[1997] OLRB Rep. September/October 857
0651-97-U Canadian Union of Public Employees Local 1602, Applicant v. Haliburton, Kawartha, Pine Ridge District Health Unit, Responding Party
BEFORE: Gail Misra, Vice-Chair.
APPEARANCES: Brian Sheehan, J. Matasic, M. Harris, B. Free and Connie McGinn for the applicant; Ray Werry, Dr. A. 1-lukowich and Susan Bickle for the responding party.
DECISION OF THE BOARD; October 1, 1997
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995, claiming a breach of section 17 of the Act. The applicant (“CUPE" or the "union") has complained that it is improper for the responding party to make a proposal for a change to the bargaining unit description, and to bargain it to an impasse on that issue.
CUPE represents the employees of the responding party (the "Health Unit" or the "employer") in the following bargaining unit description:
Article 1.02
This agreement shall apply to all employees of the Em plover. save and except public health nurses, registered nurses, one administrative assistant to the Medical Officer of Health, one administrative assistant to the Director, Administrative Services, one administrative assistant to the Director, Home Care Program, one secretary to the Medical Officer of Health and the Director, Administrative 5ervices, Chief Public Health Inspectors and persons above the rank of Chief Public Health Inspector, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.
(emphasis added)
There is no substantive dispute between the parties about the facts of this case, which are outlined below.
As a result of the impact of the Social Contract Act, the collective agreement between the parties expired on March 31, 1996. Bargaining began in September 1996. In October 1996 the employer requested the appointment of a Conciliation Officer, and after several meetings with the Officer, the parties were still unable to reach an agreement. At the employer's request, a "No Board" report was issued on March 19, 1997, and the parties have been in a strike or lockout position since April 5, 1997. Following a negotiation session on April 14, 1997, a number of issues were resolved with the assistance of a Ministry of Labour mediator. The only issue in dispute remained an employer proposal regarding hours of work.
In September 1996 the employer's proposal for changes to the collective agreement included an amendment to Article 1.02 to add the following emphasized portion, which CUPE was not opposed to adding, but which it is unclear whether the parties ever resolved:
This agreement shall apply to all employees of the Employer, save and except all nurses registered with the College of Nurses of Ontario, working in a nursing capacity,
- The Health Unit also had a collective agreement with the Ontario Nurses Association ("ONA"), for "all registered and graduate nurses" employed by the employer (Article 2.01). As that collective agreement was also subject to the Social Contract Act, it too had been open for negotiation since March 31, 1996. On May 6, 1997 the Health Unit and ONA reached an agreement wherein the parties agreed to amend the bargaining unit description as follows:
The Employer recognizes the Ontario Nurses Association as the sole collective bargaining agent for all registrants of the College of Nurses employed by the Board of Health of the Haliburton, Kawartha, Pine Ridge District Health Unit, save and except Supervisors and persons above the rank of Supervisors.
The Health Unit and ONA also agreed that the employer would maintain a bargaining unit complement of at least 16 full-time equivalents which must include at least ten full-time positions, and that the employer could not reassign to persons outside the bargaining unit work performed by the members of the ONA bargaining unit if it causes or results from the layoff of members of ONA (Article 11.07). There is no dispute that the effect of this change is to allow the Health Unit to replace registered nurses with registered practical nurses, who would now be covered by the ONA collective agreement.
On May 9, 1997 the Health Unit met with CUPE and made a new demand to amend Article 1.02, the bargaining unit description in the CUPE agreement, as follows:
This agreement shall apply to all employees of the Employer, save and except all registrants of the College of Nurses,
The remainder of the clause would continue as before. The Health Unit was seeking this amendment as a result of the agreement it had reached with ONA.
CUPE has taken the position all along, with the employer, and at this hearing, that it should be representing any registered practical nurses ("RPN") that the employer hires in the future as it has an 'all employee" unit with specified exceptions, one of which is not RPNs. The employer has indicated it will not sign a collective agreement without the amendment, and CUPE has said changes to the bargaining unit description are not negotiable. The parties are agreed that they are at an impasse on this issue.
