[1998] OLRB REP. SEPTEMBER/OCTOBER 772
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, Intervenor
BEFORE: R. 0. MacDowell, Chair.
APPEARANCES: Douglas Wray and James Nyman for the applicant CUPE Local 79; !cGeorge Monteith for the City of Toronto; Howard Goldblatt and Cathy Lace for CUPE Local 416; Elizabeth McIntyre and Pauline Lefebvre-Hinton for the Ontario Nurses' Association; Robert Gibson for the International Union of Operating Engineers; Diane Roberts for CUPE Local 2998; Alan Minsky for various construction trade unions; William M. Lemay and John Saunders for the Toronto Parking Authority; no one appearing at this stage for the other parties.
DECISION OF THE BOARD; October 20, 1998
This is an application under The Public Sector Labour Relations Transition Act, 1997.
To make this decision easier to read, I will refer to that statute as "the Act" or "Bill 136", and I will refer to the parties in abbreviated form. Similarly, some of the subdivisions of the new City or its predecessor municipalities will be referred to by their acronyms, as the parties did in their submissions. Finally, it is common ground, that CUPE Local 416 is the "successor" to a number of other CUPE locals in the greater Toronto area, and that CUPE Local 416 now holds the bargaining rights that were once held by those other locals. Accordingly, where relevant, I will refer to CUPE Local 416 as the bargaining agent for all of these employee groupings, even though some of the charts filed with the Board mention the numbers of the former CUPE locals.
This application was filed in wake of the merger of seven local municipalities, that, together, make up the new City of Toronto (the so-called "megacity"). CUPE Local 79 asks the Board to determine the number and description of the bargaining units that are appropriate for the new city's operations; and further, to determine which trade union will represent the employees in the resulting bargaining units.
Essentially, the Board is being asked to amalgamate some of the existing bargaining units into fewer larger units, to sort out any disputes about the perimeter or composition of those bargaining units, then to conduct such representation votes as may be necessary to determine which trade union will represent employees in the new bargaining unit structure (see sections 22 and 23 of Bill 136). The representation votes will allow the employees in each unit to indicate which trade union they want to represent them.
The parties' positions on the various bargaining unit issues are set out in their written briefs, and were amplified in the course of an ongoing "consultation" conducted under section 37 of the Act. I will not set out those positions here. It suffices to say that the parties have agreed that the Board should address the outstanding bargaining unit questions one by one, beginning with the following issues:
the proposal to eliminate the small bargaining unit of operating engineers (heavy equipment operators) working at the Keele Valley landfill site, and include those employees in the larger "outside employees bargaining unit"
the proposal from CUPE Local 416 to create a separate "health department" bargaining unit
the proposal from ONA to fashion a separate unit of community/public health nurses within the City's "health department"; and
the proposal that the employees of the new Toronto Parking Authority should continue as a stand alone bargaining unit, or alternatively should be included in the broader unit(s) proposed by CUPE Local 416.
- Each of these issues involves somewhat different legal, factual, and policy considerations. However, before considering them individually, it may be useful to briefly sketch in some of the legislative and institutional background.
II. The Legislative Context - in general
Over the last 12 months, the Ontario Legislature has initiated extensive re-structuring in the "broader public sector", significantly modifying the way in which many school boards, hospitals, and municipalities are organized and funded. The volume of these changes is quite unprecedented - as is the volume of special legislation that brings them about. The ultimate objective is a more efficient system for delivering public services. But, in order to accomplish that objective, the Legislature has authorized the closure, amalgamation, or restructuring of many of the institutions through which public services are provided. And that, in turn, has an impact on existing collective bargaining arrangements.
The Legislature could have allowed these labour relations impacts to filter through the existing successorship provisions of the Labour Relations Act. Those provisions have been in place for many years, and have often being applied to public sector institutions. Indeed, section 69(11) of the Labour Relations Act specifically contemplates the amalgamation of municipal entities, and was used some years ago, in connection with the creation of a number of regional municipalities.
However, the Legislature has decided that the labour relations consequences of the current round of restructuring should not be addressed through the existing successorship provisions. Instead, the Legislature has passed special legislation - Bill 136 - that will apply for the three year transitional period during which the restructuring is expected to take place. That special legislation casts a wider net than the "successor rights" provisions of the Labour Relations Act; since it is drafted to facilitate the general restructuring process, rather than simply preserving the collective bargaining status quo. It directs the Board to take into account the objectives of the successor employer, and also provides some fairly detailed provisions governing how the collective bargaining process should unfold following restructuring.
This difference in focus is reflected in both the purposes of Bill 136, and the way in which Bill 136 is to be applied.
Bill 136 recognizes that organizational change may make it necessary to re-draw the bargaining unit boundaries, in order to adapt collective bargaining structures to the new institutional framework. That task is assigned to the Labour Relations Board, which has considerable experience in the collective bargaining arena. However, Bill 136 does not direct the Board to look only at collective bargaining criteria. Rather, when determining "the number and description of bargaining units that are appropriate for the successor employer's operations" the Board is also invited to look at the successor s "operational needs" - something that the Board might not consider on an application for certification, or in a typical successor rights application. Section 22 (7) of Bill 136 requires the Board to have regard to the Purposes of Bill 136, which read this way:
To encourage best practices that ensure the delivery of quality and effective public services that are affordable for taxpayers.
To facilitate the establishment of effective and rationalized bargaining unit structures in restructured broader public sector organizations.
To facilitate collective bargaining between employers and trade unions that are the freely designated representatives of the employees following restructuring in the broader public sector and in other specified circumstances.
To foster the prompt resolution of work-place disputes arising from restructuring.
Under Bill 136, the Board has a wider range of criteria to consider than would be the case under The Labour Relations Act, because the Board is being asked to facilitate not only the process of collective bargaining following restructuring, but also the objectives of restructuring itself. To put the matter another way: when redefining bargaining units under Bill 136, the Board is obliged to take into account the operational needs of the new employer and the transitional challenges occasioned by restructuring, as well as the "pure" collective bargaining considerations with which it is more familiar under the Labour Relations Act.
