[1999] OLRB REP. JULY/AUGUST 663
2977-98-PS Penetanguishene General Hospital Inc. and Huronia District Hospital Corporation o/a North Simcoe Hospital Alliance, Applicants 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
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD: July 15, 1999
The Board, by decision dated May 4, 1999 in this proceeding under the Public Sector Labour Relations Transition Act, 1997, S.O. 1997, c. 21 (the "Act"), determined at paragraph 30 that the office and clerical workers constituted an appropriate bargaining unit under the Act and that the service workers also constituted an appropriate bargaining unit under the Act. The Board noted that the parties had agreed that the ward clerks should be in the same bargaining unit and adopted their agreement, but left it to the parties to attempt to reach agreement on the precise description of each bargaining unit and to also attempt to agree upon which of the two bargaining units would have the ward clerks. Fortunately, the parties were able to reach agreement on all of the outstanding issues except for the placement of the ward clerk position.
The applicant, who initially at the hearing of this matter in April, took no position with respect to the bargaining unit into which the ward clerk position should fall, submitted that the ward clerk position should come within the service workers unit. OPSEU which represents both service workers and office and clerical workers at Penetanguishene General Hospital (and has ward clerks in the service workers unit) submits that the ward clerk position should come within the service workers unit. CUPE which represents ward clerks in the office and clerical unit at Huronia District Hospital submits that the ward clerks should be in the office and clerical unit while Local 204, which represents the service workers bargaining unit at Huronia District Hospital takes no position with respect to which bargaining unit should have the ward clerk position.
The parties' agreement provided that the parties were to make written submissions to the Board with respect to the bargaining unit to which the ward clerks would belong. The agreement also provided:
"The parties agree to and request that the Board make its decision on the ward clerk issue based on these written submissions. The parties reserve the right to have the matter heard by the Board in the event that there are any unresolved factual differences."
In my view, the parties' agreement contemplated that the Board would review the written submissions and determine whether there were any factual differences material to the Board's disposition of the issue. I note in that regard that the applicant, in its reply submissions dated July 6, 1999 and OPSEU in a letter from its counsel dated July 7, 1999 both submit that there are factual disagreements among the parties and therefore the Board must convene a hearing, pursuant to the parties' agreement, before deciding the issue.
Having reviewed all of the written submissions, I am satisfied that the disputed factual issues are not material to my disposition of the matter. The ultimate determination of the bargaining unit to which the position of ward clerk belongs in this case is a determination where the factual context assists the Board but the differences in fact raised by the parties would not, in my opinion, change the result. The Board must have regard first to the intent of the Act and then to the underlying factual context that gives rise to the dispute.
Local 204, which continues to take no position with respect to which of the two bargaining units the ward clerk position belongs, submits that the Board should conduct a vote (or some other sort of poll) among the ward clerks to find out from them whether they wish to go into the office and clerical unit or the service employees unit.
In my view, Local 204's position is without merit. The Board will not canvass the employees affected to find out their wishes with respect to which of the two bargaining units they wish to come within when making a determination under section 22 of the Act. Unlike section 9(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1 as amended, which permits the Board to conduct a vote among employees for the purpose of ascertaining their wishes as to the appropriate bargaining unit before determining an appropriate bargaining unit, section 22(1) of the Act requires the Board to determine the description of the bargaining unit appropriate for the employer's operations, having regard to the purposes of the Act. While paragraph 3 of section 1 of the Act (upon which Local 204 relies) speaks of trade unions that are the freely—designated representatives of the employees following restructuring, that section does not contemplate that employee wishes have a role in determining which bargaining unit they will be in as opposed to which bargaining agent will represent them. The employees will certainly have the right to participate in a representation vote that will be used to determine the identity of the trade union that will represent them and all of the other employees in the bargaining unit.
