, her physician is obliged to send details of that overtime work to the Payroll Department. Similar arrangements apply to other secretarial and office employees. Overtime may be paid for, or compensated by time off in lieu of payment. Clerical employees are usually paid for overtime work, GFTs are more likely to GFT time off in lieu of payment.

28. GFT secretaries, like other administrative and secretarial employees, are subject to the policies and procedures manual of the hospital's Human Resources Department, including such matters as occupational health and safety; rest periods; homeowners' and automobile insurance; discrimination and harassment complaints procedures; jury duty; job sharing; paid holidays; parking; pension plans; personal appearance; personnel files; rehabilitation employment; termination and retirement.

29. The GFT Secretaries' Association produced a comprehensive Medical Secretaries' Resource Manual. It deals will all areas of responsibility of a medical secretary. It applies to all medical secretaries, not only GFTs. Other occupational categories within the hospital, e.g. health records clerks and patient registration clerks have their own resource manuals and, like the GFT secretaries, they were involved in producing and revising their manuals.

30. The hospital provides occasional training programmes for its employees. GFT secretaries are expected to, and do, attend.

Ancillary terms of employment

31. There was some suggestion in the evidence of Mrs. Debbi Harley, the GFT secretary who testified at the hearing, that some, though not all, GFT secretaries receive some additional income from the physician for whom they work besides their salary paid by the hospital. The suggestion was that this income is non-contractual, informal and unrecorded, supplementary to their normal salaries. Given the somewhat discretionary nature of this remuneration, no details of payments are kept, nor was any specificity given to this evidence, but its implication is that the "topping up" of the GFT secretaries' salaries makes their employment somewhat different or distinct from that of other administrative or secretarial employees. For example, GFT secretaries might receive a benefit like a Christmas bonus, or a gift at Christmas, or an honorarium for assisting in conference organizing or preparation.

32. The hospital's witness, Mr. Faguy, the current Human Resources Director, was aware of few instances of supplementary, non-contractual consideration paid by a physician to a GFT secretary, but he explained that any such payment was not part of the employment relationship between GFT secretaries and the hospital, and that he would seek to ensure that it ceased because it had the potential for creating rivalry and resentment. Also there was the possibility of a GFT secretary seeking to claim such unauthorized income as part of her remuneration. That risk would impact upon the hospital.

Job security

33. When a particular physician leaves the hospital and the physician concerned is not replaced, the practice is for the GFT secretary concerned to be terminated by reason of redundancy. If a physician leaves and is replaced, the new physician may bring someone with him/her, in which event the GFT secretary will be made redundant. If a physician is replaced by a physician who does not bring his/her own secretary, then the new physician will decide if the incumbent GFT secretary is qualified to perform the secretarial and administrative work required in his/her practice, in which event the GFT secretary will be retained. If she lacks the necessary qualifications, she will be laid-off by the hospital. There is no automatic right to bump or transfer into other clerical positions within the hospital. The GFT is treated as being laid off and the provisions referred to below apply. The reason that the GFT secretary is likely to be laid off when her physician leaves is because the in-coming physician, who has a relatively independent association with the hospital, has the right to determine who should be appointed as his/her personal GFT secretary. The physician and his/her GFT secretary need to be able to work well toGFTher, so the GFT secretary is in the position of a personal assistant to the physician. Her appointment is therefore largely determined by the physician for whom she will work. For that reason the term of her appointment does not necessarily extend beyond the period of association between the physician and the hospital.

34. The job security of non-GFT secretaries who work for individual managers and departmental heads is not dissimilar from that of GFT secretaries, although it is somewhat greater in practice. If a manager or departmental head leaves the hospital and is not replaced, his/her secretary is declared to be redundant. That is no different from what would happen to a GFT secretary. If a manager or departmental head leaves and is replaced, and his/her role remains substantially the same, then the incumbent secretary would retain her position. That is different from the GFT secretary's position in equivalent circumstances. As stated above, in such a circumstance, the incoming physician may yet decide not to keep the GFT secretary concerned. If the role or function of the manager or departmental head changes, and that change were sufficient to alter the secretary's duties significantly, then there would be a job posting.

35. The precariousness described above in respect of GFT's employment tenure applies not only to GFT secretaries, but to all secretaries who report to particular, individual physicians and heads of departments, although, in practice it appears that the GFT secretaries are less likely to be retained by in-coming physicians than is the case in other sections of the hospital. The GFT will usually be laid off when the physician for whom she works ceases his/her association with the hospital. That condition does not apply to the appointment of administrative and clerical employees, and it applies with less frequency to other secretarial employees. Their positions are less precarious than those of the GFTs. When the person for whom they perform secretarial work leaves and is replaced, they are likely to remain as the incumbent secretary for the position they occupy. They are clearly employed in a particular position for the hospital, whereas the GFTs work for a particular physician and their job security is likely to last only for so long as that physician remains with the hospital. This is an important difference in the terms and conditions of employment of the GFTs as compared to administrative, clerical and most other secretarial employees.

Transfers, Lay-offs and Terminations

36. If a GFT secretary is temporarily absent from work, she may arrange for her temporary replacement by an out-of-work or laid off GFT secretary who wants temporary work. As far as possible, GFTs try to arrange for a GFT casual or temporary replacement because she would be familiar with the work. If no such arrangement is or can be made, then the temporary replacement will be supplied from the hospital's Secretarial Casual Float Pool. There is no separate float pool for GFT secretarial replacements; GFT replacements are supplied from the Secretarial Casual Float Pool.

37. The hospital permits employees to transfer into posted positions which they are qualified to perform. All applications for transfer within the hospital, including GFT secretarial transfers, are submitted to the hospital's Human Resources Department.

38. GFT secretaries have transferred into vacant non-GFT secretarial or administrative positions, and non-GFT secretaries have transferred into GFT secretarial positions. Such transfers are not common, but they do occur. Several instances of such transfers were presented in evidence at the hearing.

39. In the event of a physician leaving the hospital and his/her GFT secretary being laid off, the affected GFT secretary is subject to the hospital's lay-off policy, applicable to all employees. The GFT secretary has one of three options: she can accept a vacant position if one is available and suitable; she can accept the lay-off with severance pay and no right of recall; or she can accept the lay-off with a right of recall, but without severance pay. The hospital offers a voluntary exit or early retirement programme to all clerical and secretarial employees, including GFT secretaries.

