[1999] OLRB REP. MAY/JUNE 460
2977-98-PS Penetanguishene General Hospital Inc. and Huronia District Hospital Corporation 0/a North Simcoe Hospital Alliance, Applicant v. Canadian Union of Public Employees and its Local 3157, Service Employees International Union, Local 204, and Ontario Public Service Employees Union and its Local 328, Responding Parties
Bargaining Unit - Public Sector Labour Relations Transition Act - Successor hospital and trade unions disputing whether service employees and office and clerical employees should be in one or two bargaining units - Board finding that two units appropriate to successor's operations having regard to purposes of the Public Sector Labour Relations Transition Act
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: K. W Kort and M. Qucaley for the applicant; Nick Milanovic, Dana Ivanochko, Diana Broadbent, Maureen Hill and Colleen Irvine for Canadian Union of Public Employees and its Local 3157; Sean Fitzpatrick, Debbie Elliott and Brad Phelp for Service Employees International Union, Local 204; David Wright, Marlene Stewart, Ed Ogibowski and Tracey Mussett for Ontario Public Service Employees Union and its Local 328.
DECISION OF THE BOARD; May 4, 1999
By decision in this application under section 22 of the Public Sector Labour Relations Transition Act, 1997, S.0. 1997, c. 21 (the "Act") dated February 24, 1999, the Board made a declaration under section 9(1) of the Act and referred the matter to the Registrar.
Subsequent to the Board's decision, counsel for the applicant advised the Board that the correct name of one of the predecessor hospitals the Board had identified as the "Corporation of the Grey Sisters of the Immaculate Conception of the Penetanguishene General Hospital" is "Penetanguishene General Hospital Inc." The title of this proceeding is hereby amended accordingly.
Following the Board's declaration, the parties attempted to resolve the remaining outstanding issues but were unable to do so. The hearing in this matter convened before me for the purpose of determining whether there should be one or two bargaining units of employees engaged in office and clerical functions and service functions.
The employees of the applicant were organized into eight bargaining units: nurses employed by both Penetanguishene General Hospital Inc. ("PGH") and Huronia District Hospital Corporation ("HDH") were in one bargaining represented by the Ontario Nurses Association; paramedical employees employed by both PGH and HDH were in one bargaining unit represented by the Association of Allied Health Professionals: Ontario; office and clerical employees employed by PGH were in one bargaining unit represented by the Ontario Public Service Employees Union and its Local 328 ("OPSEU"); service employees employed by PGH were in another separate bargaining unit represented by OPSEU; office and clerical employees employed by HDH were in two bargaining units, a full-time unit and part-time unit represented by the Canadian Union of Public Employees and its Local 3157 ("CUPE"); and the service employees employed by HDH were in two bargaining units, a full-time unit and a part-time time represented by the Service Employees International Union, Local 204 ("Local 204").
The bargaining units comprised of nurses and paramedical employees are not subject to this proceeding. The parties agreed to broad parameters for the description of the bargaining unit or units; they would not be divided into a full-time unit and a part-time unit; they would apply to both HDH and PGH; and the position of ward clerk, if there are two bargaining units determined to be appropriate under section 22(1) of the Act, would be in the same bargaining unit. (Presently, the ward clerks employed at HDH are in the office and clerical bargaining units while the ward clerks employed at PGH are in the service employees bargaining unit.) The parties disagreed over whether the service employees and the office and clerical employees should be in one bargaining unit or two bargaining units and sought the Board's determination of that issue. The parties also advised the Board they expected that they would be able to resolve any remaining issues with respect to the precise description of the unit or units.
Counsel for the applicant, supported by counsel for OPSEU, submitted that the Act creates a presumption of larger comprehensive bargaining units, particularly where there are a relatively small number of employees affected. Counsel argued that section 22(7) of the Act requires the Board, in determining "the number and description of bargaining units that are appropriate for the successor employer's operations" under section 22(1) of the Act to have regard to the enumerated purposes of the Act set out in section 1, which provides:
"The following are the purposes of this Act:
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 workplace disputes arising from restructuring."
Counsel argued that from an operational perspective it made little sense to have two bargaining units with a relatively small number of employees in each one. Counsel pointed out that the applicant would be employing a total of approximately 250 employees in the single bargaining unit it sought, while there would be approximately 50 employees in the office and clerical unit and 200 in the service unit if the Board were to determine that two units were appropriate.
