[1997] OLRB REP. JULY/AUGUST 651
1225-96-R Ontario Nurses' Association, Applicant v. Mount Sinai Hospital, Responding Party
BEFORE: Roman Stoykewych, Vice-Chair, and Board Members Orval R. McGuire and R. R. Montague.
APPEARANCES: Risa Pancer, Mary Hodder, Cindy Forster and Esther Gaudet for the applicant; Ross Dunsmore, Beverly Lanigan-Gilmour, Melissa Sergiades and Nicole Wharton for the responding party.
DECISION OF ROMAN STOYKEWYCH, VICE-CHAIR AND BOARD MEMBER ORVAL R. MCGUIRE; July 17, 1997
1This is an application for certification filed with the Board on July 26, 1996. In a decision of the Board (differently constituted) dated July 31, 1996 (Board Member McGuire dissenting, decision issuing October 2, 1996), a vote was directed to be held within five working days to determine the wishes of employees in the following voting constituency:
all registered and graduate nurses at Mount Sinai Hospital employed in a nursing capacity for not more than twenty-four (24) hours per day, save and except Nursing Unit Administrators and Assistant Supervisors, persons above the rank of Nursing Unit Administrator and Assistant Supervisor, and persons regularly employed for more than twenty-four hours per week.
2The ballots of those nurses not providing direct nursing care were ordered to be segregated and sealed in order to preserve the parties' positions in a dispute as to the description of the bargaining unit, which will be detailed below.
3The vote was duly held on August 2, 1996. Under the arrangements established by the Board, polling was conducted at various locations in the hospital, on four separate occasions spanning the course of twelve hours. Upon a counting of the ballots cast, it is apparent that a substantial majority (75%) of employees who had cast their ballots had voted in favour of the trade union representing them. More specifically, of the 93 ballots cast and counted, 70 were marked in favour of the applicant. Four ballots were cast but not counted in light of the above mentioned dispute. The proportion of the approximately 250 employees eligible to vote who actually voted ranged between 33% and 39%, depending upon the parties' respective positions as to the bargaining description and composition.
4Both in its response materials and in representations filed after the holding of the vote, the employer took the position that, because of the part-time and casual composition of the proposed bargaining unit, in which many employees are not regularly scheduled to be present in the workplace, a vote held within a five-day period provided them insufficient notice of the holding of the vote and, further, could not and did not in the circumstances provide for sufficient access to the voting itself. It asked that the vote be held again on two separate days so as to provide a full opportunity for all affected employees to vote.
5The matter came on for hearing before the present panel on August 19, 1996, both in the form of a reconsideration request relating to the decision ordering the representation vote, as well as a motion that the actual circumstances of the holding of the vote were such as to render the results of such voting an unreliable indicator of the employees' wish to be represented by the applicant.
6In addition, the responding party took the position that the bargaining unit proposed by the applicant, in which it sought bargaining rights in relation to part-time nurses "employed in a nursing capacity" was inappropriate. Instead, it proposed that the union's bargaining rights be restricted to those nurses providing direct nursing care and thus, to those "engaged in a nursing care". More specifically, the employer took the position that the eight part-time nurses engaged in positions such as Nurse Educator, Nurse Practitioner and Nurse Clinician were not engaged in direct nursing care and, therefore, should not be included in the bargaining unit. In support of this position, counsel referred to the longstanding bargaining relationship between the parties, spanning some 24 years, in which bargaining rights regarding the full-time nurses were restricted to those "engaged in nursing care". It was submitted that the Board should find that a part-time bargaining unit description "mirroring" the full-time one is appropriate. Counsel referred the Board to its decision in North Bay Nugget [1994] OLRB Rep. Aug. 1137, and the summary of the Board's practice in respect of the "mirroring" of full-time and part-time units. As noted above, those ballots cast by nurses not engaged in direct nursing care were segregated and not counted in light of the dispute over the bargaining unit description, and the parties' submissions were considered at the hearing held on August 19, 1996.
