Mississauga-Queensway Hospital v. Association of Allied Health Professionals: Ontario, 1998 CanLII 18326

[1998] OLRB REP. JULY/AUGUST 685

0096-98-PS; 0519-98-PS Mississauga-Queensway Hospital, Applicant v. Association of Allied Health Professionals: Ontario; Ontario Public Service Employees Union; Canadian Union of Public Employees, Responding Parties v. The Health Care Council of Ontario (LIUNA), on its own behalf and on behalf of its constituent unions and the Practical Nurses Federation Ontario, Intervenors; Canadian Union of Public Employees, Applicant v. Mississauga-Queensway Hospital, Ontario Nurses' Association, Ontario Public Service Employees' Union and Practical Nurses Federation of Ontario, Responding Parties v. Association of Allied Health Professionals: Ontario, Intervenor

BEFORE: Robert Herman, Alternate Chair.

DECISION OF THE BOARD; July 30, 1998

1These are applications under the Public Sector Labour Relations Transition Act, 1997.

2At the consultation into these matters, the Board first considered the objection raised by the Association of Allied Health Professionals: Ontario (AAI{P:O) and QPSEU, that the application with respect to the paramedical bargaining unit (Board File #0096-98-PS) was premature, and that it ought to be dismissed or deferred by the Board, until some further restructuring events had taken place.

3After hearing the submissions of the parties on this issue, the Board ruled orally at the hearing as follows:

1. A number of reasons have been raised by AAHP:O and OPSEU as to why this application is premature, and ought either to be dismissed or deferred.

2. 1 will comment only upon some of the reasons raised. The unions assert that where bargaining rights might be extinguished through a vote held pursuant to Bill 136, there must be a compelling operational reason for the Board to consider the application and it ought not to do so absent such a reason.

3. With respect to this point, the Board agrees that existing bargaining rights are quite important, for a number of reasons. Bargaining relationships have been developed, and there are processes in place, which the parties have come to rely upon and depend upon, and which provide understood and anticipated norms of behaviour in the workplace. Disrupting these relationships, and these norms, will likely be disrupting.

4. Nevertheless, the scheme and methodology of Bill 136 have the effect of disrupting existing bargaining relationships. The Act is designed to deal with restructuring events, and the disruption that such restructuring will inevitably bring. Generally speaking, reorganizations, mergers, amalgamations, transfers of programs, or other such matters. will necessarily cause disruption, and will necessarily cause problems for all workplace participants, whether employees, bargaining agents or employers.

5. I am not persuaded that the predicted result of a vote (which is the statutorily created mechanism in Bill 136 for determining representation rights), where on the numbers it is likely to extinguish bargaining rights, should be a reason to delay moving forward with the application. Access to Bill 136, and the ability to file an application and have it considered by the Board do not depend upon a demonstration of a compelling reason for the Board to proceed. Again, as a general proposition the restructuring itself, given the provisions of Bill 136, provides sufficient reason for an application to be considered by the Board.

6. It was also suggested that the Framework Agreement, entered into between the parties, provides sufficient guidelines and rules for assisting the parties in restructuring, and that the Agreement obviates the need for the instant application to proceed at this time.

7. While the Framework Agreement does provide meaningful assistance to the parties. many of the problems arising from restructuring would nevertheless remain unresolved by that Agreement.

8. It was also argued that the anticipated further directions to be issued by the Health Services Restructuring Commission, that might effect the provision of laboratory services in the area, rendered the application premature. In addressing this point, it must be kept in mind that the issue before the Board at this stage is the question of prematurity, and not the question of the bargaining unit configuration. Nevertheless, it does not appear likely that these future events, whatever they are, would affect the bargaining unit configuration issues in this application. The arguments for concluding that there should be a bargaining unit of only laboratory employees remain for the most part the same, regardless of any decision effecting the provision of those services.

9. AAHP:O and OPSEU have raised legitimate concerns; nevertheless, the Board remains satisfied that it is appropriate to proceed with these applications, and it will now do so.

4After delivering the oral decision set out above, the parties met and were able to resolve all matters remaining in dispute in the two applications. For the paramedical bargaining unit, the following Minutes of Settlement were filed:

In the Matter of an Application to the Ontario Labour Relations Board

Board File #0096-98-PS

Between:

Mississauga-Queensway Hospital

("Hospital")

and

Association of Allied Health Professionals

("AAHPO")

Ontario Public Service Employees Union

("OPSEU")

Canadian Union of Public Employees

("CUPE")

Minutes of Settlement

AAHPO, and OPSEU agree with the Hospital to the following terms.

