[1997] OLRB REP. JANUARY/FEBRUARY 35
2125-96-R International Union of Operating Engineers, Local 772, Applicant v. Chedoke-McMaster Hospitals, Responding Party
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members S. C. Laing and D. A. Patterson.
DECISION OF THE BOARD; February 6, 1997
This is the continuation of an application for certification.
A representation vote was held on November 1, 1996. There were thirty-eight names on the voter's list at the start of the vote. Thirty-four people voted. Twenty-five cast ballots in favour of the applicant. Nine people voted against it. There were no segregated ballots. The responding party asserts that there has been no agreement on the appropriate bargaining unit, that the bargaining unit proposed by the applicant is inappropriate, and that the application should be dismissed.
The bargaining unit proposed by the applicant is:
all Tradesmen, Maintenance Men, Building Service Operators, Associated Craftsmen and their Helpers, save and except Supervisors and persons above the rank of Supervisor.
This description corresponds with the voting constituency defined by the Board in its decision dated October 29, 1996 directing the vote. The responding party asserts that it never agreed to this bargaining unit description and that it only agreed to a voting constituency. It further suggests that the bargaining unit proposed by the applicant would lead to undue fragmentation.
The application was filed on October 21, 1996. It contained the proposed bargaining unit description set out above. The response was filed on October 22, 1996. It contained a dramatically different bargaining unit description. The responding party's proposed bargaining unit was much broader. It purported to include 356 employees, rather than the 38 identified in the application. The bargaining unit description set out in the response is the same description that the responding party now asserts is appropriate.
In the meantime, however, on October 29, counsel for the responding party wrote to the Board as follows:
"Further to our faxes of October 28 and 29, 1996 and our telephone discussions of today's date, I have received instruction from my client that I am to amend Form TA-2 which was filed with the Board, specifically paragraph #4, to state that the Respondent is in agreement with the description of the bargaining unit as proposed by the Applicant. It is my understanding that with this amendment, an Order of the Board will issue for a vote to proceed on November 1, 1996 and that those persons eligible to vote will be the 37 individuals as identified in Schedule "A" attached to our Response. Those persons set out in Schedule "B" will not be eligible to vote nor will they be voting.
I look forward to receipt of the Board's Order and confirmation of the above. I am as a courtesy providing this fax to Mr. Yemen of the Operating Engineers."
[emphasis added]
On the basis of this correspondence the Board directed the holding of the vote in a voting constituency that corresponded to the agreed upon unit. The vote was scheduled to occur on November 1, 1996 between the hours of 6:00 a.m. and 7:00 a.m. and between the hours of 2:00 p.m. and 3:30 p.m. Notices of the vote were posted in the workplace.
At 4:12 p.m. on the day prior to the vote, however, counsel for the responding party faxed the following additional letter to the Board's offices:
"We are the solicitors for Chedoke-McMaster Hospital with respect to the above-noted file.
A representation vote is scheduled for November 1, 1996. That vote is being conducted pursuant to the decision of the Board dated October 29, 1996 chaired by Russell G. Goodfellow.
In correspondence to Jim Bowman on October 29, 1996, the Respondent confirmed it was in agreement with the bargaining unit description as described by the Applicant in paragraph #4. As a result, pursuant to s.8( I )(2) the voting constituency was determined.
We confirm that it remains the Respondent's position, that after the representation vote has been held, that the Board should hold a hearing pursuant to s.8(8) of the Labour Relations Act.
As per the Response to the Application for Certification and specifically Appendix "A" to Form TA-2, the Respondent's position remains that the Applicant's proposed bargaining unit would lead to undue fragmentation and be contrary to the purposes of the Ontario Labour Relations Act. Further, it is not a bargaining unit which is appropriate for collective bargaining in hospitals. It is the Respondent's position that a hearing should be held to determine whether the Application for Certification should still be dismissed regardless of the outcome of the representation vote. However, it is our position that the ballot box remain closed until the above issues are addressed.
In addition, it is our position that a hearing should be held given the notice received from the Canadian Union of Public Employees with respect to their intervention.
We trust the above is satisfactory and look forward to receiving further direction from the Labour Board."
The intervention filed by C.U.P.E. has since been withdrawn.
