The Canadian Union of Public Employees, Local 870 v. The Perley Hospital
[1981] OLRB Rep. June 769
No. 2524-80-U The Canadian Union of Public Employees, Local 870, Complainant, v. The Perley Hospital, Respondent.
BEFORE: M. G. Picher, Vice-Chairman, and Board Members F. W. Murray and D. B. Archer.
APPEARANCES: Den is Power and Michael Hurley for the complainant; D. Churchill-Smith, J. A. Roffey and R. Charette for the respondent.
DECISION OF VICE-CHAIRMAN M. G. PICHER, AND BOARD MEMBER F. W.
MURRAY: June 30, 1981
By this complaint, filed under section 83 of The Labour Relations Act, the Canadian Union of Public Employees, Local 870, (hereinafter "the union") alleges that the respondent, Perley Hospital (hereinafter "the Hospital") has unlawfully locked out some thirty-eight employees as a reprisal for their participation in a recent unlawful strike. It requests a declaration that the Hospital has violated the Act and an order reinstating the employees with compensation.
The Perley Hospital is a chronic care hospital in Ottawa with a patient capacity of 215 beds. It is a hospital particularly reliant on nursing services. More than half of its patients are over 80 years of age and some 40 per cent have suffered strokes with residual paralysis. Approximately half of the patients are unable to feed themselves and only 2% are able to walk on their own. While some 40 beds are devoted to rehabilitation care, the bulk of the hospital's capacity is dedicated to chronic care. It is a nursing-intensive institution responsible for the long term care of the aged and chronically ill.
The Hospital's nursing staff ratio reflects that reality. Before the strike, the details of which are outlined below, the Hospital had some 170 full-time employees in the bargaining unit represented by the union. Over 60% of the bargaining unit were employed in a para-nursing capacity, thirteen as registered nursing assistants and eighty-three as nursing assistants. Nursing services which were then overseen by nineteen registered nurses and four head nurses were supplemented by a number of part-time nursing assistants. 77% of the nursing care staff of the Hospital was comprised of nursing assistants and registered nursing assistants represented by CUPE. The bargaining unit also includes housekeeping, kitchen and maintenance staff.
Collective bargaining for the employees of the Perley Hospital is governed by The Hospital Labour Disputes Arbitration Act. That statute views hospital employees as performing an essential service, and makes it unlawful for them to strike. It requires hospitals and their employees to resolve any bargaining difference that lead to impasse by resort to interest arbitration.
Bargaining for the Hospital's employees takes place at two levels. Wages and benefits are negotiated in unified central bargaining involving sixty-six hospitals in Ontario whose employees are represented by CUPE. Local 870, made up exclusively of the employees of the Perley Hospital, is represented in those province-wide negotiations. It also bargains locally through its own bargaining committee on certain working conditions and other local issues particular to the Perley Hospital.
In the fall of 1980 the union was involved in negotiations at both levels on behalf of the full-time employees. It had also given notice to bargain for the first time on behalf of the part-time employees for whom it was certified as bargaining agent on May 6, 1980. Little real bargaining took place in the part-time unit, which was to be done on a local basis, pending completion of the pattern-setting negotiations for the full-time employees.
In central bargaining on September 25, 1980 the hospitals made a contract offer which was accepted by the union's central bargaining committee. It was subsequently rejected, however, by the union membership throughout the province. When the efforts of mediators failed to resolve the problem the hospitals moved to submit the dispute to final and binding arbitration. Motivated by a belief that past arbitration awards had unduly held back their wages and benefits in relation to the cost of living and in comparison to settlements obtained by other groups of employees, the membership at some 51 hospitals represented by CUPE, approximately 13,000 employees, voted on January 15, 1980 to strike. The strikec ommenced just after midnight on the morning of January 26, 1981. At the Perley Hospital it continued until February 3, 1981.
It is common ground that the strike was unlawful and that it was undertaken in the face of an Order of this Board, on a complaint by the hospitals under section 82 of the Act, (Board File 21 74-80-U, decision dated January 23, 1981). Prior to the commencement of the strike the Board ordered, among other things:
That the respondent C.U.P.E. and the respondent local trade unions through their responsible officers, officials and agents;
(i) cease and desist from threatening to call or authorize an unlawful strike and from any and all activity in furtherance of an unlawful strike or the threat of an unlawful strike.
