BACKGROUNDER:
GEOGRAPHICAL LIMITS IN HEALTH CARE BARGAINING UNITS
Health Care Conference
September 24-25, 1996
[1997] Alta.L.R.B.R.
DP-004
Bargaining units are defined by a series
of limitations: by the name of the employer, by
the function or occupational designation of the
employees, by the geographical scope of the unit
and by listed exceptions. Geographical limits to
a bargaining unit are sometimes implicit (like "the
Province of Alberta", or the implied limitation
to the trade union's territorial jurisdiction in
the construction industry). Often labour boards
place express geographical limits on a bargaining
unit, like a street address or a municipality. The
choice of what these geographical limits should
be calls into play many of the conflicting policy
considerations that boards generally apply in fashioning
bargaining units (see Backgrounder 1, "What
Makes an Appropriate Bargaining Unit?").
The geographical limits of health care bargaining
units in the wake of regionalization is currently
a "hot topic", as the new regional health
authorities begin to implement the organizational
and health care programming changes that might drive
a re-examination of current bargaining structures..
This background paper discusses (at more length
than in Backgrounder 1) the criteria that labour
boards look to in fixing the geographical limits
of bargaining units generally. It examines how those
criteria apply in the context of health care regionalization.
Last, it discusses what the Alberta Labour Relations
Board has said about bargaining units in regionalized
structures, including in four important decisions
issued in July, 1996.
Geography and Bargaining Unit Appropriateness
Geographical separation of employees favours
smaller bargaining units. From an employee viewpoint,
there is a natural tendency for employees in one
location of the employer to identify closely with
each other, to feel similar employment interests,
and to share common goals -- in other words, to
have a community of interest, often to the exclusion
of employees at other locations. Where employee
views on collective representation differ between
locations -- either on which bargaining agent should
represent them or whether to have a bargaining agent
at all -- employee freedom of choice supports the
single-location unit. The single-location unit may
be easier for the bargaining agent to service. It
is easier to fashion bargaining strategy in a smaller,
localized bargaining unit. And for employers with
decentralized management structures, single-location
bargaining can give more scope for local answers
to local problems than bargaining on a larger scale.
Of course, other factors may offset the tendency
for geographically-separated groups of employees
to want to bargain separately. If a multi-location
bargaining unit is achievable for the bargaining
agent, the larger unit enhances all employees' bargaining
power by depriving the employer of the ability to
shift work to locations covered by a different collective
agreement, or no agreement at all. To the extent
that employees work in more than one location, their
interest is to have common terms and conditions
of employment wherever they work. Significant employee
interchange between locations tends to break down
the location-specific community of interest that
employees at each location may feel. Last, employee
rights under a collective agreement may be much
more valuable in a multi-location bargaining unit
than in a single-location bargaining unit. Seniority-based
rights to be promoted, to transfer, or to avoid
a layoff may be worth next-to-nothing in a very
small bargaining unit, especially to employees in
the least-populated classifications. Those rights
mean much more to the average employee when they
operate in several locations within a reasonable
commuting distance.
From an employer point of view, there is much
less to recommend single-location units. There may
be tactical considerations that single-location
units can help contain unionization of the employer's
other operations, or that smaller bargaining units
lack leverage when production can be shifted to
other sites. But other compelling factors point
employers toward favouring larger bargaining structures.
Administrative efficiency dictates one
set of negotiations instead of many and one collective
agreement to administer for all the employer's operations.
Uniformity of policies and employment terms
is much easier to achieve in broader-based
bargaining with one trade union than in many sets
of negotiations with different unions. Industrial
stability favours broad-based bargaining so
that employers are not subject to serial stoppages,
"whipsawing" and disruption of integrated
production processes by a dispute in only a part
of the workforce (The converse is true, too: in
broad-based bargaining structures, unions are not
subject to rollback bargaining based on the employer's
settlement with the weakest bargaining agent). And
day-to-day administration of the collective
agreement, and human resource management generally,
is easier when the employer has one collective agreement,
one set of seniority rules, and one bargaining agent
to deal with in respect of them rather than many.
The Alberta Labour Relations Board addresses
some of these considerations in its general Information
Bulletin #9:
Nature of Employer's Organization
Where an employer operates in several
locations, the Board will consider the degree
to which the operations are integrated or interdependent.
If employees are highly mobile between departments
or locations of the employer, the Board is
less likely to find a departmental or localized
unit appropriate.
Viable Bargaining Structures
Multiple bargaining units tend to promote
more effective bargaining and representation
by the trade union than small units. The larger
the bargaining unit proposed, the more likely
it is that the Board will find it appropriate,
so long as the employees share a community
of interest.
Avoidance of Fragmentation
Multiple bargaining units within one employer's
operations are more difficult and costly for
an employer to administer. They also tend to
restrict the job mobility of employees. The
Board may not find a bargaining unit to be
appropriate if it would unduly fragment the
employer's bargaining structure.
The Alberta Board's approach to geographically-separated
workforces is, in Canadian labour law terms, reasonably
conventional. The approach varies with the context.
At the stage of a first certification, access to
collective bargaining assumes the highest importance,
and so single-location units will be considered
appropriate unless there are strong community of
interest or other factors pointing to a broader
unit. A good example of this is the recent case
of UFCW, Loc. 401 v. Freson Market Ltd. [1995]
Alta. L.R.B.R. 491, where the Board certified the
union for one of the employer's two supermarket
operations in Grande Prairie. In doing so the Board
rejected the stated Ontario practice of municipality-wide
bargaining units in the retail industry and adopted
the American approach that single-store units are
presumptively appropriate, at least in a first application
for certification of the employer. The Board noted
that the two locations operated more or less autonomously,
with separate management, that there was little
or no interchange of employees between the locations,
and no history of collective bargaining existed
for the employer. Accordingly a single-store unit
was appropriate. See also UFCW, Loc. 401 v.
Canada Safeway Liquor Stores Ltd. [1996] Alta.
L.R.B.R. 99, and AUPE, Loc. 113 v. Legal Aid
Society of Alberta (Alta. L.R.B. No. 83-002,
January 20, 1983, Canning, Vice-Chair).
