Ontario Labour Relations Board
[1998] OLRB REP. NOVEMBER/DECEMBER 920
1202-98-PS Canadian Union of Public Employees, Local 79, Applicant v. The City of Toronto, Toronto Civic Employees Union, Local 416 Canadian Union of Public Employees, Ontario Nurses' Association, International Union of Operating Engineers, Local 793, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46, International Union of Bricklayers and Allied Craftsmen, Local 2, Carpenters and Allied Workers, Local 27, United Brotherhood of Carpenters and Joiners of America, International Brotherhood of Electrical Workers, Local 353, International Brotherhood of Painters and Allied Trade, District Council No. 46 and Locals 1819 and 557, Sheet Metal Workers Local 30, International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Toronto Fire Fighters Association, Local 113, North York Professional Fire Fighters Association, Local 752, Etobicoke Professional Fire Fighters Association, Scarborough Professional Fire Fighters Association, Local 626, York Professional Fire Fighters Association, Local 411, East York Fire Fighters Association, Local 118, Toronto Licencing Commission, and CUPE and its Local 2998, Responding Parties v. Toronto Parking Authority, Intervener
BEFORE: R. 0. MacDowell, Chair.
DECISION OF THE BOARD; November 18, 1998
This is a request for reconsideration of a decision of the Board dated October 20, 1998. The request is made by ONA and was received by the Board on November 12, 1998. Responses from the other parties were also received on November 12. These representations must be considered together, weighed in light of the parties' earlier submissions, and read in conjunction with the decision itself.
Despite the assertions of CUPE Local 79, I am satisfied that the Board does have the power to reconsider a decision under Bill 136. Section 37(1) of Bill 136 incorporates by reference section 114 of the Labour Relations Act, 1995; and, in my view, there is no operating incompatibility between section 37 and the reconsideration power found in section 114. Section 37(9) of Bill 136 merely confirms that, at the end of the day, the decision ultimately made under Bill 136 is "final and binding" -whether that decision is founded upon a unique provision of Bill 136, or upon a section of the Labour Relations Act that has been incorporated by reference. The declaration of finality in section 37(9) does not override the power to reconsider in section 114, any more than the second half of section 114(1) negates the earlier portion.
However, given the need for expedition and finality under Bill 136 (see sections 37(8) and 37(9)), it seems to me that the discretion to reconsider should be very cautiously exercised. That is especially so with respect with bargaining-unit determinations made under section 22. In a multi-unit setting such as the one before me in this case, determinations under section 22 almost inevitably affect the definition of contiguous bargaining units, and thus the rights of other parties and employees; moreover, the definition of bargaining structure is but the first step in the process for selecting bargaining agents and negotiating new collective agreements. Any belated tinkering with the bargaining unit perimeters established under section 22 will interrupt the statutory sequence in ways that may cause the whole structure to unravel. At the very least, revisiting earlier bargaining-unit determinations will cause further delay in a context in which the statute commands expedition.
Against that background, it seems to me that a request for reconsideration must be launched quickly, and must raise compelling submissions which could not reasonably have been advanced earlier.
This Bill 136 application affects some 30,000 employees who are currently grouped for collective bargaining purposes into more than 50 separate bargaining units. The Board is being asked to amalgamate or redefine some number of those units so that the bargaining structure is appropriate for the new City's operations. However, the vast majority of those employees (20,000 or more) are represented by CUPE Local 416 or CUPE Local 79. ONA represents about 200 registered nurses in three smallish bargaining units. By way of comparison, CUPE represents twice as many nurses, and about half of the new city's total complement of nurses are included in broadly-based municipal "inside" units along with other "white collar" office, technical and professional employees.
The broadly-based municipal units inherited from Metro and the Old City also mix together ULDA and non-HLDA employees - which is to say, employees subject to two different statutory regimes, with different methods of resolving collective bargaining impasses. This kind of mixing is a little unusual, but is sanctioned by section 22(6) of Bill 136, where, as here, there is an established practice of mixing "hospital" and "non-hospital" employees. In this respect, Bill 136 recognizes that an entity like the megacity is not like a typical "hospital", even though certain of its functions and employees may be regulated by the HLDA.
Given the magnitude of the restructuring exercise, the Board established a consultation schedule with a view to completing the task expeditiously - if possible, before the end of the calendar year. That goal was optimistic, but it was potentially achievable through a mix of litigation and party agreement (i.e. the mix of alternatives contemplated by Bill 136 itselO. And that is how the case unfolded.
The decision of October 20 outlined the statutory and institutional context, and resolved several issues in accordance with those observations. However, following the Board's decision of October 20, 1998, there were a number of further consultation days which the major parties decided to use for the purpose of global settlement discussions - having regard to what the Board said in the October 20th decision, and the issues yet to be resolved. Those discussions began immediately after the Board's decision and continued on the previously-set consultation dates with the assistance of a Labour Relations Officer.
