1820-77-R Ontario Nurses' Association, Applicant, v. Arnprior and District Memorial Hospital, Respondent, v. Group of Employees, Objectors
BEFORE: R. A. Furness, Vice-Chairman, and Board Members D. B. Archer and W. H.
Wightman.
DECISION OF THE BOARD; October 16, 1981
In a decision dated August 25, 1981, the Board informed the parties that it was not prepared, in the exercise of its discretion under section 95(1), to reconsider its earlier decision in this matter dated April 12, 1978.
On September 29, 1981, the Board received a further letter from the respondent. In this letter the respondent has emphasized that it was neither seeking to have the Board vary the certificate nor requesting the Board to reconsider the scope of the bargaining rights as granted per the certificates of April 12, 1978. The respondent has also emphasized that it is requesting a clarification as to whether or not bargaining rights were being granted vis-a-vis the Arnprior and District Memorial Hospital Nursing Home in view of the fact that at all material times during the certification process the Nursing Home was not in existence and there were no persons in the employ of the Nursing Home.
The respondent has adopted the position that such a clarification would be necessary should the matter proceed to arbitration. The respondent has stated that if in fact the Board was not extending bargaining rights to include the Nursing Home at the time that the certificate was issued, then it would be a matter of evidence and argument, before a board of arbitration, as to whether or not the recognition clause as amended and incorporated in the collective agreement was intended to extend to the employees of the Nursing Home. The respondent submitted that a clarification of the scope of the original certificate vis-a-vis the Nursing Home is essential in order for a board of arbitration to properly determine the scope of the recognition clause under the present collective agreement.
The applicant and the respondent are involved in a dispute over whether employees of the Nursing Home are covered by a collective agreement. The Board issued two certificates to the applicant on April 12, 1978. The bargaining units in these certificates were determined upon the agreement of the parties. At that time neither of the parties requested the Board to clarify its decision by means of the use of a clarity note. Moreover, the parties amended the bargaining units defined in the certificates when they entered into their collective agreements. In its decision dated August 25, 1981, the Board referred to its view that when an agreement has been made following certification, the bargaining rights of the parties flow from the agreement rather than from the original certification. This view applies with even greater force where the parties have varied the description of the bargaining units which are now contained in two collective agreements.
The time for any of the parties to seek clarification was at the time when the Board issued certificates to the applicant and before the collective agreements were entered into. In asking the Board to clarify its decision, in the circumstances of this request, the respondent is asking the Board to vary its decision by adding to or subtracting from the clear wording of the two bargaining units set forth in the decision dated April 12, 1978.
By virtue of section 106(1), the Board may, in the exercise of its discretion, reconsider, vary or revoke its decision. However, the Board is not prepared to vary its decision dated April 12, 1978, because the parties have themselves varied the decision by amending the bargaining units and determining the scope of the recognition clauses in their collective agreements. Differences between the parties concerning the interpretation, application, administration or alleged violation of the collective agreements are more properly to be resolved through a process of arbitration and not through a clarification or variation of two bargaining units which were determined by the Board on the agreement of the parties.