For subsequent certifications of the same employer,
however, the Board places greater emphasis on the
long-term objectives of industrial stability and
avoidance of fragmentation. The Freson Market case
sends a strong signal that the Board will not permit
piecemeal organizing to result in a proliferation
of site-specific units of the same employer. The
Board there indicated that it would supervise the
employer's bargaining structure on an ongoing basis,
if necessary using the reconsideration power to
add newly-organized employees to the existing certificate
rather than granting a new certificate. Indeed,
the Board's view that it can use its reconsideration
power to vary existing certificates allowed it to
take a more tolerant approach to single-site retail
bargaining units than in Ontario, where its labour
board considers a certificate to be superseded by
the scope clause of the parties' collective agreements
and not capable of being reconsidered. The Alberta
Board said in Freson Market:
To the extent that a single store in Grande
Prairie has the potential for leading to a
fragmented bargaining structure down the road
(for example, if another union sought to organize
the Swan City store, or even if this Union
did) it is open to the Board to consider whether
such a fragmented bargaining structure would
be appropriate. One possible conclusion in
those circumstances would be that permitting
two separate bargaining units within a municipality
was not appropriate, and that if the employees
at Swan City sought representation they would
have to be brought into a new and expanded
bargaining unit. That is precisely what the
B.C. Board indicated the future might have
in store in Woodwards, supra. That
Board was willing to tolerate a degree of fragmentation
so as to not deprive employees of initial collective
bargaining rights, but was quick to point out
that it would exercise a supervisory role over
bargaining unit structure, and use its reconsideration
power where justified to prevent undue fragmentation.
Clearly this Board has the same options in
a case such as this.
(...)
We have found that in the circumstances
of this application that a single store bargaining
unit was an appropriate unit. We wish to make
it clear that such a finding will not automatically
follow in every case, particularly in circumstances
where there is already a unionized store in
a municipality. In such a case, it may well
be that employees at a non-unionized store
could be brought into the existing bargaining
unit through a reconsideration application
(assuming there was an appropriate degree of
support), rather than through a first instance
application for certification. In our view,
the Board's policy in respect of retail bargaining
units remains valid in terms of preventing
the undue fragmentation that could result if
employees at different stores in the same municipality
were included in different bargaining units.
The health care industry in Alberta is, of
course, highly organized, and so the geographical
appropriateness of bargaining units is not likely
to arise as an issue in certification proceedings
very often. It is much more likely that the Board
will be asked to consider the issue in the context
of a successorship application. In a successorship
context there operates a presumption that existing
bargaining rights, and therefore existing bargaining
structures, are to be preserved, unless the bargaining
structure that results from the successorship transaction
becomes inappropriate.
The event that is most likely to make the resulting
bargaining structure inappropriate is an integration
of predecessor's and successor's operations and
a mingling of the two workforces. Physical intermingling
of two workforces creates exactly the kind of situation
that every labour relations board would find inappropriate
on an initial certification -- bargaining rights
that cut across employees in the same classification
in the same location. However, neither section 44
nor section 46 of the Labour Relations Code, the
successorship sections, mention intermingling of
employees or limit the Board's powers to intermingling
situations. It is clear that the Board is entitled
to engage in much the same kind of appropriateness
analysis that it might for a second or subsequent
certification of the same employer, subject to the
presumption in favour of existing bargaining structures.
George Adams, in Canadian Labour Law, 2d ed.
(Canada Law Book, 1993) writes:
When intermingling involves the merger
of two groups of unionized employees, a board
will look to the existing bargaining structure
to decide if maintaining these separate units
can be justified. The boards note that the
choice of the employees regarding their bargaining
agent should be honoured, unless to do so would
undermine rational collective bargaining. Balanced
against this recognition of the employees'
wishes is the preference for single, all-employee
units. Where a conflict arises between these
two policy goals, the interest of maintaining
industrial peace prevails and undue fragmentation
is avoided. The criteria to be applied in determining
what is the appropriate bargaining unit are
not identical to those used in certification
proceedings. While the boards may indeed consider
these certification criteria, priority must
also be given to the existing bargaining rights
to the extent that they can reasonably be accommodated
within the new employment structure. Thus,
a bargaining unit which would be appropriate
on a certification may nonetheless prevail
if it has proved itself workable in the circumstances.
Other factors than physical mingling of employees,
then, can convince a board that maintaining geographically
separate units of employees through a successorship
is inappropriate. The Alberta Board in its recent
decision of South Peace Health Unit No. 20 Staff
Nurses Assn. et al. v. Mistahia Regional Health
Authority et al. (Unreported Alta. L.R.B. No.
GE-1803, July 26, 1996) said:
Appropriateness in the context of a successorship
application involves balancing the rights of
the union and employees to preserve an established
bargaining relationship, with the new realities
of the workplace (such as integration and intermingling),
as well as reviewing the similar criteria used
in determining appropriateness in a certification
application. The Board is not deciding whether
a unit is an appropriate unit, but is determining
the relative appropriateness of a variety of
units. The appropriate unit or units in a successorship
will be those which best balance all the interests.
(...)
When determining appropriateness of the
bargaining unit, the Board may consider a number
of factors including: nature of the employer's
organization, integration of the employer's
operation, community of interest, intermingling,
the private or public nature of the unit, history
of collective bargaining, agreement of the
parties, viability of the unit, avoidance of
fragmentation, employee wishes, employer preference,
and Board policy regarding bargaining units
in the industry.
Geographical Limits and Health Care Bargaining Units
At the outset it should be said that there
is no such thing as a health care bargaining unit
description that is, objectively, completely inappropriate
on geographical grounds. Site-based hospital units
existed in Alberta for many years; they continue
to exist elsewhere in Canada; and in the United
States, the policy of the National Labor Relations
Board is that a single-site hospital unit is presumptively
appropriate. At the other extreme, the recommendations
of British Columbia's Health Sector Labour Relations
Commission establish province-wide, multi-employer
bargaining units, with the potential for employees
in the Lower Mainland to exercise seniority rights
on positions in the Peace River region. Both these
models have been considered appropriate in their
respective contexts. Instead, there are degrees
of geographical appropriateness that individual
labour relations boards feel more or less comfortable
with depending on their jurisdiction's history and
model of health care governance.
