Ontario Labour Relations Board

1695-01-R Canadian Union of Public Employees, Applicant v. Cancer Care Ontario, Responding Party.

1855-01-U Canadian Union of Public Employees, Applicant v. Cancer Care Ontario, Responding Party.

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: Mark Gallina, Dave Michor and Sean Pearson for the applicant; William LeMay, Sam Mandelbaum and Lynn Tessaro for the responding party.

DECISION OF THE BOARD; November 29, 2001

1. Board File No. 1695-01-R is an application for certification. Board File No. 1855-01-U is an application under section 96 of the Labour Relations Act, 1995, as amended (the “Act”) alleging that the responding party committed unfair labour practices. Both applications were withdrawn at the hearing held on November 5, 2001. This decision provides an explanation for the circumstances surrounding the disposal of the certification application.

2. The applicant (referred to as the “union”) had represented a bargaining unit of employees of the responding party in Hamilton for 18 years. The union’s right to represent employees in that bargaining unit was terminated on September 13, 2001. This application was filed on September 18, 2001. The bargaining unit the union sought to represent in this application encompassed about one-third of the employees who were in the bargaining unit that the union previously represented. The responding party objected to the bargaining unit proposed in the application and claimed that it was inappropriate for collective bargaining. It said that the union had to seek to represent the bargaining unit that had existed for 18 years.

3. The parties referred to the bargaining unit represented by the union prior to September 13, 2001 as a “technical or technologists” unit. It was described as:

all Radiation Therapists, Radiology Technologists (Senior Mammography Technologists, Mammography Technologists, Ultrasound Technologists), Dosimetrists, Electronic Technologists, Senior Electronic Technologists, Computer Technicians, Machinists, Senior Machinists, Mould Room Technicians, Senior Radiation Therapists, Physics Technicians and Clinical Instructors in Radiation Therapy employed by Cancer Care Ontario, Hamilton Regional Cancer Center in the City of Hamilton, save and except staff covered by subsisting Collective Agreements, those staff included and excluded (except for those positions listed above) in the Clerical Unit, Supervisors, and persons above the rank of Supervisor and Student Radiation Therapists.

4. The bargaining unit that the union sought to represent in the present application was described as follows:

all Radiology Technologists, Electronic Technologists, Computer Technicians, Machinists, Mould Room Technicians, Mould Room Assistants and Physics Technicians employed by Cancer Care Ontario, Hamilton Regional Cancer Centre in the City of Hamilton, save and except staff covered by subsisting Collective Agreements, those staff included and excluded (except for those position listed above) in the Clerical Unit, Supervisors and persons above the rank of Supervisor.

5. A representation vote was held on September 25, 2001 and the ballot box was sealed. A hearing was held on November 5, 2001 to determine the outstanding issue of the bargaining unit description. At the outset of the hearing, the union asked that the ballots cast in the bargaining unit described in its application be counted. It argued that if it lost the vote in the bargaining unit it sought, it would be unnecessary to proceed further with the hearing. The Board therefore ordered, over the objection of the responding party, that those ballots be counted. More than 50 per cent of the ballots cast in the union’s proposed bargaining unit were in its favour so the hearing proceeded.

6. The union’s proposed bargaining unit was different from the one that it historically represented in that it excluded all classifications the incumbents of which hold radiation therapist certificates. The radiation therapists deliver the radiation therapy to the responding party’s cancer patients. In general the employees in the bargaining unit sought by the union technically support and facilitate the work of the radiation therapists. The applicant agreed that their work is integrated “to varying degrees”. However, it claimed that the radiation therapists’ work is integrated with other non-bargaining unit positions as well. In its materials, and particularly in its opening statement, the union was candid about its reasons for seeking to represent the smaller bargaining unit. It said that it understood that the radiation therapists had sought termination of the union’s bargaining rights in September because they did not want to bargain collectively with the other employees. The union was therefore seeking to represent a bargaining unit of only the non-radiation therapist employees.

