Ontario Nurses' Association v. Women's College Hospital

[1981] OLRB Rep. May 597

2703-80-U Ontario Nurses' Association, Complainant, v. Women's College Hospital, Respondent.

BEFORE: G. Gail Brent, Vice-Chairman, and Board Members C. G. Bourne and M. J. Fenwick.

APPEARANCES: Judith McCormack, Felicity Briggs and Jane Billinghurst for the complainant; C. G. Riggs, Dr. A. H. Qizilbash and B. Buston for the respondent.

DECISION OF G. GAIL BRENT, VICE-CHAIRMAN, AND BOARD MEMBER C. G. BOURNE; May 14, 1981

I. The complainant has complained that the respondent has acted contrary to section 70 of The Labour Relations Act and section 10 of The Hospital Labour Disputes Arbitration Act in that by memo dated February 25, 1981 it set out plans for re-organizing its intravenous and outpatient blood collection services.

2. The parties are parties to a collective agreement which expired on September 30, 1980. They are agreed that notice of its desire to bargain concerning both central and local issues was properly served by the complainant on the respondent; that "no board" reports were issued in connection with both sets of negotiations; that no new collective agreement has been entered into; and that they are proceeding to interest arbitration pursuant to The Hospital Labour Disputes Arbitration Act. In short, they both agree that this is a situation which has arisen during the statutory freeze period.

3. The respondent has not yet implemented its planned re-organization and when the parties were questioned concerning the Board's jurisdiction under the circumstances; they agreed that the Board should treat the matter as if the changes had been implemented. The Board does not give advisory opinions, nor does it have jurisdiction to grant anticipatory relief; however, in a situation such as this where the parties have agreed to treat the matter as though it were in effect and where the respondent has indicated that the changes have been postponed as a matter of courtesy, it seems foolish, from a labour relations point of view, to refuse to make a determination of the issue.

4. The facts are reasonably straightforward. The five full-time nurses affected all work on the intravenous team under the direction of the Director of Laboratories, Dr. Qizilbash. All the nurses were hired to work on the day shift (7:30 a.m. to 3:30 p.m.) and they do not rotate shifts, although they do work weekends on a rotating basis. The nurses on this team are required to circulate throughout the hospital and wear "pagers" or "beepers" to summon them. Since the team was established in 1965, it has been operating one shift seven days a week.

5. The nurse who testified, Ms. Mulgrew, explained that the workload of the team has increased and that the respondent also explained to the team members that it wanted to extend the coverage of the team. The information about the changes was conveyed in two meetings which preceded the announcement which was sent to all the nurses concerned by means of the internal mail system. The details of the changes as contained in the memo are set out below:

Please be advised that the re-organization of the intravenous and outpatient blood collection services will increase the nursing establishment by 2.5 to a total of 8 R.N's. These changes will create a position of Head Nurse from amongst the eight R.N. positions. The Head Nurse responsibilities, in addition to the routine workload, will consist of the supervision of the daily workload, organizing and assigning the tasks on a weekly or a monthly basis.

This reorganization will result in amalgamation of blood collection and intravenous service for both in and out patients.

The above re-organization will require alterations to be made in the work schedule for the present staff in order that such staff and staff to be hired rotate approximately to two shifts between the hours of 0730 and 2300 hours on a 7 day per week basis. Revised schedules indicating the new staff patterns will be established by the new head nurse once in place and approved by the Laboratory management. Until that time the laboratory management will schedule staff.

The above re-organization will necessitate the following changes:

I. The responsibilities of initiating and changing blood transfusions (luring the specified hours.

2. Intramuscular injection of Rh immune globulin therapy and

3. Other changes as deemed necessary.

The appropriate training programme will be set up and training will be carried out prior to commencement of the new programme. The anticipated changes set out above are expected to take place on or about April 1st, 1981.

Permanent nursing staff in Emergency, I.C.U. and Delivery Suite will be suitably trained in the transfusion techniques. They will be responsible for changing blood and/or blood products after 2300 hours. On all the other wards, the nursing supervisor will be responsible for changing the blood after 2300 hours. The resident staff will continue to be responsible for I.V. initiation daily between the hours of 2300 - 0730 hours.

The current I.V. nursing staff is encouraged to discuss details of these staff changes with their appropriate supervisor, in order that they may understand fully their responsibilities and the hospital's need to carry out this service.

Should any of the above require further clarification, I shall be happy to be of help.

"Ali H. Qizilbash"

Ms. Mulgrew stated that the only change with which the team took issue was the requirement that nurses rotate between the two shifts rather than work straight days as before.

