[1999] OLRB REP. MARCH/APRIL 283
2875-98-PS The Northwest GTA Hospital Corporation, Ontario (formerly Peel Memorial Hospital, Georgetown and District Memorial Hospital and Etobicoke General Hospital), Applicant v. Ontario Nurses' Association; The Canadian Union of Public Employees; Service Employees International, Local 204; Ontario Public Service Employees Union; Association of Allied Health Professionals: Ontario; Canadian Union of Operating Engineers and General Workers, Responding Parties
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Robert Little, Dymphna Walko-Channan and Dianne Handley for the applicant; Dana Ivanochko, Mohani Swaminathanb, Kim Sheppard and Any Jackman for Canadian Union of Public Employees; Kate Hughes Peggy Reilly and Karen Walsh for Service Employees International Union, Local 204; Richard A. Blair and Tracey Mussett for Ontario Public Serivce Employees Union; Susan Ursel, Bob Frle and Larna Ocampo for Association of Allied Health Professionals: Ontario.
DECISION OF THE BOARD; April 30, 1999
1This is an application pursuant to the Public Sector Labour Transition Act ("the Act").
2The hearing convened on March 30, 1999 was intended to resolve any outstanding issues prior to the ordering of representation votes. The parties put their agreements to the Board, and made submissions on those issues about which they were not able to reach agreement. At the end of the day, the Board issued a "bottom line" decision. These are the reasons for that decision.
3The Northwest GTA Hospital Corporation, Ontario, (the Employer) is the result of the amalgamation of Peel Memorial Hospital, Georgetown and District Memorial Hospital and Etobicoke General Hospital. The Employer is continuing to operate at the three geographically disparate sites.
4The Ontario Nurses' Association (ONA) did not attend the hearing. Counsel for the Employer advised the Board that it was engaged in discussions with ONA, and expected to reach agreement, without the need to come to the Board. The only potential issue that may require intervention is which bargaining unit (if any), the Nurse Educators fall into. In the event that agreement cannot be reached prior to the taking of a representation vote, Nurse Educators will be permitted to cast ballots which will be segregated. The ballots will not be counted unless the parties agree or the Board otherwise directs.
5The parties have agreed that there will be full-time and part-time office and clerical units. The parties have further agreed that Health Records Technicians will fall within the office and clerical units.
6The Canadian Union of Public Employees (CUPE) and the Service Employees International Union (the SEIU) object to the way in which the Employer has proposed to capture the exclusions. While counsel for both accept the assurances of counsel for the Employer that it is not seeking to exclude more employees, CUPE and the SEIU are concerned that a "blanket" exclusion of secretaries to Department Heads/Managers will exclude others, because the titles Department Head and Manager are sprinkled throughout the Employer. The Employer assures the unions that it intends no changes, but because it is still in the process of restructuring, it cannot accede to the unions' request that the exclusions be restricted to the secretaries to specific named department heads.
7There is merit in both positions. The Board has devised its own definition of exclusions, in an effort to capture the concerns of all parties.
Office and Clerical Unit, Full-time:
The Corporation recognizes the Union as the sole collective bargaining agent for all office and clerical employees of the Northwest GTA Hospital Corporation, save and except supervisors, persons above the rank of supervisor, secretaries to the President and CEO, vice Presidents, Directors, Administrative Directors, Medical Chief of Staff, Medical Chiefs of Service, persons regularly employed for not more than twenty-four hours per week, persons employed for school vacation periods and employees covered by other collective agreements.
It is understood that persons employed in the Employee Services, Occupational Health and Labour Relations Departments are excluded from the bargaining unit on the basis that they are employed in a confidential capacity in matters relating to labour relations pursuant to the Labour Relations Act. Secretaries to Department Heads/Managers who are employed in a confidential capacity in matters relating to labour relations pursuant to the Labour Relations Act are excluded.
Office and Clerical Unit, Part-time
The Corporation recognizes the Union as the sole collective bargaining agent for all office and clerical employees of the Northwest GTA Hospital Corporation, regularly employed for not more than twenty-four hours per week, save and except supervisors, persons above the rank of supervisor, secretaries to the President and CEO, vice Presidents, Directors, Administrative Directors. Medical Chief of Staff, Medical Chiefs of Service, and employees covered by other collective agreements.
It is understood that persons employed in the Employee Services, Occupational Health and Labour Relations Departments are excluded from the bargaining unit on the basis that they are employed in a confidential capacity in matters relating to labour relations pursuant to the Labour Relations Act. Secretaries to Department Heads/Managers who are employed in a confidential capacity in matters relating to labour relations pursuant to the Labour Relations Act are excluded.
