Ontario Nurses' Association v. Arnprior and District Memorial Hospital, 1981 CanLII 818

[1981] OLRB Rep. August 1089

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; August 25, 1981

1. In a decision dated April 12, 1978, the Board issued two certificates to the applicant with respect to two bargaining units. The two bargaining units, which were determined having regard to the agreement of the parties, were defined as follows:

all registered and graduate nurses employed by the respondent at Arnprior engaged in a nursing capacity, save and except head nurses, persons above the rank of head nurse, in-service co-ordinator and persons regularly employed for not more than twenty-four hours per week

— and —

all registered and graduate nurses employed by the respondent at Arnprior engaged in a nursing capacity who are regularly employed for not more than twenty-four hours per week, save and except head nurses, persons above the rank of head nurse and in-service co-ordinator.

2. In a letter to the Board dated April 29, 1981, the respondent has stated:

Re: Ontario Nurses' Association, and Arnprior and District Memorial Hospital

By decision of the Board dated April 12, 1978, the Union was certified as the bargaining agent for the unit as set out in the certificate, a copy of which is enclosed herein. Subsequent to the Board's decision the Arnprior and District Memorial Hospital Nursing Home has commenced operations. The Union has since claimed that pursuant to the bargaining unit description as outlined in the aforementioned certificate the Union holds the bargaining rights for employees of the Arnprior and District Memorial Hospital Nursing Home.

The hospital hereby makes application pursuant to Section 95(1) of The Labour Relations Act for a reconsideration of the Board's decision in order to clarify the status of the trade union vis-a-vis employees of the Arnprior and District Memorial Hospital Nursing Home.

3. In a letter to the Board dated May 11, 1981, the group of employees advised the Board that they are not affected and do not wish to take a position with respect to the status of the applicant vis-a-vis the employees of the Arnprior and District Memorial Hospital Nursing Home.

4. In a letter to the Board dated May 27, 1981, the applicant has stated:

RE: ONTARIO NURSES' ASSOCIATION AND ARNPRIOR AND DISTRICT MEMORIAL

HOSPITAL

Further to our letter of May 11th, 1981, we would advise that we are opposed to reconsideration.

The Arnprior and District Memorial Hospital includes a ward described as the "Nursing Home", which consists of one half of a Hospital floor. The nurses who work on this floor are employed by the Hospital, paid by the Hospital, and are dealt with by the Hospital in the same manner as all other registered nurses who work on the various floors of the Hospital. This situation was in existence at the time of certification.

The Ontario Nurses' Association was certified on April 12th, 1978 as the bargaining agent for a full-time bargaining unit and a part-time bargaining unit.

The full-time bargaining unit was described in the certificate as follows:

"All registered and graduate nurses employed by Arnprior and District Memorial Hospital at Arnprior engaged in a nursing capacity, save and except head nurses, persons above the rank of head nurses, in-service coordinator and persons regularly employed for not more than 24 hours per weeks."

The part-time bargaining unit was described as follows:

"All registered and graduate nurses employed by Arnprior and District Memorial Hospital at Arnprior engaged in a nursing capacity, who are regularly employed for not more than 24 hours per week, save and except head nurses, persons above the rank of head nurse and in-service coordinator."

At the certification hearing, no objection was taken by the Employer or the objectors to the inclusion of the so-called "Nursing Home Unit" nurses in the bargaining unit. The only disagreement between the parties was in regard to charge nurses, head nurses, supervisors and in-service coordinators, and this was resolved by the agreement of the parties which resulted in the description of the bargaining units contained in the certificates. We are enclosing a copy of the Board's decision reciting the parties' agreement.

The parties subsequently entered into two Collective Agreements, one part-time and one full-time. The full-time Collective Agreement contained the following scope clause:

"The Employer recognizes the Association as the exclusive bargaining agent for all registered and graduate nurses employed by the Arnprior and District Memorial Hospital at Arnprior engaged in a nursing capacity, save and except head nurses, persons above the rank of head nurse, in-service coordinator and persons employed part-time."

The part-time collective Agreement includes the following recognition clause:

"The Employer recognizes the Association as the exclusive bargaining agent for all registered and graduate nurses employed by the Arnprior and District Memorial Hospital at Arnprior engaged in a nursing capacity, who are regularly employed part-time save and except head nurses, persons above the rank of head nurse and in-service coordinator."

No objection was taken by the Employer during negotiations in regard to the so-called "Nursing Home Unit" nurses.

