3307-99-R Office & Professional Employees’ International Union, Applicant v. College of Nurses of Ontario, Responding Party.
BEFORE: Russell Goodfellow, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
APPEARANCES: Susan Ursel, Maureen O’Halloran, Susan Jenkinson, Christine Schmidt and Claudia Skolnik for the applicant; Michael D. Failes, Bonnie Coldham and Julie E. McAlpine for the responding party.
DECISION OF THE BOARD; November 23, 2000
The style of cause is hereby amended to reflect the correct name of the responding party: “Ontario College of Nurses of Ontario”.
This is an application for certification. The issue is whether the unit applied for is appropriate. The unit applied for is:
all professional and technical employees employed by the College of Nurses of Ontario, in the City of Toronto, save and except office and clerical employees, managers and those above the rank of managers.
The employer submits that the unit is not appropriate and that an “all employee” unit is appropriate. There are approximately 58 employees in the unit proposed by the applicant and approximately 102 in the unit proposed by the employer.
A representation vote was held on February 17, 2000. Ninety-six people voted. The Board segregated the ballots along the foregoing lines and did not count them.
A hearing was held to deal with the issue of appropriateness. At the hearing the parties agreed that the essential question is whether the unit applied for encompasses “a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer”: The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266. After carefully considering the evidence and submissions of the parties, the Board is satisfied that the applicant’s unit fails that test.
The fundamental problem with the unit is its lack of distinctiveness – both as to the criteria for inclusion and in the employer’s organizational structure. Dealing with the latter point first, the College is a statutory body that is responsible for regulating the nursing profession in the Province. The work of the College embraces three types of functions: getting people into the profession (regulating entry); keeping people in the profession (regulating competency); and getting people out of the profession (for example, when competency becomes an issue).
Committees of the College make adjudicative decisions. Employees in the proposed bargaining unit support the functions of the committees and perform a variety of other non-adjudicative tasks.
There are seven departments within the College: Executive; Professional Practice; External Relations; Information Resources/Systems Development; Investigations and Hearings; Corporate Services; and Human Resources. The proposed unit includes employees from all but the first and last of these departments.
Within each department are a number of operational groups. Within Professional Practice, for example, are the “Assessment and Continuing Competence” and the “Standards and Education” areas. Within the Investigations and Hearings department are the “Investigations Program” and the “Hearings Program”. Apart from the managerial level of each department, and the bulk of the Corporate Services Department, the applicant’s proposed unit includes some, but not all, of the employees from each and every operational area.
In an exclusively office environment this is inherently problematic. This kind of workplace does not exhibit the typical “white collar”/“blue collar” or “office and clerical”/“production” distinctions available in a plant; nor does it display the historically-rooted and credentialist-based distinctions found in hospitals. Instead, in setting the parameters for the proposed unit, the applicant has relied primarily, but not exclusively, on a distinction drawn in the College’s recently introduced compensation manual between “entry/support”, “administrative”, “technical/professional”, “senior staff”, “director” and “executive director” employees. While such categories may provide a useful way of distinguishing between employees for purposes of pay, they do not reflect the way in which the work is organized or the service is delivered.
For example, the “technical/professional” pay category, like the “entry/support”, “administrative”, “senior staff”, and “directors” categories, cuts across virtually all of the College’s organizational structure and incorporates some, but not all, of the positions in each department and work group. As a result, “investigators” are included in the proposed unit but “assistant investigators” are not; “assessors” are included in the proposed unit (an “administrative” position) but “assistant assessors” are not; “prosecutions case coordinators” and the “incapacity coordinator” are included in the unit but “hearings administrators” and the “discipline coordinator” are not; this notwithstanding the fact that many of these employees work side-by-side on the same files in what the employer’s compensation manual refers to as a “team” environment.