Counsel for the applicant referred to Sunnybrook and Women's College Health Sciences Centre, [1999] OLRB Rep. Mar./Apr. 346 in which the Board held that the office and clerical bargaining unit and the service bargaining unit were to be maintained as separate units, despite the argument of the employer in that case that they be combined into a single bargaining unit. Counsel referred to the following statement in the Board's decision at paragraph 5:
"All of the predecessor hospitals had separate office/clerical and service units and all of the representatives of the employees in those units ask that they be maintained. The Board acknowledges that separate office/clerical and service units represents a historical practice based on understandings of work and communities of interest which are no longer persuasive."
[emphasis added]
Counsel pointed out that in Sunnybrook and Women 's College there had been a reduction from 23 bargaining units to seven bargaining units involving over 2000 employees.
Counsel also referred to Grey Bruce Health Services, [1999] OLRB Rep. Jan.IFeb. 57 in which the Board also refused to combine office and clerical employees and service employees into one bargaining unit. In that case, the employer initially sought two bargaining units, one for employees providing direct patient care and the other consisting of all clerical, office and service employees involved in providing a support function in a non-patient care capacity. The affected unions (CUPE, SEIU and OPSEU) all submitted there should be separate bargaining units for the nurses and paramedical employees. Two of the three unions (CUPE and SEIU) sought separate office and clerical and service units, while the third (OPSEU) wanted a combined office and clerical and service unit. The Board did not accept the employer's initial position. Once its initial position was not accepted by the Board, the employer agreed with the position taken by CUPE and SEIU.
Counsel for the applicant points out that in both the Sunnybrook and Women's College and Grey Bruce Health Services cases, the majority of the parties affected sought to keep the office and clerical unit and the service unit separate. Also, counsel submitted that there were 1660 employees affected in Grey Bruce Health Services so it was understandable that such a large number of employees would be divided into two separate bargaining units.
Counsel referred to the situation of the ward clerks as an example of how it made much more sense operationally to have a single unit. Another example submitted was the porter and purchasing clerk positions, which counsel argued involved a significant overlap of duties, but would be in different bargaining units if its single bargaining unit submission were not accepted.
Counsel for the applicant submitted that the Board has recognized that larger, more comprehensive bargaining units are to be preferred, except where the larger bargaining unit impedes employees in securing collective bargaining. Counsel argued that there is a presumption in favour of a larger single bargaining unit since there is no issue in this case about employees' access to collective bargaining. Counsel referred to Humber/NorthwesternlYork- Finch Hospital, [1997] OLRB Rep. Sept./Oct. 872 at pages 877-878:
"The second factor that one has to keep in mind is the evolving consensus that broader-based bargaining structures are generally better for collective bargaining - and ultimately better for BOTH employers and employees.
This is not to say that "bigger is always better". However, labour relations boards across the country have all recognized the utility of broader-based bargaining structures, because they are more likely to: promote stability, increase administrative efficiency, enhance employee mobility, and generate a common framework for employment conditions for all employees in an enterprise. Bigger bargaining units also have more critical mass, so that they are better able to facilitate and accommodate change. (See the policy considerations enunciated by the British Columbia Labour Relations Board in Insurance Company of British Columbia (1974), 1 Can. LRBR 403 - a case which, incidentally, involved a large public sector institution; and compare, in a different legal context, the decision of this Board in Mississauga Hydro -Electric Commission, [19931 OLRB Rep. June 523.)
In the absence of statutory prescriptions, there is, today, a pronounced preference for broader-based bargaining units, unless that objective collides in a serious way with the employees' ability to organize themselves. Indeed, the Board has often favoured broader-based bargaining units, even in certification situations, where the shape of the unit may well influence whether there will be any collective bargaining at all. The Board has recognized that the structure of collective bargaining "matters" - as it noted in cases such as Board of Governors of Ryerson Polytechnical Institute, [19841 OLRB Rep. Feb. 371; Bestview Holdings Limited, [19831 OLRB Rep. Aug. 1250; The Board of Education for the City of Toronto, [1986] OLRB Rep. June 900; Kidd Creek Mines Limited, [1984] OLRB Rep. Mar. 481; TV Guide Inc., [19861 OLRB Rep. Oct. 1451; and, more recently, Pepsi Cola, [19951 OLRB Rep. Aug. 1311. Fragmented bargaining structures can pose serious labour-relations problems. Conversely, broader based bargaining units make collective bargaining go more smoothly and successfully.
