3551-00-R Ontario Public Employees Union, Applicant v. Providence Continuing Care Centre St. Mary’s of the Lake Hospital Site, Responding Party v. Kingston Psychiatric Hospital; Employees’ Union, Providence Continuing Care Centre, St. Mary’s of the Lake Hospital and Ontario Nurses’ Association, Intervenors.
3553-00-PS Ontario Public Service Employees Union, Applicant v. Employees’ Union Providence Continuing Care Centre, St. Mary’s of the Lake Hospital; Kingston Psychiatric Hospital; Ontario Nurses’ Association; Providence Continuing Care Centre, Responding Parties.
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Susan Ursel, Maurice Broadfoot; Linda Kernohan, Pam MacCrimmon and Warren Thomas for the applicant; Roy Filion, Jim Corneil and Sandra Carlton for Providence Continuing Care Centre St. Mary’s of the Lake Hospital Site; Brian Harris and Gerry Varricchio for the Employees’ Union Providence Continuing Care Centre, St. Mary’s of the Lake Hospital; Caroline Cohen, Raymonde Boileau, Barbara Findlay and Anne Murray for Ontario Nurses’ Association.
DECISION OF THE BOARD; August 10, 2001
These files consist of an application for certification brought by the Ontario Public Service Employees Union (OPSEU) to represent an “all employee” bargaining unit at the Kingston Psychiatric Hospital (KPH) site of the newly created Providence Continuing Care Centre (PCCC or the employer), and an application, also brought by OPSEU under the Public Sector Labour Relations Transitions Act (the PSLRTA) with respect to the appropriate bargaining units at the PCCC. The parties agreed that the Board would first determine the PSLRTA application, but agreed that the submissions the appropriate bargaining unit configurations could be applied to both applications.
OPSEU seeks a determination that a single bargaining unit is appropriate for all the employees working at the newly amalgamated PCCC. The other affected trade unions and the employer assert that they have entered into agreements pursuant to section 20(4) of the PSLRTA that oust the Board’s jurisdiction to configure the bargaining units in the manner that OPSEU wants. OPSEU challenges the validity of those agreements.
The employer also takes the position that it is not appropriate to configure bargaining units across the 2 sites in which it will be functioning, as OPSEU submits, because it intends to continue to operate each as a stand alone operation. OPSEU challenges that assertion, and after the hearing, sought to make further submissions about consolidation and intermingling which OPSEU alleges has occurred since the end of hearing. The relevance of that further evidence depends, in large part, on the Board’s conclusions about the relevance of the agreements entered into between the employer and the other trade unions.
The background context was presented to the Board through relevant documents. The Health Care Restructuring Commission made a number of recommendations to the Ministry of Health around restructuring the delivery of mental health care services in the Kingston area. One significant recommendation to the Minister was to:
In conjunction with the Providence Continuing Care Centre- St. Mary’s of the Lake Hospital develop and begin implementation by October 31, 1998 of a plan to transfer management and governance of all longer term mental health and forensic beds and programs from the Kingston Psychiatric Hospital to Providence Continuing Care Centre-St. Mary’s of the Lake Hospital.
Up to this point, Kingston Psychiatric Hospital had been directly operated by the Province. It provided psychiatric services, largely in-patient. All the 513 employees were represented by OPSEU in a single bargaining unit consisting of nurses, service and clerical, technical/paramedical personnel. Up to this point, St. Mary’s of the Lake Hospital (SMOL) provided complex continuing care, rehabilitation, and palliative services. It has 29 full-time nurses and 73 part-time, represented by the Ontario Nurses’ Association (ONA); 297 service and clerical workers represented by the Employees’ Union St. Mary’s of the Lake Hospital (Employees’ Union SMOL) and 162 paramedical/technical employees represented by OPSEU.
As of March 5, 2001 PCCC operates both the SMOL site and the KPH site. All parties agree that March 5, 2001 is the “changeover date” for the purposes of the PSLRTA.