This is not to say that the Board's experience under the Labour Relations Act is irrelevant. On the contrary, it may be helpful to look at the factors that have influenced bargaining unit design under the Labour Relations Act, because those factors may also be relevant to one or other of the articulated purposes of Bill 136. However, the legal landscape is quite different; so that what the Board might do on an application for certification (determining the "unit of employees appropriate for collective bargaining") does not provide an unfailing guideline to the outcome under Bill 136. Under Bill 136, Board is being asked a somewhat different question: to "determine the number and description of bargaining units that are appropriate for the successor employer's operations"; and in answering that question the Board has to accommodate somewhat different policy concerns.
It is important to recognize, though, that despite its enumerated purposes, the application of Bill 136 will not necessarily result in a major revision of the collective bargaining status quo. Bill 136 anticipates change and "rationalization" of collective bargaining; but the Act does not command any particular outcome or bargaining unit configuration. Indeed, maintaining what is familiar may actually facilitate the overall process of institutional change; and, in fact, the Board's experience under Bill 136 (about 75 cases so far) has not resulted in wholesale transformations of the bargaining framework. For the most part' neither the parties nor the Board have shown much appetite for creating huge "all employee" bargaining units, (on the theory that bigger is better), or for massive revisions to the collective bargaining status quo. Rather, the results have been more modest, having regard to the parties' agreements, settled collective bargaining patterns, the needs of the employer, and the particular circumstances in each case. There has been a balance of continuity and change; and in this regard, it is interesting to note that(as in the instant case), it is often the employer undergoing restructuring that has urged the Board to maintain the collective bargaining status quo.
Bill 136 provides explicit support for this common sense approach, having regard to the parties' history and their collective bargaining needs; for the statute recognizes both the value of self-ordering, and the potential utility of maintaining established bargaining structures (see for example the comments of the Board in Layalist Township Board File No. 3598-97-PS, at paragraphs 9 and 31).
The purposes of Bill 136 mention the desirability of creating a "rationalized" (normally more broadly based) bargaining structure. However, Bill 136 also contemplates that there may be single or multi-union agreements that preserve all or parts of the collective bargaining status quo. And if the parties enter into such arrangements, the Board is bound to honor them. Accordingly, the extent of the parties' agreement is not only a factor that may influence the exercise of the Board's discretion under section 22, but complete agreement may actually oust the Board's jurisdiction altogether - whatever the Board may think of the parties' arrangements, and whatever their relationship to the stated purposes of Bill 136. If the parties agree to preserve or change the existing bargaining unit structure (in whole or in part), that agreement prevails. The statute puts a premium on local agreements.
Similarly, Bill 136 recognizes that in particular contexts, the historical pattern can and perhaps should be maintained. For example: Bill 136 authorizes the preservation of "mixed" bargaining units of HLDA and non-HLDA workers if that has been the parties' practice. Bill 136 also recognizes the possible continuation of historically rooted "professional" bargaining units. (See generally: sections 20(5), 20(6), 22(5), 22(6), and the opening words of section 22(7)of the Act.
In summary, Bill 136 does not necessarily demand massive changes on the collective bargaining front. The results can be much more incremental and respectful of established bargaining structures - provided they are workable or the parties agree to them. What Bill 136 does do, is require the Board to take into account both the imperatives and impact of restructuring, so that the Board can make the collective bargaining framework congruent with that process. And as the purposes of Bill 136 illustrate: the criteria for decision making may not be found solely within the collective bargaining realm itself.
The adjudication process sanctioned by Bill 136 is also quite different from the one envisaged by The Labour Relations Act and/or The Statutory Powers Procedure Act. The Board is directed to carry out its work expeditiously, and is not obliged to hold formal hearings. Instead, the Board can (and typically does) proceed by way of a "consultation", in which the parties file written briefs, and/or make short oral representations in respect of their positions. The Board then makes its rulings based upon those submissions - and, of course, upon the Board's own sense of what is reasonable in all the circumstances.
What the statute contemplates therefore, is a rough and ready process of pragmatic decision making, in which "getting the job done quickly" is a given an independent value (see section 37(8) of the Act).
Finally, it is worth noting that Bill 136 has its own process for sorting out bargaining agents (representation votes between competing unions), which is rather different from the one found in the Labour Relations Act. Bill 136 also has its own prescriptions for the first round of bargaining following restructuring, as well as special protections for the seniority rights of employees who may find themselves in larger bargaining units. Moreover, Bill 136 specifically contemplates that non-union groupings may be absorbed into the broader collective bargaining framework. Thus, while smaller units (or unions) may be eliminated through the application of Bill 136, the actual reach of collective bargaining may expand, and larger unions may gain a firmer foothold in the restructured employer's organization.
III. The Institutional Setting: The New City of Toronto
The new City of Toronto is one of the most significant products of restructuring process, representing a fusion of seven former municipalities: The City of Toronto; The Municipality of Metropolitan Toronto; The City of East York; The City of North York; The City of Scarborough; The City of Etobicoke; and the Borough of York. Prior to their amalgamation, each of these municipalities was a fair-sized organization in its own right. Combined, they make up the so called "megacity", that is now by far the biggest municipality in Canada, with a budget of some 6.5 billion dollars.
About $4 billion of $6.5 billion gross budget is attributable to former "Metro" functions, since about 75% of municipal services were already delivered metro-wide. What the amalgamation amounted to, therefore, was the integration of locally delivered services, where, of course, the Old City was the biggest single service provider. That is why the new City urges the Board to use the Metro/Old City bargaining pattern as a benchmark for defining units in the new City - see below.