After the Collective Agreements were signed and in operation, the Association noticed that no dues were being deducted for the nurses on the Nursing Home Unit floor. The association filed a grievance which is proceeding to arbitration. The Hospital refused to appoint a nominee to this Board of Arbitration. The association then applied to the Office of Arbitration for the appointment of a nominee on the Hospital's behalf. The Hospital objected to the appointment of a nominee and the parties attended at the Office of Arbitration and argued their positions in this respect. Ms. Jean Read subsequently decided that a nominee should be appointed for the Employer. She then wrote to the Hospital requesting that it appoint a nominee. So far, no nominee has been appointed. The Association recently wrote to the Office of Arbitration requesting again that a nominee be appointed on behalf of the Hospital.

The Association requests that the Board decline to enter into a reconsideration of this case for the following reasons:

(1) The description of the bargaining unit in the certificates issued to the Association, which the Hospital now seeks to vary, were arrived at by the agreement of the parties. The Employer was represented by the same Counsel at the certification hearing and was given a full opportunity to make any representations at that time. The Association submits that the Board should not allow a party to repudiate its agreement which was clearly set out in the Board's decision dated April 12th, 1978. Moreover, if the Hospital felt that there was any need for clarity in the bargaining unit descriptions, this issue should have been raised at the time of the parties' agreement or at the certification hearing. The Board has said in Kenora Motor Product Limited, [1966] O.L.R.B. Reports 540 at page 541:

"When parties enter into voluntary agreements with respect to bargaining units and the exclusion and inclusion of persons in such units, the responsibility for clarifying the nature and extent of the agreement rests solely with the parties and the Board having once acted on the agreement of the parties is not in a position to vary or revoke such agreement."

(2) The Hospital has apparently sat on its objection to the inclusion of the Nursing Home Unit nurses in the bargaining unit for approxi­mately three years. In effect, it is asking for a reconsideration based on its own failure to raise this objection at certification. While we submit that this would not be an appropriate ground for reconsideration in any event, the Hospital's delay further emphasizes this point.

(3) The Hospital is not alleging that there was an error of law in the Board's decision, newly discovered evidence, fraud, etc. They are simply asking to vary a certificate three years after the fact because they have decided that Nursing Home Unit nurses should not be included in the bargaining unit. We submit that there is some question as to whether the Board has the jurisdiction to vary a certi­ficate in these circumstances and that in any event, if it does have the jurisdiction, it should decline to exercise such jurisdiction here. To do otherwise would open the door to a flood of applications to vary certificates by way of reconsideration wherever there is any subsequent dispute as to who is included in the bargaining unit. We submit that it is not the usual purpose of a reconsideration to deal with subsequent events or subsequent disputes a substantial period of time after the Board's decision. To decide otherwise would mean that no certificate is ever final.

(4) This is particularly true where the parties have entered into a Collective Agreement and the dispute is one concerning the recognition clause of the Collective Agreement. The Hospital filed this application for reconsideration only after the Association had filed a grievance under the recognition clause. For all intents and purposes, the Hospital is in effect asking the Board to modify the recognition clause of the Collective Agreement. We submit that the Board has no jurisdiction to do so. (Falconbridge Nickel Mines Limited, [1964] O.L.R.B. Reports December 440)

(5) The proper forum for the resolution of the dispute between the parties in regard to whether the Nursing Home Unit nurses are included in the bargaining unit is a Board of Arbitration, constituted under the terms of the Collective Agreement. The Association has taken every step possible to constitute such a Board. The Hospital will have a full opportunity to make any submissions and present any evidence they wish at a hearing of the Arbitration Board in regard to whether the Nursing Home Nurses should be included in the bargaining unit. There is no prejudice to the Employer in having the dispute resolved in the proper forum.

However, the Employer has attempted to obstruct the constitution of the Board of Arbitration at every opportunity.

When the parties attended at the Office of Arbitration to argue their positions with Ms. Jean Read, the Hospital argued that the nurses were not employees of the Hospital and that a Board of Arbitration would have no jurisdiction to determine the question. The Association argued that the Board of Arbitration had jurisdiction to decide its own jurisdiction, and that in any event, it had concurrent jurisdiction with the Labour Board to determine whether the nurses were employees provided that the question had not been referred to the Labour Board. (Re Canadian Industries Limited, 1972 CanLII 483 (ON CA), 27 D.L.R. (3rd) 387)

We submit that the Hospital's application for reconsideration in this context is simply an attempt to avoid the jurisdiction of the Board of Arbitration and that the Labour Board should decline to entertain a reconsideration in these circumstances.

