Sunnybrook and Women's College Health Sciences Centre v. Canadian Union of Public Employees, 1999 CanLII 19983

[1999] OLRB REP. MAY/JUNE 553

2246-98-PS Sunnybrook and Women's College Health Sciences Centre, Applicant

v. Canadian Union of Public Employees; Ontario Nurses Association; Ontario Public Service Employees Union; Service Employees' International Union, Local 204; The Association of Allied Health Professionals: Ontario; Brewery, General and Professional Workers' Union; Hotel Employees Restaurant Employees Union, Local 75; Sun­nybrook Hospital Employees Union, Local 777; International Union of Operating Engineers, Local 796, Responding Parties

Bargaining Unit - Public Sector Labour Relations Transition Act - Successor hospital encompassing three former independent hospitals - Board not accepting that multi-site bar­gaining units would undermine independence contemplated for Women's College Hospital in Sunnybrook and Women ~ College Health Sciences Centre Act, 1998 - Board finding that bargaining units of successor hospital should encompass all three geographically separate sites located within City of Toronto

BEFORE: Laura Trachuk, Vice-Chair.

DECISION OF THE BOARD; June 24, 1999

1. This is an application under the Public Sector Labour Relations Transition Act, 1997 (referred to as the "Act").

2. The applicant (referred to as the "hospital") is the creation of the Sunnybrook and Women's College Health Sciences Centre Act, 1998 (referred to as the "SWCHSC Act"). It encompasses three formerly independent hospitals, Sunnybrook Hospital; Women's College Hospital and the Orthopaedic and Arthritic Hospital.

3. In an oral decision on February 26, 1999 the Board ruled pursuant to section 22 of the Act, that the bargaining units at the applicant (referred to as the "hospital") should encompass all three of the sites. The following are the reasons for that decision.

4. The Canadian Union of Public Employees, Ontario Public Service Employees Union, Service Employees International Union Local 204 and Association of Allied Health Professionals:

Ontario all represent bargaining units at the Women's College Hospital site. They all opposed multi-site bargaining units. The hospital, Ontario Nurses' Association and Sunnybrook Hospital Employees Union, Local 777 supported multi-site bargaining units. (The bargaining units represented by the other unions referred to in the style of cause were the subject of the Board's decision of March 10, 1999.) The Women's College Hospital unions argued that multi-site bargaining units were unnecessary in these circumstances because there would be separate programmes at the different sites and there was no evidence that employees would be transferred between those sites once the programmes were established. It was also argued that multi-site bargaining units would undermine the independence contemplated for Women's College Hospital in the S WCHSC Act.

5. The Sunnybrook and Women's College Health Sciences Centre Act, 1998 was apparently passed in response to public concerns that Women's College Hospital, with its special emphasis on women's health care, would disappear as a result of a proposed amalgamation with Sunnybrook Hospital. The stated purposes of the S WCHSC Act are as follows:

6. To provide for the amalgamation of Sunnybrook Hospital and Orthopaedic and Arthritic Hospital so that all the assets and liabilities of the two hospitals become those of the amalgamated corporation.

7. To transfer all the assets and liabilities of Women's College Hospital to the amalgamated corporation as though Women's College Hospital were amalgamating with Sunnybrook Hospital and Orthopaedic and Arthritic Hospital and to allow Women's College Hospital to continue to exist as a separate corporation.

8. To ensure that the amalgamated corporation honours the commitments and obligations of Sunnybrook Hospital to provide health care to veterans.

9. The SWCHSC Act also contains the following provisions:

Transfer of Women's College Hospital's assets and liabilities

4. (1) On the day this Act comes into force, the rights obligations, assets and liabilities of Women's College Hospital, as they were immediately before the day this Act comes into force, become the rights, obligations, assets and liabilities of the corporation.

Transfer of medial records

(2) Any medical records kept and maintained by Women's College Hospital shall be transferred to the corporation in a manner that will protect the privacy of the records.

Proceedings

(3) On the day this Act comes into force, the corporation replaces Women's College Hospital as a party to any ongoing proceeding.

Claims

(4) Claims that may be made by or against Women's College Hospital as a result of circumstances, events or activities that occurred before the day this Act comes into force shall be made by or against the corporation on or after the day this Act comes into force.

Employees

(5) Persons who, immediately before the day this Act comes into force, were employees of Women's College Hospital become, on the day this Act comes into force, employees of the corporation.

Application of Public Sector Labour Relations Transition Act, 1997

(6) The Public Sector Labour Relations Transition Act, 1997 applies to the transfer of assets and liabilities under this section as though the transfer occurred as part of the amalgamation under section 3 and for the purpose of the application of that Act to the transfer of assets and liabilities and the amalgamation,

(a) Orthopaedic and Arthritic Hospital, Sunnybrook Hospital and Women's Col­lege Hospital are the predecessor employers;

(b) the corporation is the successor employer; and

(c) the day this Act comes into force is the changeover date.

SO. 1998, c. 12, s. 4, in force June 26, 1998 (R.A.).