40. GFT secretaries are treated like all other administrative and secretarial employees when their employment is terminated. The procedure is carried out by the Human Resources Department and any problems arising are dealt with by that department.

The Role of the GFT Secretaries' Association and other employee associations

41. In about 1980 a GFT Secretaries' Association was formed. The Association has been officially recognized by the hospital administration. All GFT secretaries are members of the Association. There is no membership fee. Meetings of the full Association are called four times a year. Elected GFT representatives on each floor of the hospital attend a monthly working committee meeting. Dr. Stuart, until recently the hospital's Vice-President of Medical Services, and two GFT physician advisors attended meetings of the working committee.

42. During the course of its existence the GFT Secretaries' Association has been represented in various committees and structures of the hospital, including those concerned with health & safety, employment equity, out-patient scheduling, sick-time utilization, client counselling, stress management, quality of working life, office automation, secretarial clerical education, employee development, the hospital sector training and adjustment program, medical secretary orientation, the Form 106 Project (to standardize the patient registration form) and Fanshaw College work placement. Many of these committees no longer function, but they existed at various times in the past, and some continue to function. There was some dispute between the parties as to whether the presence of a GFT secretary on a hospital task force or committee constituted representation of the GFT Secretaries' Association, or merely representation by a GFT secretary of the general body of secretarial and administrative employees. In reality the representation probably had elements of both. In certain instances the GFT Secretaries' Association was expressly requested by the hospital administration to elect a representative to sit on a particular committee, e.g. the Occupational Health & Safety Committee, and at other times a GFT secretary was appointed to a committee, other than as a result of a request to the GFT Secretaries' Association, and without the prior sanction and approval of the Association. We do not doubt, though, that the GFT Secretaries' Association would have been aware of which of its members were serving on what committees, and in all probability many, if not all, of the representatives would have regarded themselves as being answerable to the GFT Secretaries' Association. The GFT Secretaries' Association also served on the downsizing task force, the out-patient business group and it made recommendations concerning the implementation of pay equity in the hospital. In summary, the GFT Secretaries' Association was a recognized representative group of its members, and a participant in the administrative and consultative structures of the hospital.

43. The GFT Secretaries' Association has acted on behalf of its members in a forum outside of the hospital in relation to work practices at the hospital. The Association appealed to the Pay Equity Commission against the scheme of implementation of the Pay Equity Act by the hospital administration. The Association sought to have the GFT secretaries treated as a distinct group. Following discussions with the Human Resources department of the hospital much of the dissatisfaction of the GFT secretaries was addressed, and the Association withdrew their appeal, accepting that GFT secretaries would be treated as part of the secretaries' group. In this instance, the GFT Secretaries' Association acted as the collective voice of the GFTs, representing their interests in relation to their employer.

44. The GFT Secretaries' Association still exists and functions, although its heyday appears somewhat to have passed. That is, in part, the consequence of the hospital's former Vice-President of Medical Services, Dr. Stuart, retiring from the hospital (he played an important supportive and facilitative role in relation to the GFT Secretaries' Association) and, in part, because the hospital's HR department has promoted the establishment of a wider administrative - secretarial association, known as the SOS Association, which better accords with management's view of the grouping that should compose an appropriate bargaining unit. The SOS Association was established in 1993, although it did not really start functioning until January 1994. It resulted from the merger of two pre-existing committees of clerical workers, the Office Automation User Group and the Clerical Education Secretarial Group. The SOS Association has to some extent assumed some of the functions and purposes for which the GFT Secretaries' Association was formed, and in terms of which it acted. The GFT secretaries do not regard the SOS Association as replacing their own GFT Secretaries' Association, although, to some extent, that has in fact occurred. The GFT Secretaries' Association gave its blessing to the establishment of the SOS Association and certain GFT secretaries are active within that association, but for many GFTs their own association is still the proper vehicle for the expression of their mutual interests and for communicating collectively with management.

45. The GFT Secretaries' Association has been active for a significant period of time. Its elected committee members had regular meetings with Dr. Stuart, the Vice-President of Medical Services. There were minutes taken of virtually all of the meetings dating from November 18, 1982 to the present. There is a dispute between the parties as to the significance of the matters that were discussed and considered at the meetings between the GFT Secretaries' Association and management (represented almost always by Dr. Stuart). The hospital contends that the meetings were nothing more than an exchange of information and views between the GFT secretaries and management. The union suggested that the GFT Secretaries' Association meetings with management amounted to more than a mere conduit for information between the hospital's management and the GFT secretaries. The union concedes that the meetings fall short of being collective bargaining. According to the union, the role of the GFT Secretaries' Association lay somewhere between those extremes: more than merely a conduit for information; less than a fully fledged collective bargaining agent.

46. The kinds of issues addressed by the GFT Association were the following: a substantial procedures manual for GFT secretaries was drafted and distributed; a new job description of GFT Secretaries was drafted, which was ultimately accepted for use by the hospital administration; the Association sought to find positions within the hospital for GFTs who were on lay-off; it discussed with Dr. Stuart such matters as performance appraisals, sick relief replacement, secretarial replacements for vacation, job security, vacations, salaries, overtime, insurance and other benefits. The minutes of the GFT Secretaries' Association (during the period November 1982 until the present) reveal that several issues concerning terms and conditions of employment were addressed by the Association, meeting with Dr. Stuart.

47. Many of the issues discussed at the GFT Secretaries' Association meetings with Dr. Stuart appear repeatedly, meeting after meeting. Often that was to keep the issue alive when Dr. Stuart had not yet obtained a response from the responsible person in management, and the item was included on the agenda, or in the minutes, merely to ensure that it would appear under "matters arising" at the next meeting. Usually Dr. Stuart would undertake to revert to the meeting, and those present then moved to the next item on the agenda. Mostly an eventual report was made to the meeting on the issues raised, to say either that management could accede to a particular request, or it could not. More often than not, little came of the representations from the GFT Secretaries' Association. The Association's working committee was able to raise and discuss any issue it wished, including unionization and their own certification application, but the engagement with management worked principally as a means of management being informed of the kinds of issues which were of concern to the GFT secretaries. The Association also provided a means of ensuring GFT secretarial representation on various hospital committees. The Association was the conduit through which the views of the GFT secretaries were expressed and through which it was able to achieve some minor adjustments to the terms and conditions of employment affecting them.