Like many of the institutional consolidations in the broader public sector, the new City of Toronto was created by special legislation. The two City of Toronto Acts (Bill 103 and Bill 148) have effected a massive reorganization of municipal institutions, making the new City one of the largest public employers in the country. It is unique. There is no other municipality in Ontario quite like it. The amalgamation affects more than thirty-five thousand employees, of whom about seventy-five percent are unionized; and when the labour relations framework is revised, there may be more employees under the collective bargaining umbrella than there were before.
In other words, while restructuring will necessarily result in fewer, larger, bargaining units, the proposed rationalization of bargaining structures may also result in the extension of collective bargaining to previously excluded employee groupings, so that the resulting bargaining units are more comprehensive than they were before. Not only is there no issue here about access to collective bargaining (as there often is when determining "appropriateness" in certification applications), but in this case, the number of employees under the collective bargaining umbrella may actually increase - regardless of which bargaining unit proposals are ultimately adopted. And in the instant case, the process of revising bargaining unit definitions is not likely to leave currently unionized employees without any union representation at all - although they may not keep their current bargaining agent (depending upon the results of any representation votes). In fact, on any scenario, the bulk of the employees will continue to be represented by either CUPE Local 416 or CUPE Local 79 - unions that, together, now represent the vast majority of employees, and both have historical roots in the municipal predecessors.
Across the former municipalities (considered together) there are now more than fifty separate bargaining units, each encompassing an individually defined grouping of employees. Some of these bargaining units are very large. Others are quite small. However, on any scenario, when the Board's task is completed, there will be fewer, larger, units.
I should note at this point, however, that the apparent similarity of some of the existing bargaining units is a little misleading, because some of these superficially similar units are not actually defined in the same way. For example: all of the predecessor municipalities have roughly analogous bargaining units of "inside" and "outside" workers; but these "inside" and "outside" units do not cover precisely the same groupings of employees. These units all have a common core, but they differ in some respects, so that an "inside worker" in one municipality might find herself in the "outside" bargaining unit, if one applies another predecessor municipality's definition.
That is one of the problems which the Board may be asked to sort out in this case; and, of course, associated with all of these separate bargaining units were/are different trade unions - many of them "sister locals" of CUPE, that have now amalgamated to create Local 416. "Bargaining unit" and "bargaining agent" are separate concepts requiring separate determinations; but for practical (and political) reasons, the two are closely related, because how one defines the bargaining unit will benefit one union protagonist or the other.
Nevertheless, all of the possible outcomes urged upon the Board in this case, will result in a substantial reduction in the overall number of bargaining units - from more than fifty, to (perhaps) fewer than ten, covering a combined work force of between twenty-five and thirty thousand employees. In comparison with the past, there will necessarily be a significant "rationalization" of the collective bargaining structure, and also a significant reduction in the number of union players. There may also be some extension of the collective bargaining framework to previously excluded employee groupings, so that the resulting bargaining units are more comprehensive than they were before.
Accordingly, when determining the "number and description of bargaining units that are appropriate for the successor employer's operations" in this particular case, the Board is beginning with a substantial amount of agreed-upon consolidation, and need not be unduly concerned about access to collective bargaining. Nor, in my view, is there the slightest suggestion of "anti-union animus" on the employer's part. No doubt the employer's position will have consequences for one trade union or the other - typically benefitting one of the larger incumbents, because the City proposes that there be a rationalization of bargaining units, using the Metro/City bargaining unit pattern as the template. However, I do not think that the City's position is improperly motivated. The City is simply urging a bargaining unit pattern which, in its view, is consistent with its own operational needs: the City says that the process of institutional change can best be advanced by preserving the Metro/Old City bargaining unit pattern, then "folding" the "add-ons" into that established structure.
In many respects, therefore, the setting is quite different from a typical certification proceeding, where there is no established collective bargaining history, and where an overly broad bargaining unit definition or drawing the line in a particular way, might inhibit the employees' ability to secure any trade union representation at all. That is not the situation here. In fact, it is far from clear at this stage, whether the detailed line drawing exercise in which the Board may be invited to engage (however necessary that may be to get collective bargaining rolling) will ultimately have much negative impact on the terms and conditions of employment for many of the individual employees who are the subject of scrutiny, and who will ultimately be placed in one bargaining unit or another.
No doubt each newly created bargaining unit will reflect some different interests, and the employees themselves may have preferences as between unions (preferences that they can express in a representations vote). But in the end, they will all continue to share much in common - including: the same employer, a history of broadly similar bargaining, a common retirement plan, and the application of the common seniority protections found in Bill 136. Nor is it irrelevant that many of the employees were once represented by CUPE locals, some of which are now merged into larger CUPE configurations; or that, in all likelihood, the bulk of employees will continue to be represented by CUPE Local 79 or CUPE Local 416.
Against that background, it remains to be seen just how significant these perimeter skirmishes will turn out to be at the end of the day - either for the individuals in dispute, or for the overall collective bargaining process. It is inappropriate to prejudge the situation at this stage. But there is, at the very least, a reasonable suspicion that it may not matter very much whether particular classifications (i.e smallish groupings of individuals) are assigned to one big unit or another; for as I have already noted, certain classifications seem to have been situated quite comfortably in an "inside unit" in one former municipality and in an "outside unit" in another. Moreover, if this issue did not affect the parties' electoral calculus, it is doubtful that they would spend much energy fighting about it.
Of course, broader bargaining units have many advantages - as the Board has recognized in cases such as Kidd Creek Mines [1984] OLRB Rep. March 481. In this sense "bigger is better". But, by the same token, the Board has also come to recognize that there can be perfectly sensible alternative ways to structure bargaining units, and that parties commonly fashion quite workable arrangements that differ from what the Board might find to be appropriate on an application for certification. In Hospital for Sick Children [1985] OLRB Rep. February 266, the Board put it this way:
Real life collective bargaining experience has outstripped some of the conventional wisdom and has shown that the collective bargaining system can exhibit quite a variety of structures that at one time parties might have considered unconventional or inappropriate.