It provides further:

8. • • •

Programs

(2) The corporation shall establish and operate a musculoskeletal program and a women's health program as priority programs.

Ambulatory care women's health programs

(3) The corporation shall establish ambulatory care women's health programs, including a sexual assault care centre, at a facility to be located at 76 Grenville Street in the City of Toronto.

Change of location

(4) The location of the facility provided for under subsection (3) may be changed by agreement of the corporation and Women's College Hospital or, failing an agreement, in accordance with a dispute resolution mechanism which shall be provided for in the agreement referred to in subsection (6).

Name of facility

(5) The name of the facility referred to in subsection (3) shall be the Women's College Hospital Ambulatory Care Centre, unless changed in accordance with subsection (7).

Management agreement

(6) The corporation shall enter into an agreement with Women's College Hospital for the manage­ment and operation of the programs referred to in subsection (3).

Change of name or to agreement

(7) The name of the facility may be changed, and the agreement referred to in subsection (6) may be amended, only with the written consent of Women's College Hospital and the written consent of the corporation, which consent shall be given only if approved by a special resolution of the board.

Termination of agreement

(8) The agreement referred to in subsection (6) shall not be unilaterally terminated by either party and shall continue unless terminated in accordance with its provisions.

SO. 1998, c. 12, s. 8, in force June 26, 1998 (RA.).

7. The SWCHSC Act also provides in detail for the composition of the hospital's Board of Directors. It requires, among other things, that five of the directors be appointed by Women's College Hospital, that the majority of the voting directors be women and that half of the composition of certain groups of directors be women.

8. At the time of the consultation held in this case, the hospital and Women's College Hospital had not yet entered into the agreement referred to under section 8(6) in paragraph 5 above. However the hospital was able to provide a document called "Proposed Amalgamation Plan Principles for Sunnybrook and Women's College Health Sciences Centre". This document contains a Schedule "C" entitled "Ambulatory Care Centre Contract - Principles". One of the provisions of the "Proposed Amalgamation Plan Principles" provides as follows:

1.13 There will be ambulatory care women's health programs including a sexual assault centre to be located in downtown Toronto. These programs will be located at the Women's College Hospital Ambulatory Care Centre and will be managed under contract by the Women's College Hospital Corporation for S&WCHSC. This will be a standing contract subject to mutually satisfactory adjustments. As part of this contract, the Women's College Hospital Corporation shall provide to S&WCHSC for its approval an annual operating and capital budget and plan for the Women's College Hospital Ambulatory Care Centre. The contract will also include major management goals for the ensuing year, so as to enable the Board of S&WCHSC to evaluate the Women's College Hospital Ambulatory Care Centre's performance. The budgetary process will not be used to diminish or terminate the obligations to the implementation of the women's health mission of S&WCHSC at the Women's College Hospital Ambulatory Care Centre.

9. The Proposed Amalgamation Plan Principles also provide that the CEO of Women's College Hospital Ambulatory Care Centre (referred to as the "WCHACC") will also be the COO of the hospital's "areas of Prenatal/Gynaecology, the Henrietta Banting Breast Programs and Women's Health." It requires that the position be filled through agreement between the hospital's board and the board of "WC Hospital Corp." in consultation with the hospital's CEO.

10. It further provides that "Human Resource issues will be handled in accordance with Bill 136 and the Metro Toronto Human Resource Plan" (section 2.6)

11. Schedule "C" of the above document contains the following provisions:

SCHEDULE "C"

Ambulatory Care Centre Contract - Principles

Preamble:

Section 1.13 of the Plan Principles submitted to the HSRC on February 13, 1998 provides that the

ambulatory care women's health programs, including a sexual assault care centre, directed by the HSRC to be located in downtown Toronto (the "ACC"), shall be managed under contract for S & WCHSC by WCH:

Purpose of the Ambulatory Care Centre:

1. WCH shall manage the delivery of ambulatory care programs and services including the downtown sexual assault care centre at the ACC (to be known as the Women's College Hospital Ambulatory Care Centre) and the ACC shall fully participate in the academic mission of S& WCHSC subject in each case to both the contract between S&WCHSC and WCH and the S& WCHSC strategic plan. The ambulatory care programs and services at the ACC will not require on-site inpatient support and will have a focus on women's health and may include primary, secondary and tertiary care.

2. WCH will manage the ACC in furtherance of the mission of S&WCHSC which includes leadership in women's health. WCH will develop a mission, values and policies for the ACC compatible with the mission, values and policies of S&WCHSC, and the principles of women's health (empowerment of women, accessibility of programs, broad definition of health, high quality care, collaborative planning, innovative and creative approaches), as elaborated in the strategic plan of S&WCHSC.

3. The goals of the ACC are to:

a) make ambulatory services available in a downtown Toronto location; and

b) provide an environment that nurtures leadership and innovation in women's health.

Planning and Accountability:

4. S&WCHSC will establish and monitor quality standards in consultation with WCH. S&WCHSC will make WCH aware of the results of its monitoring of these standards, and WCH will address any deficiencies. S&WCHSC will establish a standing sub-committee of its Medical Advisory Committee which shall include elected and appointed members of the S&WCHSC medical staff practising at the ACC. S&WCHSC acknowledges that WCH will, for their own purposes, also establish standards, goals and mechanisms for ensuring and measuring quality at the ACC.