The evidence establishes that the president of Local 870, Mr. Michael Hurley and other officers of the local were aware of the Board's Order and that they continued to encourage, and t.ltimately proceeded to organize and direct, the strike at the Perley Hospital.
The strike had an immediate and heavy impact on the Hospital. Because of the near-invalid state of us patients the Hospital was extremely affected by the withdrawal of the bulk of its nursing, housekeeping, kitchen and laundry support services. In anticipation of the strike it made arrangements to transfer as many patients as possible to other hospitals, to nursing homes and to the homes of their families. By January 26th it had reduced the number of its patients from two-hundred and two, to one-hundred and seventy. One-hundred and fifty-five of the one-hundred and seventy full-time employees participated. As the strike continued its dislocation became more felt, and the number of patients at the Perley Hospital was eventually reduced to one-hundred and seven by February 2, 1981. The Hospital was able to care for that number only because of the enlistment of a substantial number of unpaid volunteers and the ability to contract out a certain amount of its nursing services. The evidence of Mr. Robert Charette, Administrator of the Hospital, is that without the contribution of the volunteers and the recruitment of contract nursing staff the hospital would have been forced to close.
When the strike ended the Hospital imposed disciplinary sanctions on employees, both full-time and part-time, who participated. Mr. Michael Hurley, the president of the local and Ms. Sheila Casey, its vice-president, were discharged. Four members of the union executive received ten day suspensions. Employees in the full-time bargaining unit who participated for the entire duration of the strike received three day suspensions. Employees who participated in the strike for any lesser period were given one day suspensions. In addition six part-time employees who did not appear for scheduled duty during the strike, and whom the Hospital maintains did not provide adequate notice or excuse, were discharged. Except for the discharge of the six part-time employees, the discipline imposed in the wake of the strike is not a part of this complaint. It is proceeding separately to arbitration.
The primary basis for this complaint is that after the strike, in addition to imposing disciplinary sanctions, the Hospital failed to recall some thirty-eight employees. The union maintains that while the Hospital has resumed normal operations it has unlawfully refused to recall these employees, all but one of whom are nurse's aides. It maintains that in so doing, and in discharging the six part-time employees, the Hospital has locked them out contrary to section 8(1) of The Hospital Labour Disputes Arbitration A ct. It submits that the discharge of the part-time employees and the failure to recall the full-time nurse's aides is a reprisal for the illegal strike. The union submits that the employer's action in this regard is calculated to go beyond the scope of disciplinary redress for the strike and is intended to frighten employees from associating with the union or participating in its lawful activities, contrary to sections 56 and 58 of The Labour Relations Act.
The union is in an unusual position. Having admittedly encouraged and implemented an unlawful strike, it pleads that the Hospital's failure to recall the employees is an unfair labour practice from which it should be protected. It goes without saying that The Labour Relations Act protects the lawful activities of unions and their members from interference at the hands of their employer. It is just as clear that the unlawful acts of a union or of the employees represented by it are not protected by the Act. If an employee is discharged for the sole motive that he participated in an unlawful strike, that employee cannot succeed on a complaint that his rights under the Act have been violated. He may, of course, have separate recourse under the disciplinary provisions of a collective agreement.
By the same token, a violation of the Act by an employee does not give an employer a license to depart from the requirements of the Act and engage in unfair labour practices of its own. If a group of employees have engaged in an illegal strike an employer may have cause to discharge them as a disciplinary response. If in fact discharges are imposed which are out of proportion to the infraction or to the degree of involvement of the employees concerned and are in reality calculated to rid a workplace of its union leaders, to crush union fervour and to discourage normal, lawful union activity among employees, the employer has crossed the line. It cannot impose unfair labour practice discharges in the guise of normal discipline nor can it implement an illegally motivated lay off in the guise of a normal business decision.
In this case the union alleges that the failure to recall the employees after the strike was in effect a lay off deliberately structured to keep the union's executive officers from returning to work, and calculated to chill lawful union activity among the employees. The issue, therefore, is whether the failure to recall the thirty-eight employees and the discharge of the six part-time employees are unlawfully motivated to achieve these ends. It can only be resolved by close scrutiny of the evidence.
