[1998] OLRB REP. SEPTEMBER/OCTOBER 759
1118-98-PS Ontario Public Service Employees Union, Applicant v. Centre for Addiction and Mental Health; Service Employees International Union, Local 204; and Ontario Nurses Association, Responding Parties
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Donald K. Eady, Tracy Mussett and Jeanette E. Sautner for the applicant; Roy C. Filion, Rhoda Beecher, Robert Blewett and Daryn Jeffries for the Centre for Addiction and Mental Health; Mary Cornish and Robert Davidson for the SEIU, Local 204; Elizabeth Mcintyre, Pauline Lefebvre-Hinton, Beverly Mednick and Holly Wilson for the ONA.
DECISION OF THE BOARD; September 23, 1998
This is an application under sections 22 and 23 of the Public Sector Labour Relations Transition Act, 1997.
The name of the responding party hospital is hereby changed to Centre for Addiction and Mental Health (referred to as the "hospital").
The parties are in agreement that the Board has the jurisdiction to make orders in this matter pursuant to sections 22 and 23 of the Act.
Three former psychiatric and addiction facilities, the Clarke Institute of Psychiatry (the "Clarke"), the Addiction Research Foundation ("ARF") and the Donwood Institute (the "Donwood") were combined into a new hospital corporation in January, 1998. This was followed by the transfer of the Queen Street Mental Health Centre ("Queen Street"), a provincial psychiatric hospital to the new hospital corporation on March 9, 1998.
At this point in the process the parties are seeking determinations from the Board with respect to four issues as follows:
a) The number and general description of the bargaining units. (The parties anticipate being able to resolve the specific descriptions between themselves after they know the general parameters.)
b) Whether or not there should be a non-union option on the ballot(s).
c) Whether the geographic scope of the bargaining unit(s) should be the Province of Ontario.
d) Whether or not the hospital must disclose the addresses and telephone numbers of employees to the Ontario Nurses Association. (ONA)
- The Board conducted a consultation with respect to this application on August 28, 1998. Given the somewhat urgent nature of this public sector bargaining unit dispute, the Board considers it appropriate to issue a decision with limited written reasons.
Background
As noted above, this dispute arises from the amalgamation/transfer of four predecessor mental health and addiction facilities in the City of Toronto. The Centre for Addiction and Mental Health (formerly and briefly the Addiction and Mental Health Services Corporation) is the result of the combinations of the Clarke Institute of Psychiatry, the Addiction Research Foundation, the Donwood Institute and the Queen Street Mental Health Centre on March 9, 1998. The Clarke and ARE were "public hospitals". Collective bargaining at the Clarke, ARF and the Donwood was governed by the Hospital Labour Disputes Arbitrations Act. Queen Street was a provincial psychiatric hospital and its employees were crown employees covered by the statutory collective bargaining scheme in the Crown Employees Collective Bargaining Act. The amalgamation/transfer was the result of recommendations by the Health Services Restructuring Commission. The new entity is a public hospital.
There are 11 bargaining units from the predecessor hospitals as follows:
The Clarke Institute of Psychiatry
a) One full-time bargaining unit of "service" employees represented by the
Service Employees International Union, Local 204. (SEIU)
b) One part-time bargaining unit of "service" employees represented by the SEIU.
c) One bargaining unit of office and clerical employees represented by the SEIU.
d) One bargaining unit of security guards represented by the SEIU.
e) One bargaining unit of registered and graduate nurses represented by the Ontario Nurses Association (ONA).
The Addiction Research Foundation
a) One "all employees" unit represented by the Ontario Public Service Employees' Union (OPSEU).
The Donwood Institute
a) One bargaining unit of service, office and clerical employees represented by OPSEU.
b) One bargaining unit of paramedical employees represented by OPSEU.
c) One full-time bargaining unit of graduate and registered nurses represented by ONA.
d) One part-time bargaining unit of graduate and registered nurses represented by ONA.
