Health Care Conference
September 24-25, 1996
[1997] Alta.L.R.B.R.
DP-002
Probably no other determination is as
central to the mandate of labour relations
boards as determining the appropriate bargaining
unit. The purpose behind the concept of the
"appropriate bargaining unit" is
easy to state: it is "an effort to inject
a public policy component into the initial
shaping of the collective bargaining structure,
so as to encourage the practice and procedure
of collective bargaining and enhance the likelihood
of a more viable and harmonious collective
bargaining relationship": Hospital
for Sick Children [1985] O.L.R.B. Rep.
Feb. 266.
It is easier to state that purpose than
to meet it because of the number of public
policy considerations, often conflicting, that
come into play. A lengthy passage from another
Ontario case, Kidd Creek Mines Ltd.
[1984] O.L.R.B. Rep. March 481, gives a sense
of those considerations:
(...) the Board's determination is
obviously of immense practical importance,
not only for the immediate parties, but
for the structure and performance of the
collective bargaining system as a whole.
The definition of the unit affects the
bargaining power of the union and the
point of balance it creates with that
of the employer. It influences the potential
scope and effectiveness of collective
bargaining for dealing with different
matters, and to some extent, even the
substantive issues covered in the collective
agreement. And, perhaps most important,
the shape of the bargaining unit can profoundly
influence the potential for industrial
peace or collective bargaining discord.
The more disparate are the interests enclosed
within the unit, the more difficult it
may be for the union to effectively represent
the collectivity. Insufficient attention
to these special interests generates internal
strife, while too much attention to minorities
may make it more difficult for a union
to formulate a coherent package of proposals
or make necessary concessions. On the
other hand, there are dangers at the other
extreme, as the Board noted in Bestview
Holdings Limited (...)
(...) The Board must also strive
to create a viable structure for ongoing
collective bargaining and, to this end,
undue fragmentation must be avoided. Consolidated
bargaining offers several advantages over
a fragmented structure. A proliferation
of small units may result in unnecessary
work stoppages. (...) Secondly, each of
several units typically becomes a separate
seniority district, enclosed by walls
which impede the movement of employees
between jobs. In addition, broader-based
structures may lower the cost and thereby
increase the availability of insurance
schemes and benefit plans. A multiplicity
of bargaining units also inevitably spawns
jurisdictional disputes over the assignment
of work and entails the cost of negotiating
and applying several collective agreements.
Finally, the existence of a single bargaining
unit facilitates equitable treatment of
employees doing similar jobs.
This paper briefly discusses some of the
principles that the Alberta Labour Relations
Board and other labour boards use to determine
appropriate bargaining units in the organized
workplace. It overlaps and serves as background
to the topics of functional bargaining units
in the health care industry and geographic
limits in health bargaining units. The aim
of the paper is to focus participants on the
factors that contribute to a "good"
bargaining unit, meaning one that serves the
interests of its members well while remaining
consistent with public policy. The other papers
then elaborate on these principles in the context
of the geographical scope of the unit, and
the Board's functional bargaining units in
the health care industry.
General Principles
- The case law tells us that an appropriate
bargaining unit should have these qualities:
- it should be drawn so that employees
have reasonable access to collective bargaining;
- it should be large enough to make
the unit a viable vehicle for collective
bargaining;
- it should not be drawn in a way
that unduly interferes with the employer's
operations;
- it should associate employees having
enough of a "community of interest"
that the collective bargaining process
is not unduly impaired by the conflicting
interests that the bargaining agent is
called upon to represent. The concept
of "community of interest" in
turn encompasses a host of reasons why
a given group of employees should or should
not bargain with their employer as a group;
- it should promote industrial stability
in the long term; and
- its boundaries should be precise
enough to minimize disputes over who is
and is not in the bargaining unit.
These objectives in a bargaining unit
description often conflict, and the final shape
of the unit must be the product of a balancing
of the conflicting objectives. Each of these
qualities of an appropriate bargaining unit
is discussed below.
Access to Collective Bargaining
The appropriate bargaining unit sets the
initial constituency within which a trade union
must gain employee support for collective representation.
The right to collective bargaining set out
in labour statutes should not be illusory,
so labour boards resist creating such large
and diverse bargaining units that they are
impossible to organize. The B.C. Board put
the proposition this way in one of its leading
cases:
It is an absolutely fundamental policy
of the Code that the achievement of collective
bargaining is to be facilitated for those
groups of employees who choose to use
this procedure as the means for settling
their terms and conditions of employment.
