0211-00-R Ontario Public Service Employees Union, Applicant v. Hotel Dieu Hospital, Canadian Union of Public Employees, Local 1097, Responding Parties.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; May 22, 2001
This is a request for reconsideration of a decision rendered on March 23, 2001. In that decision, based on the agreement of the parties, the Board concluded that there had been a sale of part of a business, the ambulance service, from Niagara-on-the-Lake Hospital (NOTL) to Hotel Dieu Hospital (Hotel Dieu). The Board went on to consider whether the paramedic employees should be in a separate bargaining unit, and concluded that they should not. The Board declined to disturb the configuration of the service bargaining unit at Hotel Dieu, which had included ambulance workers for 30 years.
The final issue the Board considered, and the one about which the applicant (OPSEU) seeks reconsideration, is whether there should be a representation vote among the service unit at the Hotel Dieu into which the paramedic employees fall. At paragraph 18, I wrote:
The final issue to determine is whether a representation vote should be ordered. OPSEU submitted that it should, having regard, again, to its historic representation of the 95 paramedics and ambulance workers employed by the private operators, combined with the 10 from NOTL for whom it clearly holds representation rights. I have already determined that the historic representation of parties who are strangers to the sale transaction before the Board is not relevant to the exercise of discretion in section 69(6). Consequently, OPSEU represents 10 paramedics and ambulance workers who will be joining a CUPE bargaining unit of 540, 144 of whom are also paramedics and ambulance workers. As even counsel for OPSEU conceded, the Board will not order a representation vote where the numbers are so disparate. …
Consequently, the Board did not order a representation vote.
In its request for reconsideration, OPSEU notes that in another decision of the Board, Perth and Smith Falls District Hospital, (unreported April 3, 2001, Board File No. 0102-00-R), the Board similarly determined that paramedic employees should remain part of a service unit, but in contrast to the case before me, did order a representation vote among the bargaining agents who represented the employees prior to the sale.
At paragraphs 15 to 18 of its request for reconsideration, counsel for OPSEU wrote:
At this point the two decisions cease to be consistent. In the Hotel Dieu case CUPE was declared the bargaining agent for the larger service unit, despite having represented only 83% of the employees in that unit (447of 540 employees in the unit) prior to the sale. In the Almonte case, a vote was ordered between CUPE and OPSEU despite the fact that OPSEU had represented 83 or 84% of the employees in that unit prior to the sale (87 or 88 out of 105 employees in the unit) prior to the sale of the business.
It is submitted that the two cases are indistinguishable, both factually and legally. In each case, a hospital which had ambulance employees as part of a larger service unit was the successful bidder to provide ambulance services in an upper tier municipality. In each case it took over services formerly provided by one other hospital, the Crown and Crown Agencies. In each case, the incumbent union at the successful bidder had represented 83% of the members in the post-sale bargaining unit prior to the sale.
The Board and the labour relations community have a significant interest in the Board establishing a consistent and predictable body of case law. Like cases should be decided alike. It does a disservice to the Board and the community to have 2 decisions in factually and legally indistinguishable cases issued 10 days apart and come to such radically different conclusions.
As such it is submitted that the Board ought to reconsider its decision in each of these cases and either order a vote in both cases or in neither case.
One basis upon which the Board has been prepared to entertain reconsideration requests concerns questions of significant Board policy. In Toronto Board of Education, [1998] OLRB Rep. Jan/Feb 104, the Board articulated the test as follows:
Where the Board does embark on a reconsideration inquiry, it should generally not be just because a matter turns on a question of significant Board policy or is arguably wrong. Most cases will in fact turn on such points. It is rare for cases to be decided where an alternative result is not arguable. This is why matters require adjudication in the first place, because reasonable people disagree on the appropriate solution to a problem. What should justify the reconsideration exercise is some considerable uncertainty around the policy, or an apparent absence of consideration or discussion of the policy in Board decisions, or apparent inadvertence or a failure to deal with issues or authorities which are at the heart of the matter in dispute.
Practically, and as a guidepost for parties, this approach means that the Board will examine requests for reconsideration on a case by case basis and that it may depart from the usual threshold test if there are compelling reasons to do so. Compelling reasons may include the fact that in the words of Imperial Tobacco ([1974] OLRB Rep. Sept. 609) the earlier decision was "clearly wrong in law" or "inadvertently contrary to Board policy". Generally however, parties should not be permitted "another kick" at the case simply on the theory that the decision is arguably incorrect or touches on a matter of significant Board policy. There must be more to it than that, usually something about the Board's treatment of those issues or questions of law.
I understand OPSEU to be concerned that the Board has issued two decisions, in a short period of time, that do not appear to be consistent. Since consistency is an important value the apparent lack of it raises an important issue of policy that justifies at least having another look at the conclusion in each decision, and their reasons.
In Perth and Smith Falls District Hospital, the Board found that CUPE represented 16% to 17% of the employees in one of the predecessor bargaining units, and OPSEU represented the remaining 83% to 84%. The Board noted that in the past, it has tended to require representation of 20% to 25% of the employees before it will direct a vote in the exercise of its discretion pursuant to section 69 of the Act. However, in Pembroke General Hospital, [1997] OLRB Rep. Sept./Oct. 918, the Board ordered a vote when the union seeking it represented approximately 12% of the total employees. In that decision, the Board commented that as it moved into the era of municipal, hospital and educational restructuring, where many longstanding bargaining relationships would be interrupted, bargaining relationships based on employee choice were to be preferred, and so, in all the circumstances, a representation vote should be ordered. The Board hearing the matter in Perth and Smith Falls District Hospital, echoed those sentiments, and having found that CUPE’s representation numbers fell somewhere between the Board’s traditional threshold, and the one articulated in Pembroke General Hospital, directed a representation vote.
I turn now to the decision of this panel of the Board which OPSEU seeks to have reconsidered. In setting out its conclusion that CUPE represented “only” 83% of the employees in the service unit, the applicant has failed to add that OPSEU represented a mere .02% of the remaining employees in the intermingled service unit. With respect to the rest of the paramedic employees, OPSEU did not hold bargaining rights to which the successor employer rights and obligation in section 69 of the Act applied. In other words, by virtue of section 10 of the Crown Employees Collective Bargaining Act, OPSEU’s bargaining rights did not follow the transfer of the ambulance businesses from the Crown operators to Hotel Dieu. The employees of the Crown operators, later hired by Hotel Dieu, were an accretion to the bargaining unit represented by CUPE. The Board’s decision not to order a representation vote was based solely on the paucity of employees OPSEU represented in the new intermingled service unit.
The Board certainly understands OPSEU’s position that the historic representation by OPSEU of the employees of the former Crown operators should be taken into account in deciding whether or not the Board should exercise its discretion and order a representation vote. However, as paragraph 18 of the initial decision indicates, that submission was considered and rejected.
This application is dismissed.
“Mary Ellen Cummings”
for the Board