Health care bargaining units in Alberta have,
up to now at least, been strongly influenced by
the schemes of health care governance in place from
time to time. Initially, hospital certifications
were site-based. This usually coincided with the
full geographical scope of the employer's operations
because individual hospitals were operated by their
own board. With the proliferation of hospitals and
auxiliary care institutions in Alberta in the 1960s
and 1970s came a move toward consolidation of hospital
governance in the form of hospital districts (especially
in rural Alberta).
The Board's early decisions in respect of the
new hospital districts followed no clear pattern,
except to respect any agreement between the parties
as to whether the district or the individual hospital
was the employer (and hence whether bargaining rights
should be site-specific or region-wide). Board policy
changed in 1977, apparently as a direct result of
the decision in Gares v. Royal Alexandra Hospital
involving the "equal pay" provisions of
the Individual's Rights Protection Act.
The Board was concerned that the hospital district,
as a single employer in law, could inadvertently
breach the I.R.P.A. by negotiating with
different bargaining agents in a way that produced
differential terms and conditions of employment
between male and female employees performing "similar
or substantially similar work". In its Information
Bulletin No. 4, the first information bulletin
dealing with standard bargaining units, the Board
stated:
Since the introduction of the Individual's
Rights Protection Act, the effect of certification
being issued to more than one bargaining agent
for identical bargaining units within the same
hospital district could have serious repercussions.
Coupled with this is the possibility of whip
sawing.
In order to bring about some semblance
of order, the Board in future applications
for certification, will be determining the
hospital district and not part or parts thereof,
as the employer. Of course, this does not apply
to institutions not part of a district.
After 1977, the Board's standard practice for
new certifications was to name the hospital district
as the employer and to certify unions only for all
employees of the district in a standard unit. It
made an exception, however, for districts that were
partially organized. It allowed those districts
to continue to be organized facility-by-facility:
see Information Bulletin 4-87. Over the
years following, many hospital districts were organized
district-wide, either through first-time certifications
or by consolidation of individual certificates that
had been won piecemeal.
In retrospect, the Board's practice of certifying
hospital districts on a district-wide basis was
probably the right result on a conventional appropriateness
analysis. Requiring unions to organize district-wide
did not have any appreciable negative effect on
health care employees' access to collective bargaining.
It surely promoted province-wide bargaining by limiting
the number of health care employers who would be
represented at the bargaining table. And it enhanced
the job mobility of employees, both between different
hospitals operated by the same district, and between
hospitals and auxiliary and long-term care facilities.
Health units were from the outset certified
by the Board on a unit-wide basis. Again, the Board's
early decisions do not provide much in the way of
rationale for these unit descriptions, but it is
a fair assumption that the highly mobile nature
of many public health employees played a role.
Against this backdrop the Regional Health
Authorities Act was enacted in 1994, providing
for dissolution of hospital boards, hospital districts
and health units, and governance of all health facilities
by 17 regional health authorities. The creation
of the RHAs raised the obvious question: should
the Board's policy on the geographical scope of
health care bargaining units again follow the model
of governance, so that bargaining units become region-wide?
Transitional Bulletin T-2 anticipated the debate
over this question. It set out a two-stage process:
First, an interim administrative review of certificates
to amend the employer name, without any substantive
change to the scope of the certificate. The Board
indicated at p.4 that it would preserve the current
institutional or geographical limits implicit in
each certificate by inserting those limits into
unit descriptions. Second, the Board would process
section 46 or section 44 successorship applications
seeking a substantive change to bargaining unit
descriptions once the nature of the new regional
employer's health care operations became clear (at
pp. 6-7):
Regionalization will inevitably bring
steps to integrate and reorganize the provision
of health services within each region. Bargaining
units described in the Board's certificates
need to be appropriate for collective bargaining.
Integration may well affect the continued appropriateness
of some bargaining units. (...)
The creation of regional health authorities
does not, of itself, make the existing institutional
or district bargaining units inappropriate.
Several community of interest considerations
may favour bargaining units smaller than the
whole region. For example:
- Some employee groups, within a region,
may wish to retain their unorganized status.
- Some employee groups may wish to
retain their present bargaining agent
rather than be absorbed into a larger
unit represented by a different bargaining
agent.
- The employer's operations may be
structured so there is little interchange
between one unit and another
However, changes may result in institution
or district based bargaining units becoming
inappropriate. This will be the case when the
region integrates its operations in such a
way that there will be ongoing activities between
units, presently separate, which would be hampered
by maintaining that separation.
A decision to reorganize work may not
amount to integration if it involves only the
transfer of a workgroup from one bargaining
unit to another, without further ongoing integration.
A workgroup transfer may well raise issues
of how to treat those employees in the unit
(a "reciprocity issue"). However,
such questions are for the parties to negotiate
and resolve under their current collective
agreements. What will convince the Board a
unit is no longer appropriate is the likelihood
of ongoing integration, as opposed to a "one-time"
reorganization simply moving some persons from
one unit to another.
The Board's position is that the geographical
limits of existing bargaining units should
remain unchanged under a regional structure
until:
- the employer and bargaining agent
or agents consent to a consolidation of
bargaining rights, or
- the employer integrates health care
operations across existing bargaining
unit boundaries, making existing bargaining
units inappropriate in the future and
making consolidation of bargaining units
necessary.
Bulletin T-2 so suggests that the Board would
place a heavy premium on maintaining the existing
bargaining unit structure and would require "integration"
of employer operations before disturbing existing
bargaining units. The necessity of "integration"
appears to suggest that the Board will not alter
bargaining unit structures simply because the new
regional employer has inherited too many certificates
or collective agreements. On the other hand, the
Bulletin does not set a condition precedent of physical
intermingling of employees. It requires only "integration",
which it defines as a process whereby the employer
creates "ongoing activities between units,
presently separate, which would be hampered by maintaining
that separation". In that sense, "integration"
looks like something less than intermingling; or
perhaps more accurately, intermingling is only the
most thorough form of integration.
Bulletin T-2 drew on the experience of the
Board's first major case of hospitals reorganization,
Royal Alexandra Hospital et al. v. Canadian
Health Care Guild et al. [1993] Alta. L.R.B.R.