(...) If bargaining units are defined
too widely, or a number of separate groups
are put into one unit, it is unlikely
in the department store industry that
the employees will agree on union representation.
In these circumstances we will not deny
collective bargaining to those small pockets
of employees who, by reason of their own
special needs and interests, have.
That does not mean the Board will
carve out totally artificial units, based
solely on the extent of organization by
the union (and sufficiently to give the
latter a majority). We will require some
reasonably coherent and defensible boundaries
around the unit over and above the existing,
momentary preference of the employees.
(...) However, we will not reject applications
for small bargaining units on the basis
that a large unit is a more rational structure
for hypothetical collective bargaining
in the distant future, where the result
will be the denial of actual bargaining
rights now.
Woodward Stores (Vancouver) Ltd.
[1975] 1 Can. L.R.B.R.
114
This approach is especially prevalent
in industries that are historically hard to
organize. See, e.g. SORWUC v. Canadian
Imperial Bank of Commerce [1977] 2 Can.L.R.B.R.
99 (Can.L.R.B.); CUBE v. Canada Trustco
Mortgage Company [1977] 2 Can. L.R.B.R.
93 (Ont. L.R.B.). In each of these cases the
board found a single branch of a financial
institution an appropriate bargaining unit.
Viability
Over the long term, however, a bargaining
unit must be capable of being a "going
concern", a vehicle that is at least somewhat
effective in bargaining and representing the
employment interests of its members against
the employer. A too-small bargaining unit usually
lacks the leverage against the employer to
make collective bargaining a viable process
for setting terms and conditions of employment.
Again, perhaps the best illustration of this
is in the banking and trust industry, where
almost none of the single-branch units certified
by Canadian labour boards in the 1970's and
1980's survive today. This is the factor behind
the Alberta Board's practice of refusing to
certify bargaining units that would leave unorganized
a "tag-end" group of employees who
could never realistically bargain together:
Information Bulletin #9.
Community of Interest
"Community of interest" between
employees in the unit means that the employees
in the unit share enough employment interests
in common that the single bargaining agent
can effectively represent all the interests
of the collectivity. It does not mean an identity
of interests, but a broad similarity of employment
interests and an absence of seriously conflicting
interests. One of the earliest attempts to
catalogue the considerations that come into
play in evaluating community of interest appears
in the Ontario case of Usarco Ltd. [1967]
O.L.R.B. Rep. 526. In deciding that employees
at two scrap metal recycling yards should constitute
one bargaining unit, the Ontario Board looked
at the nature of work employees performed;
similarities in their conditions of employment;
common skills; geographic proximity; common
administration and management; and the interdependence
of employees and work processes between the
two locations.
The best general discussion of "community
of interest" is contained in George W.
Adams, Canadian Labour Law, 2d ed.
(Canada Law Book, 1993). Adams identifies as
significant factors:
- similarity in the scale and manner
of determining earnings; in employment
benefits, hours of work and other terms
and conditions of employment; in the kind
of work performed; and in the qualifications,
skills and training of employees. The
point behind this factor is that collective
bargaining will work best when employees
work under similar conditions and so have
similar problems and concerns for collective
bargaining to address.
- the frequency of contact or interchange
among employees and the geographic proximity
of workplaces. Where employees often work
in more than one of the employer's operations,
they will have an interest in both operations
being governed by the same set of rules.
Breaking these operations up into several
bargaining units tends to create "seniority
walls" around each unit so that employees
have access to fewer promotions and transfers
and fewer jobs to bump to in event of
layoff.
- continuity or integration of production
processes. This is more a factor for private-sector
employers, especially manufacturers. The
idea is not just that an integrated production
process tends to create common employment
interests among employees, but also that
if an integrated production process is
broken up into several bargaining units,
a dispute in one unit can shut down the
entire process.
- common supervision and determination
of labour relations policy. To the extent
that supervision and labour relations
are administered either centrally or on
a decentralized basis, employees have
an interest in negotiating with the representatives
of management who are capable of dealing
with their employment concerns and setting
their terms and conditions of employment.
- relationship to the administrative
organization of the employer.