8The parties have further agreed that there will be full-time and part-time service units. Counsel for the Canadian Union of Operating Engineers and General Workers (CUOE) argued that the Board should maintain its craft bargaining unit of stationary engineers. Counsel submitted that its unit has always been small, and though the numbers have shrunk, due to changes in technology, it is still a viable bargaining unit. Counsel submitted that the Employer had not established that the unit was not viable, or that its continuation would result in labour relations problems for the Employer. Counsel noted that its members are not generally interested in the opportunities for mobility that are offered in a larger bargaining unit, because the available positions are generally less skilled, and displaced engineers are more likely to look for opportunities at other workplaces.
9Counsel for the Employer and counsel for the Ontario Public Service Employees Union (OPSEU) argued that the bargaining structure would be unduly fragmented if a bargaining unit of 6 stationary engineers was maintained, in an environment in which the other bargaining units would number in the hundreds.
10The Board has signalled in at least two decisions (Humber/Northwestern/York Finch Hospital, [1997] OLRB Rep. Sept./Oct. 872 and Sunnybrook and Women's College Health Sciences Centre, March 10, 1999, Board File # 2246-98-PS) [now reported at [1999] OLRB Rep. Mar./Apr. 346] that it would be unlikely to maintain a bargaining unit of stationary engineers in the exercise of bargaining unit rationalization envisioned under the Act. In Humber, supra, at paragraph 12, the Board said:
On an application for certification, the Board is required to determine the "unit of employees that is appropriate for collective bargaining" [see section 9 of the Act]. However, in a hospital setting, and in the absence of the parties' agreement, the Board would not usually exclude maintenance employees or operating engineers from the standard hospital "service" unit-as was apparently done for some reason at Humber Memorial. Maintenance employees are regularly part of that "standard" "service unit". Nor, if it were disputed and the Board had to adjudicate the matter would the Board normally find a separate bargaining unit of maintenance employees and operating engineers (as exists at Northwestern) to be "appropriate". The Board would not normally make the "maintenance department" a separate bargaining unit, nor would it segregate and bundle together a unit of 'maintenance" classifications.
11In this case (unlike Sunnybrook) there is no agreement that the stationary engineers maintain their bargaining unit. The Board is not satisfied that continuing a tiny island of a single job classification (albeit a skilled one) with 6 incumbents, makes any sense, particularly in the context of an exercise to rationalize bargaining units, at a time when the trend in the jurisprudence is to larger, not smaller bargaining units. The Board has determined that the stationary engineers will no longer have their own bargaining units, but will be included in the service units. The service bargaining units are as follows:
Service Unit, Full-time
The Corporation recognizes the Union as the sole collective bargaining agent for all service employees of The Northwest GTA Hospital Corporation, Ontario, save and except professional medical staff, graduate nursing staff, undergraduate nurses, graduate pharmacists, graduate dietitians, student dietitians, technical personnel, supervisors, persons above the rank of supervisor, office and clerical staff, persons regularly employed for less than 37.5 hours per week, persons employed for school vacation periods, and employees covered by other collective agreements.
Service Unit, Part-time
The Corporation recognizes the Union as the sole collective bargaining agent for all service employees of The Northwest GTA Hospital Corporation, Ontario regularly employed for less than 37.5 hours per week and students employed during school vacation periods, save and except professional medical staff, graduate nursing staff, undergraduate nurses, graduate pharmacists, graduate dietitians, student dietitians, technical personnel, supervisors, persons above the rank of supervisor, office and clerical staff and employees covered by other collective agreements.
12The next issue addressed was whether the Board should maintain the paraprofessional bargaining unit at Etobicoke for which the Association of Allied Health Professionals of Ontario (AAHP:O) holds bargaining rights. OPSEU hold bargaining rights for the technical units at Etobicoke and Georgetown. Technical employees at Peel Memorial have not been organized. Counsel for AAHP:O submitted that section 22(2) of the Act contemplates the Board ordering a bargaining unit of professional employees "who commonly bargain separately and apart from other employees". Counsel submitted that there was no reason to disturb the present bargaining unit of paraprofessionals at Etobicoke. There was no evidence of undue fragmentation or labour relations difficulties with the present structure. In addition, counsel argued, it has to be remembered that the three sites of the amalgamated hospital are in separate municipalities. The Board has traditionally used municipal boundaries to delineate bargaining units, so maintaining an Etobicoke paraprofessional bargaining unit would also be consistent with the Board's practice. Counsel indicated that her client was not concerned about diminished work opportunities because there were no indications that job dislocation was in the offing. Counsel argued that the three sites have continued to operate much as before, without rationalization of services, or intermingling of staff. Counsel for OPSEU, not surprisingly, favoured a broader paramedical/technical unit. Counsel noted that in Sunnybrook (above), the Board rejected a request for site specific bargaining units. Counsel suggested that the Board had to look to the future and anticipate restructuring that would diminish the opportunities for paraprofessionals in Etobicoke if they were in a relatively small, isolated bargaining unit. Counsel for the Employer echoed OPSEU's submissions.