Queen Street Mental Health Centre
On March 9, 1998, OPSEU and the hospital entered into a voluntary recognition agreement. The agreement recognizes OPSEU as the bargaining agent for an "all employees" unit. Prior to March 9, 1998 the employees at Queen Street were part of the centrally bargained provincial bargaining unit for crown employees. The provincial bargaining unit was divided into a number of bargaining units by job category. The employees at Queen Street fell into four of these "sub" bargaining units but most of them were in the health care employees unit.
The paramedical employees at the Clarke were not represented by a union.
There are three employees of ARE in Mississauga who are included in OPSEU's bargaining unit. There are also between 100 and 120 other employees of ARF in the province who are not represented by a trade union.
Number and Scope of the Bargaining Units
OPSEU argues that there should be one "all employee" bargaining unit for the merged hospital corporation. SEIU claims that there should be four bargaining units: one for service and clerical employees; one for registered and graduate nurses; one for paramedical employees and one for security guards. ONA asserts that the registered and graduate nurses should be in a separate bargaining unit and supports the SEIU with respect to the other bargaining units. The hospital takes the position that there should be two bargaining units: one for registered and graduate nurses and one for all other employees.
After carefully considering the submissions of the parties the Board concludes that there should be two bargaining units for this successor hospital's operations: one bargaining unit of registered and graduate nurses and one bargaining unit for all other employees. The parties referred to Board practice, as well as to a number of articles and studies, which support the view that there should be standardized bargaining units in the hospital sector and that those bargaining units should be: service and clerical units; paramedical units and (registered) nurse units. The Board agrees that, in principle, that bargaining unit structure makes labour relations sense in many, if not most, hospital situations. Presumably that is why that structure is most often reflected in certification applications and in agreements between parties. However, there are exceptions to that bargaining unit structure in the province and, in this case, no representative of the paramedical employees is asking for them to be in a separate bargaining unit. The only union which represents paramedical employees is asking that they be included in an "all employee" unit. The hospital also agrees that it is most appropriate for its operation for the paramedical employees to be included in a bargaining unit with all other non-nursing employees. The hospital has a concern that it would be very difficult to determine the parameters of a paramedical unit when none presently exists and sees no need to separate those employees when they have not been separated previously. Although this is now a public hospital and therefore has much in common with the other hospitals in the province, the parties, at least at ARE and Queen Street, have experience with a more integrated work force than is common in this sector. In these circumstances, the Board does not consider it appropriate to place the paramedical employees in a separate bargaining unit. The Board notes that this approach is consistent with the one used in the education sector in Upper Canada District School Board (Board File No. 0756-98-PS, decision dated August 10, 1998 (unreported)) [now reported at [1998] OLRB Rep. July/Aug. 751].
On the other hand, one of the unions which represents the nurses does assert that this, now, public hospital should conform to the pattern of most, if not all, of the other public hospitals in the province and place the registered and graduate nurses in a separate bargaining unit. The hospital agrees that that is the most appropriate structure for its newly combined operations. The Act specifically contemplates in section 22(2) that a bargaining unit of professional employees who commonly bargain separately and apart from other employees is consistent with its principles and purposes. That section certainly describes the situation of most nurses in the province. OPSEU argues however, that the nurses at Queen Street have been in a bargaining unit with other employees for many years and that that structure works in this hospital environment which is different from others in the province. It also notes that ARF had twelve nurses in the "all employee" bargaining unit when it was certified even if there is only one working in a nursing capacity now. Nevertheless, a "nurses only" bargaining unit is the almost uniform pattern in the province for public hospitals and has proven its efficacy over many years. The Board finds such a bargaining unit to be the most appropriate in these circumstances as well. In making this determination the Board has considered the consensus between the hospital and ONA and the statutory language, among other factors.
The Board can see no reason to place the approximately 35 security guards in a separate bargaining unit in the circumstances of this case.
