3893-00-R MICs Group of Health Services, Applicant v. Canadian Union of Public Employees, Local 238; Canadian Union of Public Employees, Local 2558 and Service Employees International Union, Local 204, Responding Parties v. OPSEU Local 643, Intervenor.

BEFORE: Marilyn Silverman, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.

APPEARANCES: Robert Hickman for the applicant; John L. Stout, Brenda Prieur and Emanuel Carvalho for the Service Employees International Union, Local 204; Mark Gallina for Canadian Union of Public Employees; Richard A. Blair for Ontario Public Service Employees Union.

DECISION OF THE BOARD; December 7, 2001

1. This is an application filed under section 69 of the Labour Relations Act, 1995 (the “Act”). It arises out of the transfer of land ambulance services from three hospitals to the applicant, MICs Group of Health Services (“MICs” or “the employer”).

2. The parties are agreed that there has been a sale of part of a business under section 69 of the Act and are agreed that the Board should order a representation vote. The ambulance employees should be given the choice to be represented by either the Canadian Union of Public Employees, Local 238, Canadian Union of Public Employees, Local 2558 (“CUPE”) or Service Employees International Union, Local 204 (the “SEIU”).

3. The only issue in dispute is the appropriate bargaining unit. The employer submits that a traditional “service” unit is most appropriate. CUPE contends that an ambulance paramedic only unit is the most appropriate. The SEIU’s preference is for the employer’s position.

4. At the commencement of the hearing, counsel for the Ontario Public Service Employees Union (“OPSEU”) appeared to ensure that its bargaining rights that exist in respect of a group of paramedical and technical employees would continue to subsist. All parties agreed that the bargaining rights held by OPSEU were not affected by this proceeding and on that basis counsel withdrew from the hearing.

5. For clarity, the Board confirms the agreement of the parties that the bargaining unit description found to be appropriate by the Board in this proceeding excludes the paramedical and medical technical employees represented by OPSEU.

The Facts

6. There were few facts in dispute and those agreed were set out in a statement of fact prepared by counsel for the employer. Although CUPE referred to additional facts which are described below, it agreed to the use of the facts provided by the employer. The Board has relied on certain portions of those facts:

AGREED STATEMENT OF FACTS

1. MICs consists of three hospitals located in Northern Ontario:

(a) Anson General Hospital (hereinafter referred to as “Anson”) – Iroquois Falls;

(b) Bingham Memorial Hospital (hereinafter referred to as “Bingham”) – Matheson; and

(c) Lady Minto Hospital (hereinafter referred to as “Lady Minto”) – Cochrane.

2. MICs is a legal partnership established in 1996. Lady Minto, Bingham, Anson, and a fourth hospital that later withdrew formed a legal partnership under the name of MICs.

3. Due to provincial legislation that was passed in 1997, all upper tier municipalities became responsible for funding all costs associated with providing a land ambulance service within their area.

4. Until approximately January 1, 2001, each of Lady Minto, Bingham, and Anson operated their own and distinct land ambulance services.

5. As of January 1, 2001, the legislation required that all upper tier municipalities become responsible for contracting out or directly delivering land ambulance services.

6. The Cochrane District Social Services Administration Board awarded the contract to provide land ambulance services to MICs beginning on January 1, 2001.

7. On or about January 1, 2001, Lady Minto, Bingham, and Anson all transferred their land ambulance services to MICs. Concurrently, Lady Minto transferred its ten (10) ambulance employees, Bingham transferred its eleven (11) ambulance employees, and Anson transferred its twelve (12) ambulance employees to MICs.

8. All parties are agreed that these transactions constituted a sale of a part of a business, within the meaning of Section 69 of the Labour Relations Act from each of Lady Minto, Bingham, and Anson to MICs.