1. The paramedical bargaining unit description shall be as set out in Appendix A.

2. The paramedical vote will be held on September 16, 1998. The vote will be counted on the same day as the vote is held.

3. During the three weeks leading up to the vote, each of OPSEU and AAHPO will be given access as follows for the purposes of providing information to paramedical employees:

(i) Two meetings at each site, up to a maximum duration of 2 hours per meeting, to be scheduled subject to date and time availability of space at each site, it being understood that the meetings shall not interfere with the operations of the hospital.

(ii) Each of OPSEU and AAHPO may distribute leaflets to staff at the East and West Staff entrances (or any other entrance excepting only the Emergency entrance) on two days during the week and one day during the weekend (provided that such leafletting shall be limited to two consecutive hours in the P.M. in the three weeks prior to the vote). It is understood that such leafletting will not interfere with any person's entrance or departure from the Hospital and that no person shall be delayed by any such leafletting. It is understood that OPSEU and AAHPO will not leaflet on the same day and will agree between themselves on the days they leaflet.

(iii) OPSEU and AAHPO may post notices of the meetings at both sites, subject to Hospital approval of the notices.

(iv) OPSEU and AAHPO may deliver to the mail room, of each site, on one occasion, printed material addressed to paramedical employees by name and department and such material will be delivered through the internal mail system.

(v) Should a "run-oft" vote be required, the above shall be extended proportionally to the time until the 2nd vote.

4. The Hospital shall provide to OPSEU and AAHPO a copy of the voter's list by July 31st, 1998.

Dated at Toronto, Ontario, on July 24, 1998.

"E. Ogibowski" "Lynn Keays"

OPSEU AAHPO

"Susan A. Lewis"

THE HOSPITAL

APPENDIX A

July 24, 1998

The Hospital's proposal for a paramedical unit is as follows:

"The Hospital recognizes all paramedical employees of the Mississauga-Queensway Hospital, in the Region of Peel and in the City of Toronto, save and except supervisors, persons above the rank of supervisor, students performing work as part of the co-operative high school program, students performing work as part of an internship or apprenticeship as part of a university program, students performing work as part of a placement from a community college program, students employed during the school vacation period and employees in any bargaining unit for which any trade union holds bargaining rights.

For the purposes of clarity, the term "paramedical" includes occupational therapists, speech therapists, speech pathologists, physiotherapists, therapeutic and administrative dieticians, registered and non-registered pathological technologists, radiological technologists (radiography), radiological technologists (nuclear medicine), registered and non-registered respiratory technologists, registered and non-registered EEG, ECG and opthamology technicians, registered and non-registered ultrasound technologists, glaucoma technicians, ear, nose and throat technicians, cardiovascular technicians, electro-encephalographists, electrical shock therapists, laboratory technicians, laboratory assistants, electronic technicians, psychometrists, pharmacists, pharmacy technicians, psychologists, remedial gymnasts, medical records librarians, social workers, child care workers, nutritionists, dental health educators and bio-medical technicians.

Note:

The parties request that the Board remain seized of the issue of whether the position of biomedical technologist is a paramedical employee and should therefore be in the bargaining unit. It is understood that the votes of this individual will be segregated.

"Susan A. Lewis" "E. Ogibowski"

HOSPITAL OPSEU

"Lynn Keays"

AAHP:O

5For the service bargaining unit, the following Minutes of Settlement were filed:

IN THE MA'ITER OF AN APPLICATION TO THE ONTARIO LABOUR RELATIONS BOARD

BOARD FILE #0519-98-PS

Between

Canadian Union of Public Employees

("CUPE")

and

Mississauga-Queensway Hospital

("The Hospital")

Ontario Nurses' Association Practical Nurses' Federation of Ontario

("H.C.C.O.")

Ontario Public Service Employees Union

and

Association of Allied Health Professionals

MINUTES OF SE'ITLEMENT

CUPE and H.C.C.O. and The Hospital agree to the following terms:

1. The service bargaining unit description shall be as set out in Appendix "A".

2. The service vote will be held on August 19th, 1998. The vote will be counted on the same day as the vote is held.

3. During the three weeks leading up tot he vote, each of CUPE and H.C.C.O. will be given access as follows for the purposes of providing information to service employees:

(i) Two meetings at each site, up to maximum duration of two hours per meeting, to be scheduled subject to date and time availability of space at each site, it being understood that the meeting shall not interfere with the operations of The Hospital.