472, which predated the Regional Health Authorities
Act. The Royal Alex case flowed out of the
merger between the Royal Alexandra and Charles Camsell
Hospitals and raised the issue whether to merge
the two site-based auxiliary nursing care units.
The hearing panel in that case concentrated its
enquiry on intermingling, and dismissed the Hospitals'
applications in the absence of strong evidence of
a physical intermingling of employees on an ongoing
basis. The headnote captures the panel's analysis
as follows:
The Board dismissed the application as
it applied to the auxiliary nursing care units.
Separate bargaining units at the Alex and Camsell
sites remained appropriate. The evidence did
not demonstrate that there would be a significant
intermingling of auxiliary nursing care employees
between the two sites. Neither the prospect
of bargaining nor the prospect of administering
six rather than five collective agreements
weighed heavily. Nor did the existence of different
seniority and layoff provisions weigh heavily
where, as here, the intermingling of employees
would be minimal. The centralizing influences
of common management were offset by the decentralizing
influence of the plans to specialize by site.
Although the hearing panel's decision was reconsidered
and reversed shortly after, it was only reversed
on the basis of new evidence of programming changes
that would result in a more thorough intermingling
of employees between the Alex and Camsell sites
than the hearing panel was aware of. The Royal
Alex case illustrates the power of the presumption
in favour of existing bargaining structures in a
successorship. The Board showed no inclination to
merge the bargaining units simply because the employer
would have to administer one more collective agreement,
or because units from one hospital would be moved
to the other on a one-time basis, or because there
could exist a geographical community of interest
between employees of hospitals barely two kilometres
apart.
The next cases asking the Board to expand the
geographical boundaries of bargaining units in a
new regionalized structure arose not in health care,
but in the education sector. In three cases the
Board dealt with applications to amend units for
education support staff to region-wide in scope,
and in all three the Board dismissed the application.
The leading case, because it is reported, is CUPE,
Loc. 3203 v. Horizon School District No. 67
[1995] Alta. L.R.B.R. 439. There the Board dismissed
a joint application by the union and school district
to expand the existing bargaining unit to one encompassing
the entire regional district. It weighed heavily
in the Board's reasons that the application would
have the effect of sweeping into the unit significant
numbers of unorganized employees, without a vote.
The Board declined to do so without evidence of
"business integration and intermingling".
Similar results occurred in Wolf Creek Regional
Division No. 32 v. CUPE, Loc. 1855 (Unreported,
May 10, 1995) and Greater St. Albert Catholic
Regional Division No. 29 (Unreported, May 24,
1995) where, again, there was no evidence of significant
intermingling of employees. The result of this line
of cases in the education industry has been that
the Board does not alter existing bargaining rights
unless (a) there is intermingling of employees between
existing units; or (b) the parties agree and there
are no groups of unorganized employees in opposition.
It is easy to see, however, that health care
regionalization is a much more complex process than
schools regionalization. Schools by their nature
are local institutions that offer more or less the
same services wherever they are. Programmes cannot
easily be moved between schools. Regionalization
does not generally result in school closures or
amalgamations and does not result in whole groups
of specialized personnel being moved to another
location. At most, head office administrative personnel
might be intermingled in the new regional head office.
In short, there are severe limits on the amount
of employee intermingling that could ever result
from the merger of two or more school authorities.
Health care can be, and is being, reorganized in
a much more dramatic way. Examples include the reorganization
of laboratory services, the relocation of speciality
services (especially in the urban areas), and the
outright closure of hospitals that we have witnessed
in the last two years.
The Board's next major decision dealing with
health care bargaining units was Health Sciences
Association of Alberta v. Regional Health Authority
5 [1995] Alta. L.R.B.R. 460. That case was
unusual because it involved bargaining unit appropriateness
in the context of an application for certification
rather than a successorship. In its decision the
Board sent a fairly clear signal that where a trade
union was not relying on the presumption of preserving
existing bargaining rights, the Board would not
favour site-specific bargaining units. It said (at
462-464):
The approach which the Board enunciated
in Transitional Bulletin T-2 is not a blueprint
for the determination of new bargaining units
in the healthcare industry. It represents an
approach for the healthcare industry for dealing
with the successorship issues generated by
regionalization. At least for the present,
it has resulted in bargaining structures which,
were the Board writing on a clean slate, would
seem remarkably and perhaps unnecessarily fragmented.
In defining the boundaries of "new"
bargaining relationships, there is no good
reason to depart from a first principles approach
to the issue. (...)
[the Board referred to its historical
practice of certifying hospital districts on
a district-wide basis] (...)
We use the above example simply to illustrate
that while in the interest of preserving historical
bargaining rights (which may contribute to
a community of interest by the very fact of
their existence) the Board may consider fragmented
site-specific bargaining units to remain appropriate,
its policy in healthcare has been to avoid
creating such units in the first instance.
For the longer term, we see no reason why healthcare
regionalization necessarily requires a different
approach. Conventional labour relations wisdom
favours fewer, rather than more, bargaining
units. That conventional wisdom is consistent
with what has been the approach of this Board
all along.
The next word from the Board was the case of
Canadian Health Care Guild and Alberta Union
of Provincial Employees v. Peace Regional Health
Authority et al. [1996] Alta. L.R.B.R. 106,
another certification case, this time involving
competing applications for units of community health
support employees. The Board after a detailed review
of the appropriateness factors at play in that application,
reached the same result as in Regional Health
Authority 5 -- the site-specific units were
deemed inappropriate and AUPE's region-wide application
was allowed to proceed.
Two points leap out from the Board's analysis
in the case: First, community health units in a
regional structure would not necessarily follow
precedents allowing site-specific units in hospitals.
Second, the bargaining history in community health
militates against site-specific units. The former
Peace River Health Unit, the largest health unit
absorbed into the new regional authority, had like
other health units in Alberta, bargained on a unit-wide
basis. By applying for units based on individual
area offices, the Guild had applied for units smaller
than existed before regionalization. This attracted
the Board's historic opposition to fragmenting existing
bargaining structures and the applications failed
even though several other factors pointed to the
site-specific units being at least somewhat appropriate.
