[1982] OLRB Rep. April 622
1913-81-R; 1917-81-U Ontario Nurses' Association, Applicant/Complainant, v. Sudbury and District Health Unit, Respondent
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members W. H. Wightman and B. L. Armstrong.
APPEARANCES: Donald F. O. Hersey and Greta Barazzutti for the applicant/complainant; Michael Gordon, Dr. Brian Lynch and Peter Hughes for the respondent.
DECISION OF THE BOARD; April 1, 1982
The Board directs that the above application and complaint be and the same are hereby consolidated.
The issue to be determined in this matter is who holds the bargaining rights on behalf of the registered and graduate nurses employed by The Board of Health Sudbury and District Health Unit. The applicant in this matter claims that it holds the bargaining rights by virtue of being the successor trade union to the Nurses' Association Sudbury and District Health Unit or alternatively, by virtue of having been granted voluntary recognition by the respondent employer in February, 1975. The respondent employer, on the other hand, takes the position that the "Nurses Association Sudbury and District Health Unit - Local 87 - Ontario Nurses' Association" is the successor trade union which holds the bargaining rights at issue. The respondent refuses to enter into a collective agreement which shows the Ontario Nurses' Association as the union party to the agreement. In response to the respondent's position in this regard, the applicant has filed the section 89 complaint alleging a breach of the duty to bargain in good faith and make every reasonable effort to conclude a collective agreement.
The Chief Executive Officer of the Ontario Nurses' Association wrote to the Director and Medical Officer of Health of the respondent Health Unit by letter dated January 2, 1975:
As shown by the attached letter, the Nurses' Association which has bargaining rights with you has merged with the Ontario Nurses' Association and has been chartered as "Nurses' Association Sudbury and District Health Unit - Local 87 - Ontario Nurses' Association."
The Ontario Nurses' Association is now seeking to acquire the rights, privileges and duties under the Labour Relations Act of the former nurses' association. There are two options available to accomplish this:
(1) The employer by signing the attached agreement can voluntarily recognize O.N.A.
OR In the alternative
(2) Applications can be made by O.N.A. to the Ontario Labour Relations Board under section 54(1) of the Labour Relations Act.
In the interests of a continuing, good relationship between the Health Unit and the nurses' association, we are asking that you consider the first alternative. We also request that you honour the existing collective agreement between the parties.
If you have any questions about the merger, please feel free to contact me. We look forward to a favourable reply from you by January 16th, 1975 at the latest.
- The predecessor Nurses' Association had advised the respondent Health Unit of a merger between itself and the Nurses' Association of Ontario by letter dated December 12, 1974. The letter, over the signature of the local president, reads:
We wish to advise that the Nurses' Association Sudbury and District Health Unit at a meeting on October 8th, 1974, voted in accordance with our Constitution to merge with the Ontario Nurses' Association and has been chartered by that body as "Nurses' Association Sudbury and District Health Unit - Local 87 - Ontario Nurses' Association." We do not anticipate any change in our existing relationship as a result of this merger.
We will be holding our first annual meeting in the near future, and will notify you of our new officers at that time.
- Under cover of a letter dated February 27 1975, the secretary of the respondent Health Unit advised the Ontario Nurses' Association that:
At their Board meeting of February 21st, 1975, the Board of the Sudbury & District Health Unit have agreed to recognize the Ontario Nurses' Association as bargaining agent for the former Nurses' Association Sudbury & District Health Unit who have merged with the Ontario Nurses' Association and is now chartered as "Nurses' Association Sudbury & District Health Unit - Local 87 - Ontario Nurses' Association."
and enclosed a Memorandum of Agreement dated February 21, 1975 which provides:
THE BOARD OF HEALTH SUDBURY & DISTRICT HEALTH UNIT
(operating the Sudbury & District Health Unit)
Hereby agrees to recognize that Ontario Nurses' Association has acquired the rights, privileges and duties under the Ontario Labour Relations Act of the former Nurses' Association Sudbury & District Health Unit, which has merged with the Ontario Nurses' Association and is now chartered as "Nurses' Association Sudbury & District Health Unit - Local 87 - Ontario Nurses Association."
The Board further agrees to honour the existing collective agreement between the parties, being collective agreement between the Board of Health Sudbury & District Health Unit, and, Nurses' Association Sudbury & District Health Unit, dated April 16th, 1974.