That is why, in recent years, the Board has been more inclined than it once was, to accept the agreement of the parties on proposed bargaining unit descriptions. The Board has recognized that good faith bargaining can usually moderate any potential problems of bargaining unit design, with the result that even seemingly idiosyncratic bargaining units can be quite workable if that is what the parties want. Once collective bargaining is established and accepted, the parties have shown considerable resilience in adapting the bargaining structure to their changing needs.
The relationship between bargaining unit design and collective bargaining outcomes continues to be a matter of some debate - at least where collective bargaining is already deeply rooted (See, for example, the differing opinions in CBC [1977] 2 Can. LRBR 481, where the Canada Labour Relations Board debated whether or how to change the bargaining unit pattern for Canada's national broadcaster). So it should not be surprising to see that kind of debate surface in the context of Bill 136. Nor should it be surprising that the Board's Bill 136 cases over the last year have not produced homogeneous results - whatever impact that ultimately has on subsequent collective bargaining.
However, what the line drawing exercise under Bill 136 may often do, is alter the electoral boundaries for any representation vote, and thus both the electoral prospects of some of the competing unions and the choices realistically available to employees. It forces predecessor unions to compete with each other; and, quite frankly, it is difficult to resist the conclusion that this electoral calculus is what is driving some of the parties' positions in this case - as it has in others. Thus, in Rainy River District School Board (Board File No. 0112-98-PS) the Board observed:
In determining applications under this legislation, it is from time to time difficult to separate issues of principal from those of convenience and narrow self interest as they appear in the positions adopted by various parties. This is perhaps not surprising in a process which often necessitates a fundamental transformation and metamorphosis of existing bargaining rights, and required bargaining agents (often those with considerable collective bargaining experience) to directly compete with each other to preserve those rights.
Similarly, in Municipality of Chatham Kent (Board File No. 4579-97-PS, decision released July 30, 1998) the Board commented:
The Board also considers it appropriate to comment on the various positions taken by the parties in this matter. A number of parties argued that other parties were taking "opportunistic" positions rather than making "principled" arguments about appropriate bargaining units. In the Board's view, that description characterizes most, if not all, of the parties positions in this application. However, the parties to this application under the Public Sector Labour Relations Transition Act. 1997 are far from unique in that regard. Of course, the parties to these applications are entitled to argue from their own self-interest and to try to persuade the Board that the bargaining unit which they perceive to be most to their advantage is the "appropriate" one. However, such arguments are ultimately of little assistance to the Board, which is left to divine what really makes labour relations sense. As a result, the Board's determinations as to what is an appropriate bargaining unit may not always appear to be consistent from one application to the next or even within the same decision"
But despite the debate about how the new bargaining unit lines should be drawn in this case, it is important to reiterate that no one suggests that the bargaining unit pattern in the predecessor municipalities was unworkable or manifestly inappropriate. Indeed, as counsel for the City points out, virtually all of these "squares" on the collective bargaining checker board were once found by the Board to be "appropriate for collective bargaining" (as that term is used in the context of a certification proceeding), and many of them have been in place for many years (sometimes for decades). There is no history of serious labour relations problems at any of the predecessor municipalities (at least not on the material now before me). And there is little of the antipathy to trade unions which one sometimes finds in other labour relations settings. It is the kind of context, therefore, where there really can be a range of bargaining configurations, all of which are "appropriate" and "workable"; and that elasticity is confirmed by the differing experience (and bargaining unit definitions) of the predecessor municipalities themselves.
Now, no doubt, the new City wishes to maintain the Old City of Toronto/Metro bargaining unit structure with which it is familiar, and which, it says, reflects the prevailing practice of the "dominant partners" in the merged municipality. The City urges the Board to adopt that pattern as a template for the new bargaining unit definitions, because, it says, it has proved to be workable in the past, and because, in a period of organizational upheaval, this kind of collective bargaining continuity will best meet the city's operational needs. In the City's submission, it makes sense to replicate the bargaining pattern of the two "dominant" predecessor municipalities, which, between them, employed the majority of the unionized employees who now work for the new City. As counsel for the City puts it: these bargaining units have been in place for decades, they are familiar, they work, and there is no need for the Board to "reinvent the wheel". Too much change at too many levels may actually impede the restructuring process - hence what appears to be a rather conservative "approach"
There is certainly something to be said for this proposition - and perhaps also for the adage "if it ain't broke, don't fix it". I shall have more to say about that later. At this point it suffices to say that, in my view, there are quite plausible alternative ways to draw the bargaining unit boundaries, without in any way compromising the overall objectives of Bill 136; so that, in a case like this one, it is difficult to make a principled choice.
What the Board has to do, therefore, is carefully assess the competing proposals, consider the purposes of Bill 136, apply its labour relations judgement, and reach a conclusion that is fair to both the statute and the context under review.
With these observations, then, I will turn to the first four issues that the parties have addressed.
In keeping with the Board's approach in other cases, and the general thrust of Bill 136, I propose to give fairly short, "bottom line", decisions with only very brief reasons.
IV. The IUOE bargaining unit of heavy equipment operators at the Keele Valley landfill site.
On June 11, 1996 the IUOE was certified and subsequently entered in to a collective agreement for what is, in effect, a "craft type" bargaining unit, covering a handful of employees at the Keele Valley landfill site - which is scheduled to close in about 5 years. This certificate is clearly an anomaly, because CUPE local 416 already represents a much larger group of employees working at that landfill site, (including some employees who also drive some kinds of heavy equipment), as well as other heavy equipment operators in other parts of the new City's organization. The existing IUOE unit (albeit one to which all parties seem to have agreed) fractures the employee grouping in a very curious way, which under ordinary circumstances the Board simply would not do - although the Board was no doubt influenced by the parties' agreement, and perhaps by what I understand to be the employer's pre-1996 practice of using IUOE members to operate some of these machines, without any formal bargaining rights and without protest from CUPE.