The Hospital objected to the Board dealing with the question of the recall. A grievance has been filed in respect of that issue by the union alleging that the recall has been implemented in a manner inconsistent with the collective agreement. On that basis counsel for the Hospital urged the Board to decline to hear this complaint, and to defer to the jurisdiction of a board of arbitration under the collective agreement. Having reserved on that objection at the hearing, we must now state that we cannot agree with the Hospital that this should be treated as a matter exclusively for arbitration. While it may be that there are genuine issues as to whether the collective agreement has been violated, issues which in our view should be dealt with by a board of arbitration, we are seized with the separate and equally vital question of whether the Hospital has violated a statute of general application in its dealings with employees in the aftermath of the recent hospital strike. Issues of that kind have been entrusted by the Legislature to this Board as a matter of public interest. For reasons which this Board has previously articulated, we are satisfied that these issues, touching as they do the application and administration of The Labour Relations Act, should not be delegated to a board of arbitration whose procedures, jurisdiction and remedial powers are more narrowly circumscribed. See Valdi Inc., [1980] OLRB Rep. Aug. 1254). In the instant case, the complaint seeks prompt relief for a large number of employees who are allegedly locked out. The case, if preyed, would justify broad remedial relief not normally available elsewhere, including a posting order to redress the position of the union and its executive as well as a cease and desist order of the Board which would be registered by the Board directly in the Court. In these circumstances the Board should not defer to arbitration.
Robert Charette, the Administrator of the Hospital, gave evidence respecting the recall of employees following the strike. His evidence establishes that in the period immediately aft r the strike forty employees were not recalled. By the Board's hearing on April 3, 1981, twenty-eight were still on lay-off.
Mr. Charette stated two reasons for the change in manpower. The first reason was the implemental ion of certain renovations to the Hospital. From as early as September of 1980 the Hospital had begun planning for certain fire safety renovations and other general renovations to its physical facility. On December 14th the executive committee of the Hospital's board of directors gave the go ahead to making fire safety improvements in linen and garbage chutes. It was anticipated that the renovations would cause a reduction in beds. The Hospital wished to see a temporary reduction of 12 beds during the fire safety renovations that were to take place in the short run, and the permanent elimination of 12 beds after the longer term general renovations were completed. The Hospital did not receive the approval of the Ottawa-Carleton Regional District Health Council for the permanent closure of 12 beds, but it was eventually given the council's endorsement to temporarily close 12 beds for the time required to effect the fire safety renovations.
While a temporary reduction of beds might be expected to account for a lay off, it is not entirely clear to this Board that the renovations were the cause of the Hospital's failure to recall employees after the strike. As late as April 16, 1981, the final day of the Board's hearing, no actual renovation work had begun. Moreover, the ratio of nursing staff to patients remained constant both before and after the strike. So have the absolute numbers. Mr. Charette's evidence establishes that while thirty-seven nurse's aides were not recalled after the strike, in the same period a total of thirty-eight new registered nurses and registered nurse's aides were newly hired. It appears that the renovations became an issue principally because the Hospital, whether out of diplomacy or a lack of it, told the affected employees that impending renovations were the reason for their lay off.
The more substantial cause for the failure to recall the nurse's aides, and the second reason advanced in this hearing, is that the Hospital took advantage of the strike to upgrade the quality of its nursing staff and, by so doing, to protect itself in the event of another strike by the union. It appears that the Hospital has been concerned for some time about the unduly high proportion of nurse's aides to registered nurses in its nursing staff. Before the strike the staff caring for two-hundred and fifteen patients over a twenty-four hour period was ninety-nine people. Of that number nineteen were registered nurses and four were head nurses, meaning that only 23% of the nursing staff were registered nurses. Of the remainder, 9% were registered nurse's aides, meaning that 78% of the nursing staff were in the least qualified level of nurse's aide.
In this respect the Hospital was substantially behind other chronic care institutions in the Province. The mean percentage of graduate nursing staff to total nursing staff in similar hospitals in Ontario was 37.14% as compared to 23.00% for the Perley Hospital. In fact the Hospital stood next to last in this regard among the nineteen public chronic, convalescent and rehabilitation hospitals in the Province. At least six comparable institutions had a registered nurse staffing ratio in excess of 40%. For some time the Hospital had been concerned that a disproportionate amount of bedside care was being given by unlicensed staff in circumstances that overloaded the supervisory capacity of its existing complement of registered nurses. The gravity of the situation was first brought to Mr. Charette's attention in the autumn of 1980 by Mrs. Dora Brown, the then newly appointed Associate Directrix of Nursing.
