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 772¸ Responding Parties v. Ontario Public Service Employees Union; Ontario Nurses’ Association; Intervenors.
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.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD: December 7, 2000
The correct name of the responding party International Union of Operating Engineers, Local 722 is amended as indicated in their response to: “International Union of Operating Engineers Local 772”.
These are applications under the Public Sector Labour Relations Transitions Act, 1997 S.O. 1997, c.21 (“the Act”) to determine the number and descriptions of the bargaining units that are appropriate for the operations of the successor employer, Niagara Health System, and to determine which of the bargaining agents represent the employees of the bargaining units.
There remains one issue in dispute concerning the inclusion of the positions of case manager (“CM”) and professional practice leader (“PPL”) in the proposed paramedical bargaining unit. The intervenor, the Ontario Nurses’ Association (“ONA”) takes the position that a clarity note should be added to the paramedical bargaining unit description stating that, where the CM or PPL positions are occupied by registered or graduate nurses, those persons and their positions fall within the ONA bargaining unit.
It should be pointed out that, at this stage, there has been no determination under the Act with respect to the appropriate bargaining unit or bargaining agent for the registered and graduate nurses. At the moment, the ONA bargaining units of the predecessor hospitals continue to exist separately within Niagara Health System. ONA indicates that it will be filing an application under the Act to determine the bargaining unit configuration and bargaining agent issues in respect of registered and graduate nurses. But at the moment, ONA’s position in these applications must be understood to mean that, if a registered or graduate nurse occupies a CM or PPL position, that individual and his or her position belongs to the applicable ONA bargaining unit of one of the predecessor hospitals. It is not clear to me whether all the ONA bargaining units include CM or PPL positions. The ONA bargaining unit of the predecessor Welland County General Hospital (“WCGH”) appears to contain CM’s as a result of a recent rights arbitration award of Arbitrator G. Charney, dated June 29, 2000. I propose to deal with the issue raised in this decision assuming, without deciding, that all the ONA bargaining units could lay claim to the CM and PPL positions occupied by registered and graduate nurses, depending upon the location or site at which the CM or PPL carries out his or her duties.
ONA filed submissions concerning this issue on November 7, 2000. Pursuant to my decision of November 8, 2000, the other parties in these applications were directed to respond to ONA’s submissions by November 17, 2000, and ONA was directed to file any reply it wished to make by November 22, 2000. Niagara Health System (“the employer”) and the Ontario Public Service Employees Union (“OPSEU”) filed timely responses, and ONA filed a timely reply. The employer then filed further submissions on November 24, 2000 in response to ONA’s November 22, 2000 reply. I decline to consider the employer’s November 24, 2000 submissions.
I prefer the position of the employer and OPSEU concerning the placement of the CM and PPL positions exclusively within the paramedical bargaining unit. The alternative offered by ONA – that CM and PPL positions and incumbents fall into either of two bargaining units depending upon the qualifications held by the incumbents – is a position that, while perhaps viable, should not prevail in the circumstances of this case and the statutory framework under which I am bound.
The purposes of the Act are set out in section 1, which provides:
The following are the purposes of this Act:
To encourage best practices that ensure the delivery of quality and effective public services that are affordable for taxpayers.
To facilitate the establishment of effective and rationalized bargaining unit structures in restructured broader public sector organizations.
To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees following restructuring in the broader public sector and in other specified circumstances.
To foster the prompt resolution of workplace disputes arising from restructuring.
Section 22 of the Act is the provision which confers authority on the Board to determine the number and description of bargaining units, subject to any agreement reached by the parties pursuant to section 20. In making that determination, subsection 22(7) states:
22(7) In making a determination under this section, the Board shall have regard to the purposes of this Act.
ONA’s proposal has the potential to create labour relations confusion, and to escalate labour relations litigation. For example, in posting vacancies for these positions, it may not be possible to determine at the time of posting which collective agreement applies until such time as the successful candidate is selected. If that candidate happens to be a graduate or registered nurse, on ONA’s contention, the job and the person are in the ONA bargaining unit, otherwise they fall within the paramedical bargaining unit. That in itself is not an overly confusing result, but the labour relations issues become considerably murkier if the selection of the candidate is grieved, particularly if it is grieved by a person in the bargaining unit opposite that of the successful candidate. The situation becomes even more uncertain if grievances are filed by individuals in both bargaining units.
ONA argues that the scenarios outlined above are merely hypothetical. However, in an organization the size of this one, it is entirely possible that CM and PPL positions will be filled with persons who are graduate and registered nurses, and with persons who do not hold those designations. In and of itself, such a result does not appear overly problematic. But it is the further implication of labour relations disputes that gives the Board concern in exercising its authority in this case to decide the bargaining unit configuration following a restructuring under the Act. The Board must endeavour to achieve a result that best fits within the articulated purposes of the Act. To accede to ONA’s position would, in my opinion, not fulfill the purposes of the Act stated in subparagraphs 2 and 4 of section 1, outlined above. It is worth noting that Arbitrator Charney, who decided that CM’s fall within the WCGH bargaining unit, was not deciding the matter pursuant to the Act, and hence, he quite properly did not, and was not required to, consider the purposes of the Act in reaching his decision.
For all the above reasons, I decline to add the clarity note requested by ONA to the description of the paramedical bargaining unit. I am satisfied that the material facts concerning the issue were not in dispute, and that the positions of the parties were sufficiently clear to enable me to arrive at this decision without the necessity of a consultation. I therefore also decline ONA’s request to set the matter down for a consultation.
The Board finds that:
All paramedical employees employed 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.
constitute a unit of employees of the employer appropriate for collective bargaining.
On the taking of the representation vote directed by the Board in respect of the paramedical bargaining unit, more than fifty per cent of the ballots cast by employees in this bargaining unit were cast in favour of OPSEU.
Pursuant to section 23(3) of the Act, the Board appoints OPSEU as the bargaining agent for the paramedical bargaining unit.
The employer is directed to post copies of this decision in locations in the workplace where it is likely to come to the attention of employees affected. Those copies are to remain posted for a period of 30 days from the date of this decision.
I note that my decision of October 17, 2000, in which I made determinations concerning the bargaining units and bargaining agents in respect of the service and office/clerical bargaining units, failed to direct the posting of copies of that decision in the employer’s workplace. Accordingly, to the extent it was not posted for a period of at least 30 days, I hereby direct the employer to post copies of the October 17, 2000 decision together with copies of this decision, for the same 30-day period set out in paragraph 14 above.
“Patrick Kelly”
for the Board