The Board heard testimony from Dr. Hukowich, the Medical Officer of Health and the Executive Officer of the Board of Health. It was his evidence that there had been cut-backs made to the funding of health units, by the provincial government. As a result, the Board of Health had decided that whatever cut-backs had to be made would be shared between all of the groups of employees, including management, union and non-union staff. By the Fall of 1996 the Health Unit knew what its cuts would be, and that is when it began to bargain with its two unionized groups.
The employer reached an agreement with the non-union staff that a 6% reduction in salary would be implemented, along with some unpaid vacation time. The unionized groups would not accept the same deal. The Health Unit had resolved that to cut its costs while still preserving services to the public, it would employ a lower paid category of nurses, RPNs. It would appear that a number of registered nurses ("RN") have been laid off over the last few years, so that ONA has seen an erosion of its bargaining unit to half of what it once was. In this round of negotiations with ONA, the Health Unit was seeking to give ONA assurance that its bargaining unit would not disappear by agreeing to changes to the recognition clause in the ONA agreement. However, it would appear that there were no discussions with CUPE about the proposed change, until after the ONA agreement had been reached.
The CUPE bargaining unit has traditionally represented clerical personnel, public health inspectors, dental assistants and dental hygienists, a speech pathologist and some other categories of persons, but no one who did any kind of nursing work. Therefore, the employer is of the view that the change it is seeking to the CUPE bargaining unit description will not result in any loss of work to that bargaining unit.
In any event, the employer is of the view that there is no real difference between the wording it was originally seeking, and what it is now seeking. While it is conceded that the RPN category is a new classification to any of the bargaining units, it sees RPNs and RNs as both being "nurses" who are registered, and since RPNs are going to be hired to do the work currently done by RNs, it sees the change it is proposing as not affecting the CUPE bargaining unit. It was apparently the Health Unit's intention not to undermine either bargaining unit.
The employer concedes that an RPN may be hired to work as a public health inspector, and that a public health inspector would normally have been in the CUPE bargaining unit. Further, it agrees that it would be possible that on the language in the ONA agreement, and what it is proposing for the CUPE agreement, that ONA could claim that person as belonging to its bargaining unit. The Health Unit says however that it would take the position that public health inspectors fall within the CUPE bargaining unit.
CUPE argues that it is improper for the employer to make the proposal for a change to the bargaining unit description, and to bargain it to an impasse. It is argued that this is especially so since the parties are in a strike or lockout position, and the main issue outstanding is the recognition clause of the collective agreement. Even if the employer is not intentionally seeking to narrow the union's bargaining rights, the effect of the proposal is to do precisely that since the RPN classification is a new one, and it is CUPE which has the "all employee" bargaining unit, with no exception for RPNs. CUPE argues that the issue is not what work the persons in question will do, but rather what are the specified exceptions. What the employer is seeking, it is argued, is a fundamental change to CUPE's bargaining rights.
The union states that RPNs are not registered nurses, and it argues that ONA recognized that by seeking the amendment to its recognition clause such that all registrants of the College of Nurses would be covered, irrespective of the work they may do. The proposed change represents an addition to the ONA bargaining unit, and a deletion from the CUPE "all employee" unit. CUPE suggests that the Health Unit should not have bargained with another trade union over bargaining rights which CUPE holds, and it should certainly not have bargained this issue to impasse with CUPE.
The employer argues this is just an assignment of work issue which the employer is free to bargain over, even if the bargaining reaches an impasse. It claims the change it is seeking is simply a housekeeping one, that CUPE cannot claim that it was ever doing the work which the RPNs will be doing, and that the revised language would simply maintain the status quo. The Health Unit maintains that it is not seeking to avoid a jurisdictional dispute with its proposal, but is simply proposing to continue to assign ONA work to that bargaining unit, so that its proposal is therefore proper.