7After considering the parties' submissions, the Board determined in a "bottom line" decision dated August 23, 1996 that the employees concerned had had a substantial opportunity to express their wishes in the representation vote and that the employer's position in this respect were not accepted. The Board reserved further on the question of the appropriate bargaining unit description. However, since it was apparent that the ultimate decision with respect to the success of the trade union's application could not be affected by the resolution of the dispute over the bargaining unit description, a certificate on an interim basis was issued on September 10, 1996. The following are our reasons for rejecting the employer's submissions with respect to the propriety of the vote as well as our decision in relation to the outstanding bargaining unit issue.
Validity of the Representation Vote Held on August 2, 1996
8As indicated above, the employer took the position that the five day period for the holding of the vote did not provide employees sufficient notice of the holding of the vote and that, in the circumstances, the employees were not provided with sufficient opportunity to vote because the vote was held on one day only. In this respect, the employer placed considerable reliance upon the fact that many of the "casual" employees in the unit do not attend work at the Hospital on a regularly scheduled basis and are typically engaged in employment elsewhere. It was submitted that requiring them to make arrangements to attend at a single day of voting, albeit held over a twelve hour period, is both unfair and not likely to make the voting process accessible to them. The employer further pointed out that the single day of voting proposed by the union, and accepted by the Board, was the Friday immediately preceding the August long weekend holiday. It is suggested that because scheduling of the casual nurses is at a relatively low point on such a day, the single day of voting directed by the Board is particularly unsuitable. Referring to the turn-out at the polling, which counsel characterized as "poor", it was submitted that the evidence now available confirms the employer's position that the Board erred in ordering the vote in the manner it did in the July 31, 1996 decision.
9By contrast, counsel for the trade union maintained that the voter turn-out, given the nature of the employee complement, was "good". Particular emphasis was placed upon the provisions of subsection 8(5) of the Act, which states:
- . . .
(5) Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays, Sundays and holidays) after the day on which the application is filed with the Board.
10It was argued that there was nothing exceptional in the circumstances of the present case to cause the Board to depart from its practice of ordering votes within the five day period, and that therefore, there was no reason for the the Board to exercise its discretion to do otherwise.
11The Board accepts the submissions of counsel for the employer that employee access to the representation vote procedure is a central value underlying the recent amendments to the Labour Relations Act, 1995. Under the new certification processes put into place by the Act, the Board is required to assess whether employees in a bargaining unit support an applicant trade union by means of a secret ballot vote, rather than the submission of membership evidence by the trade union. Particularly since the success of an application in the new system is determined by the majority of those employees who cast a ballot (section 10(1)), rather than 55% of all the employees in the unit, as was the case previously, it is self-evident that in such a system, a meaningful opportunity for employees to participate in the voting procedure is central to its operation and, indeed, may safely be said to underlie it.
12Nevertheless, the interests inhering in access to the voting procedures are not the only labour relations values at play in the certification procedure as set out in the new Act, and in this respect, we do not accept as applicable in this context the model, proposed by counsel for the employer in argument, of "notice" to a legal proceeding. Rather, the Board must balance the participatory interests with those giving rise to the "quick vote" process contemplated by the statutory amendments. As noted above, subsection 8(5) of the Act provides that, in the usual case, the Board shall hold a representation vote within five working days of the date upon which the application is first received by the Board. The labour relations significance of the quick vote process in the overall balance of interests in the statutory scheme was described in the Board's recent decision in The Corporation of the City of Toronto, ([1996] OLRB Rep. July/August 552, application for judicial review dismissed [1997] OLRB Rep. Jan./Feb. 169):
The new scheme no longer permits certification based on membership cards alone (except perhaps in the special circumstances addressed in section 11 - see Appendix). Nor did the Legislature return to the pre-BilI 40 "hybrid model" where a representation vote could be triggered if card signers later filed a voluntary change-of-heart "petition". Under Bill 7, employees do not have to file a petition with the Board to signify a change of heart about the union or to prompt the Board to direct a representation vote. A representation vote has now become the exclusive method of testing employee wishes (apart from section 11) and is a requirement in every case.