48. In our view, the union's characterization of the role and function of the GFT Secretaries' Association accords better with the evidence than does the hospital's. We see the Association as having been a consultative body - more than merely the conveyor and recipient of information, but significantly less than a bargaining agent. The meetings between the Association's executive and Dr. Stuart were consultations on matters of material interest to the GFT secretaries concerning their terms and conditions of employment. The exchanges between Dr. Stuart and the GFT secretaries' representatives fell short of negotiation or bargaining, but they were more than the mere passing of information. Dr. Stuart consulted the GFT secretaries' representatives on matters that were likely to affect them. They raised with him matters of concern to them, and he investigated their concerns and, in due or sometimes lengthy course, responded to them. The GFT secretaries made proposals which were considered by management, and frequently management reverted with proposals of its own, seeking the comment of the GFT Secretaries' Association before making a decision. It is not clear to what extent the suggestions and recommendations of the GFT Secretaries' Association influenced management's decisions on the matters discussed, but their views were certainly considered by Dr. Stuart, who no doubt sought to advance their interests enthusiastically in the various forums of management. In our view, during the period when Dr. Stuart was the Vice-President of Medical Services, management had a consultative relationship with the GFT Secretaries' Association. The views of the GFTs were canvassed and considered by management. Decisions affecting them were made after consultation with their association's executive members. No doubt, at times, the recommendations of the GFT secretaries were accepted and management's thinking on various matters affecting the GFT secretaries altered on account of their representations. That state of affairs has declined somewhat in the period after Dr. Stuart's retirement. The relationship with management has become somewhat more distant and the trust given to Dr. Stuart is not so immediately apparent from the Association's more recent minutes.

49. During the heyday of the GFT Secretaries' Association, there was no equivalent organization of other secretarial, clerical or administrative staff. It appears that those employees had no comparable vehicle for communicating their views to management on the issues affecting their working lives. That changed when the SOS Association was formed and the hospital's Human Resources department sought to encourage the development of a general association of clerical, administrative and secretarial employees. The SOS [Support Office Staff] Association was formed ostensibly to represent the interests of all of those categories of employees, including the GFT secretaries.

50. After the establishment of the SOS Association, contact between management and the GFT Secretaries Association appears somewhat to have decreased. The contact it had formerly enjoyed with management was partially replaced and substituted by contact between management and the SOS Association. Dr. Stuart retired from the hospital in about May 1995, and since then the meetings appear to have been without any representation from management. In fact, the last minutes submitted by the parties at the hearing, dated December 5, 1995, suggest that the hospital no longer recognizes the GFT Association.

51. The SOS Association has been recognized by the hospital's management to provide a vehicle for communication between all secretaries and other office support staff and a forum for all secretarial and office support staff to communicate with the hospital administration, and vice versa. There is some level of individual participation within that organization by GFT secretaries, but the GFT Secretaries' Association itself does not regard itself as having transferred any of its functions to the SOS Association, nor do they regard the SOS Association as having displaced their association.

52. The hospital's Human Resources Department's policies and procedures manual provides for the establishment of mutual interest groups. Employees who feel that they have a mutual interest may constitute themselves as a mutual interest group. Although the GFT Secretaries' Association had been in existence and functioned for some 14 years, in March 1994 and largely upon the initiative of the hospital's human resources department, the hospital saw fit to conclude an agreement with the GFT Secretaries Association, in a document headed, "Terms of Reference – GFT Secretaries & University Hospital - Mutual Interest Group". The terms of reference of the mutual interest group are described as follows:

University Hospital acknowledges the unique relationship which exists between the hospital as an employer and the GFI' physician secretary as an individual employee. A Mutual Interest group will be formed in order to ensure full communication, understanding and to willingly co-operate with each other in the fullest sense.

The purpose of this group is to provide a structured method for the discussion of issues and the dissemination of information related to University Hospital and its unique relationship with GFT secretaries.

Items for Discussion

without excluding any items by the generality of this statement, any issue, change in policy, change in the general terms of conditions of employment or communications will be the subject of discussion at this group.

Conflicts, problems or opportunities related to all or some GFT secretaries will be the subject of consideration by this group.

Individual complaints or problems should not be raised at this group. These will be dealt with as a separate issue.

That agreement articulated what, in large measure, had been a function of the GFT Secretaries' Association until then, namely "a structured method for the discussion of issues and the dissemination of information". Ironically, at about the time that the relationship between the GFT Secretaries' Association and the hospital was formalized by conclusion of the terms of reference agreement, in March 1994, actual contact between the GFT Secretaries' Association and the hospital was to abate steadily. A meeting of the hospital and the GFT Secretaries, referred in the minutes as a 'mutual interest meeting', occurred on May 9, 1994. That was to be virtually the last formal contact between the hospital and the GFT Secretaries' Association. What had been a relatively busy relationship over a period of about 14 years, engaged in the discussion and investigation of issues of interest, a process of consultation and exchange of information, appears to have faded away.

53. Although not desired by the GFT Secretaries' Association, the SOS Association has to some extent supplanted their association as the medium of contact with management. That is largely management's recent doing. The human resources department of the hospital wishes to have one administrative, office and secretarial staff association which represents the unit of employees which that department believes should be the appropriate bargaining unit, were those employees to unionize. It has nurtured the SOS Association and allowed the GFT Secretaries' Association to fall somewhat into disuse. The SOS Association meets every month or two.

54. For the purposes of this application, we treat the application date as the date at which the circumstances and conditions at the hospital are to be addressed. At that date, February 21, 1995, the GFT Secretaries' Association was still active, Dr. Stuart had not yet retired and he still attended GFT Secretaries' Association and working Committee meetings and the cordial relationship between the Association and the hospital management, although somewhat in decline, was still largely intact.

55. The hospital has a Fiscal Advisory Committee which must periodically approve of the hospital's Operating Plan. The large clerical group of employees - which the hospital contends is the unit appropriate for collective bargaining - is represented on that Committee. There is no separate representation for GFT secretaries on the Committee. There is an Employee Benefits Task Force and an Occupational Safety Committee in the hospital. GFT secretaries are not separately represented in those bodies; they are represented as part of the larger clerical-secretarial group contended for by the hospital.