Upon the transfer of KPH to the PCCC, OPSEU’s rights to represent the employees at KPH was not maintained, on account of the provisions of section 14(2) of the PSLRTA. Consequently, on March 5, 2001, OPSEU filed this application for certification which seeks, essentially, to represent the occupational groups working at KPH that it has represented for 30 years. OPSEU seeks an “all employee” unit. The PCCC submitted that three units which mirrored those at SMOL were appropriate. A representation vote was held and the ballots counted. OPSEU is in a position to be certified for either one large or three smaller units.
The Section 20(4) Agreements
- I will start by setting out the relevant statutory provisions in the PSLRTA.
20(4) On or after the changeover date, the employer and a bargaining agent may agree not to change the description of the bargaining unit in respect of which the bargaining agent has bargaining rights.
22(1) Subject to any agreement under section 20 that is in effect, the Board, upon the application of a successor employer or any bargaining agent that has bargaining rights, may by order determine the number and description of bargaining units that are appropriate for the successor employer's operations after the occurrence described in sections 3 to 10.
Simply put, the employer, ONA, and the Employees’ Union SMOL submit that they have entered into valid agreements pursuant to section 20(4) that constitute an agreement not to change the description of the bargaining units, with the result that ONA and the Employees’ Union SMOL continue to represent their respective groups at the SMOL site. The effect of such agreements, they further submit, is to preclude the Board, having regard to section 22(1) from determining a bargaining unit configuration that would upset those agreements. Consequently, they submit, it is not open to the Board to create a bargaining unit, as OPSEU wishes, that would include nurses or clerical/service employees at the SMOL site. Further, the employer submits since the agreements preclude consolidation of two groups of employees, it makes no sense to consolidate only the paramedical employees at both sites which OPSEU represents (or is in a position to represent).
OPSEU submits that the agreements were not entered into in a timely way, that is before its application for certification, which was filed on March 5, 2001, the “changeover date”. Moreover, OPSEU submits that the agreements between PCCC and ONA on the one hand, and PCCC and the Employees’ Union SMOL are not framed in such a manner as to meet the requirements of section 20(4).
On the timeliness issue, OPSEU submitted that the words “upon the application of a successor employer…” words of section 20(4) constituted a time limit. The agreements which the Board must consider, counsel submitted, are only those executed before an application is made to the Board for a determination of the appropriate number and description of bargaining units. Since these agreements were executed, it is agreed, after OPSEU made its PSLRTA application (on March 5, 2001 the changeover date), the Board is not required to consider them. The Board rejects that argument. We expect that the Legislature would express a time limit in clearer language, as it did in section 20(4). Moreover, accepting OPSEU’s submission would render the provisions of section 20 absurd. Since, it is accepted, no agreements can be entered into prior to the changeover date, an application filed on the changeover date (as OPSEU did in this case) would eliminate any opportunity for bargaining agents, and employers to reach an agreement to change or not change bargaining unit configurations. The Board would not lightly find that the Legislature had inserted a time limit that would render impossible one of the cornerstones of the PSLRTA; encouragement of workplace parties to reach agreements about the most appropriate ways to reconfigure bargaining units to meet the challenges of amalgamation. Consequently, the Board is required to consider the agreements entered into between PCCC and ONA and PCCC and the Employees’ Union SMOL.
A bit more background is necessary. It appears from the documents that initially at least the PCCC thought it could reach an agreement with all the bargaining agents who would be affected by the amalgamation, including OPSEU. PCCC entered into a Memorandum of Agreement with ONA dated June 29, 2000. Neither the PCCC nor ONA rely on this as constituting an agreement pursuant to section 20(4), no doubt because it was signed prior to the changeover date. However, the agreement that ONA and the PCCC do rely on, which is dated April 23, 2001, incorporated the earlier agreement. As a result, OPSEU argued, the Board needs to look at that earlier agreement. A consideration of its terms, OPSEU argues, will disclose that it is not an agreement “not to change the description of the bargaining unit”, but an agreement to postpone consideration of the impact of the amalgamation. Counsel focused on the parties’ Agreement to clarify the scope of ONA’s bargaining rights as follows:
For the purpose of clarity, it is agreed that the geographic scope of the bargaining unit does not include the KPH site. It is further agreed that, on and after the Changeover Date, the employees of the KPH will not be included in the bargaining unit, unless and until they are transferred to Public Hospital site(s) in accordance with paragraph 8 hereof.
