3740-99-PS Niagara Health System, Applicant v. Service Employees International Union, Local 204; Canadian Union of Public Employees, Local 7100; Ontario Public Service Employees Union; Ontario Public Service Employees Union, Local 214; Ontario Public Service Employees Union, Local 215; Canadian Union of Operating Engineers and General Workers, Local 101; International Union of Operating Engineers, Local 772; Responding Parties v. Ontario Nurses’ Association, Intervenor.
3649-99-PS Service Employees’ International Union, Local 204, Applicant v. Niagara Health System; Canadian Union of Public Employees, Local 1531; Canadian Union of Public Employees, Local 1532; Canadian Union of Public Employees, Local 1742; Canadian Union of Operating Engineers & General Workers; International Union of Operating Engineers, Local 722¸ Responding Parties v. Ontario Public Service Employees Union; Ontario Nurses’ Association, Intervenors.
BEFORE: Caroline Rowan, Vice‑Chair.
DECISION OF THE BOARD; July 12, 2000
These are applications under the Public Sector Labour Relations Transition Act, 1997 (the "Act").
Prior decisions have been issued by the Board in these matters on April 6, 2000, May 25, 2000 and May 30, 2000.
By decision dated May 25, 2000, the Board directed the parties to file briefs with respect to the outstanding issues in dispute within a period of time specified therein. By decision dated May 30, 2000, the Board extended the timelines for filing briefs on the agreement of the parties.
The Board notes that the parties, other than the International Union of Operating Engineers, Local 772 ("IUOE") and the Canadian Union of Operating Engineers and General Workers, Local 101 ("CUOEGW") have, however, recently entered into the following Minutes of Settlement with respect to the issues arising out of these applications:
MINUTES OF SETTLEMENT
BETWEEN:
NIAGARA HEALTH SYSTEM
("the Hospital")
- and -
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 204
("SEIU")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
("OPSEU")
- and -
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 7100
("CUPE")
- and -
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL 772
("IUOE")
- and -
CANADIAN UNION OF OPERATING ENGINEERS AND
GENERAL WORKERS, LOCAL 101
("CUOEGW")
Reference is made to two applications before the Ontario Labour Relations Board (OLRB) brought by SEIU and the Hospital respectively pursuant to the Public Sector Labour Relations Transition Act, 1997 - OLRB File No. 3649-99-PS and 3740-99-PS.
The parties have agreed to resolve all issues arising out of these applications on the following terms and conditions:
The parties agree that the Public Sector Labour Relations Transition Act, 1997 applies to the current operation of the Niagara Health System at its various sites.
The parties agree that for purposes of the Public Sector Labour Relations Transition Act, 1997, the predecessor employers are:
The Greater Niagara General Hospital, Welland County General Hospital, Port Colborne General Hospital, The St. Catharines General Hospital, The Niagara-On-The-Lake Hospital, Shaver Hospital, Douglas Memorial Hospital and Niagara Rehabilitation Centre.
The parties agree that the changeover date is March 8, 2000.
NEW BARGAINING UNITS
Subject to paragraph 6 below, the parties agree that the following bargaining unit descriptions are appropriate and will be applicable at the Hospital following the results of the votes referred to below:
- SERVICE UNIT
“A1l employees of the Niagara Health System save and except supervisors, persons above the rank of supervisor, professional medical staff, registered and non-registered/graduate nurses, paramedical employees, office and clerical employees, interns, and students on co-op work terms.
For purposes of clarity, it is agreed and understood that the following classifications are excluded from the bargaining unit:
Accountant, Accounting, Analyst, Educator, Health Records Analyst, Web Site Administrator, Translator, Buyer, Health Records Administrator, Disability Management Consultant, all employees in Information Systems, all employees in Human Resources, all employees in Payroll and all persons covered by subsisting collective agreements.
For purposes of clarity, it is agreed and understood that the classification “Addiction Worker” is included in this Service bargaining unit.
- OFF1CE & CLERICAL UNIT
“All Office and Clerical employees employed by the Niagara Health System save and except supervisors, persons above the rank of supervisor, students on co-op work terms, secretaries and/or Administrative Assistants for Managers and persons above the rank of Manager, Educators, Health Records Administrators, Health Records Analysts, Web Site Administrators, Translators, Buyers, Accounting Analysts, Disability Management Consultants, all employees in Information Systems, all employees in Human Resources, all employees in Payroll and all persons covered by subsisting collective agreements.
For purposes of clarity, it is agreed and understood that Ward Clerks and Ward Secretaries are Office and Clerical employees.”
