[1997] OLRB REP. SEPTEMBER/OCTOBER 918
0717-97-R Pembroke Civic Hospital, Applicant v. Pembroke General Hospital, The United Steelworkers of America, The Practical Nurses Federation of Ontario, The Association of Allied Health Professionals: Ontario, The Ontario Nurses Association, and The Canadian Union of Public Employees and its Local 1502, Responding Parties
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
APPEARANCES: Steven L. Moate and Lois Moss for the applicant; Lynn Harnden, Sheila Shultz and Jun Galbraith for the General; Mark Rowlinson and Rheal Lemoine for Steelworkers; Cynthia Watson, Charlene Avon, and Sandy Hopper for C.U.P.E.; Daniel Randazzo and Gary Beremer for PNFO; Susan Ursel, Sue McCulloch, Mike Groom and Sharron Luloff for the AAHP:O; Risa Pancer and Marc-Andre Pelletier for ONA.
DECISION OF RUSSELL G. GOODFELLOW, VICE-CHAIR AND BOARD MEMBER R. R. MONTAGUE; October 28, 1997
This is an application under section 69 of the Labour Relations Act, 1995 by the Pembroke Civic Hospital (the "Civic"). The application relates to the scheduled closure of the Civic by December 31, 1997, pursuant to a direction by the Health Services Restructuring Commission (the "Commission"), and the transfer of the Civic's operations to the Pembroke General Hospital (the "General").
The Commission also directed the Civic and the General to develop a Human Resources Adjustment Plan that would address the impact of the directions on the workforce. To that end, the two hospitals met with the representatives of their various unions and were successful in resolving some issues (e.g. the dove-tailing of seniority lists) but not others. The issues that remain unresolved, and that arise in the context of this application, are the appropriate bargaining unit structure at the General and the identity of the resulting bargaining agent(s). These issues relate to all of the unionized employees of the two hospitals except those who are presently represented by the Ontario Nurses' Association ("ONA"). ONA represents bargaining units at both hospitals and it was agreed between the two hospitals and ONA that its bargaining unit and bargaining rights would continue at the General. For this reason, ONA's participation in the present hearing was in the nature of a "watching brief'.
Hearings in this matter took place over the course of four days in August, September and October 1997, concluding on October 16. All of this was prior to the proclamation of Bill 136 which, as of the date of this decision, is not yet in force. The last day of hearing also occurred after the release of the Board's decision in Humber/Northwestern/York-Finch Hospital Board File No. 3480-96-R, dated October 10, 1997, [now reported at [1997] OLRB Rep. Sept./Oct. 872]to which all parties made reference.
At the conclusion of the hearing, the two hospitals asked the Board for a decision as expeditiously as possible; in "bottom-line" form, if necessary. Having regard to this request, the Board has chosen to provide something more than a bottom-line decision but something less than the fulsome reasons that we might otherwise provide. We do so, in part, out of deference to the desire for expedition and, in part, because we view the issues, although extremely significant for the parties, as relatively straightforward.
The bargaining unit structure at both hospitals, including the identity of the trade unions, the date of certification for the unit, the approximate number of employees in each unit, and the approximate percentage that the number of employees in each unit at the Civic forms of the total number of employees when added to those in issue at the General, are shown in the attached chart. It must be pointed out, however, that the number of employees and the corresponding percentages were not the subject of complete agreement between the parties and the Board's numbers may differ from the parties' own. However, the possible variations in the numbers are not significant for our purposes. Accordingly, the numbers should be understood as estimates, at best, requiring no elaboration as to their origins.
The parties agreed that, for purposes of dealing with the issues raised by the application, we could assume that our jurisdiction under subsection 69(6) had been triggered. This provision states:
69.(6) Despite subsections (2) and (3), where a business was sold to a person who carries on one or more other businesses and a trade union or council of trade unions is the bargaining agent of the employees in any of the businesses and the person intermingles the employees of one of the businesses with those of another of the businesses, the Board may, upon the application of any person, trade union or council of trade unions concerned,
(a) declare that the person to whom the business was sold is no longer bound by the collective agreement referred to in subsection (2);
(b) determine whether the employees concerned constitute one or more appropriate bargaining units;
(c) declare which trade union, trade unions or council of trade unions, if any, shall be the bargaining agent or agents for the employees in the unit or units; and
(d) amend, to such extent as the Board considers necessary, any certificate issued to any trade union or council of trade unions or any bargaining unit defined in any collective agreement.