However, in the wake of restructuring, it makes no sense to preserve this geographically limited, "site specific" grouping of employees, or to subdivide the employee classifications/functions in this way; moreover, the lateral mobility (and thus job security) of these employees will be enhanced if they are included in the general "outside workers" bargaining unit.
I put no weight on the assertion that the employees (or some of them) might prefer their existing trade union. In my view, it is more in keeping with the purposes of Bill 136 and the requirements of section 22(1) if these employees were part of the broader outside unit.
V. CUPE Local 416's proposal to create a "new" "health department" bargaining unit
In the heading to this section, I have put the term "health department" in parenthesis, because the grouping that we are now dealing with has been variously described, in argument, as the "health units", the "boards of health", and the "health department". Nothing turns on the label. The question remains: should this grouping of employees of the new City make up their own stand-alone bargaining unit?
The creation of the new City involved the amalgamation of the former boards/departments of health into a single "board of health" which is responsible for developing policies on a city-wide basis, while delivering services locally. The new, recreated board of health, may be separate, notionally, for various purposes not here relevant. However, it is the City that appoints the Medical Officers of Health, and that supplies the funding; and pursuant to section 46(6) of Bill 148, the City also supplies the "municipal employees including public health nurses" that City council considers necessary to carry out its program mandate.
In my view, the new City is clearly "the employer" of these individuals; so that, in this respect, the "board of health" is quite different from certain other "boards" (the library board for example, or the Zoo, or the CNE) which are separate agencies and employers for labour relations
purposes. In the case of the board of health, employer-employee relations are governed by the City, through its departmental manager, the Commissioner of Community and Neighbourhood Services, in whose department, the health department employees are situated. S/he is the one responsible for the health budget, which in turn is part of the larger C&NS Department budget that she administers.
So, from an organizational perspective: in the restructured megacity, the "board of health" is a division of a larger City department, that, in turn, provides a wide range of social services.
Prior to amalgamation, four of the six predecessor "health units" were staffed by municipal employees, supplied by the home municipality - the employment structure that was embraced and continued for the new City, pursuant to section 46(6) of Bill 148. Then, as now, the work was done by municipal employees, not employees of the board of health. In effect, the legal framework of the old city and of these other municipalities was continued for the new City. There is no separate board of health for employment or staffing purposes.
Moreover, in my view, it is wrong to look at the "board of health" (which I repeat, is not the "employer" of the employees here under consideration) as the sole department/division of the new City concerned with the "health" of citizens, or even "health care" writ large. For of course, there are other constellations of City employees who are also concerned with "health" - for example: individuals employed at hostels, employees who provide paramedical and ambulance services, and the employees at the City's 10 homes for the aged, which, for collective bargaining purposes, are actually defined as "hospitals" under the Hospital Labour Disputes Arbitration Act.
In an era of "health promotion", everyone recognizes that there is more to maintaining a healthy citizenry than the delivery of traditional medical services. That is why (as Local 79 pointed out) there are as many as 50 registered nurses or pubic health nurses working in jobs outside their traditional nurse definition (situated in the existing inside bargaining unit of the old City or Metro, and represented by CUPE Local 79). The City provides a broad range of health-related services - although, of course, the City, as such, is not a hospital, and there is no reason to import hospital bargaining patterns into the municipal setting. Nor am I convinced that one can get much guidance from the pattern in smaller, less complex cities that have not been the subject to the kind of massive restructuring that the new City has undergone. The new City of Toronto really is unique, (hence, for example, what the parties called the "City of Toronto clause in Bill 136, which permits the new City to maintain its peculiar mix of HLDA and non- HLDA employees).
Of the roughly one thousand employees in the new City's health department, roughly half are in broader municipal inside units; and there is a somewhat higher percentage in broader municipal inside units, if one looks only at the four municipalities that provided employees directly (i.e. the model that is prescribed for the new City). However, there are also hundreds of employees of the new City working in its homes for the aged, (and thus, in a sense, part of the health delivery team - albeit delivering services to a different group of citizens). The employees in these homes for the aged (treated as "hospitals under HLDA) are also members of a broader municipal inside unit.
It might also be noted that the largest predecessor municipality (old City of Toronto) included all of its health department employees in the broader municipal inside bargaining unit, and the next two largest partners (North York and Scarborough) included quite large numbers (excluding nurses) in their municipal inside units. So there is nothing idiosyncratic about this pattern; and in fact, although "community of interest" is seldom a helpful term by itself (because it has an unduly elastic meaning), there is really no doubt that the health department employees have been, and could continue to be, comfortably included in a broader municipal inside unit for collective bargaining purposes.
Conversely, Local 416's proposal runs counter to the traditional structuring of the bigger parties (especially the old City which is the largest former employer), and also runs counter to this Board's long- standing aversion to "departmental bargaining units" - which, as I have already mentioned, would in this case actually be only a "part" of a larger City "department". Local 4 16's proposed "health department" unit, would in fact subdivide the actual city department in which the health department is situated.(For a discussion of the Board's concerns about departmental bargaining units, see: Kidd Creek Mines [1986] OLRB Rep. June 736 - which is only one a number of Board decisions which affirm this proposition; and see also the comments of the Board in Municipality of Metropolitan Toronto [1992] OLRB Rep March 315).
The fact is: the pattern in the predecessor municipal employers was not one of "departmental" bargaining units for health care employees, or for "health department" employees only; moreover, I am quite reluctant to embrace a brand new departmental bargaining unit proposal that would have the result of moving large numbers of employees out of the more comprehensive bargaining unit(s) in which they have traditionally been placed.