Functional independence/interdependence

56. GFT secretaries have a considerable degree of functional dependence upon other clerical and administrative employees, just as they are functionally dependent upon hospital employees of other occupational categories, such as nurses and technical employees. As stated above, GFT secretaries are dispersed throughout the hospital, located in the offices or consulting rooms of particular physicians, separated from one another and from most other employees. GFT secretaries tend, on a daily basis, to have greatest contact with the physician for whom they worked, and with the one or two other administrative or technical staff members working for the physician concerned.

57. The physicians for whom GFT secretaries work have not, until recently, been linked to the hospital's computer network. They have tended to have their own computers and software which the GFT concerned has had to learn to operate. However, the intention of the hospital is that there be a single network throughout the hospital which the physicians, through their GFTs, will have access to. That intention is being steadily realized, in that all sections of the hospital (other than the physicians) are now on line, and the physicians are gradually coming on line, as the network is extended. One purpose for having a single network is to centralize the patient registry so that the transfer of patients between the different services of the hospital can be better monitored.

58. Thus, although GFT secretaries have some functional dependence upon other hospital employees, they tend to work in relative isolation from the main body of administrative and secretarial employees. They are not alone in that regard. The secretaries of vice-presidents and those of departmental heads work in similar, relatively isolated circumstances.

59. On October 27, 1994 the Office and Professional Employees International Union (OPEIU) applied for certification as the bargaining agent for all administrative, clerical and secretarial employees of the hospital (the grouping which the hospital contends should constitute the appropriate bargaining unit). The hospital accepted that union's bargaining unit proposal. The OPEIU was unable to establish majority representation of that unit and its certification application failed.

60. The test in matters of this sort is not whether the bargaining unit proposed by the applicant is the best or most appropriate unit for the purposes of collective bargaining, but whether it is an appropriate unit, perhaps one of several possible bargaining units. The applicant's counsel argues that the GFT secretaries are a sufficiently distinctive grouping, with a history of concerted, collective identification with each other, with considerable experience of consultation with the hospital administration, and hence that they should be constituted as an appropriate bargaining unit. Counsel for the applicant argued that for 15 years the hospital had treated the GFT secretaries as a distinct group with separate representation of their own, and hence the Board should formalize that practice by declaring the GFT secretaries to be an appropriate bargaining unit.

61. Counsel for the hospital contends that any distinctiveness that exists concerning the GFT secretaries relates only to the peculiar relationship which obtains between the physicians, for whom the GFTs work, and the hospital. The distinctiveness arises from the hospital's special arrangement with the physicians, and not the circumstances of the GFT secretaries.

62. In our view there are several minor differences between the position of the GFT secretaries as compared to other secretarial or clerical employees, but they have no special significance. For example, the ancillary incomes of some GFT secretaries - the informal, gratuitous amounts paid or gifts given to GFT secretaries for work done beyond their regular or normal duties - are not of such significance as to suggest a material difference in the terms and conditions of employment of GFT secretaries vis-a-vis other secretaries and clerical employees. The benefit of the ancillary gratuities is not one which would be likely to be included in any process of collective bargaining because the value of the benefit appears to be more symbolic than substantive, and the evidence of the phenomenon does not suggest that it is particularly widespread among the GFT secretaries. In virtually all respects -qualifications, duties, work environment, supervision and discipline, terms and conditions of employment, mobility within the workplace and functional interdependence - the position of the GFT secretaries is not significantly distinguishable from that of other clerical, office and secretarial employees. (See in this regard, Motor Coach Industries Limited, [1992] OLRB Rep. June 744, at 745-6, paragraphs 7 - 9).

63. But, in two respects, the GFT secretaries are distinctive from other hospital employees in similar or related administrative, clerical, office or secretarial work. Those respects are the following: firstly, the GFTs' job security is significantly more precarious because it depends upon the continued association of the physician concerned and the hospital (other employees' jobs are not so tenuously dependent upon the continuing presence of particular members of management); secondly, the GFT Secretaries' Association has been recognized as a representative body of GFTs, and it has served, and been recognized by management to serve, the function of being a collective conduit for the expression of the GFTs' interests.

64. However, there are several factors that urge the opposite conclusion. Among them are the following: GFT secretaries are one classification of secretaries within the administrative and clerical grouping; the application endeavours to convert a job classification into a bargaining unit; persons in equivalent positions to GFT secretaries are employed at hospitals throughout Ontario and nowhere are they treated as a distinct bargaining unit separate from other clerical or administrative employees; there is no particular uniqueness in the work of the GFT secretaries - their core duties are neither substantially nor significantly different from the duties of other secretarial employees of the hospital; the physical dispersion of the GFT secretaries across the hospital is not particular to them, other secretaries and clerical employees are similarly scattered across the hospital, working in relatively isolated work units; not only GFT secretaries are "employed" by GFT physicians, other employees are in the same predicament and, were GFT secretaries to be treated as a distinct bargaining unit then those other "employees" of GFT physicians might be without a suitable organizational context; if the applicant's proposed bargaining unit were to be certified, the Board would be granting certification by classification, which has not been its practice, with potentially serious consequent labour relations problems; the current practice of GFT secretaries being transferred to other secretarial positions in the hospital could cease, just as could the temporary replacement of GFT secretaries by other secretaries, hence the mobility of GFT and other secretaries may decrease as a result of any declaration of GFT secretaries as a separate bargaining unit.

65. We recognize that the right of free association of the GFT secretaries is meaningful largely to the extent that they are able to enter into a collective bargaining relationship with their employer. We recognize too that to deny this application will have the effect of thwarting an opportunity to engage in collective bargaining and to have a significant say over the quality of their working lives. But the entitlement to bargain collectively should not be conferred in circumstances when the proposed bargaining unit is not viable and it would be likely to create serious labour relations problems. Bearing in mind that the Board has in many cases "underlined its reluctance to define bargaining units on the basis of employee classifications or employer departments because of the high potential for fragmentation in bargaining which that creates" (Sifton Properties Limited, [1993] OLRB Rep. Oct. 1010, at 1015 ¶29), we now address those considerations.

66. The key question we ask ourselves is whether the GFTs should be separated from the general body of clerical and administrative staff for the purpose of collective bargaining; in other words, do they constitute an appropriate bargaining unit? To recognize them as a unit will have the effect of fragmenting the body of administrative, secretarial and office employees at the hospital. That consideration may not, on its own, be decisive and we look to determine whether a separate GFTs' unit would be likely to create labour relations problems and whether it would constitute a viable, i.e. effective, unit for the purposes of collective bargaining.