It was the position of the General and C.U.P.E. that the bargaining structure at the General was appropriate, that it should remain in place, that no vote should be held, and that C.U.P.E.'s bargaining rights should continue to the exclusion of any vote involving the United Steelworkers of America ("Steel"), the Association of Allied Health Professionals: Ontario ("AAHP:O") and the Practical Nurses Federation of Ontario ("PNFO"). In the alternative, the General submitted that if the Board were inclined to order a vote, and having regard to the percentages, only C.U.P.E. and Steel should be on the ballot. The Civic took no position on the appropriate bargaining unit structure but favoured a vote in which all of the affected trade unions that wished to participate would be included on the ballot(s). The unions representing employees at the Civic (i.e. Steel, AAHP:O and the PNFO) asked the Board to adopt the bargaining unit structure found at the Civic and for votes to be held between the relevant union and C.U.P.E. in each of the bargaining units. If the Civic's structure were not accepted, the PNFO indicated that its constitution would prevent it from participating in any broader-based ballot.
Having regard to the evidence and submissions of the parties, the Board has determined that the appropriate bargaining unit structure is the one presently in place at the General and that employees should have the opportunity to choose their bargaining agent from among all of the affected trade unions that wish to be placed on the ballot. We have come to this conclusion for the following reasons.
First, there was no real dispute between the parties that both bargaining unit structures are appropriate and that both have worked very well at the respective hospitals. The evidence was that the bargaining unit structure at the Civic has not generated any appreciable problems of the kind typically associated with "fragmentation". This was explained, to a large extent, as the product of the different skill sets required by employees in the different bargaining units.
Second, although not equivalent to a pure "purchase and sale" model (given the origins of the closure and the "transfer" of certain managerial, non-union and directorial personnel), the transaction was something less than a merger. Indeed, the Commission expressly looked at the merger model and rejected it. Instead, it adopted a closure model, with certain key executive positions remaining in the hands of former General employees. In these circumstances, what we see ourselves as being asked to do by the unions representing employees at the Civic is to engraft on the surviving hospital the labour relations model at the closing hospital notwithstanding the success of the surviving hospital's own bargaining unit structure. In our view, and notwithstanding the success of the Civic's own collective bargaining relationships, all other things being equal, we believe that greater weight ought to be accorded the structure already in place at the General.
However, not all other things are equal. In particular, we note that the bargaining structure at the General has stood the test of considerable time. It has a 25-year history, as contrasted with a three to five-year history (depending on the unit) at the Civic. While, as counsel for Steel points out, it may be fair to assume that most employees like their unions, that is somewhat beside the point. The issue is not the fondness of the employees for their existing bargaining agent (a question upon which we have decided that employees should be given the opportunity to pronounce) but the relative strengths and successes of the two models. One of these models, and it happens to be the one at the surviving hospital, has demonstrated its success over a much longer period. In our view, that factor too weighs heavily in favour of the General's bargaining unit structure.
Further, and notwithstanding that many of the concerns associated with "fragmentation" (a word which we hesitate to use in these circumstances, given its somewhat pejorative content) are not meaningfully present, the clear trend in the Board's case law has been towards broader based bargaining units. That development, and the reasons for it, were recently described by the Chair of the Board in Humber, supra. That decision, which represents the Board's latest word on bargaining unit structures in the context of hospital reorganizations, bears quoting at length:
Before turning to the particular questions that the parties have posed in this case, I think that it is useful to mention two aspects of the labour-relations environment that may bear upon the answer to those questions - or at least illuminate the context in which the answer must be given.
The first aspect worth mentioning, is the pace of organizational change on the "employer side of the bargaining table" - beginning in recent years with "downsizing" and "restructuring" in the private sector, and now accelerated in the public sector, as cash-strapped governments try to find more efficient ways to deliver public services. Today, across Ontario, hospitals, school boards and municipal institutions are being restructured at an unprecedented pace, and on an unprecedented scale. And although this does not necessarily mean that the resulting institutions will be bigger overall, (because the consolidated organization may be smaller than the sum of its parts), it probably does mean that there will be fewer individual organizations, as their diverse elements are welded together and rationalized.