13The Board determined that it was appropriate to have a single paramedical/technical unit, which will encompass the classifications in the AAHP:O bargaining unit at Etobicoke. The bargaining unit configuration sought by AAHP:O would not merely separate paraprofessional staff from technical staff, it would isolate a fragment of paraprofessionals at Etobicoke, separated from persons doing the same work at the other locations. The municipal boundaries argument is not as compelling when the locations that cross municipal boundaries are part of an integrated entity. The Board recognizes that there is considerable debate about how integrated this new organization will be, particularly given the geographic realities. But the Board would be naive to assume that this organization will be untouched by the forces of rationalization. A more comprehensive unit will be more flexible, and able to respond to the inevitable changes that will come.
14The bargaining unit will be as follows:
The Corporation recognizes the Union as the exclusive Bargaining Agent for all paramedical, professional and technical employees of The Northwest GTA Hospital Corporation, Ontario, save and except supervisors, persons above the rank of supervisor, and persons covered by subsisting collective agreements.
For the purpose of clarity, the term "paramedical" includes occupational therapists, speech therapists, speech pathologists, physiotherapists, therapeutic and administrative dieticians, registered and non-registered pathological technologists, radiological technologists (radiography), radiological technologists (nuclear medicine), registered and non-registered respiratory technologists, registered and non-registered EEG, ECG and ophthalmology technicians, registered and non-registered ultrasound technologists, glaucoma technicians, ear, nose and throat technicians, cardiovascular technicians, electro-encephalographists, electrical shock therapists, laboratory technicians and laboratory assistants, electronic technicians, psychometrists, pharmacists, pharmacy technicians, psychologists, remedial gymnasts, medical records librarians, social workers, child care workers, nutritionists, dental health educators and bio-medical technicians, activation co-ordinator, phlebotomist, rehab assistants/aide, orthopaedic technician, morgue technical/assistant, crisis intervention worker, discharge planning co-ordinator, discharge planner, addiction crisis worker, addiction counsellor, RT education co-ordinator, recreationist/recreationist therapist, I.V. technician, pre-admit technician, child care co-ordinator, cytotechnologist, behavioural consultant, anaesthesia support technician, case manager, lab technologist.
15The trade unions have all requested access to members of the bargaining units prior to any representation votes. The nature of the access they sought had some relation to their present visibility in each of the workplaces. Counsel for the Employer argued that the Board's jurisdiction to order access is doubtful, but he hastened to add that the Employer was nevertheless interested in working out access solutions.
16The biggest debate surrounded the appropriateness of providing the trade unions with the names and addresses (but not telephone numbers) of employees in the bargaining units. The Employer and the SEIU resisted the request of CUPE, OPSEU and AAHP:O for this information. Counsel for the Hospital argued that it was invasive, and unnecessary given other access options.
17The Board is satisfied that it has the jurisdiction to order access as part of its obligation in Bill 136, as set out in the purpose "to facilitate the establishment of effective and rationalized bargaining structures in restructured broader public sector organizations". The need for the access the trade unions (or rather, most of them) seek has been driven, not by typical organizing motivations, but by a statutory obligation to participate in the rationalization of bargaining units. It is the statute, and the Board, that has, as it were, dictated the need for the trade unions to participate in representation votes. Seen in this context, the access is both appropriate and within the Board's jurisdiction to give.
18The Board ordered the Employer to provide the bargaining agents as soon as practicable, with lists of employees' names and addresses, leaving it to the parties to agree on the form in which the material will be provided, but diskettes seem sensible.
19Each bargaining agent will have two opportunities to meet with all employees, on the Employer's premises, but outside of normal work hours. This will likely mean that each bargaining agent will schedule 4 meetings with the affected employees, to cover off both shifts, but that is left to the discretion of the bargaining agents. The bargaining agents can use Employer bulletin boards to advertise the time and location of meetings.
20The Board makes no order giving access to the Employer's internal mail system, nor does it consider it necessary to make any order restricting the Employer's ability to communicate with employees through its mail system or otherwise.
21Each bargaining agent can hand out leaflets at the Employer's workplace entrances (except Emergency) on two occasions of two hours each. The bargaining agents will negotiate a schedule for distribution and inform the Employer.
22The parties will meet with a Labour Relations Officer to make vote arrangements.