The collective agreements which have been entered into subsequent to the execution of the voluntary recognition agreement have been styled as follows: The agreement for the period January 1, 1976 to April 30 1977 shows "The Ontario Nurses' Association Local 87 (hereinafter called 'the Association') as the union party. The persons signing on behalf of the union did so under the heading "The Ontario Nurses' Association Local 87". The next agreement entered into between the parties was for the period May 1, 1978 to December 31, 1979 and show the "Ontario Nurses' Association representing Local 87" (hereinafter called the 'Association') as the union party. The union signatures appear over the same heading. The two most recent agreements are framed in identical terms to the agreement which expired December 31, 1979. A representative of the Ontario Nurses' Association has been present during the negotiation of these collective agreements.
In a letter dated October 12, 1978 the Ontario Nurses' Association put itself on record as claiming that the heading on the Memorandum of Settlement signed a short while before "misdescribes the true parties to which they apply". The letter reads:
We are returning herewith signed copies of the Memorandum dated October 12, 1978.
We note that the heading on this document is consistent to the heading on the document to which it relates.
We maintain our position that the heading on both these documents misdescribes the true parties to which they apply.
Our signing on the Memorandum is for the purposes of maintaining consistency only and shall not be construed as acquiescience on the part of the Association of the missed description nor as a waiver of the position taken by the Local and by the Association that the proper parties should be Sudbury and District Health Unit and Ontario Nurses' Association.
We hereby retain our right to pursue this position through any proceedings which we feel are necessary.
lt is not disputed that the position taken by the Ontario Nurses' Association is consistent with the position it had taken up to that point.
Mr. Peter Hughes, the business administrator of the respondent Health Unit since 1973, testified that the respondent thought it was recognizing a group of its nurses as a local with assistance from the Ontario Nurses' Association. He testified that he based his conclusion in this regard on the statement contained in the letter from the predecessor to the respondent dated December 12, 1974 that "we do not anticipate any change in our existing relationship as a result of this merger."
The Ontario Nurses' Association submits that on the evidence it must be found that the respondent Health Unit agreed to extend voluntary recognition to it on February 21, 1975 and that the bargaining rights thus obtained have been exercised since that time.
The respondent questions the validity of the merger in the face of the Ontario Nurses' Association's constitution which provides only for mergers between chartered locals. With respect to voluntary recognition, the respondent argues that it thought it was being asked to recognize Local 87 of the Ontario Nurses' Association and relies on the reference to the local union in the recognition agreement and the statement in the letter of December 12, 1974 that there would no change in the existing relationship.
In disposing of this matter we do not have to determine if a merger within the meaning of section 62(1) of the Act took place. The evidence in this case satisfies us that the respondent Health Unit extended voluntary recognition to the Ontario Nurses' Association on September 18, 1974 and further, that the Ontario Nurses' Association has continued to exercise the bargaining rights so obtained from that time to the present.
The recognition agreement dated February 21, 1975 is clear and unequivocal. The respondent Health Unit agreed to recognize the Ontario Nurses' Association. The reference to a maintenance of the existing relationship in the letter of December 12, 1974 to the respondent, over the signature of the local President, does not in any way undermine the voluntary recognition which was subsequently given. The December 12, 1974 letter states that "we do not anticipate any change in our existing relationship as a result of the merger." If this reference was intended to freeze the legal relationship, which we do not believe it was, rather than the day-to-day goodwill between the respondent and those in the bargaining unit, it is to be observed that there was subsequently a formal request for a change in the relationship which the respondent saw fit to agree to in a formal memorandum of agreement. The Ontario Nurses’ Association is entitled to rely upon this agreement which is clear and unequivocal on its face. In the absence of any evidence to suggest that the bargaining rights so conferred have been terminated or abandoned, we consider the nomenclature used on the title and signing pages of the subsequent collective agreements, to constitute a technical deficiency in these agreements but not an impediment to the applicant's bargaining rights.
Having found that the Ontario Nurses' Association is the bargaining agent of the registered and graduate nurses of the respondent Health Unit, we decline to make a finding against the respondent under section 15 of the Act at this time. We are confident that the respondent, in the knowledge that the Ontario Nurses' Association holds the bargaining rights which it claims, will agree to enter into a collective agreement which is styled to reflect the existence of these bargaining rights.