However, in opting for "a vote in every case", the Legislature has not simply reverted to the former process for obtaining and conducting a representation vote. Instead, the Legislature has created an entirely new and quite different mechanism, relying on very quick 5-day votes, to measure the employee wishes, while at the same time limiting the employer's opportunity to improperly interfere with the employees' freedom of choice.
The secret ballot replaces the signed membership card as the means of testing the employees' appetite for collective bargaining. But like the previous card-based model, the new system is designed to avoid a protracted "campaign" where the union and employer compete for the loyalties of employees. Because of the tight time frames, there is less opportunity for behaviour that could attract unfair labour practice charges (quite a number of these are filed each year and again see: Weiler: "Membership Cards vs. Representation Votes" mentioned above). The new system makes it very clear that time is of the essence: it is not just "a vote in every case"; the statute contemplates a 'quick vote in every case”.
The 5-day time-frame mentioned in the statute is the most critical characteristic of the new certification scheme. It not only defines the nature of the process, it also requires the Board to develop new administrative structures in order to meet the 5-day target. Indeed, it is a target which we think the Board is required to meet if it can; moreover, it is a target which the Legislature must have intended that the Board could meet in most cases, applying the words of the new statutory scheme. The new certification process reflects a legislative trade-off: the elimination of the (relatively) quick card counting model for certification, and the substitution of the quick vote model instead.
13Under the provisions of subsection 8(5), of course, the Board is provided a discretion to depart from the five day vote process, and as such, when the matter of accessibility of the process becomes an issue, it must determine whether the interests of participation and expedition, as discussed above, are appropriately balanced. However, it is the five day "quick vote" that is the model in the statute, and hence, it is a later vote that must be exception. In other words, the five day time frame must be seen to reflect already a presumptive balancing of the interests of accessibility and freedom from improper interference. Thus, the Board must determine, in the context of the ordering of a vote, whether there are exceptional or unusual circumstances which might render the five day time frame unfeasible, notwithstanding the need for expedition; and in the course of the examination of the circumstances of a vote already taken, to assess whether the circumstances were such as to cause it to doubt the validity of the vote as an expression of employee wishes.
14While the components of such a balancing will, of necessity, depend upon the specific factual circumstances in each case, it is important to note that, by its very nature, a five-day legislative time-frame must be deemed to anticipate that certain employees, because of their absence from work, will not learn of the application and the holding of a vote in a timely manner and that, furthermore, other employees may be prevented from participating in the voting process itself due to other commitments. Employees take vacations, they take additional training, they are absent for medical reasons, they may be scheduled on shifts that may result in their absence from work for many days, or they may be absent from the workplace for substantial periods of time for any number of reasons. Indeed, it would be relatively rare for an employee complement of any size to be present at work in its entirety at any one time. All this is entirely normal and, if the statutory provision is to mean anything at all, is not something that in itself would cause the Board to determine that a five day vote would be inappropriate notwithstanding the fact that such employees would likely lose their access to the representation vote.
15More to the point, in relation to the circumstances of this case, we do not agree that, as a general matter, there is anything unusual or exceptional about a workplace in which the employees do not attend on a regular or daily basis, and that, for that reason, do not accept that a five-day time-frame for a vote would be inapplicable. A casual and/or part-time work force is increasingly a feature of the labour market in Ontario, particularly in that portion of the work force not at present unionized. Absent any express statutory recognition, it must be assumed to be one to which the recently amended certification provisions were intended to apply. Indeed, the same "balancing" considerations apply to these employees as to those employees who attend work on a daily basis, although perhaps with greater force: while frequency of attendance by part-time and casual employees undeniably presents special problems relating to accessibility to the voting process, the typical circumstances of such employment, given its lack of security, may well require the Board to attend to the interest inhering in expedition all the more in order to limit the opportunities for improper interference in employee choice.