6. Dr. Qizilbash testified that in the summer of 1980 the respondent received the report of an accreditation committee which said that the respondent should change its practice of requiring interns and residents to start blood transfusions and initiate intravenous on the afternoon shifts. Apparently the residents and interns had complained to the committee that they were being taken from other duties and training in order to perform tasks. The committee informed the respondent that something would have to be done before the next review in 1981. Dr. Qizilbash said that then he became Director of Laboratories in September 1980, the problem was turned over to him. No action had been taken before then because of the prospective change in directors. He said that the studies which were done about the workload indicated that the workload of the present team was increasing and would increase even more with the additional duties. He said that he concluded that if the interns and residents were not to perform the work as before, more nurses would be required and the respondent would have to institute an afternoon shift to allow it to extend coverage during the times of greatest demand. He also said that he rejected the idea of a permanent afternoon shift because he considered it to be more efficient to have all of the nurses familiar with all of the work done by the team at all hours and to maintain the team as a cohesive unit. He said that more people would need to be hired to allow for replacements if two permanent shifts were instituted. He denied that the respondent was simply changing its procedures as a result of the strike of interns and residents which took place in the autumn of 1980.

7. The collective agreement provides, in part, for the following in its management rights clause:

ARTICLE 6- RESERVATION AND CONTINUATION OF

MANA GEMENT FUNCTIONS

6.01 The Association recognizes that the management of the Hospital and the direction of working forces are fixed exclusively in the Hospital and shall remain solely with the Hospital except as specifically limited by the provisions of this Agreement, and without restricting the generality of the foregoing the Association acknowledges that it is the exclusive function of the Hospital to:

(c) determine in the interest of efficient operation and highest standard of service job rating or classification, the hours of work, work assignments, methods of doing the work and the working establishment for the service;

(d) determine the number of personnel required, the services to be performed and the methods, procedures and equipment in connection therewith.

6.02 These rights shall not be exercised in a manner inconsistent with the provisions of this Agreement.

8. Article 8 of the collective agreement deals with hours of work. It does not specify the times when shifts must begin and end nor does it specifically limit the respondent's right to require any nurses to rotate among shifts. Article 8.08 sets out twelve "Scheduling Objectives" none of which are relevant to the situation before the Board; however, the introductory words to the list of objectives is of interest and is set out below:

8.08 Scheduling Objectives

The Hospital will endeavor to maintain and achieve the following objectives in the formulation of working schedules, although it is recognized by the Association that it has not always been and may not always be possible to attain these objectives:

9. The Board was referred to several cases dealing with the statutory freeze period and its ramifications. The cases cited were Windsor Airline Limousine Services Limited, [1980] OLRB Rep. July 1147; Molson's Brewery (Ontario) Limited, Toronto, [1977] OLRB Rep. Aug. 526; St. Mary's Hospital [1979] OLRB Rep. Aug. 795; Scarborough Centenary Hospital Association, [1978] OLRB Rep. Oct. 949; and Scarborough Centenary Hospital Association, [1979] OLRB Rep. June 568. All of the cases stated that the purpose of the statutory freeze was to preserve the status quo during the sensitive period while negotiations are going on. As the Board pointed out in the last case cited above, at paragraph 8, an express right set out in the collective agreement forms part of the collective bargaining status quo which must be maintained. In the Molson's case (supra). the Board also noted that where there was an express right in the collective agreement giving management the exclusive function to determine work schedules, the exercise of that right during the freeze period was not a violation of section 70. Accordingly, it would be wrong to conclude that management is precluded from making changes of any sort during the freeze period because the Board has held that, at the very least; it can continue to exercise its specific rights under the collective agreement.

10. In the case at hand, Article 6.0 1(c) and (d) specifically recognize the right of the respondent to determine "the hours of work, work assignments… the working establishment for the service. . .1 he number of personnel required", etc. Article 8 does not in any way limit the right to establish a second shift where none existed before or to require nurses who worked straight days to rotate shifts. Article 8.08 begins with a specific recognition that the respondent has the right to establish "working schedules" and that in so doing; it will attempt to meet certain objectives. There is no allegation that any of the objectives would not be met if the procedures outlined in the memo were instituted.

11. This case appears to fall within the four corners of the Molson's decision (supra). There is an express right to do something in the collective agreement and that right may be exercised in the freeze period to the same extent that it could be exercised before the freeze set in. The fact that in relation to this particular group there has been no change in schedules for several years is really not the issue, just as it was not in Molson's (supra).

12. In this case it should be stated for the record that there is no allegation of bad faith on the part of the respondent and that the changes appear to be motivated solely by operational considerations which arose following the report of an accreditation committee in the summer of 1980. The respondent has the right to respond to such operational requirements by invoking specific rights vested in it by the collective agreement between the parties.

13. For all of the above reasons, the complaint is dismissed.