3709-99-PS Canadian Health Care Workers, Applicant v. St. Joseph’s Health Services Association of London Incorporated, Service Employees International Union (SEIU), Service Employees International Union, Local 220 (SEIU Local 220), Responding Parties v. Ontario Nurses’ Association, International Union of Operating Engineers Local 772, National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Ontario Public Service Employees Union, Intervenors.
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: Joanne McMahon, Mike Groom and Joe Daignault for the applicant; Frank A. Angeletti, Karen Stone and Brett Mason for St. Joseph’s Health Services Association of London Incorporated; Melissa Kronick and Nini Jones, for Service Employees International Union, Local 220; Karen Sandercock and Pauline LeFebvre-Hinton for Ontario Nurses’ Association; Peter Yemen and Greg Hoath for International Union of Operating Engineers Local 772; Anthony F. Dale and Ken Brown for National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada); Richard Blair, Connie Huziak and Dave Erskine for Ontario Public Service Employees Union.
DECISION OF THE BOARD; July 14, 2000
This is an application under The Public Sector Labour Relations Transition Act, 1997 (the “Act”).
A consultation was convened on June 19 and 26, 2000 at which time the Board heard the parties’ submissions with respect to the appropriate number and description of bargaining units.
Prior to hearing the parties’ submissions on the bargaining unit issue, the Board dealt with two preliminary issues. The Service Employees International Union, Local 220 (“SEIU”) sought an adjournment of the consultation until such time as a differently constituted panel of the Board responded to SEIU’s request for reconsideration in connection with certification applications in which SEIU was displaced as bargaining agent by the National Automobile Aerospace, Transportation and General Workers of Canada (CAW-Canada) (“CAW”). SEIU’s request for an adjournment was denied. There is a general presumption in labour relations matters that time is of the essence and that it serves the interests of all workplace participants to have workplace issues determined as quickly as possible. This presumption is reinforced by section 37(8) of the Act that specifically provides that the Board “shall make decisions, determinations and orders under this Act in an expeditious fashion.” It is impossible to determine when the Board’s determination with respect to the request for reconsideration might issue. Further, a request for reconsideration is not the SEIU’s last avenue of appeal. The SEIU may file a judicial review application that could take years to be determined. It is simply not acceptable for this application to be held up for an indeterminable and potentially long period of time while the SEIU pursues avenues of appeal.
The Board further denied standing to the Ontario Public Service Employees Union (“OPSEU”) on the basis that it does not have a real, direct, discernable interest in the proceedings (see: International Brotherhood of Electrical Workers, [1996] OLRB Rep. Feb. 70; United Brotherhood of Carpenters and Joiners of America, [1999] O.L.R.D. No. 247; and Ontario (Attorney General) v. Dieleman, 1993 CanLII 5478 (ON CTGD), [1993] 16 O.R. (3d) 32). As at the date of application, and the date of the consultation, OPSEU did not represent any employees of St. Joseph’s Health Services Association of London Incorporated (the “employer”). While the government intends to transfer governance of facilities in which individuals presently represented by OPSEU work to the employer no later than March 31, 2001, it is not a certainty that the Act will apply upon the transfer. OPSEU’s interest in the present application is simply too remote for it to be granted standing.
One further issue is usefully dealt with before turning to the issue of the number and configuration of the bargaining units. The International Union of Operating Engineers, Local 772 (“IUOE”) submits that its members should not be included in any vote because none of the factors that the Board is directed to consider in section 9(6) of the Act apply to the functions performed by the stationary engineers represented by IUOE. I do not accept this argument. There is no doubt that the conditions precedent to the application of the Act and section 9(1) thereof are present. Once an occurrence described in section 9 occurs and an application pursuant to section 22 of the Act has been filed, the Board has the power to determine the number and description of bargaining units that are appropriate for the successor employer’s operations. The factors listed in section 9(6) speak broadly to all of the successor employer’s operations and collective bargaining relationships. Section 9(6) does not suggest that the Board is required to canvass each of the factors in relation to each of the existing bargaining units.
The parties have entered into a Memorandum of Agreement pursuant to section 20 and 21 of the Act pursuant to which the parties have agreed that the Ontario Nurses’ Association will represent nurses in the following bargaining units:
APPLIES TO FULL-TIME ONLY:
The Employer recognizes the Union as the exclusive bargaining agent for all lay, Registered and Graduate Nurses employed in a nursing capacity by the Employer at St. Joseph’s Health Care, at Grosvenor, Mount Hope and Parkwood sites, at London, Ontario, save and except Team Leader-Managers/Service Coordinators/Program Directors, persons above the rank of Team Leader-Manager/Service Coordinator/Program Director, Nurse in Charge Central Supply, Employee Health Nurse, Infection Control Practitioners, Programme Coordinators, and Clinical Nurse Specialists, Occupational Health Nurses and Nurses regularly employed for not more than twenty-four (24) hours per week. This Agreement shall apply to the said Nurses and hereinafter referred to as Employee(s) or Nurse(s).