- PARAMEDICAL UNIT
"All paramedical employees employcd by the Niagara Health System save and except supervisors, persons above the rank of supervisor, students employed during a school vacation period, students on co-op work terms, interns, educators and clinical instructors and persons covered by subsisting collective agreements.
The term ‘paramedical employees’ includes Occupational Therapist, PPL (Professional Practice Leader) Occupational Therapist, Physiotherapist, PPL (Professional Practice Leader) Physiotherapist, Pharmacist, Radiology Technician, Radiology Technologist, Respiratory Technologist, Ultrasound Technician, Sonographer, Echo-Sonographer, ECG Technician, Dark Room Technician, Laboratory Technologist, Registered Technologist, Laboratory Technician, Laboratory Assistant, Pathological Technologist, Chiropodist, Audiologist, PPL (Professional Practice Leader) Audiologist, Social Worker, PPL (Professional Practice Leader) Social Worker, Psychotherapist, Psychometrist, Cognitive Therapist/Psychometrist, Addiction Counsellor Dietician, Orthopedic Technician, Registered Orthopedic Technician Registered Orthopedic Technologist, Clinical Dietician, Child and Family Counsellor, Respiratory Therapist, Child Life Worker, Speech Pathologist, MRI Team Leader, MRI Technician, Cardiology Technician, NC
Cardiology Technician, Kinesiologist, Speech Language Pathologist, PPL (Professional Practice Leader) Speech Language Pathologist, Registered Technologist-Nuclear
Medicine and RT Clinical Instructor, Cardiology Technologist, Chart Reviewer, Biomedical Technologist, Biomedical Technician, Biomedical Engineering Tech, Project Co-ordinator, Case Manager, Senior Technologist, Registered Technician, Histology/Surgical/Pathology Tech, Cat Scan Charge Technologist, MLT/Technician, Librarian, Charge Technologist, Phlebotomist, Recreational Therapist.
The parties agree that while employees in Payroll are excluded from both the Service and Office and Clerical bargaining units, the individual currently holding the Payroll Clerk position at the Welland County General Hospital Site will be grandmothered, i.e. as long as she remains in her current job, she will be in the Office and Clerical bargaining unit but once she leaves that job her successor will not be in the bargaining unit.
The parties agree that, while Secretaries and/or Administrative Assistants for Managers and persons above the rank of Manager are excluded from the Office & Clerical bargaining unit, the following individuals at the Welland County General Hospital site will be grandmothered, i.e. as long as they remain in their current jobs, they will be in the Office & Clerical bargaining unit, but once they leave their jobs their successors will not be in that bargaining unit, provided, of course, that their successors fit within the exclusion "Secretaries and/or Administative Assistants for Managers and persons above the rank of Manager":
Karen Ciolfi
Joanne Eden
Estelle Leger
Barbara Noble
Teresa Robins
Nancy Speck.
- Both CUOEGW and IUOE take the position that the employees they currently represent should not be included in the new Service bargaining unit but rather there should be a separate bargaining unit consisting of Stationary Engineers and their Helpers.
The parties agree that this issue, as to whether there should be a separate bargaining unit for these employees as requested by CUOEGW and IUOE or whether these employees should be encompassed in the Service bargaining unit, will be dealt with by the OLRB through written submissions. IUOE and CUOEGW will have ten (10) days from the date these Minutes of Settlement are signed, or as ordered by the OLRB, to make their submissions and the other parties will have a period of five (5) days thereafter to make their submissions and IUOE and CUOEGW will have a period of two (2) days thereafter to make their reply submissions.
Should the OLRB reject the positions taken by CUOEGW and IUOE, the Service bargaining unit description set out in paragraph 4 above will apply. On the other hand, should the OLRB accept the positions taken by CUOEGW and IUOE (1) the Service bargaining unit description will be amended to exclude Stationary Engineers and their Helpers; and (2) a separate bargaining unit will be established as follows:
"AII Stationary Engineers and persons primarily engaged as their helpers employed by the Niagara Health System save and except Chief Engineer, the Assistant Chief Engineer and all persons above the rank of Assistant Chief Engineer"
and employees in this bargaining unit will vote on August 23, 2000 on whether they wish CUOEGW or IUOE to represent them.
- VOTES
(i) Votes will be held on August 23, 2000 with respect to each of the bargaining units referred to in paragraph 4 above (it being understood that, should the Board decide to establish a separate Stationary Engineers and their Helpers bargaining unit, the Service bargaining unit description will be amended in accordance with paragraph 7, above).
