0706-99-PS Peterborough Regional Health Centre, Applicant v. Canadian Union of Operating Engineers and its Local 101, Canadian Union of Public Employees and its Local 1943, Ontario Public Service Employees' Union and its Locals 321, 342, 343 and 345, Responding Parties v. Ontario Nurses' Association, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; October 23, 2000
Pursuant to the Board’s decision of August 10, 2000, written submissions concerning the placement of the classification of storesperson in either the service bargaining unit or the office/clerical bargaining unit were filed by the Canadian Union of Public Employees and its Local 1943 (“CUPE”) and by the Ontario Public Service Employees’ Union and its Local 345 (“OPSEU”).
Not surprisingly, CUPE and OPSEU each assert a claim that the storesperson classification (which contains 6 to 8 employees) should belong in the bargaining unit for which they have traditionally held bargaining rights at the predecessor hospitals. Each has represented different individuals within this classification. CUPE has represented the storepersons in the service unit. OPSEU has represented the storepersons in the office/clerical unit.
There is some common ground between the two trade unions concerning this issue. They agree that the placement of storespersons in either the service or office/clerical bargaining units would provide for a viable and stable bargaining relationship, and that, no matter where the storespersons are placed, there is no prejudice to the operating needs of the employer. Both CUPE and OPSEU submitted a copy of the February 2000 storesperson position description, and both relied upon it to some extent to explain their positions.
After giving careful consideration to the submissions of the two trade unions, I am of the view that the storesperson classification should be placed in the service unit. Given the agreement of the parties that the inclusion of the classification in either bargaining unit would be viable, the question really comes down to, what is the best bargaining unit fit for the storesperson position. CUPE and OPSEU disagree with respect to the relative proportions of clerical versus service duties in the storesperson position description, but one thing is clear. There is a significant physical component to the job duties, as little as 40% of the job according to OPSEU, and as much as 60% according to CUPE. The storesperson job is essentially concerned with core activities of receiving, storing and distributing hospital goods and products. In my view, much of the clerical work, even if it occupies a greater proportion of the storesperson’s time than the physical component, is incidental to those core physical activities. Moreover, the work environment, as described in the position description, involves some noise, the handling of hazardous chemicals and gas tanks, and some activity on the receiving docks in varying temperature extremes. This work environment appears to be more typical of a hospital’s maintenance function than its administrative function.
For these reasons, I find that persons occupying the storesperson classification are to be included in the service bargaining unit.
Before a representation vote involving the service unit is ordered, I direct that a Labour Relations Officer is to confer with CUPE, the Canadian Union of Operating Engineers and its Local 101 and Peterborough Regional Health Centre to determine if agreement can be reached concerning the service bargaining unit description and voting constituency.
The Board is in receipt of correspondence dated October 1, 2000 from counsel for the applicant in which he requests clarification of certain aspects of the Board’s decision of August 10, 2000. Counsel asks whether the Board’s order establishing a single paramedic bargaining unit implies that there is to be one union local for that bargaining unit, and further whether the decision of August 10, 2000 means there is to be one collective agreement for that bargaining unit.
Counsel for OPSEU responded by letter of October 17, 2000. He argues that there can only be one collective agreement for the paramedical bargaining unit, but that OPSEU is free to represent its members through any number of union locals it wishes, and the Board has no jurisdiction to make any ruling with respect to the number of union locals.
The number of collective agreements and the number of union locals in respect of the paramedical unit was the subject of comment by counsel for the applicant and for OPSEU at the consultation, and certainly these issues were canvassed in greater detail in the parties’ written submissions filed pursuant to the application. The Board made no determination on these issues.
There is no room for debate on the number of collective agreements for the paramedical bargaining unit. The parties agreed to, and the Board ordered a single paramedical bargaining unit. There has not yet been a determination of, or agreement of the parties concerning the description of that bargaining unit. Leaving that aside, section 55 of the Labour Relations Act, 1995, S.O. 1995, c.1 (“the LRA”) contemplates one collective agreement per bargaining unit. Unless the parties subsequently agree to establish more than one paramedical bargaining unit, there will be one collective agreement in respect of all technical and clinical paramedical employees.
The number of union locals for the paramedical employees is somewhat more complex a question. I make the following observations in the hope that they provide some guidance to the parties in resolving this issue, preferably with limited or no intervention by the Board.
OPSEU’s submission is largely correct. The number of union locals set up in respect of the paramedical bargaining unit is not something that either the LRA or the Public Sector Labour Relations Transition Act, 1997 S.O. 1997, c. 21, Sched. B (“the PSLRTA”) deals with. Accordingly, it would appear that the Board is without jurisdiction to make any determinations on that issue. However, unless the parties subsequently change their minds and agree to more than one paramedical bargaining unit and more than one paramedical bargaining agent, there will ultimately be only one bargaining agent for the paramedical bargaining unit. Sections 21(1) and 23(1) of the PSLRTA contemplate only one bargaining agent per bargaining unit. Therefore, the parties cannot agree, and the Board cannot appoint more than one bargaining agent per bargaining unit.
The LRA’s provisions dealing with the establishment of bargaining rights and the negotiation of collective agreements establish certain rights and obligations of the labour relations parties. The rights and obligations of trade unions in these sections of the LRA are set out in the context of the trade union’s role as bargaining agent. An employer’s obligations to recognize the legitimacy of, and negotiate with a trade union must be understood in that context. The employer’s obligations arise because of the trade union’s legal entitlement to represent employees as their bargaining agent.
In the instant case, a single bargaining agent will be appointed to the paramedical bargaining unit. The parties can agree as to who that agent will be, or the Board will make an appointment. The applicant will be obligated to deal with that bargaining agent, but not necessarily with multiple replications of that bargaining agent. If that bargaining agent decides to establish various union locals within the paramedical bargaining unit for its own internal purposes, that is one thing. If it expects the applicant to recognize and negotiate with those various union locals as if they all had the legal authority of the bargaining agent of the paramedical bargaining unit, that is entirely another matter, and one over which the Board would have jurisdiction.
The Labour Relations Officer is further directed to confer with the applicant and OPSEU to endeavour to effect an agreement between them regarding the issue of the number of union locals within the paramedical bargaining unit, as well as with respect to the paramedical and office/clerical bargaining unit descriptions and the determination of the paramedical and office/clerical bargaining agents.
The Labour Relations Officer is to report back to the Board on or before November 17, 2000, at which time the Board will make any appropriate orders, order a representation vote (or representation votes) or, to the extent there is no agreement reached, either refer the remaining issues in dispute to a consultation or seek further submissions from the applicable parties.
CONCLUSIONS
Persons occupying the storesperson classification are to be included in the service bargaining unit.
Pursuant to paragraph 6 above, the Labour Relations Officer is directed to confer with CUPE, the Canadian Union of Operating Engineers and its Local 101 and Peterborough Regional Health Centre to determine if agreement can be reached concerning the service bargaining unit description and voting constituency.
Pursuant to paragraph 15 above, the Labour Relations Officer is directed to confer with the applicant and OPSEU to endeavour to effect an agreement between them regarding the issue concerning the number of union locals for the paramedical bargaining unit, as well as with respect to the paramedical and office/clerical bargaining unit descriptions and the determination of the paramedical and office/clerical bargaining agents.
Pursuant to paragraph 16 above, The Labour Relations Officer is directed to report back to the Board on or before November 17, 2000 regarding the outcome of his or her consultations with the applicable parties.
I am seized.
“Patrick Kelly”
for the Board