- collective bargaining history. In
cases where the Board is asked to define
an appropriate bargaining unit and there
has been a history of bargaining, that
history becomes extremely important. Often,
fashioning the appropriate bargaining
unit is an educated guess as to whether
the bargaining unit sought will be viable
for collective bargaining. Where there
is an established history of either successful
or unsuccessful bargaining it is not necessary
to guess. In a sense, a successful collective
bargaining history creates its own community
of interest as, the employees in the unit
develop relationships to each other and
a common allegiance to the group.
- wishes of the parties. This raises
the question of Board policy toward agreed
bargaining units. The agreement of the
parties immediately affected will often
be strong evidence that a group of employees
is suitable to bargain together, though
the Board is not bound by such an agreement
where other factors point to the unit
not being appropriate.
This is not the only accepted list of
factors in evaluating community of interest.
The British Columbia Labour Relations Board,
for example, looks to the factors of:
- similarity in skills, interests,
duties and working conditions;
- the physical and administrative
structure of the employer;
- functional integration; and
- geography.
See Island Medical Laboratories
(1993) 19 C.L.R.B.R.(2d) 161. See also the
Canada Board's list of factors in Canadian
Broadcasting Corporation [1979] 2 Can.L.R.B.R.
41 .
Community of interest requires not just
that the employees sought to be included in
a bargaining unit share a reasonable degree
of common goals and interests. It requires
that all employees who share those goals and
interests to a high degree be included in the
unit. In that sense, labour boards are not
bound by the extent of a union's organizing
campaign and will resist applications that
appear to gerrymander the bargaining unit to
fit the pockets of employees that have expressed
support for the union. The B.C. Board set out
an extreme hypothetical example of a unit that
is under-inclusive on community of interest
grounds in Island Medical Laboratories,
supra at 187:
(...) at the initial stage of certification,
the design of the bargaining unit must
ensure the viability of collective bargaining.
The Board would not put into a single
bargaining unit employees whose communities
of interest directly conflict; further,
no bargaining unit would be created that
cuts across a particular classification,
where all members are in the same physical
location, resulting in half of the employees
in that classification in the bargaining
unit and the other half out of the bargaining
unit. Both these situations would not
be conducive to the settlement of collective
bargaining disputes.
Industrial Stability
Labour boards resist creating unduly fragmented
bargaining structures on the basis that they
are unstable and do not contribute to industrial
peace through effective collective bargaining.
The B.C. Labour Relations Board states the
principle this way:
(...) the second purpose in establishing
an appropriate bargaining unit is to foster
industrial peace and stability through
collective bargaining. The bargaining
unit sets the framework for actual bargaining
between the parties. That structure has
to be conducive to the orderly resolution
of collective-bargaining disputes by the
parties. If the bargaining unit fails
to relate to the specific organization
and structure of the employer, efficient
and stable collective bargaining will
be undermined. (...)
It is axiomatic in labour relations
that a proliferation of bargaining units
increases the potential for industrial
instability. Multiple bargaining units
per se raise a serious concern about industrial
stability. Instead of one strike, there
may be several strikes. Each union may
potentially whipsaw the employer by trying
to leapfrog the last set of negotiations.
Island Medical Laboratories Ltd.
(1993) 19 C.L.R.B.R. (2d) 161.
One might add that even in an industry
where disputes may not be settled by strike
or lockout, fragmented bargaining units tend
to spread the uncertainty associated with the
collective bargaining process over a greater
period of time. In a very fragmented bargaining
structure, bargaining may be almost continuous
as one segment or the other of the workforce
is usually in an open period.
A fragmented bargaining structure can
commit an employer to bargaining with so many
bargaining agents that collective bargaining
becomes an undue drain on the resources of
the employer; or it can subject the employer
to too many different sets of rules governing
things like job posting, seniority and scheduling,
for the employer to efficiently administer
its personnel. See, for example, the recent
case of HSAA et al. v. Chinook Regional
Health Authority et al. (Unreported Alta.
L.R.B. Decision, July 16, 1996), where the
Board observed that maintaining all existing
bargaining rights of the new regional health
authority unchanged would result in it becoming
bound to 25 certificates and a "multitude"
of collective agreements.
Certainty
An appropriate bargaining unit is one
whose boundaries are stable and relatively
easy to ascertain. Labour boards resist unit
descriptions that are vague. As the Alberta
Board observed in Re: City of Edmonton
Bargaining Units [1993] Alta. L.R.B.R.
362 at 390:
The units must be capable of co-existing
in harmony. Unit descriptions which, by
ambiguity or poor design, generate constant
disputes about who falls where, are inappropriate.