Ward clerks (or using the term for the position as agreed by the parties, Unit Clerks or Nursing Unit Clerks) are in the office and clerical unit represented by CUPE at Huronia District Hospital while those positions are in the service workers unit represented by OPSEU at Penetanguishene General Hospital. Both the applicant and OPSEU submit that the Unit Clerks and Nursing Unit Clerks have a great deal of interaction with the employees in the service unit and not as much contact with the other clerical staff who occupy positions in the medical records, financial services, reception and admissions areas who are in the office and clerical unit. CUPE, on the other hand submits that the degree of interchange with other clerical staff is much greater than the applicant and OPSEU suggest. The Unit Clerks and the Nursing Unit Clerks are a part of the nursing unit care teams and are regularly involved with patients and their families together with other nursing staff who are either in the service unit or are registered nurses in the bargaining unit represented by the Ontario Nurses Association.
The applicant and OPSEU submit that having the Unit Clerks and the Nursing Unit Clerks in the office and clerical bargaining unit would impede the applicant's operations. The applicant points to claims made by CUPE in grievances alleging that employees from outside of the CUPE bargaining unit were doing bargaining unit work in relation to the work performed by the Unit Clerks and Nursing Unit Clerks. CUPE submits that its long history of representing clerical employees in the hospital sector militates in favour of having the positions in dispute remain in the office and clerical unit. With respect to the grievances, it submits that occasional disagreements will arise in any relationship and the fact that there have been grievances over work assignments does not point to any serious labour relations problems.
As the Board noted in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 at 283:
"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."
In this case, the applicant has articulated several grounds for suggesting that the positions in dispute should come within the service unit. OPSEU, which represents employees in both service and office and clerical units supports the position taken by the applicant. Unlike determining the appropriate bargaining unit in a certification proceeding, the Act directs the Board to have regard to the unit appropriate to the employer's operations.
It appears to me that the applicant has established in its submissions several persuasive grounds for having the positions in dispute come within the service unit. Their close relationship with the patient care team which is comprised of other employees who are either in the service unit or the nurses' unit is a significant factor militating in favour of the applicant's position. It is also interesting to note, as counsel for OPSEU does in its submissions that OPSEU, which represents both an office and clerical unit and a service unit, has a perspective that is not based on its own organizational self interest since it might represent those employees regardless of which unit they come within (or might not represent any of them, depending on the outcome of the representation votes). OPSEU also points out that there have not been any disputes over the assignment of work involving the Unit Clerks or the Nursing Unit Clerks when they were in the service unit, but have arisen when those positions were within the office and clerical unit. Finally, the applicant has presented several compelling arguments to support its position that the inclusion of the Unit Clerks and the Nursing Unit Clerks in the office and clerical bargaining unit would impede the applicant's operations.
Therefore, I am satisfied, having regard to section 22 of the Act and to the circumstances of the applicant's operations, that the Unit Clerks and the Nursing Unit Clerks should come within the service employees bargaining unit.
Having regard to the Board's finding with respect to the Unit Clerk and Nursing Unit Clerk issue and the parties' agreement with respect to the description of the appropriate bargaining units, the Board finds, pursuant to section 22 of the Act, that the following bargaining units are appropriate for the applicant's operations:
Service Unit
all employees of the North Simcoe Hospital Alliance in Midland and Penetanguishene, (including Unit Clerks and Nursing Unit Clerks), save and except Supervisors, persons above the rank of Supervisor, Professional Medical Staff, Registered Graduate and Under Graduate Nurses, Paramedical employees, Chaplain and office and clerical employees.
Office and Clerical Unit
all office and clerical employees of the North Simcoe Hospital Alliance in Midland and Penetanguishene, save and except Supervisors, persons above the rank of Supervisor, People System Assistant, Accountant, Chaplain, French Language Services Coordinator, Unit Clerks, Nursing Unit Clerks, Two Administrative Secretaries and one Secretary to each of the Executive Directors.
Clarity Note
For purposes of clarity, the Board notes that the term "supervisor" is used in the generic sense. The Board also notes that the Maintenance Secretary is in the Office and Clerical Unit and that the Laboratory Out Patient Assistant is in the Service Unit.
A representation vote will be held on August 11, 1999 in accordance with the terms to which the parties have agreed.
This matter is referred to the Manager of Field Services to make the necessary vote arrangements and conduct the vote.
This panel of the Board is seized with this matter.