All of the parties except OPSEU urged the Board to structure the bargaining units to facilitate central bargaining. The Board agrees that central bargaining is a benefit for participating hospitals and unions in the hospital sector. However, it is not useful to consider access to central bargaining in the circumstances of this case because that access is contingent upon the structure of the bargaining units plus which union wins the representation vote. OPSEU bargains centrally for paramedical employees but not nurses, service or clerical employees. SEIU bargains centrally for service and clerical employees but not paramedical employees. ONA bargains centrally for the nurses. Therefore, if the nurses are in a separate bargaining unit the parties may choose to participate in central bargaining if ONA wins but not if OPSEU wins. If the paramedical employees are in a separate bargaining unit the parties may choose to participate in central bargaining if OPSEU wins but neither OPSEU or the hospital is requesting that. If the service and clerical employees are in a separate bargaining unit the parties may choose to participate in central bargaining if SEIU wins but not if OPSEU wins. In these circumstances the Board does not find it useful to consider access to central bargaining as a factor in deciding the bargaining unit structure.
OPSEU also argues that the Board should declare that it is the representative of the employees in the bargaining unit without a vote as it represents the majority of the employees. It is not clear whether OPSEU's request extends to this situation in which the Board has directed more than one bargaining unit. If it does, the Board hereby declines the request. The determination as to which trade unions shall be on the ballots will be determined by the parties at the meeting with the Labour Relations Officer.
SHOULD THERE BE A NON-UNION OPTION ON THE BALLOT?
Although the vast majority of employees of the hospital are currently represented by a trade union, the hospital argues that there should be a non-union option on the ballots. The hospital asserts that the statute requires such an option because the employees in OPSEU's Queen street bargaining unit were Crown employees up to the changeover date.
The Act provides as follows:
(1) Following a request under subsection 2 1(4) or when making an order under section 22, the Board shall determine which one of the bargaining agents, if any, represents the employees in each bargaining unit whose description is changed by the agreement under section 20 or the order under section 22.
(2) The Board shall make the determination by conducting a vote or votes of the employees in each bargaining unit.
(3) The order must appoint as bargaining agent for a bargaining unit the candidate that receives the greatest number of votes, if the candidate receives more than 50 per cent of the votes cast.
(4) If any employee in the bargaining unit of the successor employer was employed, immediately before the changeover date, by a predecessor employer that was the Crown and was represented, immediately before the changeover date, by a bargaining agent under the Crown Employees Collective Bargaining Act, 1993, the ballot must include that bargaining agent as a choice.
(5) If 40 per cent or more of the employees in the bargaining unit were not represented by a bargaining agent immediately before the changeover date, the ballot must include having no bargaining agent as a choice.
(6) An employee described in subsection (4) shall be deemed to have not been represented by a bargaining agent immediately before the changeover date for the purposes of subsection (5).
(14) If 40 per cent or more of the employees in the bargaining unit were, immediately before the changeover date, not represented by a bargaining agent or are employees described in subsection (4) and there were at least two bargaining agents that, immediately before the changeover date, represented employees in the bargaining unit, the following apply with respect to the conduct of the vote under this section:
The vote must consist of succeeding votes.
In the first vote, the choices on the ballot must be having no bargaining agent as one choice and each of the bargaining agents, each as a separate choice.
Every choice on the ballot in a vote, other than the choice with the fewest votes cast in its favour, must be included in the ballot for the immediately
succeeding vote.
(16) The Board shall by order determine the choices and candidates for bargaining agent that are to appear on the ballot and shall do so in accordance with its practices and procedures.
The parties appear to agree that sections 23(4) and (6) describe the former Queen Street bargaining unit. No one disputed that the former Queen Street employees were employed by "a predecessor employer that was the Crown". However, OPSEU argues that the sections should not apply in these circumstances as a result of its voluntary recognition agreement with the hospital. The parties also agreed that March 9, 1998 is the "changeover date" for purposes of section 23(4).
The hospital argues that section 23(6) directs the Board to consider any employees who were Crown employees prior to the "changeover date" to be non-union employees for the purposes of determining whether there should be a non-union option on the ballot even where, as here, the employees have subsequently become unionized through a voluntary recognition agreement. (The employer has recognized in the agreement that the union represents the majority of the employees.) The hospital acknowledges that if its argument is correct it would also apply to a situation in which a union is certified to represent former Crown employees after a Board representation vote.