The strike gave the Hospital what it saw as a ready opportunity to move on the problem. In implementing the recall it resolved to raise its ration of registered nurses from 23% to 40%, and to upgrade its non-graduate nursing staff by replacing nurse's aides by registered nurse's aides until the Hospital had equal numbers of each. The increased cost of the upgrading was offset in the short run by the approved temporary reduction in bed capacity by twelve. Based on accreditation standards the Hospital expects its temporary bed reduction to become permanent. Since the Hospital's provincial funding formula is based on its staffing levels for the previous year, and not on its complement of beds, it could make the adjustment without any financial impediment. To this extent, there may be some causal connection between the temporary bed reduction due to the fire safety renovations, and the failure to recall the nurse's aides.
Following the strike, between February 11, 1981 and April 13, 1981 after advertising for nursing help in Ottawa, Renfrew, Belleville and Kingston, the Hospital hired twenty-five registered nurses as well as thirteen registered nurse's aides. Both the registered nurses and the registered nurse's aides hired were additions to the existing complement in those categories. Three of the registered nurse's aides hired previously worked part-time.
The Hospital's implementation of the recall is consistent with the explanation given by Mr. Charette. The evidence establishes that with the exception of one orderly, not challenged by the union as being significant, all registered nurse's aides, orderlies, dietary staff, housekeeping personnel, laundry staff and maintenance employees who participated in the strike were recalled. Among non-nurse's aides recalled were orderly Joe Dempsey and kitchen worker Keith Gaines, both of whom were picket captains during the strike, and dietary aide Debbie Kelly, who was both a union steward and a picket captain.
With :he one exception mentioned all of the employees not recalled were nurse's aides. A substantial number of nurse's aides who participated in the strike were recalled. It is clear from the evidence that they were recalled in order of seniority. The nurse's aides who were not recalled are the most junior and correspond in number to the registered nurses and registered nurse's aides who were newly hired.
The thrust of the union's argument is that the recruitment of registered nurse's aides and registered nurses was surreptitiously structured to cut off the recall of nurse's aides so as to keep the majorit'1 of the union executive from returning to work. That conclusion is difficult to support on the evidence. The discharge of union officers Hurley and Casey was an open gesture of discipline. It could not be described as a surprise. On the occasion of an earlier dispute Mr. Hurley had persuaded a group of registered nurse's aide students in training not to cross the informational picket line to work in the Hospital. At that time, in a letter dated November 22, 1 ~79, Mr. Hurley was given a warning by Mr. Charette that he would be dismissed should he at any time encourage or organize an illegal walkout. On January 22, 1981 the Hospital addressed a letter to Ms. Casey stated that the Hospital would view seriously any failure of union officers to comply with an Order of this Board. The discharges of Hurley and Casey, whatever their merit at arbitration, were neither devious nor unexpected. They were, on the whole, consistent with the firm stance which the Hospital took towards the union s officers throughout.
Apart from Hurley and Casey there were seven full-time employees in the union’s executive. Four of these were not recalled after the strike, all of them among the most junior nurse's aides. Tie three most senior of the seven were recalled. Membership secretary Elizabeth McKenzie, who participated in the strike, received a 10 day suspension. The union s treasurer, Cathy McLeod and sick committee chairperson Gordon Hodgins received no discipline, both having medical certificates for their absence during the period of the strike. Of six union stewards among the full-time employees all but one was recalled. The one steward not recalled, Heather Sevigny, is the third most junior nurse's aide in the Hospital, having been hired September 18, 1980.
The evidence is clear that only the thirty-seven most junior nurse's aides who participated in the strike were not recalled. Four of the nine members of the full-time employee's executive and one steward were caught by the Hospital's decision. The evidence would suggest that they have not been recalled not because they were union officers, but because they are all junior nurse's aides. Senior nurse's aides who participated in the strike are back to work, as are all registered nurse's aides who struck. Picket captains in a number of classifications, including nurse's aides, have been recalled as have union stewards.