(6) Even if the Labour Board did vary the certificates, it would not resolve the dispute between the parties which involves the application of the Collective Agreement to these nurses. The only effect would be to retroactively strip the Association of bargaining rights for employees for whom it has negotiated two Collective Agreements. The Association submits that the Board should not exercise its jurisdiction to bring about such an illogical result which is not in the interests of stable labour relations.

(7) Since the date of the certification, the Hospital has initiated construction of another building to be called the Arnprior and District Memorial Hospital Nursing Home. However, it is the Association's understanding that the construction has not yet been finally completed and no bargaining unit employees have been hired. We submit that it would be contrary to the Board's usual practice to make a decision about employees who are not yet in existence. In any event, the construction of this building and the hiring of nurses for it are events which took place subsequent to the certification hearing and as such should not be grounds for a reconsideration. (Frito-lay Inc., [1968] 0. L. R. B. Reports 324).

If and when nurses are hired by the Hospital to work in the nursing home building, the Association will examine the situation at that time and decide whether to file a grievance if the Employer refuses to apply the Collective Agreement to those nurses. However, it would still be the Association's position that the proper forum for resolving a dispute in regard to the application of the Collective Agreement to nurses hired for the nursing home building would be a Board of Arbitration, rather than the Labour Board. The simple fact that the Hospital may have decided to hire new employees for another building does not provide any valid reason why the certificate should be varied by way of reconsideration. Once again, the Hospital will have a full and fair opportunity to make any submissions and call any evidence they wish at the hearing of the Board of Arbitration and the Board of Arbitration will have full jurisdiction to determine whether the new hires are employees and whether they are covered by the recognition clause of the Collective Agreement.

In conclusion, we would ask the Board to decline to enter into a reconsideration of its decision of April 12th, 1978.

5. In a letter to the Board dated June 2, 1981, the respondent has stated:

Re: Arnprior and District Memorial Hospital and Ontario Nurses' Association

We are in receipt of the letter from the Union dated May 27, 1981, and have reviewed the contents thereof with interest.

Unfortunately, there are several statements in the letter which do not correspond with the facts relating to the history of the Nursing Home. Specifically, the Hospital disagrees with the following statements:

1. While we accept that the Association was certified on April 12, 1978, the Nursing Home did not commence operations until September 1, 1978, and employees of the Nursing Home were first hired on or after September 1, 1978. The commencement of operations of the Nursing Home took place well after commencement of negotiations of the collective agreement as it applied to Hospital employees. The Hospital was therefore not in a position to raise any objection or qualifications regarding a Nursing Home or Nursing Home employees at the time of certification, as neither existed at the time of certification.

2. The Hospital disputes the statement that nurses employed in the Nursing Home are dealt with by the Hospital in the same manner as nurses who work on the various floors of the Hospital. All employees of the Nursing Home work under separate management and supervision who establish working conditions for these employees. Nursing Home employees are paid under a different payroll by cheques from the Nursing Home. There is no intermingling or exchange of duties or responsibilities between employees of the Hospital. For the reasons stated earlier, the Hospital disagrees with a statement that these conditions could have existed at the time of certification.

3. In the course of negotiations, the Hospital on several occasions formally took the position that the collective agreement which was being negotiated for nurses of the Hospital was not intended to apply to nurses employed in the Nursing Home. The position taken by the Hospital was not in response to a proposal by the Union to negotiate the terms and conditions on behalf of Nursing Home employees. It was raised on the Hospital's own initiative pursuant to the commencement of the Nursing Home operations during the negotiation of the Hospital agreement. The Union did not state any disagreement with the Hospital's position and on at least one occasion indicated that it accepted the Hospital's position on that point.

4. It is interesting to note that the reply by the Hospital to the application for certification did not list any Nursing Home employees and the list of employees as submitted by the Hospital was not challenged with respect to the absence of any Nursing Home employees. If, as the Union states, Nursing Home employees were employed at the time of certification, and intended to be claimed under the one application, that no objection was raised to the absence of nurses employed by the Nursing Home on the schedules of names.