DECISION
- In the Brantford Expositor, [1988] OLRB Rep. July 653, the Board reiterated its previous jurisprudence with respect to negotiating changes to a bargaining unit description to impasse by stating, at paragraph 15, that:
……neither party to a collective agreement may press to impasse the definition of the bargaining unit, the extension of bargaining rights or other matters of recognition, because the concept of the definition of the bargaining unit and the recognition of its representative is fundamental to the scheme of the Act.
- While the Board recognized that parties are entitled to raise and discuss such matters, nonetheless, at paragraph 16 it stated:
It has been emphasized in the various cases that the bargaining unit is the critical starting point of collective bargaining and the manner by which one defines the parties to the bargaining relationship. A clearly defined bargaining unit is also necessary to know the grouping of the employer's employees in respect of which there is a duty under section [17] to bargain in good faith and make every reasonable effort to make a collective agreement. The general rule is that the parties are not allowed to insist upon demands which give rise to an illegality or to press to impasse a demand inconsistent with the scheme of the Act, which includes demands to restructure the bargaining unit.
In Toronto Star Newspapers Limited, [1979] OLRB Rep. May 451, the Board considered whether work jurisdiction and bargaining rights are synonymous, and whether a proposal to amend the scope of established bargaining rights is bargaining in bad faith. While the Board stated that an employer cannot use its economic leverage to wipe out established bargaining rights, the Board found that even though an employer may be seeking to reduce the work jurisdiction of a bargaining unit, that does not equate to a diminution in bargaining rights. This is so because although a union may have been certified to represent a particular group of employees, those bargaining rights do not, in and of themselves, give a union any particular work jurisdiction. Work jurisdiction would have to be protected through collective agreement language. Since job categories are not usually water-tight, the Board stated that competing claims of different bargaining agents for work constitute jurisdictional issues which must be addressed by the specific sections of the Act dealing with that issue. In that case the Board was of the view that there was a latent jurisdictional dispute between two unions, and stated that there may be a breach of the duty to bargain in good faith if the employer, or the other union, made any attempts to circumvent the jurisdictional dispute procedures of the Act.
In the second Toronto Star Newspapers Limited, [1979] OLRB Rep. August 811, decision, however, the Board went further and found that the employer had breached its duty to bargain in good faith when it bargained to impasse regarding work jurisdiction issues. The Board noted that the employer had reached an agreement with another union about work jurisdiction, and thereafter made its proposal to the complaining union based on that agreement. A "No Board" report had issued, and the parties were in a legal strike or lockout position. The Board reiterated that a union does not have an absolute claim to work, nor is a work description frozen for all time, absent agreement of the parties to alter it.
Addressing the issue of the significance of parties being at the point where either side was legally free to resort to economic sanctions in support of their respective positions, the Board found that at that point a strike or lockout is imminent, and the employer proposal to restrict the scope of the union's bargaining rights is in violation of section 17 of the Act. When this point is reached, an employer must modify its proposal so as not to impinge on the union's recognized bargaining rights.
In considering whether parties can bargain to impasse on a matter which may become the subject of a jurisdictional dispute, the Board stated:
In view of the express provisions in section [99], respecting the resolution of jurisdictional disputes, are the parties free to resort to economic conflict to settle these matters, and can a party be bargaining in good faith if it presses the issue to an impasse and precipitates a strike? The answer must be no. It is inconceivable that the Act would contemplate resort to strike or lockout in support of a work assignment objective which could properly be made the subject matter of a section [99] complaint upon the actual assignment of the work. If such were the case the strike/lockout would be [a] tenuous and perhaps fruitless exercise in that the Board, on any subsequent application under the section, would be required to assess the merits and could decide the matter independently of the results achieved by use of what might have been a prolonged and costly economic struggle.
