Ontario Labour Relations Board
Hamilton Health Sciences Corporation, Applicant v. Canadian Union of Public Employees, Local 794; Canadian Union of Public Employees, Local 839, International Union of Operating Engineers, Local 772; Ontario Nurses’ Association, Local 70; Ontario Nurses’ Association, Local 235; Ontario Public Service Employees Union, Local 206 and Ontario Public Service Employees Union, Local 273, Responding Parties.
BEFORE: Marilyn Nairn, Vice-Chair.
APPEARANCES: Robert Salisbury appeared on behalf of the applicant; Jasbir Parmar appeared on behalf of the Ontario Nurses Association.
DECISION OF THE BOARD; December 27, 2000
Reasons for Decision
1This decision deals with the ongoing issues arising from the merger of health care facilities in Hamilton and this resulting application brought pursuant to the Public Sector Labour Relations Transition Act, 1997 S.O. 1997, c.21 (“Bill 136”). In an earlier decision the Board identified the number and general composition of the merged bargaining units. The parties were directed to meet with a Labour Relations Officer for the purpose of fully defining those units. Those meetings occurred but the parties were unable to resolve all of their differences. On November 27, 2000 the Ontario Nurses Association (“ONA”) and the employer convened before me to deal with the issue of the precise parameters of the “nurses” unit. A date has been rescheduled to deal with the remaining bargaining units. This decision confirms the oral ruling made at the end of the hearing concerning the nurses unit. A reference to “parties” in this decision will be a reference to only the Ontario Nurses Association and the employer.
2Fundamentally the parties disagreed with respect to the inclusion or exclusion of employees characterized as “Clinical Nurse Specialists”. The nomenclature varied somewhat between the merged sites and ONA’s primary concern was its position that there were persons performing the same or similar work under different titles at different sites. If certain titles were excluded from the bargaining unit, the concern was that some persons performing similar tasks would be included in the bargaining unit, while others would be excluded, a problematic labour relations result.
3However, following the merger of the hospitals and the certification by ONA of an additional site, the parties had successfully negotiated an interim bargaining unit description applicable to each of the then two bargaining units. While in all likelihood not perfect (as these things seldom are) it addressed the issue of the inclusion or exclusion of certain Clinical Nurse positions. In an oral ruling I concluded that I was not persuaded that it was appropriate to depart from what the parties had referred to as the “uniform bargaining unit description” negotiated in late 1997 and into early 1998. While there may be some disputes over work performed as between persons occupying differently named positions, I noted that the employer had asserted that the excluded positions were not intended to supplant work performed by primary care nurses. The Clinical Nurse Specialist as identified by the employer is a nurse who holds at least a Master’s degree in nursing with expertise in a particular clinical nursing specialty. While this academic distinction may not provide a sufficiently definitive distinction, it may be that some experience in how persons are asked to perform work will better enlighten whether there is any necessary dispute between the parties, including whether or not some or all of these persons would otherwise be excluded by virtue of section 1(3) of the Labour Relations Act, 1995. I note too that it may be possible to rationalize nomenclature with some additional experience. Both parties are aware that the Association may have the option of pursuing arbitral relief should there be issues concerning work being performed by excluded positions.
4The goal in a Bill 136 application is to enable the parties to move forward following a merger with the least disruption as possible. Mergers are by definition disruptive to labour relations. The fact that the parties had been able to reach an interim solution suggested that that interim solution ought to continue until the parties were able to engage in bargaining in respect of the merged whole.
5Including these “CNS” positions in the bargaining unit would immediately launch the parties into protracted litigation and/or negotiation regarding the “employee” status (under section 1(3) of the Labour Relations Act, 1995 (the “Act”) of a number of these individuals, questions about the proper identity of the employer for others engaged in research or other outside funded projects, and issues as to proper rates of pay and other benefits for all. That result seemed counterintuitive to the objective of attempting to place the parties in a position from which they can move forward with the least amount of disruption.
6With respect to the employee health nurses, historically some have been included in bargaining units while at other sites they have been excluded. There is nothing to conclusively persuade one that these nurses must be included in the unit in the context of a Bill 136 application.
7As noted the goal is to structure a bargaining unit that moves the parties forward past the merger. It is open to the parties to negotiate changes to the precise scope of the merged bargaining unit as their experience with the merged unit identifies particular concerns or problems with specific positions. In the meantime I was persuaded that the negotiated bargaining unit description that the parties had been applying to the already merged units and, independently, to the newly certified bargaining unit at the McMaster site, was appropriate for the larger merged bargaining unit.
8Therefore the “nurses” bargaining unit for the fully merged bargaining unit is described as follows:
The Hamilton Health Sciences Corporation recognizes the Association as the exclusive bargaining agent of all registered and graduate nurses engaged in a nursing capacity, save and except any of the following:
-those persons exercising managerial functions,
-those positions employed in a confidential capacity in matters relating to labour relations,
-assistant unit managers, unit managers, focus managers, clinical managers, program directors and persons above these ranks,
-clinical specialists/clinical nurse specialists, clinical nurse specialist/neonatal practitioners, and employee health nurses,
-those positions that had been, as of September 1, 1997, excluded from the bargaining unit.
“M. A. Nairn”
for the Board```