The Peace Regional Health Authority
case highlights one important difference between
hospital and community health bargaining units:
while many hospitals have been certified on a site
basis -- or as part of a hospital district in which
it was the only acute care facility -- health units
have almost always bargained on an employer-wide
basis. Going to site-based bargaining units in community
health after regionalization therefore amounts to
fragmentation of existing bargaining structures;
recognizing site-based hospital units often does
not. If, as Peace Regional Health Authority suggests,
the policy against fragmentation dictates that the
Board not allow site-specific units in community
health after regionalization, what other alternatives
are there? Presumably one choice is between a region-wide
community health unit and units based on the old
health unit boundaries. But what organizational
basis could exist for units based on the old health
unit boundaries? The old health unit organizations
have, it seems, been shattered by regionalization
and replaced by different organizations that pay
no attention to the old unit boundaries. There is
therefore a strong likelihood that in community
health, the old unit-wide bargaining units are not
appropriate. Barring some other geographic area
smaller than the region that could be appropriate
to the region's community health structure, then,
region-wide community health units may be the only
appropriate unit still available.
This lack of plausible alternatives to region-wide
community health units showed very clearly in the
Board's four most recent cases on health care bargaining
units. All four -- HSAA et al. v. Chinook Regional
Health Authority et al. (Unreported Alta. L.R.B.
Decision, July 26, 1996), South Peace Health
Unit No. 20 Staff Nurses Association et al. v. Mistahia
Regional Health Authority et al. (Unreported
Alta. L.R.B. Decision, July 26, 1996), East
Central Regional Health Authority 7 v. AUPE, Loc.
57 et al. (Unreported Alta. L.R.B. Decision,
July 26, 1996) and David Thompson Health Region
v. Staff Nurses Association et al. (Unreported
Alta. L.R.B. Decision, July 26, 1996) -- were released
concurrently. This paper does not detail the facts
and rationale of each case; instead, readers are
referred to the Board's headnotes of the four cases,
reproduced as Appendix 1 to this paper. For the
purposes of this backgrounder, it is enough to say
that all four of the regional health authorities
concerned had essentially dissolved the existing
health unit administrative structure and replaced
it with management structures and at least some
central services that operated region-wide. Operationally,
significant numbers of community health employees
in each region now crossed the old health unit boundaries
as a regular part of their duties. The organizational
changes were especially far-reaching in the David
Thompson case, where the region had replaced
the old health units with two community health programs,
one operating out of five new areas and the other
out of three new areas, none of them coinciding
with the old health unit boundaries.
With one minor exception, the Board found that
every community health bargaining unit in issue
in the four cases was to be replaced by a region-wide
unit. In Mistahia, all parties but UNA
agreed to a region-wide nursing unit; the Board
dismissed UNA's objection because it was premised
on fragmenting a former health unit's bargaining
structure in order to preserve UNA's bargaining
rights for only one area office. In East Central,
the Board rejected the unions' submission that the
existing units based on the old boundaries be retained.
It found a high degree of business integration of
the employer's community health operations, notably
centralized management. It concluded that four bargaining
units covering about 120 employees would constitute
undue fragmentation and that the existing units
were probably not viable given the lack of any common
organizational "threads" binding members
of the old units together. It noted that regionalization
had already fragmented old bargaining structures
by splitting the health units between several regions.
And notably, on the issue of community of interest
it reached this conclusion:
Nor are we persuaded that the nurses'
community of interest in the labour relations
sense lies with their town or community. They
have an interest in the community in which
they live and work, but their community of
interest for collective bargaining lies at
a broader level where the terms and conditions
of their employment are impacted. All of the
nurses have similar education, experience and
skills; they do similar work under the same
standards of performance. They participate
on the same regional committees, attend joint
staff meetings and in-service training sessions.
We so no distinct community of interest which
emerges by office or even on the basis of the
former health unit boundaries which coincide
with the current bargaining unit boundaries.
All of these factors overcame the fact that
the physical intermingling of nurses in the existing
bargaining units was very minor, amounting to "reporting
to common supervisors, regular interactions through
consults with specialists, in-service training sessions
and staff meetings".
In David Thompson, the Board dealt
with one more variation, an application by UNA for
certification for a unit of all community health
nurses in the region except those covered by existing
certificates. There the Board again concluded that
such a bargaining structure would be inappropriate,
chiefly because it excluded the existing small bargaining
units of SNA and AUPE nurses who shared a community
of interest with the employees applied for.
The only (partial) exception to this pattern
occurred in the companion case of Chinook Regional
Health Authority, a general review of paramedical
professional, paramedical technical and general
support bargaining units for both hospital and community
health operations of the employer. The evidence
in that case was that the regional employer had
achieved a high degree of business integration in
both sides of its operations. In community health
it had established region-wide programmes in place
of the old health unit structures and carried out
those programmes in a way that caused significant
intermingling of paramedical employees between the
former units, but no appreciable intermingling of
support employees, who then and now did not operate
outside their home community. The Board in Chinook
merged the paramedical employees into a single region-wide
unit, but declined to do the same for the support
employees. Of the support employees, it observed
only that:
Even though there is a high degree of
integration of the business operations, the
amount of intermingling of employees of the
three health units can only be described as
negligible. There was no evidence of problems
arising in connection with the administration
of the collective agreements that would convince
us the existing bargaining structure has yet
proved to be unworkable.
Chinook is an important case for other
reasons. It is the Board's first written decision
on an application for a merger of hospital bargaining
units into a region-wide unit (all of two years
after passage of the Regional Health Authorities
Act). The Board carefully reviewed the region's
hospital operations and concluded that all of the
existing paramedical technical, paramedical professional
and general support hospital bargaining units in
the region had become inappropriate and should be
replaced by region-wide units. In its decision,
the Board stated clearly that substantial integration
of business operations across hospitals was a prerequisite
to any amendment of the present bargaining structure.
It then put what may be the critical question for
the appropriateness of existing hospital bargaining
units in the new regional structures (at 27-28):
A consideration of employee intermingling
has sometimes been stated to be for the purpose
of deciding if the intermingling has "made
the collective bargaining structure fragmented
and unworkable" (...) With respect to
the regionalization of the health care industry
the test may not be as onerous as might be
inferred from that comment. The Board has stated,
in Bulletin T-2, as quoted above, that the
geographic limits of bargaining units may be
changed in circumstances where the employer
has carried out an integration (including intermingling)
of health care operations "across existing
bargaining unit boundaries, making existing
bargaining units inappropriate in the future,
making consolidation of bargaining units necessary."
