1596-00-R Ontario Public Service Employees Union, Applicant v. The Corporation of the County of Brant, Responding Party v. The Power Workers’ Union, CUPE Local 1000 CLC, Intervenor.

BEFORE: Patrick Kelly, Vice-Chair

APPEARANCES: R. Blair and T. Mussett appeared on behalf of the applicant; Ted Kovacs and Don Ciona appeared on behalf of the responding party; L. A. Richmond and Chris Dassios appeared on behalf of The Power Workers’ Union.

DECISION OF THE BOARD; December 7, 2000

1. This is an application for certification.

2. A hearing to deal with the claim of the intervenor trade union (referred to as “the intervenor” or “the Power Workers”) to possess the bargaining rights for the employees who are the subject of this application - thus rendering the application untimely - was held on October 16, 2000. I issued an oral “bottom line” decision finding, first, that the intervenor did not have bargaining rights for the employees in question because they fell within an excluded category within the recognition clause in the collective agreement between the intervenor and the responding party employer (“the employer”). Accordingly, the application for certification was timely. Secondly, I found that the bargaining unit of paramedics proposed by the employer and agreed to by the applicant (“OPSEU”) was appropriate.

3. Following my oral ruling, OPSEU and the employer agreed that the ballots from the representation vote should be counted, with the exception of ballots marked A47 and A48. Those two ballots were cast by persons the status of whom remained in dispute at that point. Having regard to the agreement of OPSEU and the employer, I ordered all but the two disputed ballots counted.

4. This decision deals with the reasons for the finding that the Power Workers did not have bargaining rights for the paramedics, and that an all-paramedic bargaining unit is appropriate in the circumstances of this case.

The Facts

5. The facts were not in dispute. OPSEU historically has been the bargaining agent for the employees covered by the application. Immediately before they became employees of the Corporation of the County of Brant, the employees were represented by OPSEU in their employment relations with Brant County Ambulance Services, a crown agent owned by Canadian Medical Response, and governed by the Crown Employees Collective Bargaining Act, 1993, S.O. 1993 ch. 38. Brant County Ambulance Services provided ambulance services within the employer’s boundaries. Pursuant to amendments to the Ambulance Act, the provision of ambulance services became the responsibility of upper tier municipalities, including the employer in this case. The employer decided to provide ambulance service directly to its residents, rather than contract the service from an external provider.

6. In January 2000, the employer began recruiting for its ambulance service, including the hiring of primary care and advance care paramedics. These paramedics are required to hold licences under the Ambulance Act. The term paramedic is defined in the Ambulance Act, section 1.1(1), as “a person employed by or a volunteer in an ambulance service who meets the qualifications for an emergency medial attendant as set out in the regulations, and who is authorized to perform one or more controlled medical acts under the authority of a base hospital medical director, but does not include a physician, nurse or other health care provider who attends on a call for an ambulance”. The employer in this case required its paramedics to: have a completed radiotelephone operator’s course; engage in periodic cardiopulmonary certification, and produce documentation authorizing the paramedic to administer certain drugs and to use a cardiac defibrillator.

7. The job descriptions completed by the employer for the purpose of hiring the paramedics set out the general duties. Common to both primary care and advance care paramedics are some of the following job duties:

•Provide advanced emergency medical care for ill or injured persons by providing leadership at the emergency site by focusing on cardiovascular and respiratory systems and providing advanced prehospital life support.

•Provide transportation for ill or injured persons, to, from, and between treatment facilities, in specially equipped ambulance vehicles as directed by the CACC they are being dispatched by.

•Provide advanced effective patient assessment and treatment.

•Interact with members of the health care team, allied emergency care providers, the public and patients in a professional manner.

•Collaborate with medical staff and allied emergency care providers to facilitate timely treatment and support the patient’s family and friends during the time of emergency care.

•Check, maintain and stock fleet vehicles so as to maintain the vehicle and vehicle equipment in a clean/sanitary, safe mechanical state of readiness in accordance with local and provincial standards. Report any deficiencies in regards to the vehicle and assist in corrective action where qualified.

8. The main difference between the duties of the two paramedic job descriptions lies in the description of the medical interventions which they are permitted and required to carry out. The primary care paramedic is “responsible for all medical interventions as deemed essential by the Base Hospital and the service including controlled drug therapy (under the Symptom Relief Program), semi automatic defibrillation and cardiac dysrhythmia interpretation according to Provincial and local standards and protocols”. The advanced care paramedic is required to carry out additional interventions over and above those described in the primary care job description, including intubation and manual defibrillation.