Paragraph 8 provides a mechanism for determining how employees from the KPH site, not the ONA nurses at the SMOL site, can bid on opportunities at SMOL, and the rest of the document sets out how job losses are to be mitigated through the use of early retirement and voluntary exit packages. The design of the document suggests that PCCC hoped to enter into a comprehensive agreement with all the bargaining agents that would align the bargaining units, clarify their limits, and provide an orderly and cohesive program to deal with any job losses. When that goal was not reached, the employer entered into arrangements only with ONA and the Employees’ Union SMOL.
Having regard to that context, as demonstrated by the document itself, I do not conclude that ONA and the PCCC sought to postpone dealing with the consequences of amalgamation. It is more likely, as ONA and the employer submitted, that the parties recognized a potential overlap between the bargaining rights of ONA for the SMOL site and OPSEU (at least historically) for the KPH site. ONA and PCCC clarified that ONA did not claim bargaining rights for the KPH site, but asserted, that if nursing positions moved from KPH to SMOL, ONA would assert (and the employer would agree) that those positions fell within its bargaining unit. That reading is bolstered by other provisions. ONA and the employer agreed that KPH would be run as a “stand alone operation”, that is, separate from SMOL in respect of the services provided by bargaining unit employees. ONA and the employer also agreed that the bargaining structure of SMOL would remain the same as it existed prior to the changeover date. It is clear from that document that at least the PCCC and ONA thought that the KPH sites and the SMOL sites would operate separately, and wanted the bargaining rights to reflect that intention. I conclude that the agreement between ONA and PCCC dated April 23, 2001 is a valid agreement to not to change the description of the bargaining unit, within the meaning of section 20(4).
The earlier agreement between the PCCC and the Employees’ Union SMOL is similar to that reached with ONA. There is a commitment to operate KPH as a stand alone operation but only during what is identified as the Transitional Period “…the period between the Changeover Date and the date when the Public Hospital permanently relocates to the KPH site”. Provisions to deal with potential future job losses in the bargaining unit are set out and the parameters of the Employees’ Union SMOL bargaining rights are “clarified” to cover, essentially, only the SMOL campus. The agreement of April 24, 2001 repeats the clarification of the scope of the bargaining unit, and stipulates that it is an agreement made pursuant to section 20(4) of the PSLRTA. I see no reason to treat this agreement as anything other than what it appears to be; an agreement that the bargaining unit represented by the Employees’ Union SMOL remains unchanged.
Consequences of the section 20(4) agreements
There seems no dispute that the Board’s powers in section 22 to reconfigure bargaining units is “subject to any agreement under section 20”. What that means in my view, is that the Board must accept those agreements as limiting the available ways in which bargaining units can be adjusted.
Just how that impacts on the Board’s exercise of its powers in any given case will depend on the facts. In this case what it means its that the paramedical/technical unit at SMOL will also remain unchanged. Whatever might be the operational and labour relations reasons for creating bargaining units that cross both the SMOL and the KPH sites, the section 20(4) agreements prevent consideration of that result. There is no obvious reason, and no one argued there was, for combining the SMOL paramedic/technical unit with its counterpart at the KPH site. Consequently, the SMOL paramedic/technical unit will remain unchanged.
Given our findings about the validity of the agreements, and their impact on the Board’s powers to reconstruct the bargaining units, it is unnecessary for the Board to embark on any analysis of the extent to which PCCC is integrating services, meaning there is no need to reconvene the hearing and consider what OPSEU asserts is further evidence of intermingling and a moving away from the stated plan to run the KPH site as a stand alone operation.
Declarations with respect to bargaining units that are the subject of the PSLRTA application
Having regard to the Board’s findings set out above, the following constitute the existing bargaining units at the PCCC:
Full-time Registered Nurses
All registered and Graduate Nurses employed in a Nursing capacity by St. Mary’s of the Lake Hospital, Kingston, Ontario, save and except the Sisters, Patient Care Coordinators and those above the rank of Patient Care Coordinator, Nurse Clinician, and persons regularly employed for not more than forty-eight (48) hours in a two (2) week period.