I do not think that the fact that the health department delivers programs pursuant to a statutory mandate distinguishes it from other departments or employee groupings which also operate under a statutory umbrella (particularly in this era of "downloading"); nor is it significant that this department - like others - may be somewhat self contained or have separate geographic locations. As counsel for Local 79 pointed out, other departments share these characteristics; and in any event, employees of the health department do share building space with other City inside workers. The City and Local 79 both support maintaining the broader status quo, which the City says, is not only more consistent with established unit patterns, but is also more consistent with its operational requirements in the shadow of restructuring. Finally, in an era of restructuring, with downsizing probably on the horizon, there is always something to be said for a broader rather than a narrower grouping.
On balance, I am not persuaded to construct a separate departmental bargaining unit encompassing the employees of the Board of Health/Health Department - in either of the configurations proposed by CUPE Local 416.
I accept the arguments of the new City and CUPE Local 79 in this regard.
VI. ONA's proposal for a separate bargaining unit of registered nurses in the City's health department/Board of Health
ONA's proposed "nurses unit" requires somewhat different consideration, because there is some history of "nurses only" units in the predecessor municipalities, and nurses do make up a coherent grouping that in particular settings is entitled to separate recognition - see section 9 of the Labour Relations Act and Section 22(2) of Bill 136.
In other words, the collective bargaining scene does exhibit some stand-alone nurses' units for collective bargaining purposes - even though this represents a form of "fragmentation" that the Board has not normally endorsed for other "professionals" or in all labour relations settings. It is also evident that parties agree to and live with such units - as they may have done in some of the predecessor municipalities and in virtually all public hospitals. And while the Board does not usually put it this way: ONA meets the craft unit/union definitions found in the OLRA, so that in some contexts, it is legally entitled to its "craft unit" (although, of course, section 9 of the Labour Relations Act also contains a number of qualifications, and recognizes that the Board should not be required to "carve out" a craft grouping from more broadly based bargaining units).
The new City is the employer of the nurses (and other employees) who work in the City's health department, (as well as the employer of numerous health care employees and nurses who work in other parts of the new City's operation). Despite ONA's suggestion to the contrary, I do not think that the employer is "the board of health". Nor, it might be noted, did ONA ever assert that the "real employer" was the "board of health", when ONA was bargaining with the cities of Scarborough. North York or Etobicoke. In each of these instances, ONA had separate collective agreements with the municipalities that supplied all of the employees (including nurses) - as the new City is now doing. And in each case, it was the municipality - not the health department/health unit - that was considered to be the "employer" of these nurses (and in one instance a few RNAs as well).
Accordingly, what ONA is seeking in respect of the new City might be described as its "traditional craft unit" within confines of the City's "health department" - which is to say, in organizational terms: a bargaining unit that is a part of the board of health division of the actual Department of Community and Neighbourhood services. It is part of a division in a larger Department. And that Department, in turn, is itself a subdivision of a the now larger, restructured City organization, where a very large number of other nurses work as part of the broader municipal inside bargaining unit.
To put the matter colloquially : ONA seeks to "carve out" from the restructured City's organization, a group of nurses in the health department - just as CUPE Local 416 sought to "carve out" the health department itself.
Now, there is some support for this in the history of some of the predecessor municipalities. But as counsel for Local 79 points out, that history is really "a mixed bag", that is influenced, to some extent, by the fact that in two of the six predecessor municipalities, the "employer" was a separate board of health - which is not the situation now. Here the "board of health" is part of a broader City department, and the City is unquestionably "the employer" of the nurses under review.
If one looks at the municipalities one by one, there appears to be quite a significant ONA presence, and a heavy recognition of separate nurses' bargaining units. There were separate ONA units at East York, Etobicoke, North York and York; and a separate CUPE nurses unit at Scarborough (since CUPE apparently displaced ONA there some years ago). So one does find stand alone nurses units. On the other hand, in the case of the old City/Metro - by far the largest employers of nurses and of public health nurses - the nurses are part of the inside unit. And when the size or "dominance" of the predecessor municipalities is worked into the equation, (as the City urges me to do), along with the total number of these professionals employed by the new City, the picture shifts considerably.
Looking only at the number of nurses in the new City's health department, it appears that roughly 200 nurses are now represented by ONA, roughly 100 are represented by CUPE Local 416, and roughly 200 are represented by CUPE Local 79. So the "professional union" does not now represent the majority of nurses in the health department. There is no predominant history of separate representation by a "professional nurses’ union", and at least 40% of the nurses are part of larger bargaining units, that are not composed exclusively of nurses. If one factors in the numbers, the "professionally exclusive unit" and "the professional union" do not bulk as large as might first appear.
Furthermore, when one considers the new City's total complement of nurses in its health department and homes for the aged, the ONA presence and proposed bargaining unit pattern is even less pronounced.
The City employs roughly 600 full time nurses in its homes for the aged and board of health. ONA represents about 1/3 of this total nursing staff complement, CUPE represents about 2/3 of them. Looking at the nursing group as a whole, one finds that the majority of nurses are in broadly based municipal inside units, and are not represented by a professionally exclusive union.
On balance then, when the size of the total nursing work force is considered, there is no preponderance in favour of the ONA position - either in respect of the "professional/craft union" or the "professional/craft" bargaining unit. "History" is simply not as strongly in favour of ONA's position as its counsel says it is; and accepting ONA's subdivision would again involve uprooting workers who are now in more broadly based bargaining units (with advantages that are evident from the number of nurses whose experience fit them to occupy non-traditional "hands on" nursing positions).
There is no doubt that a registered nurse is identifiable by reason of training, professional regulation, some of the functions that s/he performs, and so on. And, as noted, this professional grouping has been held to comprise an "appropriate bargaining unit" in hospitals, nursing homes and like health care institutions. However, there are many other city employees with considerable training, post secondary education, or "professional qualifications", so that this is not a unique characteristic; and the pattern of specialized bargaining units here, is not so predominant as it would be in, say, public hospitals.