9. The following unions represent ambulance employees:

Location Union Number of Employees

Anson SEIU 5 full-time, 7 part-time

Bingham CUPE 4 full-time, 7 part-time

Lady Minto CUPE 5 full-time, 5 part-time

10. The existing bargaining unit structure is:

Location Union Number of Employees

Anson SEIU 46 full-time, 47 part-time

ONA 12 full-time, 22 part-time

Bingham CUPE 26 full-time, 31 part-time

ONA 8 full-time, 10 part-time

Lady CUPE 33 full-time, 43 part-time

ONA 16 full-time, 18 part-time

MICs OPSEU 9 full-time, 12 part-time

11. MICs is recognized by the parties as a separate employer and there has been a sale of a business. Ambulance employees from service bargaining units at the three hospitals have been brought to MICs and intermingled.

12. Local 238 represents two bargaining units of employees of Lady Minto in Cochrane, Ontario: a union of full-time service employees and a unit of part-time service employees.

13. Until recent developments, as described below, Local 238’s full-time bargaining unit at Lady Minto was comprised of thirty-three (33) employees.

14. Until recent developments, this bargaining unit included five (5) full-time ambulance employees.

15. Until recent developments, Local 238’s part-time bargaining unit at Lady Minto was comprised of forty-three (43) employees.

16. Until recent developments, this bargaining unit included five (5) part-time ambulance employees.

17. Until recent developments, Local 2558’s full-time service bargaining unit at Bingham was comprised of twenty-six (26) full-time employees.

18. Until recent developments, this bargaining unit included four (4) full-time ambulance employees.

19. Until recent developments, Local 2558’s part-time service bargaining unit at Bingham was comprised of thirty-one (31) part-time employees.

20. Until recent developments, this bargaining unit included seven (7) part-time ambulance employees.

21. SEIU represents a bargaining unit of employees of Anson in Iroquois Falls, Ontario, in a service and clerical unit.

22. Until recent developments, SEIU’s bargaining unit at Anson was comprised of forty-six (46) full-time and forty-seven (47) part-time employees.

23. Until recent developments, SEIU’s bargaining unit at Anson included five (5) full-time and seven (7) part-time ambulance employees.

24. MICs proposes a service bargaining unit at MIC’s to be as follows:

“The MICs Group of Health Services recognizes the union as the sole and exclusive agent for all employees of MIC’s Group Health Services except professional medical staff, registered nurses, graduate and undergraduate nurses, paramedical employees, office and clerical staff, supervisors, department heads and Patient Care Coordinators and persons above the rank of supervisors, department heads, and Patient Care Coordinators, students employed during the school vacation periods, dieticians, technical personnel, chief engineer, secretary to the Executive Director, secretaries to the Finance Coordinators, Secretary to the Director of Nursing and any other person employed in the confidential or managerial capacity.”

This is similar to the language used to describe service bargaining units in hospitals across the province.

The existing language of the service bargaining units at the three hospitals is as follows:

(a) Anson General Hospital (SEIU, Local 204):

“The Hospital recognizes the Union as the exclusive bargaining agent for all employees of Anson General Hospital in Iroquois Falls, Ontario, save and except professional medical staff, registered nurses, graduate and undergraduate nurses, paramedical employees, supervisors, persons above the rank of supervisor, and employees in bargaining units for which any trade union held bargaining rights on June 28th, 1985.”

(b) Bingham Memorial Hospital (CUPE, Local 2558):

Full-Time: “The Employer recognizes the Union as the sole and exclusive bargaining agent for all employees set out in the following bargaining units:

(a) All employees of the Employer at Matheson, Ontario, save and except supervisors, persons above the rank of supervisor, professional medical staff, registered nurses, graduate and undergraduate nurses, office and clerical staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.

(b) All office and clerical employees of the employer at Matheson, Ontario, save and except office manager, those above the rank of office manager and secretary to the Administrator.

Part-Time: the Employer recognizes the Union as the sole and exclusive bargaining agent for all employees set out in the following bargaining units:

(c) All employees of Bingham Memorial Hospital at Matheson, Ontario, regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except supervisors, persons above the rank of supervisor, professional medical staff, registered nurses, graduate and undergraduate nurses, office and clerical staff.”