9. The hiring of the paramedics was completed by the employer in July 2000, and the new employees began their duties in early August. The employer treated them as non-union employees, and unilaterally set the terms and conditions of their employment. The Power Workers asserted no bargaining rights in respect of these employees until after the certification application was filed on August 29, 2000. There are 44 to 46 employees directly affected by the application.

10. Paramedics of this employer spend a great deal of their working time in ambulances, or at the scene of medical trauma or in health care facilities. They spend little time comparatively in ambulance stations. They do not work in an office environment. Much of their work can be described as physical in the sense that they are active, rushing to the trauma scene, administering medical assistance, carrying victims on stretchers, transporting them to health facilities.

11. Paramedics are not part of a special labour relations regime, like firefighters or police officers. They are not required by statute to bargain separately from other municipal employees. Paramedics in Ontario do not belong to a self-regulating profession, like other medical occupations such as registered nurses or physicians.

12. The Power Workers represent approximately 71 full-time employees of the employer. In the common parlance of municipal labour relations, these employees are the employer’s “outside” workers. The collective agreement covering them contains the following recognition clause:

2.01 The Corporation recognizes the Power Workers’ Union as the exclusive bargaining agent for all employees of the Corporation of the County of Brant, save and except superintendents, persons above the rank of superintendent, office, clerical and technical personnel, grant employees, students employed during the school vacation periods and persons regularly employed for not more than twenty-four (24) hours per week.

13. Schedule “A” to the collective agreement contains a listing of classifications and their wage rates. The classifications listed are:

Lead Hand Water Water Operator 4 Water Operator 3 Water Operator 2 Water Operator 1 Lead Hand Rds & Sewers Asst. Fac. Manager Cemetary Lead Hand Equip & Sewer Oper. 3 Equip & Sewer Oper. 2 Equip & Sewer Oper. 1 Lead Hand Roads Equipment Operator Land Fill Operator Facility Operators Cemetary Labourer

14. The following positions (comprising 21 employees) are treated by the employer and the Power Workers as excluded from the scope of the collective agreement between them, by virtue of the fact that they are technical positions:

Building/Septic Inspector Planning Technologist Secretary Treasurer to the Committee of Adjustment Planner (Deputy CPO) Planner (Acting Secretary Treasurer to the Committee of Adjustment) Traffic, Signs & Signals Co-ordinator Fleet Manager/Stockeeper Engineering Technician Engineer Technologist Engineer’s Assistant By-law Enforcement/Property Standards Officer Licensing Officer Zoning Officer Fire Prevention Officer Web Master

15. Also excluded from the collective agreement are 12 part-time employees and 38 “inside” full-time office employees.

The Argument of the Power Workers Concerning the Application of the Collective Agreement

16. Counsel for the Power Workers contended that the recognition clause groups “technical personnel” together with the terms “office” and “clerical” to show that employees in those categories are excluded from the collective agreement by virtue of their participation in an office environment as opposed to an “outside” environment. Employees in the excluded technical positions listed above all have offices, although it was conceded that the job duties of each require the workers to be away from the office from time to time in varying degree. According to counsel for the intervenor, it is the aspect of their office work that unites them with office and clerical employees within an identifiable group.

17. Paramedics, counsel contended, have nothing in common with the “office, clerical and technical personnel” described in the recognition clause. They are “outside” workers because they have no connection to an office, and their work is physical. The fact that paramedics are licensed and must comply with certain ongoing training requirements does not sufficiently differentiate them from a number of the positions in the “outside” bargaining unit which also require licences which are expected to be kept current.

18. Nor is it significant, counsel argued, that the paramedics are not mentioned in the schedule of classifications referred to above in paragraph 13 above. For one thing, neither the Power Workers nor the employer had any reason to anticipate that the municipality would undertake to deliver an in-house ambulance service at the time the current collective agreement between them was reached. Secondly, counsel argued that the same collective agreement anticipates in a general way the inclusion of new positions other than those listed in the schedule of classifications and wages. I was directed to articles 29 and 31 of the collective agreement, which provide as follows:

29.00 In the event of the development of reorganized government or other service sharing arrangements between or among municipalities involving the County of Brant and affecting the employees in this bargaining unit, the Corporation shall notify the Union at least one hundred and twenty (120) days where practicable (depending on government regulation) before or, where the circumstances are such that such notice is not practicable, give the Union reasonable notice of any organizational change necessitating terminations of employment or other significant change in the employment status of the employees in order that the Union shall be given an opportunity to discuss such matters with the Corporation, as to seniority rights and service credits relating to vacations with pay, sick leave credits and other benefits.