There is nothing particularly novel about these observations. Nor are they unique to Ontario, or to the Ontario Labour Relations Board. The consolidation of bargaining structures has been ongoing in other jurisdictions for many years (the Post Office, CBC, railways, and airlines come to mind); and policy considerations such as those discussed in the Ontario cases can be found in the reasons of other adjudicators in other jurisdictions. Those boards, too, have been inclined to favour more comprehensive bargaining units unless there are persuasive countervailing considerations. See, for example: ICBC, supra; Canadian Pacific Limited (1976), 1 CLRBR 361; Saskatchewan Wheat Pool (1977), 1 CLRBR 510;Atomic Energy of Canada Ltd. (1978), 1 CLRBR 92; British Columbia Telephone Limited (1977), 2 CLRBR 385; CBRT and Sea Span International Ltd. (1979), 2 CLRBR 213; and compare the "rethiniting" evidenced in Ontario cases such as Mississauga Hydro-Electric Commission, supra, and Caressant Care Nursing Home of Canada Limited, [19961 OLRB Rep. Sept./Oct. 748."
- Counsel also reminded the Board that the task of determining the appropriate bargaining unit under section 22(1)of the Act is different from the Board's determination of the appropriate bargaining unit in a certification application made under the Labour Relations Act, 1995, 5.0. 1995, c. 1. Section 9(1) of the Labour Relations Act, 1995 requires the Board to "determine the unit of employees that is appropriate for collective bargaining" whereas section 22(1) of the Act requires the Board to "determine the number and description of bargaining units that are appropriate for the successor employer's operations". The Board in City of Toronto, [1998] OLRB Rep. Sept./Oct. 772 commented upon the different considerations the Board must apply under the Act at pages 774-775:
"Under Bill 136 [the Act], 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."
In essence, counsel for the applicant argued that the Board must give effect to the practical realities of the new organization and to do so, the Board must focus principally on the operational requirements of the employer. Those operational requirements, counsel submits, dictate that the bigger bargaining unit is better from an operational perspective and that the burden is on the unions opposed to the applicant's proposed bargaining unit to persuade the Board that the applicant's proposed larger, comprehensive bargaining unit is not appropriate.
Counsel for OPSEU supported the submissions of counsel for the applicant. He pointed out that the larger single bargaining unit is also better for employees. The office and clerical employees and the service employees share common skills and job interests. Counsel used the ward clerk position as an example in support of his argument. Counsel submitted that keeping the office and clerical employees in one unit and the service employees in another unit would create seniority barriers for employees and impede the movement of employees to jobs they would be capable of performing if those jobs were in the other bargaining unit. The different bargaining units at the PGH are an historical anomaly, counsel submitted, that no longer has any relevance. Counsel further submitted that there is no longer a difference in the bargaining results between service employees and office and clerical employees in the hospital sector.
Counsel also argued that the modern approach to bargaining unit structures in the hospital sector is to have a single unit of service employee and office and clerical employees. Counsel referred to Centre forAddiction and Mental Health, [1998] OLRB Rep. Sept./Oct. 759 in which the Board wrote at page 761:
"...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."
Counsel for OPSEU also relied on comments made by the Board in Humber/Northwestern/York-Finch Hospital, sup ra, at page 878, referred to by counsel for the applicant and in Pembroke General Hospital, [1997] OLRB Rep. Sept./Oct. 918 at 923:
it is fair to say that the dominant feature of the decision [Humber/Northwestern/York-Finch Hospital, supral is the proposition that broader based bargaining units, all other things being equal, will be viewed by the Board as more appropriate and, hence, as between two appropriate units, will be the one selected."
Counsel for Local 204 and counsel for CUPE took the opposite view of the situation. They pointed out that there were no facts presented to support the contention that the bargaining unit structures currently in place in which the office and clerical employees and service employees are, at each of hospitals, in their own bargaining unit or units (as there are both a full-time and a part-time bargaining unit of office and clerical employees and of service employees at HDH) are not appropriate for the applicant's operations. They submitted that without any evidence or even factual assertion of labour relations difficulties having arisen from that current structure, there is no reason for the Board to change it beyond what the parties have agreed to.