What is troubling about ONA's proposal is not only that it would subdivide an established broader based bargaining unit (which has been perfectly workable in the past), but also that it does not encompass the whole of its standard professional unit. What ONA seeks is a unit of SOME of the nurses employed by the new City in ONE PART of the new City's Department of Community and Neighbourhood Services.
ONA's proposed unit INCLUDES several hundred nurses - now mostly represented by CIJPE and to a significant degree now situated in the inside unit). But ONA's proposed nurses in public health EXCLUDES several hundred other nurses in the same City Department, who are also mostly represented by CUPE. Insofar as the City as whole is concerned, ONA is seeking only PART of its traditional craft unit.
If ONA's proposed unit were accepted there would be a pocket of several hundred nurses in the health department division of the Department of Community and Neighbourhood Services, and separate pocket of several hundred other nurses who are part of a more broadly based bargaining unit that pertains to that same Department. The professional group would be divided, because ONA only wants part of its traditional craft unit, in a part of the new City's restructured organization. And to get there, one would still have to subdivide an existing broader inside unit, that has proved quite workable in the past.
In my view, ONA's proposed unit ("some nurses in some nurses out") does not produce a rationalized bargaining structure for the new City's operations, represents undue fragmentation in the circumstances, and is an unwarranted departure from the existing status quo - by which I mean the broader inside unit with CUPE Local 79 from which so many nurses would have to be removed, if the ONA proposal were granted.
In my view, the ONA's proposed unit of nurses in the "health department" is not "appropriate for the successor employer's operations" within the meaning of section 22(1), and further that this is not an appropriate case to exercise whatever discretion may be available in these circumstances under section 22(2).
Registered nurses can and, in the circumstances of this case, should be appropriately situated in the larger, municipal inside workers bargaining unit - as many of them have been for many years. In my opinion, in the context of the megacity, that is what best meets the purposes of Bill 136. I am not persuaded that the practice elsewhere in the province is very useful in dealing with the situation of the new City; and I accept instead, the submissions of the City and CUPE Local 79 as to what is appropriate for the new City's operation.
VII. The Status of the new Toronto Parking Authority, whether there should continue to be a separate collective bargaining unit in respect of its operations, or alternatively, whether the employees of the TPA should be "rolled in" to the City's bargaining structure
Prior to amalgamation, the predecessor municipalities dealt with parking issues in a variety of ways. The old City of Toronto had a separate "Parking Authority" called the Parking Authority of Toronto,("PAT") which was first created in 1952 and was responsible for the delivery of off street parking (parking lots). PAT had roughly 300 full time and part time employees, represented by CUPE Local 43 (a local that is now part of CUPE Local 416). On street parking (meters, permits) was handled by City of Toronto employees attached to a City department.
At North York, on street, off street, and boulevard parking were dealt with through an agency called the Parking Authority of North York (PANY). However, PANY has no employees of its own. All of the workers engaged in the parking services overseen by PANY were, in fact, supplied by the City of North York - on an arrangement not unlike that which the new City has with the board of health (see the discussion above). These employees came from a North York Department, and were CUPE members in an inside or outside bargaining unit of city employees.
At the other predecessor municipalities, off street, on street, and permit parking, were dealt with in somewhat different ways. York and Etobicoke used city employees. In Scarborough and East York, the work was mostly contracted out. These municipalities did not have a separate parking authority or local board to regulate parking activities.
On January 1, 1998 Bill 103 dissolved the seven old municipalities and replaced them with the new City of Toronto. Under section 11(1) of Bill 103, all of the employees of the former municipalities became employees of the new City - including any employees of the former municipalities that were involved with parking matters. These individuals became employees of the new City along with their co-workers from the predecessor cities.
At the same time, there was a parallel transformation in respect of certain (but not all) local boards - including the existing parking authorities. Pursuant to section 88 and 89 of Bill 148 (the City of Toronto Act No.2). PANY and PAT were dissolved and replaced by the TPA. All assets and liabilities of the former parking authorities were vested in the new TPA, and, as in the case of the municipalities, the employees of PAT (PANY had no employees) became employees of TPA. The restructuring of the local boards, including the parking authorities, proceeded in tandem with the restructuring of their municipalities where these local boards were situated.
Schematically, then, the changes took place on two levels. On the upper tier, there was the dissolution of the former municipalities making up Metropolitan Toronto, and their effective merger so as to create the new City of Toronto. The new City stands in the shoes of the former municipalities for all purposes. On the lower tier, there was the dissolution and recreation of certain local board appendages of the former municipalities, including the parking authorities. On this level, TPA stands in the shoes of PAT and PANY, the new library board stands in the shoes of the former library boards, and so on. Some local board appendages, like the Zoo or the Hummingbird Centre, remain unchanged because they were not dissolved or reconstituted.
It is useful to note, however, that the special legislation that recreates these local boards, seems to envisage their continued operation as separate and distinct appendages of the new City. Like the new City itself, they are creatures of statute; and, unlike the local board of health, (or the former PANY) the Legislature has not seen fit to direct that the new City supply such employees as TPA may require. In the case of TPA, there is nothing like section 46(6) of Bill 148, that has been discussed above. TPA is a separately created entity, which has its own employees. The inference, I think, is that the Legislature envisaged the TPA continuing as a separate employer, much at PAT did in the past.
What does this legislative treatment mean for the Board's task under Bill 136?
The restructuring at the new City is governed by sections 4 and 5 of Bill 136. Section 4 defines the new City and makes it the successor of the former municipalities. Section 5 deals with local boards, and specifies that the local board of the new City is the successor of the former boards. So these sections identify who the successor is in a common sense way, reflecting the two tier schematic discussed above: the new City is the successor of the old cities, and the new boards are the successors of the old boards from the former municipalities.