(ii) With respect to the Service bargaining unit, the initial choice on the ballot will be amongst SEIU and CUPE and IUOE and CUOEGW if the Board rejects the positions of CUOEGW and IUOE to have a separate bargaining unit of Stationary Engineers and their Helpers. In the event none of the unions obtain greater than fifty per cent (50%) of the votes cast on the first ballot, the OLRB will determine the practices and procedures to be used in conducting subsequent vote(s) including which of the unions’ names will appear on the ballot in the subsequent vote(s). Should any one of these unions ultimately obtain greater than fifty per cent (50%) of the votes cast, that union will become the bargaining agent for this new Service bargaining unit.
(iii) In the event the OLRB decides to establish a separate Stationary Engineers and their Helpers bargaining unit, the choice on the Service bargaining unit ballot will be between CUPE and SEIU and the choice on the Stationary Engineers and their Helpers ballot will be between IUOE and CUOEGW.
(iv) It is agreed that less than forty per cent (40%) of the employees in the Office and Clerical bargaining unit were, immediately before the changeover date, not represented by a bargaining agent. Notwithstanding this, the Hospital has indicated its desire to have a "no union" choice on the ballot for the office and clerical bargaining unit. The Hospital will have a period of ten (10) days from the date these Minutes at Settlement are signed to make their written submissions to the Board as to why there should be such a choice on that ballot. CUPE and SEIU will have a period of five (5) days thereafter to make their submissions and the Hospital will have a period of two (2) days thereafter to make their reply submissions.
(v) In the event the OLRB decides in the Hospital's favour with respect to whether there should be a "no union" choice on the Office and Clerical bargaining unit ballot, there shall be three (3) choices on the initial ballot: SEIU, CUPE and "no union". In the event none of the choices obtain greater than fifty per cent (50%) of the votes cast on the first ballot, the OLRB will determine the practices and procedures to be used in conducting the subsequent vote including which of the choices will appear on the ballot in the subsequent vote. Should one of the unions ultimately obtain greater than fifty per cent (50%) of the votes cast, that union will become the bargaining agent for this new Office and Clerical bargaining unit and if the "no union" choice ultimately obtains greater than fifty per cent (50%) of the votes cast, then the Office and Clerical employees will be non-union.
In the event the OLRB rejects the Hospital's position that there should be a "no union" choice on the ballot, there shall be two (2) choices on the ballot — CUPE and SEIU and whichever one of these unions obtains greater than fifty per cent (50%) of the votes cast will become the bargaining agent for this new Office and Clerical bargaining unit.
(vi) With respect to the paramedical bargaining unit, it is agreed that more than forty per cent (40%) of the employees in this bargaining unit were, immediately before the changeover date, not represented by a bargaining agent. Accordingly, the initial choice on the ballot will be amongst OPSEU, CUPE and "no union". In the event none of the choices obtain greater than fifty per cent (50%) of the votes cast on the first ballot, a second ballot will be held and the two (2) choices which had the most votes cast in their respective favours in the first ballot, will appear as the choices on the second ballot. Should one of the unions ultimately obtain greater than fifty per cern (50%) of the votes cast, that union will become the bargaining agent for this new Paramedical bargaining unit and if the "no union" choice ultimately obtains greater than fifty per cent (50%) of the votes cast, then the Paramedical employees will be non-union.
(vii) There is a dispute between CUPE, OPSEU, SEIU, and the Hospital regarding which bargaining unit the classification Addiction Counsellor belongs in. CUPE takes the position that this classification properly falls within the Service bargaining unit whereas the other parties take the position that this classification falls within the Paramedical bargaining unit. To deal with this matter, the parties have agreed as follows:
(a) Employees in the Addiction Counsellor classification will be eligible to vote in both the Paramedical bargaining unit ballot and the Service bargaining union ballot. In both cases the votes of the employees in this classification will be segregated and sealed.
(b) In the event SEIU wins the Service bargaining unit vote without having to count the segregated ballots of the employees in the Addiction Counsellor classification, the parties agree that this classification will come within the Paramedical bargaining unit.
(c) In the event CUPE wins the Service bargaining unit vote without having to count segregated ballots of the employees in the Addiction Counsellor classification, the parties agree that the issue of whether this classification should properly come within the Service bargaining unit or the Paramedical bargaining unit, will be referred to the OLRB for determination.
(d) In the event the outcome of the Service bargaining unit vote could be determined by the segregated ballots of the employees in the Addiction Counsellor classification, the parties agree that the issue of whether this classification should properly come within the Service bargaining unit or the Paramedical bargaining unit will be referred to the OLRB for determination prior to the sealed ballots being opened and counted,
(viii) The Hospital will provide the other parties with draft voting lists as soon as possible following the signing of these Minutes of Settlement. The parties agree to deal with any objections (e.g. additions, deletions, etc.) as soon as possible thereafter so that final lists will be ready by the end of July (subject only to deleting individuals who left the employ of the Hospital between the end of July and August 23, 2000).