Part-time Registered Nurses
All Registered and Graduate Nurses at St. Mary’s of the Lake Hospital at Kingston, employed in a Nursing capacity, regularly employed for not more than twenty-four (24) hours per week, save and except the Sisters, Nurse Clinician, Patient Care Coordinators and those above the rank of Patient Care Coordinator.
The Ontario Nurses’ Association is declared to be the bargaining agent of both the Registered Nurses units.
Service and Clerical
All employees at the St. Mary’s of the Lake Hospital site located at 340 Union Street, Kingston, Ontario plus Sydenham 5 of Providence Continuing Care Centre located at 275 Sydenham Street, Kingston, Ontario, save and except the Sisters, Professional Medical Staff, Registered Nursing Staff, Non-Registered Nurses, Graduate Nurses, Undergraduate Nurses, Graduate Pharmacists, Undergraduate Pharmacists, Secretary to the Administrator, Secretary to the Vice-President, Human Resources, Secretary to the V.P. Nursing, Administrative Assistant, Human Resources Assistant, Graduate Dieticians, Student Dieticians, Technical Personnel, Supervisors, Foremen, Payroll Officer, Payroll Clerk, Chief Engineer, all persons above the rank of Supervisor or Foreman, and persons covered by the subsisting collective agreements.
The Employees’ Union SMOL is declared to be the bargaining agent for the Service and Clerical unit.
Paramedical/Technical
All lay Paramedical employees of St. Mary’s of the Lake Hospital, Kingston, Ontario at Kingston, save and except Supervisors and those above the rank of Supervisor, persons covered by subsisting Collective Agreements, students employed during the school vacation period and students engaged in a period of internship as a part of a course of professional training.
The Ontario Public Service Employees’ Union is declared to be the bargaining agent of the paramedical/technical unit.
OPSEU’s application for certification with respect to employees at the KPH site
OPSEU seeks a single “all employee” bargaining unit. The employer submits that 3 bargaining units, which mirror the units it is accustomed to dealing with at the SMOL site. The employer asked the Board to conclude that the Government’s decision to divest itself of the operations of psychiatric hospitals in the Province, and place the services in the hands of, at least in this case, a public hospital, is a signal that the labour relations structures in place historically were not working. Consequently, the Board should prefer the choice of the employer, an experienced public hospital.
With respect to what is an appropriate unit in an application for certification, the Board has consistently (at least since 1985) asked itself the question set out at paragraph 23 of the decision in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266:
… We are troubled by the fact that a largely administrative and policy-laden determination has mushroomed in some cases into an elaborate, expensive, and time-consuming process for deciding a relatively simple question: does the unit which the union seeks to represent encompass 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 Board has reliably found the bargaining unit sought by the applicant appropriate if this test is met, even if a “better” bargaining unit could be configured, and even if the employer would prefer something else.
In this case, the employees in the bargaining unit that OPSEU seeks have bargained collectively together for over 30 years. That would appear to demonstrate sufficient community of interest to bargain together on a viable basis. While the PCCC indicated that it would prefer three bargaining units that mirror its operations at the SMOL site, it did not point to any serious labour relations that would be caused by a single bargaining unit.
I conclude that the bargaining unit sought by the applicant is appropriate for collective bargaining, that is:
all employees of Providence Continuing Care Centre, St. Mary's of the Lake Hospital employed in mental health programs at the Kingston Psychiatric Hospital Campus in the City of Kingston, save and except supervisors who exercise managerial functions within the meaning of the Ontario Labour Relations Act, those above the rank of supervisor and persons employed in a confidential capacity within the meaning of the Ontario Labour Relations Act.
Since the parties addressed only the bargaining unit composition issues with respect to OPSEU’s application for certification, the Board is not certain if there are any outstanding issues, given the parties’ agreement, that the results of the certification vote entitle OPSEU to be declared the bargaining agent.
The Board directs OPSEU and PCCC to advise the Board of any outstanding issues. This panel is seized.
“Mary Ellen Cummings”
for the Board