The Hospital has come forward with compelling evidence, including statistical data, correspondence and the minutes of meetings, to substantiate why the nurse's aides have not been recalled after the strike. Mr. Charette acknowledged candidly that the strike was a motivating factor. The low complement of registered nurses (who are in a separate bargaining unit represented by the Ontario Nurse's Association) at the time of the strike left the Hospital more vulnerable to a walkout. The Hospital therefore took a step it had already been contemplating for health care reasons, in the further knowledge that upgrading the ratio of registered nurses would give it greater protection in the event of a similar strike in the future.
The Hospital was also candid in acknowledging that it had favoured non-striking nurse's aides in implementing the lay-off. It does not deny that there are two nurse’ s aides who have not been laid off even though they are junior to some nurse's aides who have not been recalled. The only distinguishing factor is that the two nurse's aides in question, Mary McDonald and Constance Jackson, worked throughout the strike. The union argues that on a proper application of the lay-off provisions of the collective agreement these two junior nurse's aides should be laid off in favour of two more senior employees. The Hospital replies that this is a recall, and not a lay-off, so that those provisions do not govern. It maintains that in any event it can properly reward employees who refused to strike illegally.
In our view the propriety of favouring the two non-striking employees is not an issue which this Board should decide. Putting the case at its strongest, two nurse's aides senior to McDonald and Jackson have been discriminated against on the basis that they have participated in an illegal strike. Whatever their rights under the collective agreement, it is axiomatic that they have not been negatively dealt with because they have exercised any right under The Labour Relations Act or, for that matter, under the collective agreement. They cannot, therefore, invoke the protection of the Act for what they have done or to shield them from what their employer has done. The Board's conclusion in this regard is obviously without prejudice to such rights respecting lay off and recall as may be found in the collective agreement between the Hospital and the union. That is a matter for arbitration.
The way in which the union dealt with the six part-time employees who were fired has caused the Board considerable concern. Unlike the full-time employees, the part-time workers have not yet concluded a first collective agreement. They do not, in other words, have any recourse to arbitration respecting their discharge, in the way that Mr. Hurley and Ms. Casey have. According to their evidence the part-time employees who participated in the strike were given no explanation by any union officer of the special jeopardy they would place themselves in if they joined the strike.
It appears that the union executive encouraged the part-timers to join the ranks of the strikers. The following notice, on union letterhead, was distributed to the part-time employees:
NOTICE FOR PART-TIME CUPE 870 MEMBERS
We of the Executive strongly urge you not to cross the picket line. You are a part of this local and whatever we gain is for your benefit as well and will have a direct effect on your negotiations.
If you must work, then do your regular shift (4:30-7:00 or 4:15-7:15 only). Any overtime work is scabbing.
We thank you for your support.
The Executive
CUPE 870
While it is not clear whether all of the union executive were aware of the content of the notice, it is clear that the union's officers knew that part-time employees were joining the strike and that they made rio attempt to dissuade them or to explain the harsher consequences that could await them.
Each part-time employee who struck or was believed by the employer to be supporting the strike, was fired. The evidence establishes that in discharging the part-time employees the Hospital simply applied its established practice of terminating, or deeming to have quit, any part-time employee who failed, without notice or reasonable excuse, to show up for work as scheduled. The unchallenged evidence is that that was the Hospital's practice prior to the strike, and that it was applied without variation during the strike. That should not be surprising, since the corps of eighty part-time employees took on an added importance to the Hospital during the walkout. It appears that the Hospital mistakenly concluded that two part-time porters, brothers Nick and Nando Ferrinaccio, were participating in the strike. While their discharge does not disclose a breach of The Labour Relations Act, it is to be hoped that the Hospital will reconsider their termination.
On the foregoing evidence, the burden of the complaint is to establish on the balance of probabilities, that the six part-time employees discharged and the thirty-seven full-time nurse's aides not recalled were unlawfully locked out. Specifically, the Board must be satisfied that the Hospital had, in the words of section l(l)(i) of The Labour Relations Act, refused "to continue to employ a number of [its] employees.., to compel or induce [its] employees, to refrain from exercising any rights or privileges under this Act.".