They frustrate, not foster the bargaining
relationships they authorize.
Boards also reject unit descriptions that
rely on criteria that are too subject to change.
This is one reason that the Alberta Board tries
to cast its unit descriptions in functional
language, i.e. language that describes what
functions employees carry out in the workplace,
rather than by job classifications or the employer's
administrative structure, which can be unilaterally
changed.
The Importance of Context
The question of what is the appropriate
bargaining unit can come up in several different
contexts. It may be an issue in a first certification;
a second or subsequent certification in the
same employer's workforce; a raid; or a successorship
application. Different policy considerations
come into play in each of these contexts. Labour
boards have acknowledged that there are often
several different units that are appropriate
in any given application, and whether the Board
will accept a unit description that is less
than the best available unit depends greatly
on what kind of application it is.
The difference in approach to bargaining
unit appropriateness is particularly obvious
between first certifications and second and
subsequent certifications. It must be remembered
that in certification applications, Alberta's
labour statutes allow the Board to certify
a trade union to represent "an" appropriate
unit, not necessarily the most appropriate
unit. But even so, a unit that may be "an"
appropriate unit in one context may be inappropriate
in another. In the first certification application
for an employer, especially in historically
hard-to-organize industries, access to collective
bargaining is the paramount consideration (as
the Canada Board's acceptance of single-branch
bargaining units in the banking industry showed).
With second and subsequent certifications,
industrial stability assumes increasing importance.
One noted commentator writes:
That is the industrial relations
problem [of bargaining unit fragmentation].
What should be the legal response? Clearly,
one avenue that must be pursued is prevention,
especially in the development of labour
board policy relating to appropriate bargaining
units. I have already described the natural
and, I repeat, justifiable tendency of
labour boards to fashion bargaining units
within which groups of employees have
a meaningful ability to choose to engage
in collective bargaining. But as industries
become largely organized; as employees
in this line of work look upon union representation
as a matter of course; as their employers
accept that as a fact of life; then the
statutory policy of fostering collective
bargaining need have relatively little
weight in unit determination in that setting.
Instead, labour boards should address
themselves to the long-term structural
consequences of such decisions, and take
a more critical attitude to the boundaries
within which a particular trade union
has chosen to organize employees.
Paul Weiler, Reconcilable Differences
(Carswell: 1980) at 159
Therefore, labour boards will often grant
a first certification for a less-than-optimum
bargaining unit as long as a "rational
and defensible boundary" can be drawn
around the bargaining unit applied for. But
as the employer's workforce becomes more thoroughly
organized, they may refuse to grant additional
certifications for less than the remainder
of the workforce, in order to prevent fragmentation.
Or they may refuse to grant another certification
at all, instead requiring additional employees
to brought into the existing certificate by
an application to vary the certificate. See
Island Medical Laboratories, supra;
Woodward Stores (Vancouver) Ltd., supra;
and UFCW, Loc. 401 v. Freson Market Ltd.
[1995] Alta.L.R.B.R. 491.
Where there is a successful bargaining
history, that bargaining history tends to entrench
the existing bargaining structure. A history
of successful bargaining rebuts any concerns
about inappropriateness that a labour board
might have had if it were making the determination
on a "clean slate". And, as noted
before, the mere fact of bargaining together
over time contributes to a community of interest
among employees in the unit. For these reasons
— and to afford certainty in raid applications—
boards strongly favour the existing bargaining
unit as the appropriate bargaining unit in
a raid. The Alberta Board has said in its Information
Bulletin #9 that an applicant for certification
must show "strong, compelling reasons"
for carving out a smaller group from an existing
bargaining unit. See also UA, Loc. 496
v. Goodyear Canada Ltd. [1992] Alta. L.R.B.R.
89.
Finally, the issue of appropriateness
often arises in successorship applications.
The established approach to bargaining unit
appropriateness in a successorship— and
this is particularly important for regionalization
initiatives in organized industries —
is that the successor employer takes the bargaining
unit as it finds it. The existing bargaining
unit presumptively remains appropriate in the
hands of the new employer and labour boards
will preserve that bargaining unit unless it
is convinced that the existing structure has
become inappropriate — for example, through
a mingling of the predecessor's and successor's
workforces. As the Alberta Board wrote in CUPE,
Loc. 3203 v. Horizon School District No. 67
[1995] Alta. L.R.B.R. 439:
... the intention of the successorship
provisions is to place the successor employer
in the same bargaining capacity as its
predecessor and the predecessor trade
union continues to be the bargaining agent
of the employees now working for the successor
in a "like" bargaining unit,
until the Board declares otherwise. Thus,
for successorship applications, the previous
bargaining unit remains appropriate until
shown otherwise through, for example,
proving to the satisfaction of the Board
the existence of integration and intermingling.