At the hearing there was some dispute as to what is meant by the “team” approach or, to put it another way, how much “teamwork” is actually involved. In the Board’s view, the niceties of such distinctions are irrelevant. The essential difficulty lies in the fact that the unit draws lines that are not adequately reflected in the organization of the work. Indeed, if the applicant’s proposed unit were appropriate, there could be an argument made (albeit one that is rejected by the applicant) that the “administrative” and “entry/support” employees would be entitled to their own bargaining units. The fragmentation problems that would attend that situation, as well as the present, include restrictions on employee mobility (of which there is some history in this workplace) and of persons employed in one classification (or bargaining unit) doing the work of those in another on either a temporary or ongoing incidental basis.
Turning to the first point mentioned in paragraph 4 above, the criteria for inclusion in the bargaining unit is, to say the least, elusive. The unit includes all of the persons falling within the “professional/technical” pay category and some of the employees falling within the “administrative” pay group. Thus, although referred to as a “technical/professional” unit that is rooted in the College’s own compensation manual, the unit departs from that manual. The result is a bargaining unit configured along lines that are exceedingly difficult to pin down. This was clear from the testimony of the applicant’s principal witness, Susan Jenkinson, who explained the basis for the applicant’s choices. After identifying, one-by-one, all of the various classifications included in the proposed unit – including those from outside the “technical/professional” pay band (such as “assessors”) – Ms. Jenkinson was asked to identify the selection criteria. She replied, “when I think about the College’s responsibilities in the three areas – getting people in, keeping them in, and getting them out – and the functions associated with those responsibilities, there is a thread of public safety and public interest that flows through the activities and the roles that fulfil those functions”. When asked how the “administrative” people fit within this analysis, Ms. Jenkinson said: “they are a similar grouping in the credentials brought to the job, their knowledge-base and their analytical/problem solving skills that support the three main College functions”. When asked why the rest of the “administrative” personnel and the “entry/support” group were not included, Ms. Jenkinson offered the following explanation in examination-in-chief:
It has nothing to do with trying to create an elitist group. It has to do with the scope of practice, degree of autonomy and the impact of our roles and decisions – [members of the proposed bargaining unit] have a high degree of autonomy in decision-making. Those who are not in the unit support them in their efforts but make no discretionary decisions. [Members of the proposed unit] are constantly weighing the public interest; whereas the others operate in defined and prescribed roles. We produce the work that they process.
Suffice it to say that if the latter explanation was meant to allay the concerns identified at the outset, it fell somewhat short of the mark. The critical point, however, is that the bargaining unit lacks any kind of objective or easily ascertainable point of demarcation. Inclusion in the unit appears to rest on a constellation of factors, most of which are highly subjective and, therefore, ripe for disagreement. This was shown in cross-examination when Ms. Jenkinson was asked to explain the inclusion of the “catering-coordinator”. After reiterating the role that the included positions play in safeguarding the public interest, and the degree of autonomy in decision-making, critical-thinking, and independent judgement brought to bear in the service of that objective, Ms. Jenkinson also made reference to the “credentials” and “knowledge” required by the catering coordinator’s role – just as she went on to do for the “Building Maintenance Co-ordinator”. On the basis of such subjective distinctions, appropriate bargaining units cannot be built. The fact that the vast majority of the included positions require some post- secondary education and the others do not is not sufficient to overcome this problem.
As noted, this is not a hospital where “technical/professional” bargaining units are often found and where the criteria for inclusion are typically undisputed professional qualifications or designations. Rather, it is an office environment where some employees possess more authority and scope for independent decision-making and some possess less and where the differences are, to some extent, in the eye of the beholder. This is a recipe for labour relations difficulties both in the initial identification of the bargaining unit and in its ongoing maintenance and operation.
Accordingly, while the Board is necessarily concerned that the refusal to grant the applicant the unit that it is seeking may frustrate, for a time, the wishes of a substantial number of employees to be represented by a trade union, that concern must give way to the requirement that the proposed unit be appropriate; it is not.
In light of this finding, the parties are directed to advise the Board within ten days of the date of this decision of their positions as to how the application ought now to be disposed of.
“Russell Goodfellow”
for the Board