(c) Lady Minto Hospital (CUPE, Local 238):

Full-Time: “The Hospital recognizes the Union as the exclusive Collective Bargaining Agent for all present and future employees of the Lady Minto Hospital at its Hospital in Cochrane, save and except professional medical staff, graduate nursing staff, undergraduate nurses, graduate pharmacists, undergraduate pharmacists, graduate dieticians, student dieticians, technical personnel, department heads, persons above the rank of department heads, chief engineer, office staff, persons regularly employed for not more than twenty-four (24) hours per week.”

Part-Time: the Hospital recognizes the Union as the exclusive bargaining agent for all present and future employees of the Lady Minto Hospital at its Hospital in Cochrane, regularly employed for not more than twenty-four (24) hours per week, save and except employees covered under the full-time Agreement and professional medical staff, graduate nursing staff, undergraduate nurses, graduate pharmacists, undergraduate pharmacists, graduate dieticians, student dieticians, technical personnel, department heads, persons above the rank of department heads, chief engineer, and office and clerical staff.

25. In a letter dated November 13, 2001, CUPE stated:

“As discussed in our meeting with the Board Officer on November 13, 2001, we will be taking the position that the Board should define the like bargaining unit as follows:

All employees of the MICSs (sic) Group of Health Services employed as ambulance paramedics, save and except supervisors and persons above the rank of supervisor.”

26. This agreed statement of facts is entered into only for the purposes of determining the like bargaining unit and without prejudice to any other matter.

[emphasis added]

7. CUPE put forth two additional facts which were not agreed to by the employer but on which ultimately nothing turns. CUPE contends that all ambulance employees are ambulance paramedics and that apart from the OPSEU members of MICs and three material handlers recently transferred to MICs, MICs employs no other employees. MICs dispute this.

8. Paragraph 24 of the facts contains the employer’s proposed unit; paragraph 25 describes CUPE’s proposed unit. They appear in bold type.

Submissions of the Parties

9. The employer contends that the Board should find that its “service unit” is the most appropriate unit in the circumstances. It says that broader bargaining units are typically preferred and that the preservation of the status quo is important. In respect of the status quo, the employer says that these employees are coming from service bargaining units and the parties have a familiarity with that structure. The employer does not want to see a fracturing of the structure as they are moving into the amalgamation. The employer intends to move other employees and other classifications into its operation. In the event that other employees are transferred in future as the employer intends and CUPE’s description is adopted by the Board, further section 69 applications would result. The employer has, since the application date, moved three material handling into its operation.

10. The SEIU adopts the submissions of counsel for the employer and although it concedes that both descriptions are appropriate, it contends that in making a 69(6) determination the Board must focus on the more appropriate unit. It asserts that all other things being equal, the broader bargaining unit is to be preferred. It contends that on the facts of this case, that unit is more flexible, better for labour relations and mirrors the previous organizational structure.

11. CUPE concedes that it will generally support the notion that a broader unit is better. However, it asserts that this is a unique situation and the Board must discount both the recent transfer of three material handlers and the employer’s stated intention to transfer other employees and only deal with the existing facts. Those are that only the ambulance service employees have been transferred.

12. CUPE states that if the employer’s position prevails there will be future votes which are both disruptive to the workplace and contrary to good labour relations. It contends that its description would minimize the number of votes and the number of voters. It would also alleviate conflicting bargaining rights whenever a new group of employees is transferred into the employer’s operation. That is so because any future votes would not include the ambulance employees who would be in an ambulance services only unit.

13. CUPE also asserts that the fragmentation to which the employer refers only exists if future transfers occur and at this point that is a statement of intention and speculation. It summarizes its position on the basis of three points; first, it contends that this sale is of a coherent part of a business and as such the piecemeal transfer has already disrupted the status quo; second, the employer has no pre-existing bargaining unit into which the ambulance service employees could be placed; and third, other than the most recently transferred material handlers, there are no other unorganized employees who could form a third bargaining unit.