5. The first indication that the Union intended to claim bargaining rights for employees of the Nursing Home took place after the Hospital collective agreement was executed, by way of grievance. The Hospital immediately and consistently thereafter maintained the position that employees of the Nursing Home did not come within the terms of the agreement relating to employees of the Hospital. The Hospital therefore objected to the Minister establishing a board of arbitration and requested that the jurisdiction of the Minister's authority be referred to the Ontario Labour Relations Board pursuant to Section 96, subsection (1). Since the Minister has declined to refer the matter to the Board, the Hospital has applied to the Board fur a clarification and reconsideration of the Board's application by letter dated April 29, 1981.

6. The Hospital objects to a statement suggesting that the parties negotiated a recognition clause to include employees of the Nursing Home. In fact, the Hospital went on record during the course of negotiations that the recognition clause would not apply to employees of the Nursing Home.

It would be our position before the board that, since the Nursing Home did not exist at the time of certification, the certificate is limited to employees of the Hospital. Furthermore, if it was the intention of the Union to expand the scope of the certificate to include the employees of the Nursing Home, it was incumbent on the Union to apply for a variation of the certificate prior to the execution of the collective agreement, or alternatively, to negotiate an amendment to the recognition clause which would expressly expand the scope of the bargaining rights to include the employees of the Nursing Home. The Union did not seek either of these remedies.

As the Union's claim has the effect of expanding the bargaining rights, the Hospital is hereby requesting that the matter be placed before the Board in order to determine the scope of the bargaining rights that had been granted. The Hospital is not asking the Board to vary the scope of the certificate at this time, but to clarify whether or not that certificate intended to cover employees of the Nursing Home in view of the fact that the Nursing Home did not come into existence until some four months after the issuance of the certificate.

In view of the major disagreement with respect to the facts surrounding this issue, I do not propose to respond to the arguments raised by the Union in its letter of May 27, 1981, relating to the facts as outlined by the Union. We do, however, reserve the right to make further submissions to the argument should it become necessary.

6. The respondent is requesting the Board to reconsider its decision in this matter dated April 12, 1978. This request has been made more than three years after the Board, having regard to the agreement of the parties, determined two appropriate bargaining units and issued two certificates to the applicant. There appears to be no dispute between the applicant and the respondent that at least one collective agreement has been entered into with respect to each of the bargaining units which were initially determined by the Board. There is also no dispute that the applicant has filed a grievance with respect to the interpretation, application, administration or alleged violation of these collective agreements and has endeavored to have this grievance heard by a board of arbitration. It is clear that the respondent has opposed the placing of the grievance before a board of arbitration.

7. The Board has the jurisdiction to reconsider, vary or revoke any of its decisions, orders, directions, declarations or rulings pursuant to section 95(1) of the Act. However, the Board has discretion in the exercise of its jurisdiction under section 95(1). The two bargaining units were determined having regard to the agreement of the parties and collective agreements were entered into on the basis of these bargaining units. The respondent has permitted a period of three years to elapse before requesting reconsideration under section 95(1). As Osler, J., observed in Regina v. Ontario Labour Relations Board. Ex parte Lakehead Registered Nursing Assistants Bargaining Association, 1969 CanLII 449 (ON HCJ), [1969] 2 O.R. 597, at page 603, the Board is well known to take the 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. Indeed, the parties appear to have varied the description of the bargaining units which are contained in the two collective agreements.

8. The parties agreed on the description of two bargaining units at the time of certification and differences of opinion have arisen concerning the interpretation, application, administration or alleged violation of two collective agreements. The description of the two bargaining units in the decision of the Board dated April 12, 1978, was determined on the agreement of the parties and the time to seek clarification of the descriptions of the bargaining units was at that time. The Board notes that the Board in its decisions, at the request of one or more of the parties, frequently includes clarity notes with respect to the inclusion of certain persons or classifications in or from a bargaining unit.

9. In our view, the disputes between the applicant and the respondent result most directly from a difference of opinion concerning the application and interpretation of the collective agreements. The circumstances which surround this request are in many ways similar to the facts in Norfolk Hospital Association v. London and District Building Service Workers Union, Local22O, 77 CLLC 1114,094, where a board of arbitration ultimately made a determination of a grievance under a collective agreement. In the circumstances of this application, the Board is not prepared in the exercise of its discretion under section 95(1) to reconsider its decision in this matter dated April 12, 1978. The applicant and the respondent have entered into collective bargaining relationships and the dispute between them must be regarded as flowing from the application and interpretation of the two collective agreements and not from the decision of the Board. In our opinion, the differences between the parties are most appropriately to be resolved by a board of arbitration.