Article 31 – Job Documents

31.01 The parties agree to jointly develop job documents for all positions in the bargaining unit within twelve (12) months of the signing of the agreement.

19. In the alternative, counsel argued that the bargaining unit to which the applicant and OPSEU had agreed was not an appropriate bargaining unit. I do not intend to outline the nature of the alternative argument, because the intervenor did not establish that it had any interest in that determination. Clearly, the intervenor did have an interest in the question as to whether OPSEU’s application was timely, which is why I have taken some length to outline the facts and the Power Workers’ position on that aspect of the case.

Decision

20. The Board finds that, on a reading of the intervenor’s collective agreement as a whole, and based upon the list of current technical positions which are excluded from the scope of that collective agreement, the employees for whom the applicant seeks bargaining rights are technical employees who are excluded from the scope of the Power Workers collective agreement.

21. Article 2.01 of the intervenor’s collective agreement excludes technical employees. The intervenor’s argument - that the reference to “technical” in article 2.01 in connection with office and clerical personnel must be understood to refer to only technical employees who are assigned an office - while novel, is not persuasive. The phrase “office, clerical and technical personnel” appears to describe a category of full-time employees that is conveniently described as a group to differentiate them from categories of other employees which cannot be conveniently grouped: managerial employees, grant employees, students and part-time employees. There is nothing express in the wording of section 2.01 that suggests technical employees with offices are excluded from the scope of the intervenor’s bargaining rights, whereas technical employees without offices are in the bargaining unit.

22. In addition, it would be difficult to conclude, given the categories of employees described in the recognition clause of the collective agreement, the classifications identified in Schedule A of the collective agreement (all of which appear to have some connection to municipal infrastructure or municipal facilities), and the existing excluded technical positions, that paramedic employees are not “technical personnel” within the meaning of article 2.01. Paramedics are not an obvious fit with the types of classifications that currently exist in the outside bargaining unit, as listed in Schedule A of the collective agreement. They obviously have technical expertise and exercise technical skills. Their work is physical to a degree, but it appears that the physical component of their jobs is simply a by-product of the exercise of their technical skills in carrying out controlled medical acts. The performance of these controlled medical acts would appear to be at the core of the job.

23. I find that the paramedic employees are technical employees within the meaning of article 2.01 of the Power Workers collective agreement, and therefore excluded from its scope.

24. I turn to the issue of the appropriateness of the bargaining unit. As indicated, OPSEU and the employer agreed that an all-paramedic bargaining unit is appropriate in this case. I am not bound by that agreement. However, before I would exercise my discretion to declare some other configuration appropriate, I would need to be persuaded that the parties’ agreed bargaining unit is not appropriate and might give rise to serious labour relations problems. I am not so persuaded. Moreover, I note that the Board has, on occasion, previously certified stand-alone paramedic units. For these reasons, I find that the following bargaining unit description is appropriate for collective bargaining:

all paramedics employed by the County of Brant in its Ambulance Service working at or out of the County of Brant, save and except supervisors and those above the rank of supervisor.

25. Given my determination that the Power Workers do not have bargaining rights in respect of the paramedics, it is not necessary to consider the alternative submissions of the parties concerning the alleged abandonment of those rights.

26. Subsequent to the counting of the ballots cast in the representation vote in this matter, and the issue on October 16, 2000 of the Notice of Report of the Returning Officer on Counting of Ballots (“the Notice”), the Board received a letter (attached to this decision) dated October 18, 2000 from a Glen Cunnane, signed by Mr. Cunnane and apparently by other individuals who apparently agree with its contents, complaining of the behaviour of unnamed OPSEU representatives leading up and during the taking of the representation vote. The letter appears to have been sent via courier on October 23, 2000, and received by the Board on October 24, 2000, one day after the five-day deadline stipulated in the Notice. It also appears that Mr. Cunnane did not send copies of his correspondence to OPSEU or the employer.

27. The employer and OPSEU are directed to file any submissions they wish to make concerning Mr. Cunnane’s complaint on or before December 15, 2000. Following receipt of those submissions, the Board shall further consider the application for certification in light of the concerns raised by Mr. Cunnane and the responses, if any, by the parties.

28. I remain seized to deal with the submissions as herein directed.

“Patrick Kelly”

for the Board