Counsel for Local 204 pointed out the Board in City of Toronto, supra, in commenting upon the Act at page 774, recognized that "...organizational change may make it necessary to re-draw the bargaining unit boundaries, in order to adopt collective bargaining structures to the new institutional framework." Counsel rhetorically asks why is it necessary in this case? Surely it is not enough for a massive change in the existing bargaining structure to take place simply because the successor employer says so. Counsel argues that there have been no problems with the existing structures so it is not necessary to combine bargaining units that have been working well up to now. Counsel also referred to the Board's decision in Grey Bruce Health Services, supra, at paragraph 12 in which the Board, although noting that OPSEU's argument in that case for a single service and office and clerical bargaining unit was, in principle, a bargaining unit structure that made labour relations sense, stated:
"However, the difficulty in this case was that the bargaining unit configuration proposed by OPSEU did not currently exist at any of the sites and was not supported by any other party. Therefore, in these circumstances, and given the upheaval and uncertainty present currently in the hospital sector, it is not necessary in this case to potentially further complicate matters by putting employees together who have not previously bargained together."
Counsel submitted that the long history of separate service units and separate office and clerical units at HDH without any evidence of labour relations problems undercut the argument of the applicant. Counsel submitted that unless there are compelling reasons to deviate from the existing bargaining unit boundaries, to do so would unnecessarily further complicate the labour relations situation at the applicant's operations.
Counsel also submitted that the ward clerk "issue" raised by the applicant existed simply by reason of historical development. He submitted that the Board has recognized that ward clerks may fall into either the office and clerical unit or the service unit, depending upon which employees were first to organize. Counsel referred to the Board's decision in The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 at 283 where the Board wrote: "The evidence and collective bargaining practice suggest to us that the ward clerks can fit quite comfortably into either an office and clerical unit or the service unit. In either case, the overall bargaining unit will be appropriate."
Counsel for CUPE adopted all of the submissions made by counsel for Local 204. He emphasized the long history of separate bargaining units of service employees and office and clerical employees. He also pointed out that the applicant had not, other than by saying so, demonstrated how or why operational requirements demanded a single bargaining unit of service and office and clerical employees.
The Board accepts the applicant's argument that the approach to bargaining unit determinations under the Act must be made by having regard to the purposes of the Act and to the specific direction in section 22(1) of the Act that the Board's finding of appropriateness must principally relate to the successor employer's operations having regard to the purposes of the Act set out in section 1. The Board recognized in City of Toronto, supra, at pages 774-775 that the Act created different criteria for the Board to use in making bargaining unit determinations under section 22. The Board in that decision also noted at page 775:
"It is important to recognize, though, that despite its enumerated purposes, the application of Bill 136 [the ActI 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....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."
The bargaining unit configuration in place at the applicant's operations is currently eight bargaining units represented by five different unions. The applicant and OPSEU want to end up with three bargaining units while Local 204 and CUPE submit that at the end of the day, four bargaining units are appropriate for the applicant's operations. In my view, there is no presumption in favour of larger bargaining units where the parties have reached partial agreement on a bargaining unit configuration that minimizes the Board's concern over fragmentation. The parties in this case agreed to eliminate the distinction between full time and part time employees at HDH and also agreed that the bargaining unit or units would encompass the entirety of the applicant's operations, eliminating the separate bargaining units of employees at HDH and PGH. In my view, those agreed upon changes are clearly appropriate for the applicant's operations.
The applicant and OPSEU go further and assert that there should only be one comprehensive unit of non-professional employees. (The nurses and the paramedical employees are each within their own bargaining unit.) In my view, the Act does not compel that result, particularly having regard to the purposes of the Act to which the Board must have regard by reason of section 22(7). Items 2, 3 and 4 of the enumerated purposes of the Act, I believe, are a balance for the direction given to the Board in section 22(1). The criteria for determining the appropriate bargaining unit is not just the employer's operations; rather the Act directs the Board to assess what bargaining unit configuration will "facilitate the establishment of effective and rationalized bargaining unit structures...", will "...facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees following restructuring..." and will"... foster the prompt resolution of workplace disputes arising from restructuring." (See section 1 of the Act, items 2, 3 and 4.) In my opinion, item 1 of section 1 is directed more towards determining the successor employer's organization and structure and has only a minimal impact on the Board's determination of the appropriate bargaining unit under section 22(1).