67. Mr. Faguy, the hospital's witness, described what he saw to be the potential labour relations problems that would arise if the application were to be granted. He saw the problems as falling into three areas: problems the GFT secretaries would face; problems which other secretarial and clerical employees would face; and problems the employer would face. We describe each in turn.

Problems the GFT secretaries would face

68. The GFT secretaries would no longer be treated the same as other secretarial and clerical employees. Currently they have the same terms and conditions of employment and their wage rates are set by reference to the broad job categories of all secretarial, administrative and clerical employees. Mr. Faguy suggested that if the GFT secretaries were in a separate bargaining unit, their conditions of employment would not necessarily remain at least as favourable as they are now.

69. GFT secretaries need mobility in their employment. They need to be able to obtain work in the hospital as a whole if their GFT physician should suddenly end his/her relationship with the hospital and leave. GFT secretaries are more vulnerable than other employees in this regard. Others have greater job security in that they tend to remain in their jobs notwithstanding changes in management. That is not so as regards the GFT secretaries. They are more likely to lose their jobs if a GFT physician leaves. Either s/he will not be replaced and his/her position will be frozen or the in-coming physician may bring his/her own secretary with him/her and the GFT secretary would, in both events, be made redundant. GFT secretaries need mobility to be able to apply for jobs which are posted in other sections of the hospital. If the GFTs are in a separate bargaining unit then they may not have any preference, or even entitlement, to apply for work outside of their bargaining unit. That would severely limit their mobility and reduce their job security. The establishment of a separate bargaining unit would create barriers between the GFTs and other secretaries, which would limit the GFTs' opportunities, e.g. in taking on relief work for non-GFT secretaries.

70. There is a great deal of interaction between the GFT secretaries and other employees, particularly clerical and secretarial employees. The work relationships between the GFTs and other clerical and administrative employees may no longer be as congenial and harmonious as they now are if the GFTs were declared to be a separate bargaining unit.

Problems the non-GFT secretaries and other clerical staff would face

71. The problems that secretarial and administrative employees would face if the GFTs were certified as a separate bargaining unit are really the inverse of the problems described above. There could be a problem of unequal treatment. Up to now all secretarial, administrative and clerical employees have the same terms and conditions of employment, and their wage rates are on a comparable and compatible scale. Mr. Faguy suggested that if the GFT secretaries' terms and conditions of employment were to change significantly in relation to other secretarial or clerical employees there could be feelings of resentment and envy.

72. In Mr. Faguy's view, if other categories of secretarial or administrative employees were organized by a union other than the applicant, then a rivalry could be fomented among the different categories of employees, particularly as between the GFTs and other clerical employees.

73. The mobility of non-GFT secretaries to move into GFT positions would be restricted. At present secretaries who work other than for GFT physicians are able to apply for GFT secretarial positions and become GFTs. Recognition of the applicant's proposed bargaining unit would obstruct that opportunity.

74. Employees, other than GFT secretaries, who work for GFT physicians, would be out on a limb. They would not be part of the GFT secretaries' bargaining unit, yet they would be subject to all of the exigencies and particularities that apply to the GFT secretaries. The harmonious working relationships between GFT secretaries and other GFT staff would be undermined. In parenthesis, it should be noted that Mr. Hayes, for the union, had an answer to this potential problem. He saw no difficulty in having the GFT secretaries' bargaining unit extended to include all GFT staff, whether they were secretaries or whether they performed other clerical or technical work for GFT physicians.

Problems the employer would face

75. The employer would potentially face a multiplicity of groups within the clerical/administrative category of employees. The employer would have greater difficulty than exists at present to ensure equal treatment among employees. In fact the possibilities of unequal treatment would substantially increase if the GFT secretaries were segregated from the other administrative, secretarial and clerical employees in their own exclusive bargaining unit.

76. The hospital could face the risk of whipsaw bargaining - a concession made to one bargaining unit of secretaries, say the GFTs, could inspire a rival union representing other secretaries and administrative employees to make increased demands to prove its worth to its members and to those in the competing union. Whipsaw bargaining is ever a potential problem where a multiplicity of bargaining units exists in one employer, but that problem is exacerbated when the competing unions are concerned to organize and represent the same category of employees (e.g. secretarial, clerical and administrative employees) and that category is divided between rival unions on the basis of different classifications.

77. Although, under the Hospital Labour Disputes Arbitration Act, interest disputes between unions and employers in the hospital sector are referred to binding interest arbitration if the parties cannot themselves settle the disputes, Mr. Faguy foresaw labour relations problems arising from the splitting of a particular job category (secretaries) along classification lines. He suggested that the hospital sector has coped with certain established bargaining units, e.g. nurses; paramedical staff; administrative, clerical and secretarial employees; technical staff; and service employees. In some hospitals service and technical staff fall within the same bargaining unit, and there are other combinations in other hospitals, e.g. clerical employees are sometimes combined with technical staff and/or with service staff; or technical staff are combined with paramedical employees. (In this regard, see the overview provided by the Board in The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 at 267 et seq.). But what has not been recognized anywhere in Ontario is a bargaining unit representing merely a classification of employees who would normally fall within a larger bargaining unit, in which their classification would be one among many of the same broad job type. To recognize the GFT secretaries as an appropriate bargaining unit would be to introduce direct competition between different classifications within the same customary or usual bargaining unit of clerical employees.

78. The employer's ability to accommodate workplace change, particularly to address the problems arising from the merger of the hospital with Victoria Hospital, would be limited by the carving out of the GFT secretaries classification from the other secretarial and clerical classifications within the new administrative structure.

79. The hospital is undergoing a process of major technological change in respect of its information storage and distribution, and there ought to be as little impediment as possible to the integration of its information systems. The existence of a separate bargaining unit for GFT secretaries may notionally affect that process. The hospital's flexibility and efficiency might arguably be affected by the existence of a specialized bargaining unit of GFT secretaries.