Against that background, it seems odd to suggest that the bench mark for bargaining structure should be the status quo, or that one should strive to maintain the checker board of bargaining units that prevailed historically. When business and government organizations are changing - sometimes radically - it seems curious to suggest that collective bargaining structures should stay the same or that the Board should not take the opportunity to evaluate that history in light of current concerns. It seems more appropriate to give serious consideration to consolidation (given the employee intermingling) and to cast a critical eye on bargaining-unit patterns that may retard the ability of employers and employees to adapt to these changes.
The current pattern of bargaining units in the broader public sector was, for the most part, established on a case-by-case basis from the 1960s to the mid-1980s - having regard to local conditions and the collective bargaining environment of the time, and, in recent years, giving considerable weight to the parties' agreement (i.e. whether or not the Board itself would find that unit to be appropriate, absent such agreement). And, no doubt, at individual institutions, those bargaining structures have worked more or less well. But I do not think that this history provides an unfailing guideline to what the "appropriate" bargaining structure should look like in the year 2000. Nor is precedent determinative in a situation that is quite unprecedented.
In exercising its discretion to determine what is "appropriate" under section 69(6) of the Act, I do not think that the Board can ignore what is going on in the rest of the collective bargaining system. Any sensible reading of the word "appropriate" must take these realities into account. And the dominant reality today is towards fewer, larger public sector institutions - be they hospitals, school boards or municipalities - and fewer, bigger bargaining units.
The second factor that one has to keep in mind is the evolving consensus that broader-based bargaining structures are generally better for collective bargaining - and ultimately better for BOTH employers and employees.
This is not to say that "bigger is always better". However, labour relations boards across the country have all recognized the utility of broader-based bargaining structures, because they are more likely to: promote stability, increase administrative efficiency, enhance employee mobility, and generate a common framework for employment conditions for all employees in an enterprise. Bigger bargaining units also have more critical mass, so that they are better able to facilitate and accommodate change. (See the policy considerations enunciated by the British Columbia Labour Relations Board in Insurance Company of British Columbia (1974), 1 Can. LRBR 403 - a ease which, incidentally, involved a large public sector institution; and compare, in a different legal context, the decision of this Board in Mississauga Hydro -Electric Commission, [1993] OLRB Rep. June 523.)
In the absence of statutory prescriptions, there is, today, a pronounced preference for broader-based bargaining units, unless that objective collides in a serious way with the employees' ability to organize themselves. Indeed, the Board has often favoured broader-based bargaining units, even in certification situations, where the shape of the unit may well influence whether there will be any collective bargaining at all. The Board has recognized that the structure of collective bargaining "matters" - as it noted in cases such as Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371;Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250; The Board of Education for the City of Toronto, [1986] OLRB Rep. June 900; Kidd Creek Mines Limited, [1984] OLRB Rep. Mar. 481; TV Guide Inc., [1986] OLRB Rep. Oct. 1451; and, more recently, Pepsi Cola, [1995] OLRB Rep. Aug. 1311. Fragmented bargaining structures can pose serious labour-relations problems. Conversely, broader based bargaining units make collective bargaining go more smoothly and successfully.
There is nothing particularly novel about these observations. Nor are they unique to Ontario, or to the Ontario Labour Relations Board. The consolidation of bargaining structures has been ongoing in other jurisdictions for many years (the Post Office, CBC, railways, and airlines come to mind); and policy considerations such as those discussed in the Ontario cases can be found in the reasons of other adjudicators in other jurisdictions. Those boards, too, have been inclined to favour more comprehensive bargaining units unless there are persuasive countervailing considerations. See, for example: 1CBC, supra; Canadian Pacific Limited (1976), 1 CLRBR 361; Saskatchewan Wheat Pool (1977), 1 CLRBR 510; Atomic Energy of Canada Ltd. (1978), 1 CLRBR 92; British Columbia Telephone Limited (1977), 2 CLRBR 385; CBRT and Sea Span International Ltd. (1979), 2 CLRBR 213; and compare the "rethinking" evidenced in Ontario cases such as Mississauga Hydro-Electric Commission, supra, and 6'aressant Care Nursing Home of Canada Limited, [1996] OLRB Rep. Sept/Oct. 748.
