Legal News

unit inappropriate due common employer

The BC Labour Relations Board used a section 38 common employer declaration to dismiss a certification application for a large multi-site bargaining unit of laboratory employees. The Board ruled that the appropriate unit would include the employees of a related company.

In Metro-McNair Clinical Laboratories Limited Partnership, BCLRB No. B210/2000, the Health Sciences Association (“HSA”) applied under section 18 to be certified for a proposed bargaining unit of about 250 Metropolitan Laboratories employees employed at 32 locations on Vancouver Island. BCGEU was already certified for a bargaining unit of about 375 Metro-McNair employees at 43 locations in the Lower Mainland.

In response, Metro-McNair and Metropolitan applied under section 38 for a common employer declaration, and argued that the bargaining unit proposed by the HSA was inappropriate as it would be a second bargaining unit for the common employer. BCGEU supported the section 38 application.

HSA conceded that the first three requirements for a common employer declaration were satisfied (more than one entity carrying on business; the entities are under common control and direction; and the entities are engaged in associated-or related activities or businesses), but argued that the fourth requirement was not met: there was no valid labour relations purpose to be served by making the declaration. HSA argued that granting the common employer application would improperly expand BCGEU’s existing bargaining rights. It further argued that an employer cannot rely on section 38 to prevent certification of an otherwise appropriate unit of employees.

The Panel determined that it should consider the two applications in conjunction with one another, rather than in isolation. After considering the Board’s jurisprudence, the Panel decided to analyze the appropriateness of the HSA’s proposed bargaining unit as a second bargaining unit rather than an initial bargaining unit, utilizing all six Island Medical Laboratory factors.

The Panel found that the first two factors favoured a single unit. With respect to the third factor, functional integration, the Panel found that it did not have a major impact on the appropriateness of a second bargaining unit, given the scope of the current BCGEU certification. With respect to the fourth factor of geography, the Panel found that it was offset by the strong interdependence of the operations. The Panel considered the fifth and six factors together, and concluded that they did not favour the creation of a second bargaining unit. The Panel further found that setting conditions, such as a common collective agreement expiry date,would not eliminate the potential industrial instability caused by two bargaining units.

Accordingly, after considering all six factors, the Panel concluded that HSA had not rebutted the presumption against a second unit, and dismissed its application for certification. The Panel further granted the common employer declaration, deciding that it served a valid labour relations purpose of ensuring that any bargaining unit structure set into place would produce viable collective bargaining and ongoing collective agreement administration. The Panel stated that the declaration did not expand BCGEU’s existing bargaining rights and encouraged the unions to consider the option of a polyparty relationship. Metro-McNair and Metropolitan were declared a common employer; and HSA’s certification application was dismissed. (click here for full text of the decision).