Decision

14. CUPE relies on two Board decisions as authority for its position that the ambulance employees only unit was the more appropriate unit. These are Hotel Dieu of Kingston, [1984] OLRB Rep. June 816 and Gallant Painting, [1991] OLRB Rep. September 1051. The employer and the SEIU relies on more recent authorities which were Humber/Northwestern/York-Finch Hospital; [1997] OLRB Rep. September/October 872; Pembroke General Hospital, [1997] OLRB Rep. September/October 918; The Ottawa Transition Board, [2001] OLRB Rep. May/June 871; Hotel Dieu Hospital, [2001] OLRB Rep. March/April 370; Perth & Smiths Falls District Hospital, [2001] OLRB Rep. March/April 419.

15. The panel has considered the submissions of counsel and the authorities provided and has determined that the broader service unit proposed by the employer is the more appropriate unit. The reasons are as follows.

16. If we consider the bargaining unit descriptions of the predecessor employers those units more closely resemble the employer’s description than CUPE’s. The preservation of that status quo, i.e. a bargaining structure that the parties are accustomed to, is also to be preferred.

17. We make our determination considering first only the facts that existed before the transfer of the three material handlers. We disregard the employer’s intention to move other classifications into the unit. The Board has taken the view that all other things being equal a broader bargaining unit is to be preferred. There is no reason advanced by CUPE on the facts of this case to depart from that approach.

18. This approach was followed in the recent case law and was succinctly stated in the Humber/Northwestern/York-Finch Hospital case at paragraphs 30, 31, 32 and 33. These notions were adopted in Perth & Smiths Falls District Hospital, supra and Pembroke General Hospital, supra.

19. In exercising its discretion to determine what is "appropriate" under section 69(6) of the Act, I do not think that the Board can ignore what is going on in the rest of the collective bargaining system. Any sensible reading of the word "appropriate" must take these realities into account. And the dominant reality today is towards fewer, larger public sector institutions - be they hospitals, school boards or municipalities - and fewer, bigger bargaining units.

20. The second factor that one has to keep in mind is the evolving consensus that broader‑based bargaining structures are generally better for collective bargaining ‑ and ultimately better for BOTH employers and employees.

21. This is not to say that "bigger is always better". However, labour relations boards across the country have all recognized the utility of broader‑based bargaining structures, because they are more likely to: promote stability, increase administrative efficiency, enhance employee mobility, and generate a common framework for employment conditions for all employees in an enterprise. Bigger bargaining units also have more critical mass, so that they are better able to facilitate and accommodate change. …

22. In the absence of statutory prescriptions, there is, today, a pronounced preference for broader‑based bargaining units, unless that objective collides in a serious way with the employees' ability to organize themselves. …

23. If we were to consider the intention of the employer, which is that ultimately other classifications will be transferred to the employer’s operation, then a unit other than a service unit would clearly result in fragmentation. This factor only assists the employer’s position.

24. Having regard to OPSEU’s bargaining rights, the parties agreed that the employer’s bargaining unit description is to be altered to read “paramedical and medical technical employees” in place of “paramedical employees”.

25. Having regard to the reasons provided above, the Board will order the holding of a representation vote of:

all employees of MIC’s Group of Health Services except professional medical staff, registered nurses, graduate and undergraduate nurses, paramedical and medical technical employees, office and clerical staff, supervisors, department heads and Patient Care Coordinators and persons above the rank of supervisors, department heads, and Patient Care Coordinators, students employed during the school vacation periods, dieticians, technical personnel chief engineer, secretary to Executive Director, secretaries to the Finance Coordinators, Secretary to the Director of Nursing and any other person employed in a confidential or managerial capacity.

These employees will be asked whether they wish to be represented by the Canadian Union of Public Employees or the Service Employees International Union in their employment relations with MICs Group of Health Services.

22. CUPE raised additional concerns about the exclusions in the employer’s bargaining unit but agreed that they were not relevant at this time for the purpose of the holding of the representation vote. Those disputes relate to the exclusion of office and clerical employees, technical personnel, and certain secretarial exclusions. If not resolved by the parties these matters can be raised before the Board after the holding of the representation vote.

23. The parties have agreed that the vote will be held the last week of January 2002. The matter is referred to the Registrar for vote arrangements with a view to counsel’s letter of November 23, 2001 in respect of those arrangements.

24. Further details concerning the vote will be determined once the parties have agreed upon vote arrangements.

“Marilyn Silverman”

for the Board