... Similarly, the Board is of the view, having regard to the scope of section [99(1)1 of the Act, that it would be consistent with the overall scheme of the Act to take a demand for work assignments which could form the subject matter of a section [99] complaint (either at the time or upon the actual assignment of work) to a bargaining impasse. The Act provides a comprehensive vehicle for resolving these multi-party disputes and hence the issue cannot form the proper subject matter of a strike or lockout within the context of bipartite negotiations. If taken to a bargaining impasse as in this case, therefore, the issue must be withdrawn from the bargaining table without prejudice to a subsequent hearing under section [99] of the Act.
In this case it is the Star which is attempting to force acceptance of an arrangement other than the status quo as embodied in the previous collective agreement and in so doing is requiring the photoengravers to possibly prejudice their position in any subsequent section [99] proceedings. The photoengravers have refused to voluntarily alter the existing agreement and accordingly, the Board hereby finds, in the face of a bargaining impasse, that the refusal of the Star to withdraw its demand without prejudice to whatever position it might take in any subsequent section [99] complaint, constitutes a violation of the duty contained in section 117] of the Act.
In my view the situation in the case before me is similar to the one facing the Board in the second Toronto Star case. CUPE is certified to represent all employees of the Health Unit except for specified exceptions which, for the purposes of this matter, include public health nurses and registered nurses. RPNs have only recently been contemplated by the Health Unit, and are not an excluded classification from the CUPE "all employee" bargaining unit. The Health Unit is now seeking to change the description of the CUPE bargaining unit to exclude "all registrants of the College of Nurses"~ which would therefore exclude RPNs from the CUPE bargaining unit. Up until this recent round of bargaining, RPNs were not specifically included in the ONA bargaining unit either, as that union's recognition clause only included "all registered and graduate nurses". The current ONA collective agreement now applies to "all registrants of the College of Nurses", which would include the future hiring of RPNs.
It has been argued by the Health Unit that what it was seeking to negotiate was actually a work jurisdiction issue, so that the ONA bargaining unit would continue to represent those employees who would be hired to do the work which RNs have been doing. There is no dispute that whatever the characterization, the issue had been bargained to impasse. There is also no dispute that the parties are in a legal strike and lockout position.
On the evidence before me I find that the Health Unit is in breach of section 17 of the Act as a result of bargaining to impasse the issue of its proposed changes to the CUPE bargaining unit description, and by refusing to remove from the negotiating table this proposal when the parties are in a strike or lockout position. While I am satisfied that the Health Unit was attempting to act in good faith towards both of the bargaining agents, the implication of its proposal for the CUPE bargaining unit is a diminution of CUPE's bargaining rights. CUPE has been certified to represent all employees of the Health Unit, save and except certain exceptions. The new classification of RPN is not one of the exclusions, so that it would be open to CUPE to argue in the future that RPNs belong in its bargaining unit. By seeking, during these negotiations, to get CUPE to agree to a change to its bargaining unit description, the Health Unit would effectively make it difficult for CUPE to argue that RPNs should be represented by this union. Since CUPE is opposed to any change to the bargaining unit description, and since this is the only substantive issue remaining between the parties, the Board is of the view that this issue should now be removed from the negotiations.
Even on the employer's theory of the case, that this is a work assignment issue, the Board's jurisprudence is clear that a work jurisdiction issue cannot be bargained to impasse when a strike or lockout is imminent. It may well be that CUPE, ONA, and the Health Unit will find themselves dealing with this issue in the context of a jurisdictional dispute, but as the Board has found, that is the proper forum for such matters to be dealt with, not through the use of economic sanctions.
For all of the above reasons, the Board declares that the Health Unit, by pursuing to impasse its proposal to change the bargaining unit description, has failed to meet its obligation contained in section 17 of the Act. The Board directs the responding party to cease insisting on its proposal concerning the bargaining unit description and the work jurisdiction, and directs the Health Unit to meet with the union within two weeks of the date of this decision to bargain in good faith and to make every reasonable effort to effect a collective agreement.