The question that is left unanswered is
the degree of employee intermingling that,
in conjunction with a high degree of integration
of the business operations, must occur before
it can be said the bargaining unit is no longer
appropriate.
In previous decisions, the Board has determined
that if there is no intermingling of employees,
or only a negligible amount, there can be no
enlargement of a bargaining unit from site
specific to area wide or regions wide, either
by means of successorship or a reconsideration
application (...) But at what point between
negligible intermingling and full intermingling
should the determination be made that there
is sufficient intermingling so that, in conjunction
with the integration of the business operations,
an existing bargaining unit is no longer appropriate?
The Chinook panel observed that that
answer could only be determined in the context of
the facts of particular cases, but offered this
guidance:
We agree that in cases involving the regionalization
of the health care industry, the issue of employee
intermingling is going to be determined in
the larger context of the integration of the
business operations, and will reflect the peculiar
fact situation present in each case. There
will have to be some intermingling, otherwise
the question of the inappropriateness of the
existing bargaining units is not likely to
arise. But the amount of intermingling that
has taken place at the time of the successorship
application need not be great if the integration
of the business operations is such that a bargaining
unit has become, or is about to become, inappropriate.
Conclusion
Those are the Board's most recent words on
the geographical appropriateness of health care
bargaining units. Many questions remain: How much
intermingling is enough intermingling of employees
to justify breaking up existing bargaining units?
What is "intermingling" anyway? Are the
decisions in Chinook, Mistahia, East Central
and David Thompson a retreat from the Board's
previous stated approach to bargaining unit appropriateness
in a successorship? If so, it is merely a return
to the principles expressed in Bulletin T-2? Are
there sufficient structural and historical differences
between hospital and community health bargaining
units that something less than regional units for
hospitals are appropriate? It is hoped that participants
can consider all these issues, and the "Questions
to Ponder" at the end of this paper, for discussion
at the Conference.
Geographic Boundaries Questions to Ponder
- What becomes a reasonable distance for
employees to commute to work considering factors
affecting both the employee and the employer?
Do seniority rights have significant value
to employees beyond a reasonable commuting
distance?
- What impact will larger/smaller units
have on the current collective bargaining structure?
- At what point does/should geography override
other community of interest considerations?
- Does/should wider geographic boundaries
in one unit mean that other functional units
of the same employer must follow suit?
- What problems, if any, do larger geographical
units pose for the governance of trade union
locals and servicing of their membership? Are
there advantages?
- How strong should the presumption in
favour of existing bargaining structures be
in a health care successorship? What considerations
support maintaining the existing bargaining
units? Are there considerations the Board has
not traditionally addressed on this topic?
- Is intermingling of employees a reasonable
condition precedent to breaking up an established
bargaining structure? Should business integration
without significant intermingling of employees
be enough?
- In deciding whether to alter bargaining
structure, how much importance should Boards
give to the factor of employee's freedom to
choose their bargaining agent (or no bargaining
agent at all)?
BIBLIOGRAPHY
1. Information Bulletin #9
2. UFCW, Loc. 401 v. Freson Market Ltd. [1995]
Alta. L.R.B.R. 491
3. UFCW, Loc. 401 v. Canada Safeway Liquor
Stores Ltd. [1996] Alta. L.R.B.R. 99
4. AUPE, Loc. 113 v. Legal Aid Society of Alberta
(Alta. L.R.B. No. 83-002, January 20, 1983, Canning,
Vice-Chair).
5. South Peace Health Unit No. 20 Staff Nurses
Assn. et al. v. Mistahia Regional Health Authority
et al. (Unreported Alta. L.R.B. No. GE-1803, July
26, 1996)
6. Royal Alexandra Hospital et al. v. Canadian
Health Care Guild et al. [1993] Alta. L.R.B.R. 472
7. CUPE, Loc. 3203 v. Horizon School District
No. 67 [1995] Alta. L.R.B.R. 439
8. Wolf Creek Regional Division No. 32 v. CUPE,
Loc. 1855 (Unreported, May 10, 1995)
9. Greater St. Albert Catholic Regional Division
No. 29 (Unreported, May 24, 1995)
10. Health Sciences Association of Alberta
v. Regional Health Authority 5 [1995] Alta. L.R.B.R.
460
11. Canadian Health Care Guild and Alberta
Union of Provincial Employees v. Peace Regional
Health Authority et al. [1996] Alta. L.R.B.R. 106
12. HSAA et al. v. Chinook Regional Health
Authority et al. (Unreported Alta. L.R.B. Decision,
July 26, 1996)
13. East Central Regional Health Authority
7 v. AUPE, Loc. 57 et al. (Unreported Alta. L.R.B.
Decision, July 26, 1996)
14. David Thompson Health Region v. Staff Nurses
Association et al. (Unreported Alta. L.R.B. Decision,
July 26, 1996)
APPENDIX 1
Case: Health Sciences Association of Alberta and
International Union of Operating Engineers, Local
Union No. 955 and Canadian Union of Public Employees,
Local Nos. 408, 812, 927, 2038, 2738 and 3522 and
Chinook Regional Health Authority and United Nurses
of Alberta, Canadian Health Care Guild, Staff Nurses
Association of Alberta, Alberta Union of Provincial
Employees, St. Michael's Health Centre, and Certain
Affected Employees
In this decision, the Board dealt with several
related applications by way of a general review
of bargaining rights in the Chinook Regional Health
Authority (the "Employer"), in three of
the five functional hospital units. The applications
comprised (1) three joint certification applications
by Health Sciences Association and the Operating
Engineers for site-specific units of general support
employees; (2) two certification applications by
Health Sciences Association for site-specific units
of paramedical professional employees; (3) successor
employer applications under s. 46 by the Employer
respecting general support, paramedical technical
and paramedical professional employees. For each
functional group the Employer sought reconsideration
of the existing certificates and creation of one
region-wide bargaining unit comprising both hospital
and health unit personnel; (4) successor union applications
by Canadian Union of Public Employees, Local 403
respecting general support bargaining rights in
the Employer's territory formerly held by other
locals; (5) An application by CUPE Local 403 to
reconsider its site-specific certificates and replace
them with one consolidated certificate; and (6)
unfair labour practices filed by HSAA against the
Employer in connection with bargaining over the
community health units. Several other health care
unions intervened on the issue whether hospital
and community health bargaining units in the region
should be combined.