80. Mr. Faguy suggested that the logic of collective bargaining is that employees in similar circumstances should be treated alike. Thus, for example, all secretaries in the hospital should be treated alike. The existence of a separate bargaining unit of GFT secretaries might have a whipsawing effect upon collective bargaining because secretaries of different classification, within the same broad job description, might be part of different bargaining units and subject to different collective agreements. A narrow definition of the bargaining unit, as proposed by the applicant, will have the effect of creating a number of different bargaining units among the various classifications of employees within the broad category of administrative and secretarial employees. There is also the prospect of employees performing virtually the same work under different terms and conditions of employment. Thus, employees who ought to have a common framework of employment conditions could be treated differently if the applicant's proposed bargaining unit were accepted.

81. The creation of a GFT secretaries bargaining unit is likely to generate jurisdictional disputes over what work belongs to whom. For example, whose work would it be to transcribe physician's notes, or to book appointments. In reality both GFT secretaries and other administrative and clerical employees perform that work. Recognition of a separate bargaining unit for GFT secretaries opens the door to disputes over work assignment - a matter which is not currently a problem in the administrative/ secretarial sector.

82. Mr. Faguy wondered what might occur if, as a result of collective bargaining between the applicant, representing a bargaining unit of GFT secretaries, and the hospital, the GFT physicians were to decide that they could no longer afford to contribute towards the costs of the GFT secretaries in the amounts agreed upon and that they would prefer to use other hospital administrative and secretarial staff. That type of problem might arise if the GFT secretaries were separated from the general body of secretarial, administrative and clerical employees.

83. We note these speculations by Mr. Faguy. A few are perhaps somewhat remote possibilities, but most, in our view, are reasonable concerns of the hospital. Considered overall, we are satisfied that the splitting off of the GFT secretaries from others in the same broad job category is likely to create labour relations problems for the hospital. Furthermore, we are of the opinion that the GFT secretaries on their own, separated from other secretarial and clerical employees, will not be in a position to pursue a viable and meaningful collective bargaining relationship with the hospital. The Board's comment in Board of Education for the City of Toronto, [1970] OLRB Rep. July 430 at paragraph 18 is apposite:

18. The fact finding process is at all times directed toward and governed by the concept of appropriateness and the essence of appropriateness in the context of labour relations is that the unit of employees be able to carry on viable and meaningful collective bargaining relationship with their employer. It is the Board's experience that employees may in some cases subdivide themselves into small groups which may result in an unnecessary fragmentation or automization of the employees. Thus an employer faced with the possibility of lengthy, protracted and expensive bargaining and the further possibility of jurisdictional disputes among multiple bargaining groups represented by one or more trade unions may find it impossible to carry on a viable and meaningful collective bargaining relationship. The Board therefore is adverse to certifying employee groups where the result is undue fragmentation and in those circumstances the Board will find the unit proposed inappropriate on the basis that a meaningful and viable collective bargaining relationship will not result. See e.g. Waterloo County Health Unit, 1969 January OLRB Mthly Rep. 1016.

84. Mr. Hayes, for the union, argued that we must consider whether it would be unreasonable to establish the bargaining unit of GFT secretaries, and only if so satisfied should we decline the application. He suggested that no significant labour relations problems would arise if the hospital were obliged to negotiate with the union acting on behalf of GFT secretaries, much along the lines of what has been its practice in relation to the GFT Secretaries' Association. He argued that mere speculation on the possibility of labour relations harm is insufficient, the evidence must go further and suggest the likelihood of such harm.

85. The determination of possible labour relations problems is largely in the realm of speculation and there is no certain answer, but, from the evidence presented at the hearing, we are satisfied that there is a distinct likelihood of labour relations problems. Furthermore, were we to recognize the union's proposed bargaining unit, a new fragmentation would be created within the hospital sector, another division within an already divided collective bargaining structure. The scope and possibility for jurisdictional disputes, for rivalry and division between employees would increase. The mobility available to employees at present would be curtailed. The common terms and conditions of employment of secretarial and office staff would, in all likelihood, be jeopardized if the GFT secretaries were separated from the others of their job category.

86. In general, the existing structure of collective bargaining in the hospital sector includes the following typical or established units: nursing, paramedical, clerical, technical and service staff. To further sub-divide that structure by splitting the different classifications of secretary, which fall within the clerical staff unit, would be to create an additional and, in our view, unnecessary differentiation. From a public policy perspective, it would not be a desirable development to open a new avenue of fragmentation within the structure of collective bargaining in the hospital sector. As the Board said in The Hospital for Sick Children, above, at page 271, paragraph 17:

…..what then is the purpose of the concept of the "appropriate bargaining unit"? Quite simply, it is an effort to inject a public policy component into the initial shaping of the collective bargaining structure, so as to encourage the practice and procedure of collective bargaining and enhance the likelihood of a more viable and harmonious collective bargaining relationship

87. The union's counsel referred us to Board decisions in which certified, registered or graduate nursing assistants were found to constitute a viable bargaining unit (Wingham and District Hospital, [1993] OLRB Rep. Sept. 914; Engelhart & District Hospital Inc., [1993] OLRB Rep. Sept. 827; South Muskoka Memorial Hospital, [1992] OLRB Rep. April 520; The Mississauga Hospital, [1991] OLRB Rep. Dec. 1380). By analogy it was suggested that GFT secretaries were a distinct group in relation to other secretarial and administrative employees in much the same way that RNA's are separate from registered nurses. While there is substance in the analogy, we are not persuaded that the exceptional reasons, which favoured the granting of bargaining rights to RNA's in those cases, apply here. Those cases represent "a departure from the Board's usual rejection of department and classification based bargaining units". (Wingham & District Hospital, above, 75). They addressed an historically anomalous situation. That condition does not apply in this case. There is no compelling historical or structural reason to carve off a classification within the clerical-secretarial category of employees into a separate bargaining unit. The historical anomaly of the RNA's situation in relation to RN's, paramedical employees and service units (described in Englehart & District Hospital Inc., above, ¶58) is not transferable, nor applicable, to the situation of the GFT secretaries.

88. Ottawa Board of Education, [1994] OLRB Rep. Dec. 1690, has significant similarities with the facts and issues in this case. That case concerned an endeavour by a union to obtain certification in respect of a particular classification of employees. The Board found that a particular classification of teachers was not an appropriate bargaining unit. The reasoning in that case is pertinent to our consideration of the facts and issues in this case.

