The Women's Christian Association of London v. Ontario Nurses Association, 1980 CanLII 911

Ontario Labour Relations Board

[1980] OLRB Rep. May 759

2344-79-R The Women's Christian Association of London, owner and operator of Parkwood Hospital, London, Ontario, Applicant, v. Ontario Nurses Association, Respondent, v. Group of Employees, Objectors.

Panel and Counsel

BEFORE: R. O. MacDowell, Vice-Chairman and Board Members C. G. Boume and W. F. Rutherford.

APPEARANCES: Carmen Dyer and F. G. Jones for the applicant; Kathleen G. O'Neil, Donna L. Alexander, Ann Pike and Liz Woods for the respondent; Audrey McCaffrey and Myrtle Purdon for the objectors.

Decision

DECISION OF THE BOARD; May 28, 1980

1. This is an application under section 55 of The Labour Relations Act. There are two principle questions before the Board:

(a) Has there been "a transfer" of a "business" within the meaning of section 55, from Victoria Hospital Corporation ("Victoria") to the Women's Christian Association of London, owner and operator of Parkwood Hospital, London ("Parkwood"); and;

(b) If there has been "a transfer of a business" from Victoria to Parkwood, should the bargaining rights of the respondent Ontario Nurses' Association ("ONA") be preserved, either for the original Victoria facility, or for some restructured bargaining unit determined pursuant to sections 55(4) and 55(6) of the Act.

2. Prior to the series of events leading to the present application, there were three unrelated hospitals located in the southern part of the City of London: Victoria Hospital, an active treatment hospital with a capacity of 1,000 beds; Parkwood Hospital, a chronic care facility located on Grand Avenue, with a capacity for 185 patients; and a "veterans hospital" operated by the Federal Government on a parcel of 300 acres known as the "Westminster Site". On the Westminster site there was a main building and two subsidiary buildings: the "Western Counties Wing" providing domiciliary care for up to 180 persons (i.e. similar to an old aged home), and the "Medical Annex No. 2" providing care for up to 290 chronic care patients. It is the transfer of the "Western Counties Wing" and "Medical Annex No. 2" from Victoria to Parkwood with which we are here concerned.

3. The transfer to Parkwood of the Western Counties Wing, and Medical Annex No. 2, was part of a complicated series of transactions between Parkwood, Victoria, and both levels of government. It is unnecessary to review the details of these property transfers and financial undertakings. It may be useful, however, to set out some of the background leading up to the ultimate transfer of the subject facilities from Victoria to Parkwood.

4. In or about May, 1977, the Federal Government decided that it no longer wished to continue operating its three facilities on the Westminster sites and entered into an arrangement with the Ontario Government whereby responsibility could be transferred to appropriate entities within Provincial jurisdiction. In or about June, 1979 Victoria Hospital acquired responsibility for the care and treatment of these patients. Victoria received certain financial and property considerations, and was to make arrangements for a further transfer, to Parkwood, of the responsibility for the domiciliary and chronic care patients located in the Western Counties Wing and Medical Annex No. 2. In return, Parkwood would also obtain certain property and financial considerations. This second transfer (which gives rise to the present application) was completed in January, 1980.

5. Parkwood considers its Grand Avenue premises to be inadequate, and hopes to construct an entirely new hospital complex on the lands acquired on the Westminister site. Until it does so, it will continue to operate at two geographically separate locations. The old premises on Grand Avenue are about two miles from the Westminster site. Parkwood hopes that the new hospital complex will be completed by 1983, so that it can consolidate all of its operations and responsibilities in a modern facility on the Westminster site. Apparently Victoria also hopes to acquire better facilities on the Westminister site. The provincial government hopes to achieve an efficient organization of autonomous health care units located in close proximity to one another.

6. On January 25, 1980, responsibility for the care and treatment of patients in the Western Counties Wing and Medical Annex No. 2 was transferred from Victoria to Parkwood. There was no interruption in patient care, nor was there any transfer of patients from the Westminster site to Parkwood's Grand Avenue location, or vice versa. Parkwood acquired the patients' medical records, custody of their belongings, and all of the equipment ordinarily used in their care and treatment, including: ward equipment and medical supplies, housekeeping supplies, and physical and occupational therapy equipment. The title to the real property remains somewhat confused, although both the Federal and Provincial Governments have assured the parties this will not be a problem. The patients' "canteen" continues to operate pursuant to a new committee established by Parkwood.