Effective and rationalized bargaining units, in my opinion, require that employees in those units be effectively represented without impeding the employer's operations. The service employees and the office and clerical employees at both HDH and PGH have been in separate bargaining units which, prima facie, suggest some degree of separate interests being represented in collective bargaining. Although there may be some overlap of skills and job duties, that historical structure, in the absence of evidence of difficulties caused by that existing structure, indicates that the distinction between office and clerical employees and service employees has been effective for the employees and has not detrimentally impacted on the applicant or its predecessors.
There have not been any examples of difficulties arising during the collective bargaining with the applicant and its predecessors. Collective bargaining among the parties has worked up to now. There has been ongoing consolidation of services and programs at HDH and PGH and the current bargaining structure has not adversely affected that process. In my opinion, changing the bargaining structure by putting office and clerical employees into one bargaining unit with service employees may well make bargaining more difficult rather than facilitate bargaining, particularly where two groups of employees who have been in separate units are compelled to bargain together. Also, given the disparity between the number of office and clerical employees and the number of service employees, the interests of the office and clerical employees may be submerged by the interests of the larger group of service employees if they were in one unit.
The objective of fostering prompt resolution of workplace disputes contains the assumption that the Board should try to avoid creating workplace disputes through its bargaining unit determinations under section 22 of the Act. The comments of the Board in Grey Bruce Health Services, supra, at paragraph 12: "...given the upheaval and uncertainty present currently in the hospital sector, it is not necessary in this case to potentially further complicate matters by putting employees together who have not previously bargained together." and in City of Toronto, supra, at page 775: "...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." are particularly apt in this context. Those comments suggest the Board should exercise some caution when asked to eliminate existing bargaining units by combining them after the Board has made a declaration under section 9 of the Act and should do so only when the established bargaining structures are not "workable" in the successor employer's operations.
There is not, in my opinion, a default of "bigger is better" where the parties cannot agree on the bargaining unit configuration under the Act. Nor is the burden on the parties who want smaller bargaining units to demonstrate that the larger bargaining unit is not appropriate. Rather, the Board's approach in these sorts of cases appears to favour the bargaining unit structure that would result in relatively minimal disruption to the existing labour relations framework provided it is appropriate for the successor employer's operations (bearing in mind that many different bargaining unit structures may be appropriate and that the Board does not have to determine what structure is the most appropriate) and the purposes of the Act are met by that structure.
In my view, the larger unit sought by the applicant and OPSEU is not the only bargaining unit appropriate for the applicant's operations. Clearly, the bargaining unit they propose is appropriate for the applicant's operations and is consistent with the purposes of the Act. Nevertheless, I am satisfied that the bargaining unit structure proposed by Local 204 and CUPE is also appropriate for the applicant's operations and is also consistent with the purposes of the Act. Where there may be more than one bargaining unit configuration appropriate for a successor employer's operations that are also consistent with the purposes of the Act, I am of the view that the Board should opt for the configuration that causes the least disruption to the existing pattern of collective bargaining.
All of the parties agreed that the ward clerks working at PGH and HDH should be in the same bargaining unit. The applicant indicated that if the Board were inclined to find that separate office and clerical and service bargaining units were appropriate, it was not concerned within which of those two units the ward clerks came. OPSEU submitted that if the Board found two bargaining units appropriate, the ward clerks should go into the service employees unit (being the larger of the two units). CUPE, not surprisingly, submitted that they should go into the office and clerical unit while Local 204 again, not surprisingly, submitted that they should go into the service unit.
The Board is satisfied that the office and clerical employees constitute a bargaining unit appropriate for the applicant's operations and that the service employees also constitute a bargaining unit appropriate for the applicant's operations. The parties indicated to the Board that the precise description of each of the bargaining units should be remitted to them to attempt to reach agreement. The Board is also of the view that all of the ward clerks should be in the same bargaining unit, but at this point, I leave the issue as to which of the two bargaining units to the parties as well.
This matter is referred to the Manager of Field Services for the appointment of Labour Relations Officer to assist the parties in resolving all of the outstanding issues and making the necessary arrangements for such representation votes as may be required.
This panel of the Board remains seized with this matter.