The Board conducted a detailed review of the
Employer's structure and operations as they affected
all three functional employee groups, in both hospital
and health unit operations. The evidence showed
that since its creation, the Employer had, on the
hospitals side, centralized its management group
and human resources functions; consolidated its
facilities maintenance programs and personnel; centralized
materiel management and standardized the procurement
of supplies; established a common laundry; centralized
management of its nutrition services; centralized
procurement and training for diagnostic imaging
services; reorganized its pharmacy services to institute
central inventory control and procurement; took
over all laboratory services within the region and
instituted central purchasing and common training
and supervision of all laboratory sites. Some employees
were now intermingled and served more than one hospital
site, including maintenance employees, dietitians,
pharmacy employees and several laboratory technicians.
On the health unit side, the Employer now provided
maintenance services for sites occupied by health
unit personnel. Some health unit employees now operated
out of hospital facilities, but generally with no
contact with hospital personnel and without using
hospital support services. Generally, members of
the paramedical employee group like health inspectors,
educators, dental hygienists, physiotherapists and
speech pathologists, now performed duties crossing
the previous health unit boundaries, either regularly
or for vacation coverage. Employees in general support
services, notably home care workers, did not normally
work outside their own communities and did not cross
health unit boundaries.
The Board reviewed its Transition Bulletin
T-2 and its recent decisions respecting schools
regionalization. It noted that the Employer had
taken over the operations of ten independent hospitals
and three independent health units, inheriting 25
certificates and a large number of collective agreements.
It had integrated its management functions and had
achieved a high degree of integration of its business
operations. The Board indicated that although it
will require some degree of intermingling of employees
before disturbing existing bargaining rights, it
may not require a great degree of intermingling
at the time of a successorship application if the
degree of business integration achieved has made
or is about to make the existing bargaining units
inappropriate.
The Board concluded that the Employer's hospital
and community health employees, in both support
and paramedical groups, should remain in separate
units at this time. There was insufficient integration
of community health services with hospitals services
at this point to warrant merger. In addition, the
Board was reluctant to merge these units because
it would result in employees with a right to strike
being combined with employees bound not to strike.
On that point, the Board held that s. 94(1)(b) of
the Code does not take away community health employees'
right to strike or the employer's right to lock
out. The Board would prefer an interpretation of
s. 94 that did not interfere with that vested right.
Accordingly, a regional health authority was not
an employer who "operates an approved hospital"
to the extent that it employees community health
employees unconnected with its hospital operations.
The Board found that the existing site-specific
general support units in the Employer's hospitals
were no longer appropriate. There was a high degree
of business integration and evidence of intermingling
causing difficulties in administration of the collective
agreements, particularly in regard to the maintenance
employees. Accordingly the certification applications
for site-specific general support units were dismissed
and existing certificates are to be consolidated
into a region-wide certificate. The existing district-based
general support units in community health, however,
remained appropriate. There was almost no intermingling
of support employees between health units.
The existing hospital paramedical technical
bargaining units were no longer appropriate. Again
there had been a high degree of business integration
and significant intermingling of laboratory technicians,
laboratory assistants and other technicians, leading
to appreciable problems administering the several
collective agreements. A consolidated, region-wide
unit was appropriate. There was, however, no evidence
of intermingling with their hospital counterparts
to support a merger of hospital and community health
units.
Nor were the existing hospital paramedical
professional bargaining units appropriate any longer.
There had been both business integration and significant
employee intermingling. As between the previous
health units, the evidence was that there was some
intermingling of paramedical technical employees,
and quite significant intermingling of paramedical
professional employees. As technical and professional
employees were combined in the Board's standard
paramedical bargaining unit, the existing district-based
bargaining units containing both groups had become
inappropriate and should be replaced by a region-wide
community health paramedical unit.
Accordingly, the Board (a) revoked its certificates
covering hospital paramedical technical employees
and replaced it with a region-wide certificate naming
HSAA as the bargaining agent; (b) indicated that
a region-wide certificate would issue for hospital
general support employees. It deferred the questions
of which union would be the bargaining agent and
whether a vote would be required, pending agreement
or evidence of the numbers of employees represented
by each bargaining agent; (c) indicated that a region-wide
certificate would issue for hospital paramedical
professional employees, again deferring determination
of the bargaining agent pending evidence of the
number of employees in the HSAA and non-union groups;
(d) amended existing certificates for community
health support employees to name the regional health
authority as the employer; (e) revoked existing
community health paramedical certificates and replaced
it with a region-wide certificate naming HSAA as
the bargaining agent; and (f) dismissed all the
certification applications. The unfair labour practice
complaints were withdrawn.
Case: East Central Regional Health Authority 7 and
Alberta Union of Provincial Employees, Local 57
and United Nurses of Alberta, Locals 42, 88 &
126
East Central Regional Health Authority 7 (the
"Employer") applied to be declared the
successor employer to four local boards of health,
from whom it had inherited all or part of four health
units in the process of health care regionalization.
It sought a determination that a single region-wide
unit of community health nurses was the appropriate
bargaining unit. Bargaining rights were currently
held by three locals of United Nurses of Alberta
("UNA") and the Alberta Union of Provincial
Employees ("AUPE"). The unions objected
that the previous bargaining units remained appropriate.
At the commencement of the hearing, UNA objected
to the composition of the panel for apprehension
of bias. One panellist had served on the board of
one of the Employer's predecessor health units eleven
years ago, during a difficult industrial dispute
involving members of UNA.
The Board dismissed the objection to the composition
of the panel. The panellist had had an affiliation
not with a party to this application, but with a
predecessor employer. The issues on this application
had no connection with the subject-matter of the
earlier dispute. The dispute occurred eleven years
ago and the panellist had had no connection with
that employer for seven years. Finally, and most
important was that the Board is by statute a representative
board composed of members who must be expected to
have been involved in labour relations matters with
parties now before them, including industrial disputes,
in the past. In the circumstances there could be
no reasonable apprehension of bias.
