[1982 OLRB Rep. February 230
1623-81-U Ontario Nurses' Association, Complainant, v. Homewood Sanitarium of Guelph, Ontario Ltd., Respondent.
BEFORE: M. G. Picher, Vice-Chairman, and Board Members F. W. Murray and W. F. Rutherford.
APPEARANCES: S. Schachter, Marion Perrin, Marianna Schroeder and Rick Zabcocki for the complainant; Allan Shakes, John Macintosh, Merville Vincent and Judith Clarkson for the respondent.
DECISION OF THE BOARD; February 26, 1982
I. This is a complaint under section 89 of the Act alleging violations of sections 3, 64, 66, 67, 70 and 79 of the Labour Relations Act. The thrust of the complaint, notwithstanding the broad nature of the pleadings, is that the respondent has violated the "freeze" provision of section 79 of the Act in the implementation of wage increases.
The facts are not in dispute. The respondent operates a psychiatric hospital in Guelph. It has approximately 550 full-time and part-time staff of whom 120 are full-time and part-time nurses. For a number of years the practice of the hospital has been to give a general wage increase to all of its employees in the first pay period of the calendar year, although more recently it has been at the beginning of April in the first week of the Hospital's newly adopted fiscal year. The wage increase was consistently awarded to all employees except for four operating engineers, whose terms and conditions of employment were governed by a collective agreement. The only material exception to the timing of a general wage increase occurred in 1979, where a wage increase was granted at the start of the year but was supplemented in October when additional funds became available from the Ministry of Health. Consistent with the general practice, however, that increase was given to all employees except the operating engineers whose wages were regulated by a collective agreement.
On July 2, 1981 the Board certified the applicant as exclusive bargaining agent for all full-time registered nurses employed by the Hospital. (Board File No. 0509-81-R). On October 16, 1981 a similar certificate issued to the applicant in respect of all part-time nurses (Board File 1372-81-R). After the units were certified the Hospital treated the employees within them differently with respect to general wage increases.
On August 21, 1981 the Hospital gave a general wage increase, announcing that wage and salary increases awarded to all employees April 2, 1981 would be retroactive to January 1, 1981. The extra retroactivity was not, however, extended to the full-time registered nurses, who had just been certified and who were covered by the statutory freeze under section 79 of the Act.
On October 21, 1981 the Hospital granted an additional general wage increase of 2 per cent effective September 3, 1981. Again the full-time nurses were excluded as well as the newly certified part-time nurses, who were then also subject to the freeze provisions of section 79.
Considerable argument was addressed to whether the wage increases of August and October were irregular or whether they fell into the pattern of "business as before" so as to be caught by the statutory freeze. The purpose of the freeze under section 79 is to maintain the status quo during and after certification as well as during the early stages of the renegotiation of a collective agreement. During that time the rights and privileges of employees are protected from any unilateral change by the employer, as are the existing management prerogatives of the employer. The stabilizing effect of the provision was commented upon as follows in Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859 at 868:
The 'business as before' approach does not mean that an employer cannot continue to manage its operation. What it does mean is simply that an employer must continue to run the operation according to the pattern established before the circumstances giving rise to the freeze have occurred, providing a clearly identifiable point of departure for bargaining and eliminating the chilling effect that a withdrawal of expected benefits would have upon the representation of the employees by a trade union. The right to manage is maintained, qualified only by the condition that the operation be managed as before. Such a condition, in our view, cannot be regarded as unduly onerous in light of the fact that it is management which is in the best position to know whether it is in fact carrying out business as before. This is an approach, moreover, that cuts both ways, in some cases preserving an entrenched employer right and in other cases preserving an established employee benefit.
In that case the Board found that the employer's failure to apply a pre-existing merit increase policy to unionized employees was in violation of the freeze, even though historically merit increases were awarded in the discretion of the employer. In a case more analogous to this one, Scarborough Centenary Hospital, [1969] OLRB Rep. Jan. 1049, the Board found that where a hospital had an existing practice of granting annual wage increases to employees on the anniversary of their employment it was consistent with the requirements of section 79 that it should continue to do so during the freeze period.
The facts in this case point to a clear pattern of doing business in the past. All wage increases, including general wage increases at the start of the fiscal year and supplementary increases during the course of the year have been consistently given to all employees except to the operating engineers whose wages are governed by an established collective agreement. The only apparent exception to the pattern occurred in early 1978, when the apparent exception to the pattern occurred in early 1978, when the nurses were awarded a slightly higher wage increase to bring their wages into line with established patterns. Apart from that exceptional occurrence, the consistent pattern has been to advance both prospective and retroactive increases to all employees based upon the funding periodically made available by the Ministry of Health. The wage increases of August21, 1981 and October 21, 1981 marked the first time that nurses were deprived of increases which were granted following the established practice. In our view that represents a clear departure from the normal pattern of doing business in respect of full-time and part-time nurses. To the extent, therefore, that the wage increase of August 21, 1981 was not applied to full-time nurses and the increase of October 21, 1981 was not given to either full-time and part-time nurses, the Hospital is in violation of section 79 of the Labour Relations Act.
The Board so declares and orders that the full-time and part-time nurses, respectively, be compensated, with interest, for all wages and benefits lost.
We do not consider that a posting order would be appropriate in the circumstances of this case. It appears from the submissions of the parties that the respondent Hospital misconceived the requirements of section 79 of the Act and believed, in good faith, that the provisions of that section prevented it from altering the wages of the organized nurses. In this instance there has been a technical violation of the section, with no evidence of any deliberate attempt to chill union support. In these circumstances the Board will not normally make a posting order. There is no reason to believe that a declaration coupled with an order for compensation will not fully redress the wrong that has occurred.
The Board remains seized of this matter in the event of any dispute between the parties in respect of the interpretation or implementation of this decision.