7. Parkwood pays Victoria a rental fee for use of the buildings and for heat, light, maintenance and garbage services. Parkwood also acquires a number of other services from Victoria on a subcontract basis. These include: food supply, access to Victoria's central supply depot, pharmacy, laundry, and diagnostic and laboratory services. Michael Boucher, Assistant Executive Director for Parkwood, emphasized that these arrangements were purely a matter of convenience. Parkwood retains both its autonomy, and the right to satisfy its needs elsewhere if it becomes economical to do so. The service agreements with Victoria can be terminated on six months' notice. When the new complex is completed in 1983 it is anticipated that there will be changes; although Boucher noted that it may still be appropriate to maintain certain shared service facilities.

8. The patient care provided by physicians has been maintained. These physicians have become associated with Parkwood, have medical privileges with Parkwood, and are involved in at least administrative duties at the old Parkwood location. Similarly, Parkwood's medical staff as privileges at the Westminster site. Parkwood's administrative staff now services both locations. There is a single Board of Directors and Executive Director. There is one Finance and Personnel Department. The department heads have not changed, however, at the Westminster site, there is substantial continuity of first and second level management of the nursing staff. These individuals now report to Ms. Hazelwood, Parkwood's Director of Nursing.

9. Ms. Hazelwood agreed that the Westminster site is a "self-contained unit for nursing care". There is no interchange of full-time employees between the two sites. There are certain shared continuing education programmers (about one per month), and the rehabilitation co-ordinator visits both sites; however, the duties of the former Victoria employees are confined to the Westminster location. Similarly, none of the full-time nurses from Parkwood's Grand Avenue site perform any duties at the Westminster location. Ms. Pike, a former Victoria employee who continues to work for Parkwood at the Westminster site, testified that her supervisor remained the same, and there was no substantial change when the operation was taken over by Parkwood. She also testified that the nurses were informed prior to the transfer, that they would not be moved from the Westminster site.

10. None of Victoria's part-time employee complement has been transferred, or become employees of Parkwood. Some of Parkwood's part-time employees are used on an occasional, or casual basis to cover for illness, vacation or leaves of absence at the Westminster site; but, there is no evidence of a permanent part-time staff at the Westminster site (i.e. individuals regularly working at that site on established shifts of less than twenty-four hours per week). It would appear that the 45 part-time employees in Parkwood's part-time pool, only provide casual relief at the Westminster site on a sporadic basis. Parkwood's nurses employed at Grand Avenue are not represented by a trade union.

11. The respondent Ontario Nurses Association was the bargaining agent for full-time and part-time nurses employed by Victoria, inter alia in the transferred facilities. There were two separate bargaining units — one for full-time employees, and one for part-time employees. There is a subsisting collective agreement with respect to the full-time unit. The agreement respecting the part-time unit was being renegotiated at the time of the transfer. On the basis of the evidence before us we have no hesitation in concluding that there has been a "sale "of "part of Victoria's business" from Victoria to Parkwood. The term "business" in section 55, is used in a general sense, and extends to the activities of hospitals, universities, Boards of Education, municipal corporations and other service undertakings which are subject to The Labour Relations Act. There is really no doubt that within this context, "part of the business of Victoria", (i.e. the care of certain patients and the means to provide that care,) has been transferred to Parkwood. There remains the question of the desirability of continuing the union's bargaining rights within the bargaining structure established by the predecessor. The statutory provisions relevant to this determination are as follows:

"55(4) Where a business was sold to a person and a trade union or council of trade unions was the bargaining agent of any of the employees in such business or a trade union or council of trade unions is the bargaining agent of the employees in any business carried on by the person to whom the business was sold, and,

(a) any question arises as to what constitutes the like bargaining unit referred to in subsection 3; or

(b) any person, trade union or council of trade unions claims that, by

virtue of the operations of subsection 2 or 3, a conflict exists between the bargaining rights of the trade union or council of trade unions that represented the employees of the predecessor employer and the trade union or council of trade unions that represents the employees of the person to whom the business was sold,

the Board may, upon the application of any person, trade union or council of trade unions concerned,

(c) define the composition of the like bargaining unit referred to in subsection 3 with such modification, if any, as the Board considers necessary; and

(d) amend, to such extent as the Board considers necessary, any bargaining unit in any certificate issued to any trade union or any bargaining unit defined in any collective agreement.