7. There are approximately 26 people in the union’s proposed unit and 84 in the bargaining unit it represented prior to September 13, 2001. There are three other bargaining units in the workplace: a clerical unit represented by the applicant; a unit of registered nurses represented by the Ontario Nurses Association and a unit of medical physicists represented by the Professional Institute of the Public Service of Canada.

8. After hearing the union’s opening statement, the responding party introduced a motion to have the application dismissed on the basis that the union had not made out a prima facie case that its bargaining unit was appropriate. In order to make the motion, the applicant had to agree that, for the purposes of the motion only, all of the facts pleaded by the union were true and provable.

9. The responding party argued first that due to the short period of time that passed between the termination and the application, this application was akin to a displacement application. It claimed that the union therefore had to apply to represent the same bargaining unit for which its rights had been terminated the week before. It also argued that, in any case, the bargaining unit sought was not appropriate. Its submissions included the assertion that the bargaining unit sought was not consistent with the Board’s general policy that broader bargaining units in this sector are better. It argued as well that certifying the union for the unit it sought would leave the radiation therapists on their own with the potential of a fifth bargaining unit that was essentially made up of one classification. It claimed further that the fragmentation resulting from the bargaining unit proposed by the union would cause labour relations problems. It noted that the union had put the employer on notice on September 18, 2001 that it would be enforcing its collective agreement right not to have non-bargaining unit members performing the work of its clerical unit after the termination. The union also stated in its written submissions that if the bargaining unit it sought was certified “it might very well complain of non-bargaining unit employees performing bargaining unit work.” It noted that it had the right to take such steps.

10. The union responded that this was not a displacement application and that it need not apply for the bargaining unit it had represented previously. It argued that the Board did not need to determine the most appropriate bargaining unit but only whether the unit it proposed is an appropriate unit. It claimed that there is a community of interest among the employees in the bargaining unit it sought. The union claimed that there was no community of interest between the employees it sought to represent and the radiation therapists because they perform different work. It argued further that the bargaining unit it sought was not too fragmented as the employees did not transfer between classifications. Employees within the larger bargaining unit all occupy positions requiring specific qualifications and do not move from one classification to another. Furthermore, it argued the employees it sought to represent would not have access to collective bargaining if its bargaining unit was not found to be appropriate because the radiation therapists did not want to bargain with them.

11. The union also argued that the Board’s usual concerns about fragmentation should not apply in these circumstances as the employees do not have the right to strike pursuant to the Hospital Labour Disputes Arbitration Act (referred to as “HLDAA”).

12. The union argued further that other Cancer Care Ontario workplaces have bargaining units in which the radiation therapists are not necessarily included with the other technicians.

13. The union had not pleaded that there were any other groups of employees in the workplace who are not represented by a trade union. During the union’s opening statement, the Board asked it to confirm whether there were was any other natural bargaining unit for the radiation therapists. The union said there was not. However, the next day, when the responding party’s prima facie motion was being considered, the union asked, at the end of its submissions, to amend its pleadings to note the existence of individuals in the classifications of pharmacist, dietician and social worker in the workplace. The union claimed that this information had just come to its attention. The responding party objected to the union being permitted to amend its pleadings at that point in the process. In the end, the Board found that it did not have to determine whether the union should be permitted to amend its pleadings as the new facts would not have affected the decision.

14. The Board made the following oral ruling at the hearing:

The responding party has asked the Board to find that the applicant has not pleaded a prima facie case that its bargaining unit is appropriate. By doing so, it essentially agrees to the facts pleaded by the applicant for the purposes of the motion. The Board has carefully considered the materials filed by the applicant and the submissions that the parties have made with respect to them. The Board has decided that the bargaining unit proposed in the application could not be appropriate. The Board’s reasons for reaching that conclusion can be summed up in two words “undue fragmentation”.