89. When deciding that the creation of a particular bargaining unit is likely to cause serious labour relations problems, we should consider whether that conclusion is off-set by the effect of the denial of an endeavour by a group of employees to enter into a collective bargaining relationship with their employer. In this case we are satisfied that a unit restricted to GFT secretaries will not be a viable unit for collective bargaining and it would, we believe, create serious labour relations problems within the hospital, for the GFT secretaries, for other secretaries, for administrative employees employed by GFT physicians and for the hospital's management. We think that those considerations outweigh our concern that the opportunity to bargain collectively not be denied to employees. The primary objective of our discretion is to determine whether the applicant's proposed bargaining unit is likely to be a viable, stable and effective collective bargaining structure. We are not satisfied that it will be. The GFT secretaries, although the largest classification of secretaries, is a minority of the general body of secretarial, office and clerical employees. In the context of the merger between the hospital and Victoria Hospital, the GFT secretaries would constitute an even tinier and more vulnerable grouping, even less able to influence the employer in collective bargaining than if the merger had not occurred. The GFT secretaries on their own lack sufficient foundation for a stable and effective collective bargaining relationship of reciprocal give and take. This consideration is the reason the Board has stated that "the broader, more comprehensive unit is 'presumptively appropriate' where the union applies for that unit" (Ken Bodnar Enterprises Inc., [1994] OLRB Rep. June 688, at 698 ¶30). The GFT secretaries do not, in our view, constitute a grouping which can viably bargain with the employer. They lack the potential persuasive impact which would exist were their bargaining unit to include all secretarial and clerical employees, as the hospital has proposed. The approach we adopt is described in The Niagara Parks Commission, [1995] OLRB Rep. Mar. 363 at 370 ¶44:

44. Fragmentation is undoubtedly a critical factor in the generation of serious labour relations problems. It may trigger significant disruption of the employer's management of the enterprise, and it may result in non-viable collective bargaining relationships. The Board has often reviewed the problems that may arise where there is a "proliferation of small units" or a "patchwork quilt" of bargaining units. Fragmentation can limit employee mobility through development of seniority enclaves, and can precipitate unnecessary work stoppages or organizational problems when one fragment strikes, and can spawn jurisdictional disputes or inter-employee rivalries, and can discourage equitable treatment of employees doing similar jobs (see further review of potential problems in Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250 at para 28; and Hospital fir Sick Children, supra, at paras. 18-20; and Salvation Army, supra, at para. 21). Facing concerns of that sort, it is not surprising that the Board admits to the "instinctive attractiveness of broader-based units" (as described at paras. 12-13 of National Trust, supra).

90. A further consideration as regards the right of association of employees, is whether particular difficulties exist in relation to the organizing of employees. If there were such difficulties, that might influence the Board's deliberation on the issue. There was no evidence in this case of any special or undue difficulties in organizing the wider bargaining unit contended for by the hospital.

91. Having regard to all of the above considerations, we find that the union's bargaining unit is not appropriate for the purposes of collective bargaining. An appropriate bargaining unit is that proposed by the hospital, the full complement of clerical and secretarial employees - that is a viable bargaining unit which can properly engage in collective bargaining with the employer.

92. The application is dismissed.

DECISION OF BOARD MEMBER K. S. BRENNAN: July 11, 1996

1. The majority erred when it held that the proposed bargaining unit was not appropriate because a bargaining unit of GFT secretaries would cause serious labour relations problems.

2. The hospital recognized and had a working history tantamount to collective bargaining with the GFT secretaries for fifteen years. Now that the GFT secretaries have decided to exercise their rights to be represented by a trade union of their choice, the majority adopts the employer's position that they do not constitute an appropriate bargaining unit. To now allow the employer to hide behind the standard of appropriate bargaining unit is unfair and a denial of natural justice. It is common knowledge that employers support employee associations to give a false sense of security or participation and to impede unionization. The decision of the majority is not supported by relevant legal principals and should not be allowed.

3. The test under section 6(1) of the Labour Relations Act prior to its 1995 amendment is whether the proposed bargaining unit is viable and will not cause serious labour relations problems. The relevant factors that the Board considers include: whether the employees have a community of interest having regard to the work performed, the right of the employees to a measure of self-determination, the practice or history of collective bargaining, and undue fragmentation. (The Hospital for Sick Children, supra; Burns International Security Services Limited, [1994] OLRB Rep. Apr. 347). An application of each of these factors to the present case will demonstrate that the majority was not constrained by legal principles to reach its conclusion. The majority identified but failed to apply the traditional test of the Board.

Community of Interest

4. The majority extensively reviewed the nature of the work performed by GFT secretaries including their qualifications, duties, work environment and terms and conditions of employment. The majority acknowledges that "there is little doubt" that the GFT secretaries have a community of interest. In the terms of reference of the "Mutual Interest Group" the hospital recognized its unique relationship to the GFT association:

University Hospital acknowledges the unique relationship which exists between the hospital as an employer and the GFT physician secretary as an individual employee. A Mutual Interest group will be formed in order to ensure full communication, understanding and to willingly co-operate with each other in the fullest sense.

The purpose of this group is to provide a structured method for the discussion of issues and the dissemination of information related to University Hospital and its unique relationship with GFT secretaries.

(emphasis added)

The majority continues to argue that secretaries, clerical and administrative employees share a stronger community of interest than GFT secretaries in isolation. It is a well established principle that the test for the Board is not whether the proposed bargaining unit is the most appropriate unit. The test is whether the proposed bargaining unit is an appropriate unit. The Board reasoned:

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. (Burns International, supra at 351-2)

The majority recognizes this test but then, in paragraph 86, the majority outlines its view of a more appropriate bargaining unit. According to the majority, the real community of interest lies with the broader grouping of secretarial and office employees. This is not a case, involving multiple certification applications, where the Board has greater latitude to select the most appropriate bargaining unit. (The Mississauga Hospital, [1991] OLRB Rep. Dec. 1380 at 1397)

The History of Collective Bargaining

5. The majority, in paragraph 85, identifies several established bargaining units in the hospital sector including: nursing, paramedical, clerical, technical and service staff. The majority failed to give adequate weight to working history between the hospital and association when it dismissed a classification of GFT secretaries. The parties had a history dealing with traditional collective bargaining issues for a period that extended for over a decade. In 1980 the GFT Secretaries' Association was formed and was officially recognized by the hospital administration. I do not need to re-list the numerous meetings that dealt with issues concerning terms and conditions of employment. I cite one meeting as an example:

A Mutual Interest Group meeting took place on May 7, 1994. Items discussed were: Summer Vacation Consolidation, Operation Plan/Budget, Policies and Procedures Manual, Public Relations/ Communications changes, Physician Representative, Job Description/Title, L.I.C.O. Salary Adjustments.