On November 1, 1996, in response to this correspondence, the applicant also wrote to the Board and asserted that the responding party had, by its October 29 letter, waived its right to challenge the appropriateness of the unit. Both parties have since filed written representations and have invited the Board to decide the case on the basis of those representations.
In the Board's view, the responding party's position is supported neither by the facts nor the scheme of the Labour Relations Act, 1995. The Act requires an applicant for certification to supply the Board with a written description of the proposed bargaining unit (section 7(12)). If the responding party disagrees with the appropriateness of that unit, it may give the Board a written description of its own proposed unit (section 7(14)). The Board may then determine a voting constituency (section 8(1)). In determining that voting constituency, the Board must have regard to the bargaining unit descriptions proposed by the parties (section 8(1)). If the Board determines that forty per cent of the individuals in the bargaining unit proposed in the application appear to be union members at the time the application was filed, the Board must direct a representation vote in the voting constituency (section 8(2)). Once the vote is held and the ballots counted, the applicant will either be certified in that unit, the application will be dismissed, or a hearing will be held to deal with any outstanding issues. Included among these issues might be a determination of the appropriate bargaining unit. Section 9(1) of the Act requires the Board to determine an appropriate bargaining unit.
It will be apparent from this scheme that it is the Board's role to determine both bargaining units and, as necessary, voting constituencies. The employer's role, like that of the union, is confined to making bargaining unit proposals. It is neither invited nor required by the statute to propose a voting constituency. Voting constituencies are for the Board to determine in the event that there is no agreement on the proposed bargaining unit. Where, however, the bargaining unit is agreed, it will be that unit which is "voted" and that unit which, in most cases, will be found to be appropriate in the decision directing the vote.
In the Board's view, there is no place in this statutory scheme for a "qualified" agreement on a proposed bargaining unit description or an agreement for one purpose but not another. Employers may either agree or disagree on a proposed bargaining unit, but it is the Board that determines, where necessary, a different form of voting constituency.
In this case, and as part of its response, the employer initially proposed a bargaining unit description that was significantly different from that which had been proposed by the applicant. Thereafter, and for reasons which are not clear from the file, the employer abandoned its proposal and expressly agreed to the unit proposed by the applicant. At no point in the letter setting out its agreement to the applicant's proposed unit did the employer make reference to the bargaining unit/voting constituency distinction that it now seeks to draw. That distinction only emerged on the very eve of the vote, when it was too late to reconstruct the vote in a timely manner in accordance with the responding party's original position or in accordance with any other position that it might have. The vote then proceeded and the ballots were counted. It has long been the Board's practice not to allow parties to resile from their agreements or, in effect, to approbate and reprobate at the same time. To do so would introduce a tangible degree of uncertainty into a system that depends, to a large extent, on the furthering of parties' agreements. Accordingly, and on the basis of the foregoing, the Board finds that the responding party is bound to its agreement to the applicant's proposed bargaining unit set out in its letter of October 29, 1997.
On the basis of that agreement, and having regard to the other material before it, the Board finds that the unit described in paragraph 3 of this decision is appropriate. As the Board has noted on many occasions, its role is not to find the appropriate unit or even the most appropriate unit, but an appropriate unit. While it is true that, generally speaking, the Board prefers more comprehensive units, there is nothing to substantiate the responding party's assertion that the unit proposed by the applicant does not "encompass a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer" (see The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266). The unit proposed by the applicant is not unusual. It is one which the applicant represents in other hospitals and corresponds with one which, albeit on agreement of the parties, the Board recently found to be appropriate in Thunder Bay Regional Hospital, Board File No. 0051 -96-R, dated June II, 1996. In particular, the impending merger between the responding party and Hamilton Civic Hospital also does not cause the Board to conclude that the bargaining unit is inappropriate. In the event that the merger proceeds, it remains an open question whether there will be competing claims to employee representation rights. Even if such claims are made, however, they may be resolved by agreement of the parties or, perhaps, under section 69 of the Labour Relatiotts Act, 1995. These possibilities are not sufficient to prevent employees from being represented by the trade union of their choice in a unit which is otherwise appropriate.
Having regard to the results of the representation vote, a certificate will issue to the applicant.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.
Any meeting and hearing dates set previously are hereby cancelled.
The responding party is directed to post copies of this decision immediately, adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. These copies must remain posted until the date that had been set for the hearing.