The employees in the union’s proposed unit and the radiation therapists bargained together for 18 years. That unit is a viable one. The Board does not necessarily accept that a union seeking to be certified in these circumstances must always apply for exactly the same unit as before. (For example, it might be permitted to include some classifications which the employer had added to the workforce since the original certification.) However, the Board does find that there is a significant hurdle facing a union which tries to carve out a third of its previous bargaining unit. Such a bargaining unit could only be appropriate in the most unusual circumstances such as a significant restructuring of the workplace which has undermined the previous viability of the bargaining unit. The fact that the union was terminated as the bargaining agent for the bargaining unit it previously represented does not indicate that that unit is no longer viable. The applicant believes that the termination occurred because the radiation therapists did not want to bargain with the other employees any more. The Board will accept that for the purposes of this argument, but that does not mean the bargaining unit was not viable. Nor does it mean that the employees in the unit sought by the applicant have a problem with access to collective bargaining that is any different from any employee in a workplace who wants a union when the majority of employees do not. That is how collective bargaining works in Ontario.

A health care technical unit which excludes the largest classification of technicians is simply too fragmented. The bargaining unit in the application is not appropriate.

15. In making the ruling referred to above the Board was informed by its jurisprudence with respect to the fragmentation of bargaining units. In the Board of Governors of Ryerson Polytechnical Institute [1984] OLRB Rep. February 371, the Board described its concerns as follows:

20. The creation of a viable bargaining structure is the only objective when employees have ready access to collective bargaining whatever the unit configuration - i.e. when a single large unit will not unduly impede organization. The Board has often been called upon to rec­oncile the claims of special interest groups with the considerations that favour a consolidated bargaining structure. There is a long-standing practice of segregating plant and office em­ployees in separate units in recognition of their divergent interests. See H Gray Limited, 55 CLLC ¶ 18,011. But bargaining units consisting of employees in one particular classification or department are not generally considered by the Board to be appropriate because such small units entail excessive fragmentation. See Corp. of the City of Barrie, [1974] OLRB Rep. Nov. 813. And in Stratford General Hospital, [1976] OLRB Rep. Sept. 459, paramedical personnel were included in the same hospital unit as professional staff. In that case, the Board said:

Rational solutions lie in the careful examination of evidence for signifi­cant differences in community of interest between occupational groupings bearing in mind the structural requirements for effective collective bar­gaining and labour relations. At the risk of being repetitive we think it important to observe that it is natural for certain groups of employees to be apprehensive about the outcome of collective bargaining if their oc­cupation does not dominate a bargaining unit in sheer numbers and sel­dom is the Board confronted with applications for certification affecting employees with identical interests, abilities and backgrounds. Thus, if the Board was to be preoccupied with these apprehensions an unmanageable proliferation of potentially ineffective bargaining units would be the likely result. Accordingly, the Board must concern itself with only significant differences between employee interests and these significant differences must result in practical bargaining unit demarcations — practical in the sense that demarcations must provide efficient answers to like cases; there must be reasonable assurance that they can withstand the passage of time; and practical in the sense that sound collective bargaining relationships can be built upon them.

16. If the Board were to certify the bargaining unit sought by the union, the radiation therapists would be left essentially on their own. Their only option would be a bargaining unit of those in classifications requiring a radiation therapist certificate with the possibility of adding the paramedical classifications the union referred to on the second day of hearing. The radiation therapists may like the idea, but separating what was a coherent bargaining unit of technical and technological employees who work together into two separate units makes no labour relations sense and could lead to the same kinds of labour relations problems contemplated by the Board in Sheehan’s Truck Centre Inc. [1999] O.L.R.D. No. 2852. In that case, the applicant sought to exclude the employees in the parts department from the bargaining unit because they had little interest in collective bargaining. The Board said:

28. The development of different terms and conditions of employment between the Parts employees and those who would be covered by the bargaining unit proposed by the union would, in our view, will [sic] result in unnecessary divisions between them, cause inflexibility and result in unnecessary impediments to their productive interaction. It is not possible for the workshop employees to perform their work without the prompt availability and support of the Parts employees. Although there is relatively little direct performance of each others' duties as between the Parts employees and those whom the union wishes included in its proposed bargaining unit, to use the Board's words in Lionhead Golf & Country Club [1996] OLRB Rep March/April 271 at 277 ¶36, the workshop and the Parts department are "a functionally integrated operation". A separation of the two groups of employees into separate bargaining units has no inherent justification, except for the fact that the Parts employees have shown little interest in being organized by the union. That consideration on its own is not sufficient to establish the appropriateness of a unit which excludes them. We are therefore persuaded that the unit proposed by the union is not appropriate.

17. The union argued that the fact that this workplace was covered by HLDAA and that therefore the employees had no right to strike should permit more fragmentation than may be acceptable in other sectors. However, the Board is not only concerned with the effect of multiple work stoppages in an unduly fragmented workplace. The Board also considers the potential for other serious labour relations problems which include such concerns as the possibility of jurisdictional disputes, the burden on the employer of the necessity of negotiating and administering multiple collective agreements, the difficulties faced by a union in negotiating a collective agreement with the limited bargaining power often associated with fragmented bargaining units, as well as problems arising from different terms and conditions of employment being applied to employees who are working together. The policy of limiting fragmentation in a health care setting is manifest in both the Board’s jurisprudence and the Public Sector Labour Relations Transition Act. In this case, the Board was being asked to divide a viable technical unit into two smaller units which is not consistent with that policy and does not make labour relations sense.

18. The Board also considered the jurisprudence with respect to displacement applications. Although this application was not a displacement, some of the same concerns apply to an application which seeks to carve out a piece of a bargaining unit which had proved viable for 18 years. In Milltronics Limited [1980] OLRB Rep. January 58, the Board stated as follows:

6. On an application for certification the Board is required to determine the unit of employees which is appropriate for collective bargaining. Where one trade union is seeking to displace another, however, the established bargaining structure is prima facie appropriate – particularly if it has been established by the parties themselves, through collective bargaining, and continued through the years over several collective agreements. Indeed, what better evidence of “appropriateness” could there be than a pre-existing bargaining structure which the parties have developed themselves and have adapted to their own bargaining circumstances. The Board has been reluctant to fragment an established bargaining structure or to “carve out” groups of employees from such structure. The Board will generally find the appropriate bargaining unit to be that which the incumbent presently represents; although, of course, in appropriate circumstances, a larger unit may also be appropriate and could be granted without raising any concern about fragmentation. Usually, however, a “raiding union” must “take” what the incumbent union has. …

19. In this case there is no evidence or suggestion that the original bargaining unit has somehow lost its viability. There has been no structural change or evolution of the workplace which could lead to the conclusion that that unit is not appropriate. This application is a straightforward attempt to carve out the union’s supporters from a cohesive bargaining unit which had proven itself over 18 years. The bargaining unit that existed was prima facie appropriate and the bargaining unit sought by the union was prima facie not appropriate.

20. After the Board delivered the ruling in paragraph 14 above, the union advised that it preferred not to waste time counting the ballots cast by employees in the larger bargaining unit as it was certain that fewer than 50 percent of those employees had cast ballots in its favour. It therefore withdrew the application. The parties’ attention is therefore drawn to section 7(10) of the Labour Relations Act, 1995 which provides that applications for certification of the employees in the union’s proposed bargaining unit are barred for the period of one year from such a withdrawal, in this case from November 5, 2001.

21. As noted in paragraph 1 above, the application in Board file no.1855-01-U was also withdrawn at the hearing on November 5, 2001.

22. The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.

23. The responding party is directed to post copies of this application in places in the workplace where they are likely to come to the attention of affected employees. The copies must remain posted for 30 days.

“Laura Trachuk”

for the Board```