OPSEU argues that the result proposed by the hospital is absurd and was not contemplated by the Act. It submits that it makes no sense that employees that are undisputedly now unionized should be considered to be non-union for the purposes of the vote. It urges the Board to use its discretion in section 23(16) above and not to place a non-union option on the ballot. SEIU and ONA support OPSEU's position.
The Board has carefully considered the submissions of the parties and finds that there must be a non-union option on the ballots. OPSEU's bargaining rights for former Crown employees terminate upon the transfer of those employees to the broader public sector. Crown employees who were formerly unionized by statute are then given the opportunity to choose whether or not to be represented by a union if there is an application under this Act. There is no obvious reason why employees who may subsequently be organized by a trade union should participate in two representation votes in such a short period of time and the hospital could offer no explanation nor suggest any policy that is furthered by such a requirement. Nevertheless, the language of the statute makes it clear that employees of the Crown before the changeover date must be considered to be unrepresented by a bargaining agent for the purpose of a vote under the Act. That result is consistent with the scheme of the rest of the Act which appears to contemplate for most purposes only bargaining agents who were bargaining agents before the changeover date. That is, bargaining rights are "frozen" as of the changeover date. Therefore, any employees who are organized by a trade union after the changeover date appear to be considered non-union employees for the purposes of any ballot. In the case of Crown employees they are also frozen as non-union employees. Whether or not this was the intended result of the legislation can only by the subject of speculation. The structure of the sections plus the mandatory language of sections 23(4)(5) and (6) do not permit the Board to ignore those sections when determining the "choices and candidates for bargaining agent" that are to appear on the ballot.
The Geographic Scope of the Bargaining Unit
OPSEU argues that the geographic scope of the bargaining unit(s) should extend to the Province of Ontario to include the other, formerly, ARF employees. It argues that the employees will not have access to collective bargaining if they are not included in the unit. The hospital and the other unions oppose this proposal. The hospital claims that the bargaining unit should be the usual municipal wide unit plus the Mississauga employees.
The Board finds that the geographic scope of the bargaining units should be limited to the municipal wide unit including the anomalous Mississauga employees. The difficulty employees might face in organizing elsewhere in Ontario is not related to the amalgamation or the Act. Nor is it necessarily real as OPSEU managed to organize a small unit of employees in Mississauga which it then combined with its Toronto unit. The Act is intended to preserve bargaining rights to the extent possible in view of the massive restructuring in the province but is not intended to be a vehicle for sweeping in other employees except where necessary to do so to rationalize bargaining units. It is not necessary to add employees in the rest of the province to rationalize the bargaining units in these circumstances and the Board therefore declines to extend the geographic scope.
ACCESS TO EMPLOYEE TELEPHONE NUMBERS AND ADDRESSES
ONA seeks access to the addresses and telephone numbers of the nurses. All of the other parties oppose this request on the basis that the confidentiality of such information is necessary for the safety of the employees in these workplaces. The unions only have the addresses and telephone numbers of those employees who are their members. The parties reached an earlier agreement (subject to this argument which ONA wished to make to the Board) that the unions could have access to bulletin boards in the workplaces and could distribute information to employees through the employer's internal mail system. ONA was unable to explain why this access was insufficient for its purposes. In view of the agreement of three of the parties that even the very limited release of addresses and phone numbers to the unions poses a threat to employee safety, and in the absence of a good explanation as to why the current access is insufficient, the Board is not prepared to direct further disclosure at this time.
In summary, the Board finds as follows:
There will be two bargaining units for the hospital's operations: one bargaining unit of registered and graduate nurses and one bargaining unit of all other non-managerial or confidential employees.
In any bargaining unit in which 40% or more of the employees were employees of the Crown immediately prior to March 9, 1998 there must be a non-union option on the ballot.
The geographic scope of the bargaining unit will be limited to the City of Toronto plus those employees in Mississauga currently in the OPSEU bargaining unit.
The Board declines to direct the hospital to disclose the addresses and telephone numbers of the employees to the unions at this time.
The Board hereby directs the parties to meet with Labour Relations Officer Ed Hunt on Tuesday, October 13, 1998 to finalize the descriptions of the bargaining unit and to make the necessary arrangements for the representation votes.
The Board continues to be seized of this matter.