(ix) The parties agree that casual employees who have not actually worked for the Hospital or any of its predecessors since July, 1999, will not be eligible to vote in any of the votes taking place on August 23, 2000. This is without prejudice to any ongoing arbitration case between SEIU and the Hospital, and/or any of its predecessor hospitals, concerning the termination of casual employees who have not worked for the Hospital for a period of one year or more.
- ACCESS
(i) The parties agree to the OLRB issuing an order to the Hospital to provide each union with a list of names and addresses of those employees on the voters' list(s) for the bargaining unit(s) in respect of which that union's name appears on the ballot, no later than three (3) weeks prior to the vote day. This information will be provided both in hard copy and on a computer disc.
(ii) Each union shall have access to existing union bulletin boards where they exist, or to a bulletin board designated by the Hospital where they do not exist for the purposes of displaying campaign materials at each of the Hospital's eight sites.
(iii) Each union shall have the opportunity to have a meeting of one and one-half (1-1/2) hours in duration at each of the Hospital's eight sites at such meeting rooms as shall be arranged through Human Resources.
(iv) Each of the unions shall have the opportunity to either:
(a) leaflet the entrances at each of the Hospital's eight sites from August 1 to August 22, 2000 with the understanding that there shall be no obstruction of any emergency or transportation vehicles at any of the entrances nor will there be any obstruction of persons seeking to enter or exit the entrances at the various sites; or
(b) set up and man a table within each of the Hospital's eight sites from 7:00 a.m. to 11:00 p.m. during the period August 1 to August 22, 2000 as shall be arranged through Human Resources.
- These Minutes of Settlement shall be presented to the OLRB in order to establish for the OLRB the matters the parties have agreed upon and therefore permit the OLRB to issue the appropriate orders giving effect to the foregoing as well as any other matters necessary to bring these two applications to a conclusion.
DATED this 10th day of JULY, 2000.
NIAGARA HEALTH SYSTEM
“Victor Dyck” .
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 204
“Martin Parker” .
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
“Tracey Mussett” .(for Eileen Wesley)
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 7100
“Jill A. Varga” .
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 772
CANADIAN UNION OF OPERATING ENGINEERS AND GENERAL WORKERS, LOCAL 101
Representatives of the IUOE and of the CUOEGW have written to the Board indicating, in effect, that although IUOE and CUOEGW have not signed the Minutes of Settlement, they are prepared to make written submissions on “their issues”, including, for example, the issue of whether there should be a separate bargaining unit consisting of Stationary Engineers and their Helpers.
Having regard to the settlement reached by all of the parties other than the IUOE and the CUOEGW and to the representations made by the IUOE and the CUOEGW, the Board further varies its decision dated May 25, 2000 as follows. The Board directs that Rules 26(d) and 30(d) of the Board's Rules of Procedure apply and directs each party to deliver one copy of the following materials to the other parties and file two copies of the following materials to the Board:
i) submissions on the issue of whether there should be a separate bargaining unit consisting of Stationery Engineers and their Helpers as identified in paragraph 7 of the Minutes of Settlement referred to above and on any other issues in dispute together with the facts, if any, upon which it intends to rely;
ii) a copy of all documents upon which it intends to rely.
At the time of filing, each party must verify that it has delivered its materials as required by the Board's Interim Rules under the Public Sector Labour Relations Transition Act, 1997. The IUOE and the CUOEWG’s materials (on all issues other than the issue of whether there should be a “non-union” choice on the ballot as identified in paragraph 8(iv) of the Minutes of Settlement referred to above) must be delivered and filed no later than ten (10) days following the date of this decision. The other parties’ responding materials must be delivered and filed no later than five (5) days thereafter. The IUOE and the CUOEWG will then have a period of two (2) days thereafter to deliver and file any reply materials. The Niagara Health System’s materials on the issue of whether there should be a “non-union” choice on the ballot as identified in paragraph 8(iv) of the Minutes of Settlement referred to above must be delivered and filed no later than ten (10) days following the date of this decision. The other parties’ responding materials (if any) on this issue must be delivered and filed no later than five (5) days thereafter. The Niagara Health System will then have a period of two (2) days thereafter to deliver and file any reply materials on this issue.
Having regard to the foregoing, the consultation set for July 19, 2000 is hereby adjourned pending receipt of the parties’ written briefs.
The Board further notes that there is substantial agreement amongst the majority of the parties that the votes in respect of the new bargaining units should be held on August 23, 2000. Having regard to this and the Board’s own resource constraints, the Board determines that the votes in respect of the new bargaining units will be held on August 23, 2000.
“Caroline Rowan”
for the Board