We must conclude that the evidence falls far short of establishing a deliberate scheme of freeze out the union executive and chill lawful union activity among the employees. As the Board has noted, numbers of striking employees, including union leaders, have been recalled. Even if we accept, as we do, the evidence of Mr. Charette that the Hospital's decision to restructure its nursing staff was partly prompted by the strike and even if we go further and accept, as the union suggests, that there was a measure of reprisal for the illegal strike in the decision to lay off the thirty-seven nurse's aides and discharge the six part-time employees, the union has made out a case to establish an unlawful lockout. What compulsion has resulted from the lay of'? The lesson, if any, that the alleged reprisal would bring home to the employees is that an unlawful strike can have serious consequences for the employees involved. Even supposing that there was an element of reprisal in the Hospital's decision, we fail to see how its action could be seen as tending to discourage any law abiding employee or union officer from engaging in the lawful activities of the union. Alternatively, if the evidence is viewed as estaslishing that the failure to recall the nurse's aides was intended as an indirect form of massive discipline, the validity of such a sanction would be a matter for arbitration under the collect ye agreement. It would not establish a lockout within the meaning of the Act. (cf. Ralph Milrod Metal Products Ltd., [1977] OLRB Rep. Feb. 79 at 91).
In our view the evidence establishes that the Hospital took advantage of the strike to advance it own best interests. It used the occasion to hire twenty-five registered nurses, thereby upgrading its nursing staff and giving itself further protection against the possibility of a future strike by its nursing support staff. It also increased its complement of more qualified registered nursing assistants. It was not a dispassionate decision. There is little doubt that angered by the strike and its impact on its invalid and elderly patients, the Hospital saw little reason to be particularly charitable towards its striking employees in re-ordering its own affairs. That should not be surprising; the capacity for emotional response is not exclusive to employees. Whatever may be the economic justification for the union's strike or the hardship on the employees not recalled, the reaction by the Hospital is not unlawful. The evidence before the Board does not support a conclusion that the Hospital has engaged in an unlawful lockout.
Counsel for the Hospital submits that the Board should dispose of the application on a separate and alternative basis. He submits that the Board should not lend its discretion to assist the complainant even assuming the application had some merit. He maintains that in exercising its discretion to remedy an unfair labour practice the Board should be satisfied that the party seeking its assistance comes to it with clean hands. The complainant in this case was recently before the Board as the respondent in an unlawful strike application. Counsel for the Hospital stresses that following that application the union now before us and its officers knowingly and deliberately violated the Board's prompt and unequivocal order to cease and desist from all activity in furtherance of the unlawful strike.
There is some precedent for that submission. In York County Board of Education, [1980] OLRB Rep. July 1154 at p. 1164, the Board made the following observation in declining to make a declaration of an unlawful lockout against a school board under The School Boards and Teachers Collective Negotiations Act, 1975;
This Board's authority to grant a declaration and compensation in the event of an unlawful lock-out under the Act is discretionary, just as it is under the like provisions of The Labour Relations Act. When either an employer or employees come before the Board requesting extraordinary relief in the event of an illegal strike or lock-out, before granting any relief the Board must look to the whole of the circumstances, including the conduct of the complainant. Where the party requesting relief has so conducted itself as to unduly provoke the act of which it complains, there may be no good industrial relations reason to grant it relief. On the contrary, there can be ample policy reasons not to. Our discretionary remedies should not be meted out in a way that unduly shelters a complainant by absolving it from the consequences of its own excesses. (Northdown Drywall and Construction Limited, [1972] OLRB Rep. June 666; and see also Canadian Elevator Manufacturers, [1975] OLRB Rep. Nov. 868 at 872-730.
These considerations can be brought to bear against an employer whose excessive conduct has provoked an unlawful strike. We agree with counsel for the Hospital that they are no less available against a union whose excesses have provoked an unlawful lockout. In the circumstances of this case, however, the matter being clearly disposed of on its merits, we find it unnecessary to make any further comment in this regard.
For the foregoing reasons the complaint is dismissed.
DECISION OF BOARD MEMBER D. B. ARCHER;
On the evidence before the Board, I cannot disagree with the legal conclusion of the majority. I have a further comment, however.
Labour relations is a human as well as a legal endeavour. In my view, the reaction of the Hospital was an opportunistic and arbitrary response to a situation that called for understanding and restraint. The draconian measures the Hospital has seen fit to inflict on the least of its employees are devoid of labour relations merit. They set a negative tone that could bring harm to both the Hospital, its employees and its patients for a long time to come.