The hospital initiated an SOS Association in an attempt to redirect issues from the GFT Mutual Interest Group to an association of administrative, office and secretarial staff. GFT secretaries supported the SOS Association, but never surrendered their own identity. Up until the certification date the GFT association continued to be active and its meetings were attended by Dr. Stuart. The hospital's characterization of the GFT association as nothing more than than a vehicle for the exchange of information is not supported by the evidence.

6. The Board has traditionally given weight to the historical relationship between the parties. In Mississauga Hospital, the employer had recognized and had dealt with the registered and graduate nursing assistants in a less formalized manner but for purposes very similar to collective bargaining. In Wingham and District Hospital there had been a committee composed of RNA's employed by the hospital for thirty years. In both cases, the Board held that a unit comprised of registered or graduate nursing assistants constituted an appropriate bargaining unit. Similar to the Board's finding in Mississauga Hospital and Wingham District Hospital I would have found that the working history between the hospital and GFT secretaries was indicative of a viable bargaining unit.

Right to self-determination

7. The majority claims, in paragraph 89, to have balanced the opportunity of GFT secretaries to enter into collective bargaining with their employer. The Board has traditionally been reluctant to exercise its authority, to determine an appropriate bargaining unit, to impede the rights of employees to self-organization. The Board has reasoned that:

Indeed, as the Mississauga Hospital case itself pointed out, access to the rights set out in section 3 has long been an important consideration of the Board in addressing itself to the question of an appropriate bargaining unit, as noted for example, in the passage cited from the 1970 Board of Education for the City of Toronto case, at page 21 of Mississauga Hospital:

19. In finding appropriate bargaining units the Board must also be cautious that its determination as to what is appropriate will not impede the right of self-organization guaranteed in section 3 of the Labour Relations Act. The National Labour Relations Board in the United States has recognized in certain cases that its determination of appropriate bargaining units has 'operated to impede the exercise of employees ... of their rights of self-organization ..." (South Muskoka Memorial Hospital, [1992] OLRB Rep. Apr. 520 at 529).

The risk that the determination of an appropriate bargaining unit may impede the right of employees to organize is particularly heightened in this case where the certification application turns on the Board's determination. In addition past attempts to organize the broader unit advocated by the majority have been unsuccessful.

8. Although the majority, in paragraph 89, recognizes that the GFT secretaries will be denied an opportunity to bargain collectively, the majority concluded that concerns over undue fragmentation were determinative of the issue. I turn to those remaining considerations.

Undue Fragmentation

9. The majority cites several concerns over potential fragmentation including: bargaining unit strength, restricted job mobility, jurisdictional disputes and administrative inconvenience for the employer. Before turning to each of these considerations I note that the employer's evidence was based upon one witness, who in two years with the hospital, could not give one concrete example where labour relations problems arose with the GFT group. The labour relations problems cited by Mr. Faguy were entirely speculative. There is no need to speculate in this case. In most instances the Board must anticipate labour relations problems, but in this case the applicant and the responding party submitted evidence that the hospital and the association had a fifteen year working history without any labour relations problems.

10. The majority's first concern is that GFT secretaries will not have adequate bargaining unit strength. The evidence established that the GFT association was able to exact concessions from the hospital and improve terms and conditions of employment for its members. In addition the concern over bargaining strength is mitigated by the fact that in the Hospital sector industrial disputes are resolved through binding arbitration under the Hospital Labour DisputesArbitration Act. The case cited by the majority, Ken Bodnar Enterprises Inc., [1994] OLRB Rep. June 688, for the proposition that broader based units are presumptively appropriate is not on point. In that case, the union had applied for a broader based unit. The Board reasoned that in light on statutory amendments under Bill 40 the broader based unit was presumptively appropriate unless overwhelming labour relations difficulties would result. But the Board in Ken Bodnar Enterprises Inc. explicitly restricted its analysis to cases where the trade union applies for the broader unit.

11. An additional concern raised by the majority is that the mobility of GFT secretaries would be substantially curtailed if they were certified. This conclusion does not take adequate consideration of the fact that the extent of career transfers over the years has been de minimus.

12. The majority suggests, in paragraph 77, that a new administrative structure would have to be created. But the hospital already deals with GFT secretaries on a unique basis. GFT physicians have a significant role over hiring, the exercise of discipline and starting salary. The second argument raised by the majority, that the certification of GFT secretaries would impede the introduction of a new information storage system, is specious at best. The Board has consistently held that the projected increase in bargaining power from certification does not constitute a labour relations difficulty.

13. Problems listed by the majority regarding jurisdictional disputes were again completely speculative. The applicant's proposal that the bargaining unit be extended to include all GFT staff was sufficient to meet this concern.

14. I note that each of the arguments raised by the employer with regard to labour relations problems were raised in the cases of Englehart & District Hospital Inc., [1993] OLRB Rep. Sept. 827 and The Mississauga Hospital, supra. In both cases, the Board held that the proposed bargaining unit consisting of registered or graduate nurses was appropriate.

15. In conclusion the community of interest among GFT secretaries, the fifteen year history of consultation between the parties and the choice of employees with regards to self-organization support the finding that the proposed bargaining is viable. With regards to potential labour relations problems I adopt the reasoning of the Board in Fort William Golf & Country Club Limited, [1995] OLRB Rep. Aug. 1070, where the Board held that "There was no persuasive evidence of probable labour relations problems arising from certification of the bargaining unit sought by the applicant ... Rather the evidence, although tangential, inclined towards the lack of any likelihood of labour relations difficulties being caused by the recognition of the ground staff as a distinct bargaining unit." Similarly in this case the employer's concerns over labour relations problems are unsubstantiated and speculative. In fact in this case the evidence of the applicant and confirmed by the responding party is even stronger than in Fort William Golf & Country Club Limited because we have a fifteen year history to consider.

16. I would have held the proposed bargaining unit is an appropriate bargaining unit within the meaning of section 6(1) of the former Act.