The fact is: bargaining units are being consolidated on a regular basis - either because the legislation requires it, or because the legislation permits it, (e.g. section 7 of Bill 40), or because of employer restructuring, or contingent upon the merger of trade unions themselves. And generally speaking, neutral commentators think that such consolidation is a good thing. Bigger may not always be better, but broader, more comprehensive bargaining units are usually preferable - and more appropriate - than narrow fragmented ones. On the other hand, there may well be a variety of broadly-based groupings (but less than "all employees") which were and continue to be appropriate despite an operational merger of the predecessor organizations. In the hospital sector, for example, comprehensive units of paramedicals, service workers, etc. have been and may still be appropriate despite the bigger size of the successor organization.
In summary, the direction of the law, the direction of policy, the metamorphosis of employer and union organizations, and the evolution of thinking on these issues have, for the most part, all pointed towards broader bargaining units and extended area bargaining.
I do not think that one should ignore these trends when applying section 69(6) of the Act.
IV
Section 69(4) of the Act is designed to preserve the "like bargaining units" which existed before, with such revisions as may be necessary to eliminate conflict between established bargaining-unit descriptions. By contrast, the terms of section 69(6) are much broader, and contemplate the possible elimination of bargaining units or collective agreements, as well as the termination of bargaining rights - that is, the restructuring of bargaining units, bargaining agents, and collective agreements, to meet the new situation. Section 69(6) empowers the Board to take a second look at existing bargaining structures and realign bargaining units and bargaining rights in a manner that makes industrial relations sense in the new circumstances.
In each case, the Board has to give some weight to the status quo. But at the same time, the Board also has to consider the desirability of modifying the existing bargaining structure and representational rights in a manner which will better suit the new situation. Unlike section 69(4) where the Board is maintaining "what is" and ironing out definitional conflicts, section 69(6) requires the Board to determine what is "appropriate" - which will not necessarily be what is there already.
Section 69(6)(b) contemplates that the Board will designate one or more "APPROPRIATE" bargaining units. The use of the term "APPROPRIATE" is no accident. It suggests an exercise that is similar to the one undertaken by the Board on an application for certification, where there is also a question of "appropriateness" (see section 9 of the Act). And, with that in mind, I do not think the Board should ignore the fact that an existing bargaining structure may be one that the Board would never have found to be "appropriate" in the first place, or may be unnecessarily fragmented.
Of course, these general notions of what is "standard" and "appropriate" must be balanced against the fact that an idiosyncratic unit or fragmented bargaining structure may nevertheless have worked quite well in its former organizational setting. The Board's approach under section 69(6) need not be precisely the same as on an application for certification, where a group of employees is trying to organize for the first time. But, by the same token, where there is a successorship, intermingling, and a "two-union situation", any inclination to preserve established bargaining rights must be considered in relation to the express power to realign the bargaining structure to meet the new circumstances - recognizing that such realignment will not raise concerns about access to collective bargaining that the Board mentioned in "pure certification" cases such as Canada Trustco, [1977] OLRB Rep. June 330 or K-Mart Limited, [1981] OLRB Rep. Sept. 1250.
On an application for certification, the Board must weigh the question of the "appropriate" bargaining unit, in light of its potential impact on the ability of employees to organize. Too broad a definition would unnecessarily impede the employees' statutory right to organize themselves -however desirable or "more appropriate" a more comprehensive unit may be. However, in a successorship/intermingling scenario, the Board usually does not have to worry about that. The situation is more like the one described by the Board in Stratford General Hospital, [1976] OLRB Rep. Sept. 459, where two unions were competing and the Board observed:
Even where the Board has found that two competing applications propose appropriate bargaining units, it has exercised a discretion in favour of the more comprehensive bargaining unit, in finding "the" appropriate bargaining unit for the purposes of section 6(1) [now section 91 .... Surely where there are competing applications, the Board can be more concerned with the ideal characteristics of collective bargaining structures in that, whatever the decision, employees will not be denied access to the collective bargaining process.