This is not a certification application
where the Board must only be satisfied
that the unit applied for is an appropriate
unit for collective bargaining.
Conclusion
Too often, disputes over bargaining unit
appropriateness are driven by the tactical
considerations of the day. It is hoped that
this paper, and this conference, will help
to inject into the looming debate over bargaining
unit appropriateness in a regionalized health
care system, some more thought about the first
principles of how bargaining units should be
structured. In preparing for the conference,
then, the organizers invite participants to
consider the principles discussed here and
apply them to what they know to be happening
in Alberta's health care industry.
Appropriate Bargaining Units Questions to Ponder
- What size bargaining unit becomes
viable for collective bargaining? Is viability
better measured in numbers of employees
or in context of the collective bargaining
structure affecting the unit? Contrast
- a two employee unit in the construction
registration system, a small unit in health
care, and a small retail unit.
- What are the factors existing in
the health care industry which may impact
employees reasonable access to collective
bargaining:
-in new certifications?
-in raid situations?
- What does or should community of
interest include in today's healthcare
environment? Have any new factors emerged
in the regionalization process.
- What factors exist which impact
the trade unions' ability to represent
employees at the worksite?
- What impact is regionalization having
on collective bargaining? How do bargaining
unit structures affect that?
- Are multi-union certificates appropriate
in healthcare in Alberta? Why or why not?
- How much does provincial bargaining
mitigate the burden to employers of having
many smaller bargaining units? Is provincial
bargaining likely to remain a strong factor
in health care labour relations?
BIBLIOGRAPHY
1. George W. Adams, Canadian Labour
Law, 2d ed. (Canada Law Book, 1993), pp.
7-2 ff.
2. Paul Weiler, Reconcilable Differences
(Carswell, 1980), c.
3. Alberta Labour Relations Board, Information
Bulletin #9.
4. James Dorsey, Canada Labour Relations
Board: Federal Law and Practice (Carswell,
1983), pp. 123-130.
5. A.W.R. Carrothers et al., Collective
Bargaining Law in Canada, 2d edition (Butterworths,
1986), c. 14
6. Claude Foisy et al., Canada Labour
Relations Board Policies and Procedures
(Butterworths, 1986), pp. 59-71
7. J. Sack and M. Mitchell, Ontario
Labour Relations Board Law and Practice
(Butterworths, 1985) pp. 134-153.
8. Re: City of Edmonton Bargaining
Units [1993] Alta. L.R.B.R. 362
9. UFCW, Loc. 401 v. Freson Market
Ltd. [1995] Alta.L.R.B.R. 491.
10. UA, Loc. 496 v. Goodyear Canada
Ltd. [1992] Alta. L.R.B.R. 89.
11. CUPE, Loc. 3203 v. Horizon School
District No. 67 [1995] Alta. L.R.B.R.
439
12. HSAA et al. v. Chinook Regional
Health Authority et al. (Unreported Alta.
L.R.B. Decision, July 16, 1996)
13. Insurance Corporation of British
Columbia [1974] 1 Can. L.R.B.R. 403 (B.C.L.R.B.)
14. Woodward Stores (Vancouver) Ltd.
[1975] 1 Can. L.R.B.R. 114 (B.C.L.R.B.)
15. Island Medical Laboratories
(1993) 19 C.L.R.B.R.(2d) 161 (B.C.L.R.B.)
16. Usarco Ltd. [1967] O.L.R.B.
Rep. 526.
17. CUBE v. Canada Trustco Mortgage
Company [1977] 2 Can. L.R.B.R. 93 (Ont.
L.R.B.).
18. Kidd Creek Mines Ltd. [1984]
O.L.R.B. Rep. March 481
19. Hospital for Sick Children [1985]
O.L.R.B. Rep. Feb. 266.
20. SORWUC v. Canadian Imperial Bank
of Commerce [1977] 2 Can.L.R.B.R. 99 (Can.L.R.B.)
21. Canadian Broadcasting Corporation
[1979] 2 Can.L.R.B.R. 41 (Can.L.R.B.)