55(6) Notwithstanding subsections 2 and 3, where a business was sold to a person who carries on one or more other businesses and a trade union or council of trade unions is the bargaining agent of the employees in any of the businesses and such person intermingles the employees of one of the businesses with those of another of the businesses, the Board may, upon the application of any person, trade union or council of trade unions concerned,

(a) declare that the person to whom the business was sold is no longer bound by the collective agreement referred to in subsection 2;

(b) determine whether the employees concerned constitute one or more appropriate bargaining units;

(c) declare which trade union, trade unions or council of trade unions, if any, shall be the bargaining agent or agents for the employees in such unit or units; and

(d) amend, to such extent as the Board considers necessary, any certificate issued to any trade union or council of trade unions or any bargaining unit defined in any collective agreement."

12. The approach which the Board takes in circumstances such as those presently before us, is as set out in City of Peterborough, [1979] OLRB Rep. Feb. 133 at p. 134;

"The consistent point of departure in the decisions of the Board in applications under section 55 of the Act is a recognition that the primary purpose of the section is the preservation of employees' bargaining rights upon the transfer of a business. The section protects employees of a transferred undertaking against automatically losing their union or seeing their bargaining rights transferred to a bargaining agent not of their choosing. Thus while the remedial scope of the section allows the Board to engage in an assessment of what is the appropriate bargaining unit the criteria to be applied are not identical to those which obtain in an application for certification of previously unrepresented employees. While the Board may have regard to all of the criteria that apply to that determination in certification proceedings it must also, having regard to the purpose of section 55, seek to balance the interests of the employees of the transferred undertaking and their union with the interest of both the employer purchasing the undertaking as well as the interests of that employer's existing employees and their union. In the fashioning or amending of bargaining units under section 55 of the Act the Board must give effect to existing bargaining rights to the extent that those rights can be reasonably accommodated within the new employer's administrative structures. (Oshawa Wholesale Ltd. [1965] OLRB Rep.Feb.504; The Corp. of the City of Kitchener [1973] OLRB Rep. June 306; Yarntex Perth, Division of Yarntex Corporation Ltd. [1975] OLRB Rep. Feb. 137).

A particular concern in the determination of bargaining units under section 55 of The Labour Relations Act is that existing bargaining structures not lightly be interfered with. The Board recognizes the value of a bargaining unit that has developed through a succession of collective agreements. A bargaining structure with some substantial history to it often indicates a sound bargaining relationship. More often than not it has evolved through increased communication and has come to reflect a workable pattern of mutual expectations between union and employer. Since the promotion of sound collective bargaining relationships is what the Labour Relations Act is all about, the Board is understandably reluctant to dismantle a bargaining structure that has withstood the test of time."

Similar views were expressed in Loblaws Groceterias Co. Ltd. [1973] OLRB Rep.Jan.73 where the Board preserved a union's bargaining rights in a single retail store and declined to redefine the bargaining unit to include all stores in the municipal area as it would have done had the union applied for certification for that one store. The Board emphasized that the purpose of section 55 is to preserve bargaining rights, and that in order to do so it may be necessary to continue a bargaining structure which might not have been considered "appropriate" if the union had applied for it on an application for certification. In the present case of course, a full-time and part-time unit at the Westminster site would probably have been considered appropriate even on an application for certification. The general practice of the Board has been to allow employees at each existing location, to select a bargaining agent of their own choice (see, for example: Extendicare Board File 1585-77-R; decision released February 10, 1978— unreported).

13. Having regard to the purpose of section 55, the Board is satisfied that it should preserve the established bargaining structure, unless there are compelling reasons to do otherwise; and, on the basis of the evidence before us, we are not satisfied that such compelling circumstances exist as would justify an alteration of the collective bargaining status quo. The full-time unit can remain a self-contained entity for collective bargaining purposes in the same manner as it apparently is with respect to the delivery of nursing care. The part-time unit likewise can remain as it is — a mirror image of the full-time unit with terms and conditions of employment negotiated with reference to that unit. When part-time employees work at the Westminster site, they will do so pursuant to a collective agreement. We do not think that this should pose any serious administrative difficulties for Parkwood, and, in any case, since the part-time agreement is currently being renegotiated, the parties can address such problems at the bargaining table.

14. Having regard to the foregoing the Board declares that there has been a sale of "part of' Victoria's business to Parkwood and that the respondent continues to represent the full-time and part-time nurses employed at the Western Counties Wing and Medical Annex No. 2. It follows that the "full-time" collective agreement with the predecessor will continue to apply to the "full-time" employees of the successor employed in these two facilities; and that the respondent is entitled to give notice to bargain with respect to the part-time employee unit.