16Notwithstanding these observations, however, the conditions adverted to in the employer's response materials are somewhat extreme and, in our view, gives rise to the very real concern that the holding of the vote in such circumstances could unduly curtail the employees' access to the voting process. Indeed, while we are not inclined (nor were we requested) to "second guess" the earlier panel's decision to hold the vote within five days on the basis of the materials then before it, we note that the combination of factors set out above could lead one to conclude that the access to the voting procedure could be substantially jeopardized.
17The present panel of the Board, however, had the benefit of the representations of counsel, presented at the hearing, as to the circumstances of the holding of the vote. Upon our review of these matters, we were satisfied, on balance, that the concerns relating to access were adequately addressed. As to notifying employees of the vote, the Board notes that through the (entirely legitimate) efforts of both parties to secure the attendance of what they perceived to be their "supporters" at the polling booth, it is apparent that a substantial majority, if not virtually all, of the employees were advised of the circumstances of the vote, whether by telephone or by mail. This is not an entirely surprising occurrence. Unlike in the previous card-based system, where organizing campaigns were conducted for the most part in secret, it is apparent that the statutory requirement of a vote in every case has to a considerable extent served to publicize the manner in which trade unions acquire their bargaining rights. Thus, we are satisfied that whatever "deficiencies in notice" that might have arisen had the employees been forced to rely exclusively upon the Board's workplace notices and postings were amply cured by the parties' own efforts in attempting to secure the vote of their supporters.
18Similarly, while we are concerned that the holding of the vote on the Friday immediately preceding a summer long weekend might have adversely affected the proportion of employees who voted, and while its being held on a single day may have rendered the process inconvenient or inaccessible to a number of employees, we are nevertheless not persuaded that the results of the vote that was held does not reflect the wishes of the employees. The Board notes that the polling was conducted over the course of approximately twelve hours, on four separate occasions staggered over various shifts, and was held at various locations in the hospital. While there may well have been some employees who would have found such voting arrangements inconvenient or impossible to be utilized, we are not persuaded that a substantial number of employees committed, for example, to employment elsewhere were prevented from voting. In this respect, it is important to note that, consistent with the usual practice of the Board, notices advising employees of the results of the vote and of their right to make submissions regarding the holding of the vote were posted in conspicuous locations in the workplace. Although argument was presented at the hearing that there were many employees who might experience such difficulties, no representations were received by the Board (let alone a meaningful number) asserting that this was in fact the case, nor was there any evidence that any, let alone a significant number, employees were in fact prevented from doing so because of the voting arrangements that had been made.
19Accordingly, we were not persuaded that the representation vote held on August 2, 1996 did not accurately reflect the wishes of the employees to be represented by the applicant and therefore, declined to acceded to the responding party's request that the vote be held again.
Appropriate Bargaining Unit
20As noted above, the applicant trade union seeks a bargaining unit description in which its bargaining rights extend to those nurses who are "employed in a nursing capacity" and hence, would include those nurses employed by the Hospital who are not engaged in the provision of direct nursing care. It was submitted that, in light of the Board's many cases on this matter, in which it has been made clear that the "nursing capacity" restriction is the "modern" limit for the representation of nurses, (Pembroke Civic Hospital, [1993] OLRB Rep. Oct. 995) and on the principles set out in the Board's decision in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 the Board should find that the proposed unit description is appropriate.
21The employer, by contrast, maintains that the present certification application is not an appropriate time for it to be forced to "modernize" its overall collective bargaining scheme. It points to many decades of collective bargaining with the applicant in relation to full-time nurses in which the bargaining unit has been restricted to those nurses engaged in direct nursing care, and maintains that the appropriate bargaining unit in the present circumstances is one that "mirrors" this long-standing practice. In the employer's submission, whatever might be an appropriate bargaining unit in the abstract must give precedence to its history of bargaining, based on the distinction between the two types of nurses, and which has produced administrative structures in which the employment of nurses not providing direct nursing care is dealt with separately from those who deal directly with patients. Among other things, it was submitted that the those nurses who do not provide direct nursing care have a separate community of interest from those that do, and for that reason, the Board should find the proposed bargaining unit to be inappropriate.