5. S&WCHSC shall be responsible for funding the ACC. Each year WCH will prepare an operating and capital budget and plan for the ACC, including major goals and objectives (the "yearly plan"). The yearly plan will be based upon 5&WCHSC's operating and financial assumptions and strategic plan, and will be reviewed by S&WCHSC, may be modified by S&WCHSC after consultation with WCH, and shall be subject to the final approval of S&WCHSC. S&WCHSC will monitor the yearly plan on a regular basis and will make WCH aware of the results of its monitoring and WCH will address any deficiencies. Implementation of the yearly plan will be the responsibility of the ACC CEO.

6. The budgetary process will not be used to diminish or terminate the obligations of S&WCHSC with respect to the implementation of the women's health mission of S&WCHSC at the ACC.

7. S&WCHSC shall make available such non-medical staff and medical staff as shall be reasonably necessary for the proper operation of the ACC in accordance with the yearly plan. While assigned to and working at the ACC, S&WCHSC staff shall be subject to the day-to-day management of the ACC CEO and to the mission, values and policies developed by WCH for the ACC which shall be compatible with those of S&WCHSC.

8. The above statutory and agreement provisions set out the general framework in which the WCHACC is to operate. The framework set out in the legislation apparently represents a compromise reached to accommodate the need for an emphasis on women's health care while permitting whatever benefits are perceived to flow from a restructuring of the facilities and the transfer of programmes. Nonetheless, taken all together, those provisions and the others in the legislation and the agreements indicate that Women's College Hospital is to operate within the applicant's organization, albeit with some independence. Thus, although the circumstances of this "amalgamation" are different from others in the province, the effect is much the same. Hence, for the purposes of this inquiry under the Public Sector Labour Relations Transition Act, 1997, it is not relevant whether the Board, or any of the parties, believes that an appropriate balance was struck. What is relevant is whether site specific or multi-site bargaining units are appropriate for the hospital's operations.

9. In South Bruce Grey Health Centre, [1999] OLRB Rep. Jan./Feb. 88, the Board found that a multi-site bargaining unit was appropriate for the operations of a hospital amalgamated under the Act. The Board indicated that it would only be in the most unusual circumstances that it would find single site bargaining units to be appropriate for a hospital created out of a merger or amalgamation under the Act. The circumstances of this "amalgamation" are different from others in the province. However, in the end the Board found that it was appropriate for the nurses/service/clerical and paramedical bar­gaining units to encompass all of the hospital sites.

10. The Board considered all of the factors encompassed by the purposes set out in section 1 of the Public Sector Labour Relations Transition Act, 1997. It also considered which configuration of bargaining units would facilitate the restructuring of the hospitals while maintaining the balance struck in the SWCHSC Act. The Board took into account the operational structure imposed by the SWCHSC Act which, significantly, stipulates that the employees at Women's College Hospital will be employees of the hospital and that the Public Sector Labour Relations Transition Act, 1997 will govern the labour relations fall-out of the restructuring. The legislature has also set out certain requirements such as that women make up 50 per cent of the hospital's board, presumably to safeguard its emphasis on women's health. Again it is not within the jurisdiction of this Board to determine whether those safeguards are sufficient for that purpose, although it must ensure that the configuration of bargaining units does not undermine them. There was no evidence to suggest that multi-site bargaining units would have that effect or that single-site units would necessarily enhance the emphasis on women's health. The SWCHSC Act leaves the WCCACC board and the applicant to reach future agreement with respect to the details of its operations. Ultimately they (and the trade unions) may decide that staff will be dedicated to one site or programme. However, before that day arrives and the WCCACC begins to operate, all of the in-patient programmes have to be transferred to the Sunnybrook site. That is exactly the kind of restructuring that requires a multi-site bargaining unit. A transfer of programmes of that magnitude requires flexibility in the movement of staff.

11. The employees at the different sites will be doing many of the same jobs, many of those employees will have the same professions and they will be working for the same employer. It does not make good labour relations sense for them to be in separate bargaining units and to therefore bargain separately. There will be an extensive transfer of programmes from the Women's College Hospital site to the Sunnybrook site and probably some transfer in the other direction in the next few years. Presumably the hospital, the employees and the unions will want the employees to move with those programmes or to at least have that option. It makes labour relations sense that the employer should have the ability to transfer employees between sites, and that employees should be able to move between sites with their seniority. The Women's College Hospital unions argued that it was unnecessary to consider these factors because they are covered by the Metro Toronto Human Resource Plan. However, the fact that the unions and the hospitals in Toronto have agreed to such provisions is further evidence that a bargaining unit structure which facilitates those needs makes labour relations sense. Multi-site bargaining units in these circumstances will also meet all of the purposes set out in section 1 of the Public Sector Labour Relations Transition Act, 1997.

12. For all of the above reasons the Board found that multi-site bargaining units are appropriate for the hospital's operations.