(ii) Each of CUPE and H.C.C.O. may distribute leaflets to staff at the east and west entrances (or any other entrance excepting only the emergency entrance) on two days during the week and one day during the weekend (provided that such leafletting shall be limited to 2 consecutive hours in the A.M. and 2 consecutive hours in the P.M. in the 3 weeks prior to the vote. It is understood that such leafletting will not interfere with any person's entrance or departure from The Hospital and that no person shall be delayed for any such leafletting. It is understood that CUPE and H.C.C.O. will not leaflet on the same day and they will agree between themselves on the days they leaflet.

(iii) CUPE and H.C.C.O. may post notices of meetings at both sites, subject to Hospital approval of the notices.

(iv) CUPE and H.C.C.O. may deliver to the mail room of each site on one occasion printed material addressed to service employees by name and department and such material will be delivered through the internal mail system.

4. The Hospital shall provide to CUPE and H.C.C.O. a copy of the voters' list by July 31, 1998.

5. It is agreed that the "Health Care Council of Ontario (LIUNA)" will appear on the ballot instead of Practical Nurses' Federation of Ontario. CUPE will also appear on the ballot.

Dated at Toronto, Ontario on July 24, 1998.

"Heidi Hunter" "John Elder"

H.C.C.O. CUPE

"Susan A. Lewis"

The Hospital

CUPE/HCCO

Appendix A July 24/98

"All employees of the Mississauga-Queensway Hospital in the City of Toronto and Regional Municipally of Peel save and except professional medical staff, registered and graduate nurses; graduate and undergraduate pharmacists; graduate and undergraduate dieticians; paramedical staff; supervisors; coordinators and other persons who exercise managerial functions; security guards and office and clerical staff.

For purposes of clarity, paramedical staff include the following:

Unregistered ECO technician, laboratory assistant/technician, physiotherapy assistant/technician, pharmacy technician, registered ECG technician, non-registered X-ray technologist, non-registered EEG technician, medical laboratory technologists, registered EEG technicians, chiropodist (orthopaedic technologists), registered X-ray technologists, registered nuclear medicine technologists, registered respiratory therapists, registered ultrasound technologists, medical social worker, crisis intervention worker, dietician, psychometrists, physiotherapists, occupational therapists, speech pathologist, licensed pharmacists, echocardiography technologists, and audiologists, ophthalmology assistant, pathology assistant, child and youth worker, recreation therapist, vestibular technician, child life specialist, behavioural therapists, infant development worker, Leader I-group therapy, (lab samplers), occupational therapy assistant/technician, case manager, discharge planner, team leader (NPRS/lab), day treatment therapist, patient-care technician, morgue attendant."

6At the hearing, the parties were directed to comply with all the terms of their respective Minutes of Settlement.

7Having further regard to the Minutes of Settlement, the Board determines that there should be a paramedical bargaining unit as described in Appendix A of the Minutes of Settlement filed in Board File No. 0096-98-PS. That bargaining unit contains an extensive Clarity Note, and the Board notes the understanding of the parties, and the Board, that the Clarity Note is not intended to be, nor is it, exhaustive.

8The Board will remain seized with respect to the issue of whether the position of biomedical technologist falls within the paramedical bargaining unit. The votes of any-one in this category will be segregated, unless the parties otherwise agree, or pending further decision of the Board.

9A vote is to be held in the paramedical bargaining unit, on September 16, 1998, with the ballots to be counted on the same day.

10On the ballot shall be AAHP:O, OPSEU and a "no union" option.

11With respect to the service bargaining unit (Board File No. 0519-98-PS), the Board determines that there shall be a service bargaining unit as described in Appendix A to the Minutes of Settlement filed in that application.

12A vote in the service unit will be held on August 19, 1998, with the ballots to be counted on the same day.

13The candidates on the ballot shall be the Health Care Council of Ontario (LIUNA) and CUPE.

14Finally, the Mississauga-Queensway Hospital is directed forthwith to post copies of this decision at locations where it is likely to come to the attention of potential voters, and to keep this decision posted until September 17, 1998.

15These matters are referred to the Manager of Field Services, to administer, conduct, and count the votes, and for all other relevant purposes.