22While there may appear, at first glance, to be a conflict between these practices or "policies" of the Board in relation to "mirroring" and those set out in the approach set out in the Hospital for Sick Children case and that, in effect, the Board is required to make a choice between the one or the other, upon an examination of the principles underlying both such practices, in reality, no such conflict exists, at least in the present application. As noted by the union in its argument, the Board's practice with respect to bargaining unit determination since the issuance of the decision in Hospital for Sick Children is a pragmatic one, based upon an examination of the labour relations circumstances of the workplace that the trade union proposes be subject to the processes of collective bargaining. As the Board's many subsequent decisions in relation to this question make clear, there is a wide range of possible configurations of bargaining units, even in a single workplace, and is limited, fundamentally, by whether or not its institution would present "serious labour relations harm" to the employer. This approach is reflective of the Board's experience of the extremely adaptable nature of the collective bargaining process, and attempts to balance, on the one hand, employees' interests in accessibility to collective bargaining with, on the other hand, the legitimate interests of employers that the initiation of collective bargaining not unnecessarily disrupt their established systems of labour relations.
23We do not understand the reasoning underlying the Board's practice of "mirroring" full-time and part-time units to be addressing a different problem. Although the language of some of the pre-Hospital for Sick Children cases may reflect a somewhat inelastic attitude in relation to the Board's policy, it is apparent to us that the mirroring of full-time and part-time units is rooted in the Board's historical aversion to disturbing established bargaining structures. (See, in particular, Sudbury Memorial Hospital, [1982] OLRB Rep. Nov. 1722.) In other words, the Board has generally required that proposed part-time units replicate already-established full-time units because of its concern that the opposite result might cause, to use the language of Sick Kids, "serious labour relations harm".
24In our view, the present circumstances are an example of such a situation. Given the essentially identical function performed by the nurses in the "excluded full-time" and the part-time nurses in question in the present application, the employer has instituted a common system of work performance evaluation and monitoring, training, and career advancement that is, in turn, distinct from that governing the employment of either the part-time or full-time nurses who are engaged in the provision of direct nursing care. In effect, the employer has historically tended to treat the "excluded" nurses in a separate manner and has, over the years, developed a distinct system for the administration of their professional employment.
25It may well be that this system ultimately derives from the historical practice of bargaining separately, rather than from some inherent feature of the work being performed or some other feature of these nurses' employment, and hence, we do not accept that the "community of interest" arguments advanced by the employer are of assistance in our resolution of the matter. Nevertheless, we accept that to now require the employer to treat the part-time nurses who are engaged in direct nursing care together with those that are not so engaged places that system into significant jeopardy. Having regard to all of the circumstances, we are persuaded that a part-time bargaining unit including nurses not involved in direct nursing care would cause the employer labour relations problems of a substantial nature.
26Accordingly, the Board does not find such a unit to be appropriate for the purposes of collective bargaining. Instead, we accept the bargaining unit description proposed by the employer as appropriate and, having regard to the foregoing, to the aforementioned decisions of the Board, and to the provisions of the Labour Relations Act, 1995, find that the applicant is to be certified to represent the employees in the following bargaining unit:
all registered and graduate nurses of Mount Sinai Hospital in the Municipality of Metropolitan Toronto, engaged in nursing care, save and except Nursing Unit Administrators and Assistant Supervisors, persons above the rank of Nursing Unit Administrator and Assistant Supervisor, and persons regularly employed for more than twenty-four hours per week.
27A final certificate shall issue.
DECISION OF BOARD MEMBER R. R. MONTAGUE; July 17, 1997
I dissent from the majority on the issue of the appropriate bargaining unit. I am not persuaded that a part-time bargaining unit including nurses not involved in direct nursing care would cause the employer labour relations problems, as none were proffered by the employer except to state that it would cause serious labour relations problems without articulation of what they were. As a result this leads me to the conclusion of being nothing but a figment of their imagination and at best mythical in nature. As a result I would have found the unit proposed by the Applicant as an appropriate bargaining unit.