The Board reviewed the structure and operations
of the Employer after regionalization. The evidence
was that the Employer had centralized many of its
community health operations like administration,
finance, human resources, payroll, records and strategic
planning. It had created four administrative areas
for community health that cut across the previous
health unit boundaries. Although there was little
movement of employees outside their local areas,
most nurses performed some duties like vacation
cover-off, training, consultation, and committee
meetings outside their area or even on a region-wide
basis. The Board heard evidence of the time and
expense involved in bargaining several collective
agreements applicable to the region.
The Board determined that a single region-wide
unit was appropriate. Following the principles set
out in Staff Nurses Association et al v. Mistahia
Regional Health Authority et al [1996] Alta. L.R.B.R.
as yet unreported, released concurrently, the Employer
had created a strongly integrated structure that
cut across existing bargaining unit boundaries.
Community of interest considerations pointed predominantly
to region-wide bargaining. Bargaining history favoured
employer-wide bargaining. Maintaining four bargaining
units for some 123 nurses would constitute undue
fragmentation. Small bargaining units for such a
geographically large employer appeared not to be
viable, and there was already some evidence of difficulties
in the locals administering themselves. Finally,
there was a degree of intermingling of employees
in the broad sense of working under a common supervision
and support services. These factors outweighed employee
wishes to maintain their existing bargaining units.
A region-wide unit was appropriate and a vote
was required to determine the bargaining agent.
In the absence of any merger agreement or joint
administration agreement between the three UNA locals,
the Board could not treat the three as one entity
for purposes of the vote. Only the largest local
had sufficient membership to appear on the ballot.
Case: South Peace Health Unit No. 20 Staff Nurses
Association and United Nurses of Alberta, Local
98 and the Peace River Health Unit Staff Association,
United Nurses of Alberta, Alberta Union of Provincial
Employees, and Mistahia Regional Health Authority
The Staff Nurses Association ("SNA")
sought a successorship declaration naming Mistahia
Regional Health Authority ("Mistahia")
as successor employer of certain community health
nurses formerly employed by three local boards of
health. SNA also sought a determination that the
four existing bargaining units were inappropriate
to the new regional employer and that it was the
bargaining agent for all community health nurses
in a single, region-wide unit. Of the three competing
unions, one had abandoned its bargaining rights.
Another consented to SNA's application. The third,
United Nurses of Alberta ("UNA") opposed
the application and sought a declaration that it
remained the bargaining agent for employees at Mistahia's
Grande Cache office.
The Board analyzed Mistahia's community health
operations before and after regionalization. The
evidence established that community health operations
after regionalization remained locally based and
employees rarely operated outside of the territory
covered by their local office. The employer had,
however, achieved a high degree of integration of
operations between the former health units, including
centralized management, finance, contract administration,
procurement and transportation. Program specialists
for the entire region operated out of the Grande
Prairie office. Nurses now sat on region-wide committees
and regularly attended committee meetings outside
their local area.
The Board conducted a lengthy review of the
jurisprudence and authorities on bargaining unit
appropriateness. It concluded that a single, region-wide
unit of community health nurses was appropriate.
The employees' predominant community of interest
was with other employees of the region. Bargaining
history in this case favoured the region-wide unit,
as UNA's history of bargaining for Grande Cache
nurses had been employer-wide, not for the single
office. The agreement of SNA and Mistahia to region-wide
bargaining, along with the preference of a majority
of employees, weighed in favour of that result.
The two-person unit at Grande Cache would not be
viable in the broader regional structure and would
constitute undue fragmentation.
Finally, although there was little or no intermingling
of employees in the conventional sense that members
of different bargaining units worked "side
by side", the concept of "intermingling"
is broad enough to encompass the case of different
groups of employees under different collective agreements
performing similar work for the same employer. Intermingling
in this broader sense existed here. In light of
the consent of the second-largest bargaining agent
to SNA's application, the Board declined to order
a vote, revoked the bargaining rights of the three
minority unions, and declared SNA the bargaining
agent for the region-wide bargaining unit. On joint
application of Mistahia and SNA, the Board continued
all the existing collective agreements in force
pending negotiation of amendments.
Case: David Thompson Health Region and Staff Nurses
Association, United Nurses of Alberta and Alberta
Union of Provincial Employees
David Thompson Health Region (the "Employer")
in the process of health care regionalization absorbed
all or parts of five existing health units, with
community health nursing employees represented by
three different unions and a large (84%) majority
of non-union nurses. It applied for a declaration
it was a successor employer, that a single region-wide
bargaining unit was appropriate, and that a representation
vote be held. United Nurses of Alberta ("UNA"),
which represented one small group of nurses in the
region, applied for certification for all community
health nurses in the region except those covered
by existing certificates.
The Board reviewed the Employer's structure
and operations after regionalization. The evidence
was that the Employer had divided community health
operations into two programmes, divided respectively
into five and three areas, all of which cut across
the old health unit boundaries. It also maintained
three community health centres where nurses performed
blended duties. The Employer had set common, region-wide
standards and service levels, along with common
policies modelled on the previous Red Deer Health
Unit. It had centralized support services like payroll,
human resources, finance, procurement and employee
orientation. Employees tended not to work outside
their own area, but regularly attended committee
meetings and training and received specialist consultation
outside their area.
The Board dismissed UNA's certification application.
The nurses affected by the application shared a
region-wide community of interest. Neither individual
offices, nor areas, nor former health units, supplied
any unique community of interest for these employees.
The unit as sought would leave at least one small
tag-end. It did not conform to the Board's traditional
practice of certifying community health employees
on an employer-wide basis, and would amount to undue
fragmentation.
For similar reasons, the Board determined that
the Employer was a successor employer for a region-wide
unit of community health nurses. The Employer's
operations were highly integrated in a way that
crossed all previous bargaining unit boundaries.
Employer-wide bargaining history, a regional community
of interest, intermingling, bargaining unit viability
and avoidance of fragmentation all pointed to a
region-wide bargaining unit and overcame the preference
of unionized employees to remain collectively represented.
As the great majority of the employees in the regional
unit were not unionized, all existing bargaining
rights were revoked without a vote.