APPLIES TO PART-TIME ONLY:
The Employer recognizes the Union as the exclusive bargaining agent for all lay, Registered and Graduate Nurses employed in a nursing capacity by the Employer at St. Joseph’s Health Care, at Grosvenor, Mount Hope and Parkwood sites, at London, Ontario, save and except Team Leader-Managers/Service Coordinators/Program Directors, persons above the rank of Team Leader-Manager/Service Coordinator/Program Director, Nurse in Charge Central Supply, Employee Health Nurse, Infection Control Practitioners, Programme Coordinators, and Clinical Nurse Specialists, Occupational Health Nurses and Nurses covered by the subsisting Collective Bargaining Agreement made between the Employer and the Union respecting full-time Nurses. This agreement shall apply to such Nurses in respect of whom the Employer recognizes the Association as the exclusive Bargaining Agent as aforesaid. The term Nurse(s) shall be deemed to apply to the said Nurses within the Bargaining Unit as aforesaid.
Where the term “Hospital” is used throughout this entire Collective Agreement, it shall mean St. Joseph’s Health Care, and all outlying clinical areas, or any other extension of St. Joseph’s Health Care.
The Memorandum of Agreement stipulates as follows:
ONA reserves its right to amend its position with respect to the appropriate bargaining unit description for the nurses’ unit when the Crown transfers the governance and management of the London and St. Thomas Psychiatric Hospitals to St. Joseph’s Health Care, London.
The employer employs approximately 3984 employees, 2600 of which are within a bargaining unit. The employer currently operates out of three sites: St. Joseph’s Hospital; Mount Hope Centre for Long Term Care; and Parkwood Hospital.
At present, the employer employs 1100 employees that are represented by ONA. In addition, the employer currently has the following bargaining units:
(1) Five service units:
(i) a full-time and part-time service unit at Parkwood Hospital represented by the Canadian Health Care Workers (“CHCW”);
(ii) separate full-time and part-time service units at St. Joseph’s Hospital inclusive of Registered Practical Nurses (“RPNs”) and stationary engineers represented by the CAW;
(iii) separate full-time and part-time service units at Mount Hope inclusive of RPN’s represented by the CAW.
(2) One RPN unit at Parkwood Hospital represented by CHCW.
(3) One technical unit at St. Joseph’s Hospital represented by SEIU.
(4) One stationary engineer unit at Mount Hope represented by the IUOE.
- The parties’ positions with respect to the appropriate number and description of the bargaining units that the Board should order are set out in their written briefs and were amplified in the course of the consultation. I will not set out these positions here. It suffices to say that the parties have agreed that the Board should address the following issues:
(1) Whether there should there be one service unit inclusive of both full-time and part-time employees or two service units, one restricted to full-time employees and the other restricted to part-time employees.
(2) Whether there should be separate service units for each site or whether the service unit(s) should include all three sites.
(3) Whether the RPNs should be included in the service unit or have their own separate unit composed of all full-time and part-time RPNs at all three sites.
(4) Whether the technical unit should be limited to St. Joseph’s Hospital or extend to all three sites.
(5) Whether the stationary engineer bargaining unit should be maintained or whether stationary engineers should be included in the service unit.
I am persuaded that there should be one service unit, inclusive of RPNs and stationary engineers that extends to all three sites. While such a unit does not coincide with any of the existing bargaining unit descriptions such is impossible in the present case. While one site had a service unit inclusive of both part-time and full-time, other sites had separate units. While two sites had service units inclusive of RPNs, one of the sites did not. While one site had stationary engineers included in the service unit, another site did not. Thus, any service unit description arrived at will disrupt an existing bargaining unit. There is experience to suggest that a service unit inclusive of both RPNs and stationary engineers has worked successfully. There is also a history of having full-time and part-time service employees successfully included in one bargaining unit. The Board has typically moved in the direction of larger bargaining units and there is no compelling reason to create three separate service units each restricted to an individual site. Thus, in circumstances where bargaining units must be amended, and the experience suggests that such will work effectively, it makes sense to create one service bargaining unit composed of both full-time and part-time employees, inclusive of RPNs and stationary engineers for all three of the sites.
I am not persuaded that the technical unit should be limited to St. Joseph’s Hospital. There are presently no technical employees at Mount Hope or Parkwood Hospital such that the amendment to the bargaining unit description will have no immediate impact. However, if the unit is not described in terms of all three sites, and technical employees are in fact engaged at such sites in the future, the potential exists for the number of bargaining units, and thus rounds of collective bargaining, potential strikes and number of collective agreements, to increase. Further, the mobility of the technical employees will be restricted. Thus, it is my determination that the technical unit should be described in terms of all three sites of the employer and not restricted to St. Joseph’s Hospital.
At the conclusion of the consultation, the CAW requested that I issue my determinations with respect to the number and description of the bargaining units and remit the exact language to be used in describing the bargaining units to the parties. Thus, I hereby refer this matter to the Manager of Field Services for the purpose of appointing a labour relations office to meet with the parties with a view to finalizing the descriptions of the bargaining units and making arrangements for a vote to be conducted with respect to the two units as described above.
The SEIU has requested an opportunity to address the Board with respect to its submission that no vote be conducted pending its reconsideration request of the Board’s certification of the CAW. Should the SEIU wish to make such submissions, it is directed to do so within 10 calendar days of the date of this decision. Following receipt of such submissions, should the Board require submissions in response from the other parties, they will be advised accordingly.
I am seized.
“D. L. Gee”
for the Board```