Similarly, in his text, Canadian Labour Law, former Board Chair G. W. Adams, Q.C. commented:
When intermingling involves the merger of two groups of unionized employees, a Board will look to the existing bargaining structure to decide if maintaining the separate units can be justified. The Boards note that the choice of the employees regarding their bargaining agent should be honoured, unless to do so would undermine rational collective bargaining. Balanced against this recognition of the employees' wishes is the preference for single, all-employee units. Where a conflict arises between these two policy goals, the interest of maintaining industrial peace prevails and undue fragmentation is avoided. [emphasis added]
- In other words, where there is no concern about access to collective bargaining, Labour Boards have more scope and more inclination to opt for broader-based bargaining units. Or to put the matter another way: in intermingling situations, where there are different ways to define the new structure and different "degrees of appropriateness", labour boards may be more inclined to opt for the "more appropriate" unit, unless there are compelling countervailing considerations (for example: if there are long-established "craft rights" that have historical and statutory recognition, as well as continuing collective bargaining utility; if there is an existing local structure that facilitates extended area bargaining, or conforms more closely to established sectoral collective bargaining practices; and so on).
While Steel, AAHP:O and the PNFO, quite properly, took some sustenance from certain passages in this decision (e.g. the latter part of paragraph 35), and emphasized the differing context (i.e. the elimination of small units of maintenance employees and/or operating engineers), it is fair to say that the dominant feature of the decision is the proposition that broader based bargaining units, all other things being equal, will be viewed by the Board as more appropriate and, hence, as between two appropriate units, will be the one selected. In this particular case, there was no evidence of the kind of factors identified in paragraph 43 of the decision that would cause us to depart from the foregoing conclusions.
In coming to this decision, we have not forgotten the concerns raised by the bargaining agents at the Civic as to whether a vote in a larger unit can be "meaningful" given the variation in numbers at the two hospitals. To examine the problem in that way, however, is to "put the cart before the horse". Before the Board decides whether a vote should be held, it must decide on the appropriate bargaining unit structure. Further, and in any event, it may well be that one of the strengths of the collective bargaining relationship at the General, when viewed through the eyes of the membership, may be the structure of the bargaining unit. This possibility demonstrates that any effort to ~'level the playing field" by altering the bargaining unit structure would be fraught with uncertainty and, for that reason as well, is to be avoided.
As to the question of whether employees should be entitled to vote in the larger unit, we think democracy is a good thing. In the past, in other circumstances, it is true that the Board has established a 20 or 25 percent threshold before it will order a vote. However, if anything is clear in this case it is that the past is no longer a reliable guide to the future. The Board will quickly be entering an era in which bargaining relationships (many of them of long standing) predicated on prior employee choice will be interrupted. In circumstances such as these, and notwithstanding the Board's prior case law, we agree with counsel for the Civic's submission that bargaining relationships grounded on employee choice are to be preferred. Indeed, given the struggles that have surrounded the move towards a single hospital in this community (of which the Board cannot help but take administrative notice), we believe that allowing employees a choice to express themselves on which bargaining agent they would prefer is particularly important.
Finally, we emphasize, as did the Board in Humber, supra, that we are dealing with the question of bargaining unit appropriateness in the context of a sale of business application. Nothing in these reasons should be understood as addressing the question of appropriate bargaining unit structure in the context of a certification application.
In the result, the Board hereby directs that the appropriate bargaining unit structure is the one presently in place at the General, and that a vote be held in which C.U.P.E., Steel, AAHP:O and the PNFO will be entitled to have their names on the ballot. Should any of them not wish to do so, they must notify the Board of their intentions in this regard within five working days of the date of this decision. The vote will be held on a date to be set by the Registrar. The matter is referred to the Manager of Field Services to confer with the parties as to the vote arrangements and the settling of a voters' list.
In closing, the Board wishes to express its appreciation to all of the parties to this proceeding for the highly cooperative and professional nature of their participation.
CONCURRING DECISION OF BOARD MEMBER J. A. RONSON; October 28, 1997
I agree in the result and concur in the directions contained in the decision of Vice-Chair Goodfellow. But it should not be assumed that I agree in whole or in part with his reasoning.
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