ONA was aware of but took no part in these settlement discussions. But over the course of several days, the other parties have produced a tentative "settlement in principle" which was concluded on or about November 10, 1998, and is now being refined and reduced to writing. The agreement in principle represents a full and final resolution of all remaining restructuring issues and contemplates the taking of representation votes over a number of days before Christmas. The parties are in the process of finalizing the vote arrangements for votes that will, of course, involve thousands of employees.
Any reconsideration of the October 20th decision could seriously prejudice these settlement arrangements, and, that fact alone, casts a heavy onus on ONA to establish substantial grounds for reconsideration. In the three weeks following the decision under review, the major parties have made substantial progress towards a global resolution of all outstanding disputes; and, in the circumstances, the Board is reluctant to see that process derailed or delayed (as the other parties say it will be) by a belated request for reconsideration.
However, there is, in any event, no sound reason to reconsider or revise the earlier decision -which, insofar as nurses are concerned, merely adopts and continues the pattern of broadly-based mixed inside municipal units, that existed in the old City and Metro prior to the amalgamation. That is the pattern which the City and Local 79 urged me to continue, and which I was satisfied was appropriate for the new City's operations. (On this branch of the argument, CUPE Local 416 had a different position from ONA and from the City and CUPE Local 79, but it is fair to say that none of the other parties supported the unit originally proposed by ONA, and they do not support ONA's current request for reconsideration either.)
Nor do I think that section 22(2) drives the decision-making process in the manner that ONA suggests.
Section 22(2) of Bill 136 begins with these words: "Nothing in this section prevents the Board from making an order that results in a bargaining unit of employees who are members of a profession This provision flags the possibility of a professional employee bargaining unit and thus reinforces the broad discretion found in section 22(1) and guided by section 22(7). However, there is no presumption in favour of such units one way or the other. Their "appropriateness" will depend upon the context, the general provisions of Bill 136, and whether the employee group and requesting union both meet the limiting language of section 22(2). And as I sought to explain in the earlier decision: "appropriateness" is determined not only in relation to collective bargaining criteria, but also in relation to the more general purposes of Bill 136 and the operational needs of the successor employer.
In my view, section 22(2) does not provide a persuasive foundation for a nurses' unit in the health department, or, (given the way that the argument unfolded in this case) for a City-wide unit of nurses either. Nor, in my view, is the instant case analogous to the one before the Board involving the Centre for Addiction and Mental Health. In a hospital setting, the Board, quite properly, felt that a "nurses unit" was presumptively appropriate. That is not so for the megacity.
The successor here is not a public hospital or a health unit or even a diversified health-care facility, like the Centre for Addiction and Mental Health. On the contrary, it is a unique municipality -"the megacity" - with its own needs and collective bargaining history. And unlike the earlier case involving the Centre for Addiction and Mental Health, there was no support for the "ONA unit" from the other parties - particularly the employer, who asserted that nurses should continue to be part of the municipal inside unit, as they were at Metro and the Old City of Toronto.
In the amalgamation that created the "megacity", Metro and the old City were the dominant partners that employed 75% of the unionized employees affected by this application. That is why the City has consistently asserted that the old City/Metro practice best accommodates its operational needs -an argument which the Board found quite persuasive when determining the bargaining structure for the new City. On this branch of the case, there was no compelling reason to depart from the bargaining pattern of the dominant predecessor municipalities - which is to say, there was no reason to accept either CUPE Local 416's proposal for a "health department" bargaining unit, or ONA's proposal for a bargaining unit of nurses within the health department.
For the reasons outlined in the October 20th decision, the Board was not attracted to ONA's proposal to create a "nurses unit" in the new City's health department - a unit which had no counterpart in the old City or Metro, which would uproot a couple of hundred nurses from the more broadly-based inside municipal units in which they are now situated, and which would leave several hundred other nurses in the broader municipal inside unit. Indeed, the Board raised this latter consequence with ONA counsel, who nevertheless indicated that ONA's proposed unit was confined to the nurses in the health department - not all nurses employed by the City. The "all nurses" option was not pressed until the request for reconsideration (and would, of course, also represent a radical departure from the way in which nurses were dealt with in the old City and Metro).
In the circumstances, I do not think that ONA can now pursue the "all nurses alternative" under the umbrella of reconsideration - however attractive it might be in other cases or in other settings.
Nor am I persuaded that the Board should poll nurses (or any other subgroup of employees for that matter) on their views with respect to alternative bargaining unit configurations. Unlike section 9 of the Labour Relations Act, such reference to employee wishes is not contemplated by Bill 136 at all; nor, in any event, could the Board assign any meaningful weight to such employee views. No doubt many professional employees would prefer to have "their own bargaining unit", but the criteria contemplated by section 22(2) are quite restrictive, and it is not without significance that the wishes of employees are not among them. More fundamentally, though, the scheme of Bill 136 simply does not contemplate such polling, and in the circumstances of this case, it would be quite inappropriate to undertake that exercise.
For these reasons and for the reasons articulated in the other parties' responses, the Board is not disposed to reconsider, revoke, or revise its decision of October 20, 1998.