However, it seems to me that that legislative direction has ramifications for the way in which Section 22(1) must be applied when the Board is asked "to determine the number and description of the bargaining units appropriate for the successor employer's operations". The Board has to fashion a bargaining structure for THE SUCCESSOR, which in this case THE SUCCESSOR, means each successor separately, because the statute envisages two kinds of successors: the new City and the new local board. Section 22(1) directs the Board to fashion an appropriate bargaining unit for the operations of the City and an appropriate bargaining unit for the operations of the WA.
In light of the legislative framework, I do not see how the Board can merge the TPA employees into the broader complement of City employees, or make the TPA employees part of the City's revised bargaining unit(s).
There is much to be said for CUPE's concern that "work" may drift from one bargaining unit to another (i.e. from the City to the local board), and that on the perimeter, there is really not much analytical distinction between what City employees do and what TPA employees do. There are a variety of ways that these services can be sensibly delivered - as evidenced by the diverse experience of the former municipalities - and quite a number of "parking functions" remain with the City. To the extent that the functions historically performed by City employees are hived off to the TPA, there will be a loss of work opportunities for the City workers and a corresponding gain for TPA employees (also represented by CUPE, but now under a separate collective agreement).
This is a potential source of labour relations controversy, which has already surfaced in other litigation before the Board. However, it seems to me that that is what flows from the separate existence of the local board, and the fact that there is more of an "interface" with City employees than would be the case for, say, the library board or the Zoo. I agree with Local 416's concern; but it seems to me that it flows from a structure that the statute preserves. And I use the word "preserves", because it must be remembered that the old TPA was a separate entity and had a separate bargaining unit too.
In any event, as I read section 22(1) of Bill 136, the Board does not have authority to combine bargaining units across different successor employers.
Nor is it so obvious that the Board "should" do so even if it had the authority; for, although the problems outlined by Mr. Goldblatt are real enough, the established collective bargaining pattern favours the position urged by the the City and the TPA. The City and the TPA both assert that the operational needs of the new municipality and the TPA are best met by preserving the separate bargaining unit structure that was in place before - the WA pointing out that this also seems more consistent with the statutory scheme.
Now it is quite clear that this "appendage" is heavily influenced by the City that, through its bylaw making power, can substantially control the way in which the TPA operates and even dissolve it altogether. But the fact is, a separate bargaining structure has been in place for many years, and no one has ever claimed that the City was the "real employer" of the parking employees. Nor, over 25 years or so, has anyone suggested that it should be declared to be a "related employer" under section 1(4) of the Labour Relations Act.
There are very significant elements of control or potential control that the City has over this "appendage" either through its influence in appointing the directors or TPA, or through its ownership of the lands used by TPA, or through the extensive powers that can be exercised by-laws passed pursuant to Bill 148. However, as in the case of other local boards (the City calls them "entrepreneurial boards because they are expected to be financially self- sustaining) there is also a considerable degree of operational independence. And there has been a long history of separate collective bargaining.
The full time bargaining unit for the TPA (continued by Bill 136 from the former PAT) has been in place since 1957. For the past 40 years Local 416 (actually its predecessors) has accepted that the TPA employees should be in separate bargaining units from City employees, and PAT/TPA has always dealt with its own labour relations, separate from the City. It has its own personnel policies, and its own human resource personnel. It has conducted its own bargaining for its own collective agreement, and in 1996 experienced its own 8 week strike - which was settled without dictation from the City. It has not been run as a "department" of the City, and there is no reason to believe that this will change.
Obviously the same could be said for the former municipalities. They too had their own separate collective bargaining history; and no one suggests that the seven former bargaining units should therefore be preserved for city workers, contiguous with the former municipal boundaries. However, in my view, the proper comparison is not with the former municipalities, but rather with the former and continuing structure of local boards; and there, the separate bargaining structure is being preserved - albeit, the boards (like the library board) are now much larger.
Against that background, and having regard to the statutory scheme and collective bargaining history, there is nothing incongruous or inappropriate about preserving the separate bargaining unit for the TPA. On the contrary, it seems more consistent with the overall purposes of Bill 136 and the governing statutes that brought about the new organizational framework.
Local 416 suggests that the Board should apply section 1(4) of the Labour Relations Act, and declare that the TPA and the new City are "one employer". It is said that this eliminates the problem of "separate successors" under section 22(1), and in any event, reflects the realities of the situation.
Now, there is certainly a plausible case to be made that the conditions for making a 1(4) declaration are made out - that the new City and TPA are engaged in "related activities or businesses under common control or direction". However, it is less clear that this would solve the "Bill 136" problem, because section 1(4) allows the Board to make a related employer declaration only "for the purposes of this Act" - which is to say, the Labour Relations Act. It is not obvious that such declaration could make two entities "one employer" for the purposes of a different Act - Bill 136.
Nor is it obvious that the Board should exercise its discretion in this way or at this time. even if it has jurisdiction to do so.
The Board has not heretofore collapsed local municipalities and local boards into one another, when there is a history of separate bargaining. (See the analysis of the Board in Etobicoke Public Library Board [1989] OLRB Rep. Sept. 935). Nor would such exercise of discretion be consistent with the scheme of the legislation now before the Board. Bills 103 and 148 quite clearly envisage the separate existence of local agencies and their separate "employer status".
The TPA was created by statute and made a separate successor employer. In light of that, it would certainly be a curious exercise of discretion for the Board to declare that these two statutorily based entities, with a separate labour relations history and distinct treatment for employment purposes, are really "one employer" after all. It would, in effect, be creating the kind of relationship with a local board that the Legislature prescribed expressly for the health board via section 46(6)of Bill 148 - but not for the TPA.
Finally, given the different procedural and jurisprudential foundation of section 1(4) of the Labour Relations Act, I have some doubt that its application should be mixed in with the exercise of the Board's responsibilities under Bill 136; and, in any case, I am not persuaded to do so here.
Such determination is, of course, without prejudice to any application that anyone wishes to make outside the context of Bill 136.
For the foregoing reasons, the Board accepts the submissions of the City and the TPA on this aspect of the case.