Ontario Nurses' Association v. St. Mary's General Hospital
[1982] OLRB Rep. March 491
2383-81-U Ontario Nurses' Association, Complainant, v. St. Mary's General Hospital, Respondent
BEFORE: G. Gail Brent, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: Shalom Schachter and Jody Stevens for the applicant; Brian R. Gatien, R. Cybulskie, I. Krys and P. Crowley for the respondent.
DECISION OF THE BOARD; March 31, 1982
This is a complaint brought pursuant to section 89 of the Labour Relations Act in which the complainant alleges that the respondent has breached sections 64, 66 and 67 of the Act.
Prior to the hearing of evidence on the substance of the complaint, counsel for the respondent raised several preliminary points. The matters raised were that the complaint did not on its face allege anything that was a breach of section 66 of the Act and so the allegation of the breach of that section should be stricken from the complaint; that the complaint made allegations concerning actions taken against unnamed bargaining unit employees and, in the absence of particulars concerning the identity of those people, the complainant should be precluded from adducing evidence concerning any such matters; that the matter of any monetary claims to individuals was purely a dispute involving the interpretation of the interest arbitration award governing working conditions, and a rights arbitration hearing was going to deal with a grievance involving that difference; that the subpoena duces tecum served on one of the respondent's administrators was improper in that it was being used as an attempt to force discovery to ascertain whether there was a case rather than as a means of obtaining evidence; and that the relief requested regarding discrimination on the basis of refusal to sign documents be disregarded because there was no allegation of such discrimination set out in the complaint or the particulars furnished to the respondent. The Board heard the representations of both counsel concerning the matters, retired to consider its decision, and rendered an oral ruling. That ruling is hereby confirmed and is set out in the paragraphs which follow immediately.
The motion to strike the reference to section 66 is premature. The complaint on its face has set out matters which, if proven, could arguably be a violation of that section. The determination of any such violation should therefore be made on the basis of the evidence and argument presented.
The issue of the interpretation of the interest arbitration award governing working conditions is one which is properly put before a board of arbitration, and the difference between the parties concerning their rights and obligations pursuant to that interest award has been submitted to arbitration. The monetary claims of individuals resulting from any alleged violation of that interest arbitration award can be dealt with completely and adequately by the arbitration process. This Board can see no reason why it should not defer to the arbitration proceedings. Accordingly, no dispute involving monetary claims of individual bargaining unit employees, all of which relate to the interpretation of the interest award governing working conditions, will be considered.
The complaint has not alleged that the respondent discriminated or threatened to discriminate against employees on the basis of their willingness or unwillingness to execute any documents. The Board can see no reason then why a remedy should be considered to deal with a wrong which has not been alleged. The Board will therefore hear no representations concerning any remedy which would prohibit the respondent from doing anything where there has been no allegation that the act is being done or threatened.
The Board will confine itself to hearing evidence and determining whether the respondent's actions in obtaining the signatures of employees on the documents appended to the complaint as Appendix "D" is a violation of the Act. All representations regarding remedy will be confined to what is appropriate for such alleged violations.
In view of the decisions regarding the other preliminary matters, the Board believes that many of the particular objections raised concerning the subpoena have been rendered moot. Accordingly, the Board will make no rulings concerning the subpoena. The Board will only accept admissible evidence which is relevant to the issue properly before it.
The parties agreed to proceed on the basis of representative witnesses. Representations concerning onus were reserved to the final argument, and the complainant agreed to present its evidence first, without prejudice to any representations it may make concerning onus. In the consideration of the evidence in this matter, the Board will follow Silverwood Dairies, [1981] OLRB Rep. Mar. 321 and apply the reverse onus provision of section 89(5) only to the allegations concerning a violation of section 66. The complainant bears the onus of proving the allegations concerning violations of sections 64 and 67. The respondent bears the onus of proving that there was no violation of section 66 as alleged in the complaint.
The dispute revolves around the use of the form which was Appendix "D" to the complaint and which was marked as Exhibit 1 in these proceedings. The form is reproduced below:
APPENDIX D
I AGREE TO WORK ON __________________________________
(name of Unit)
ON _____________________________________________________
(date)
AT MY REGULAR RATE OF PAY.
(signature)
(date)
complete in duplicate
original to payroll
copy - unit files
The first witness called by the complainant, Anna Loretto, was a part-time supervisor employed by the respondent. Part of her duties entail calling in nurses to work extra shifts to replace nurses who have called in sick. She testified that she has neither seen nor used the form (Exhibit 1) in the course of her work. She has never required a nurse to sign the form (Exhibit 1) as a condition of working or for any other purposes.
The parties agreed that an interest arbitration award (hereinafter referred to as the O'Shea award) set out the terms and conditions of employment as of October 23, 1981. The parties are awaiting an interest arbitration award dealing with local issues. Prior to October 23, 1981, the parties had executed an agreement to alter working conditions during the freeze period. That agreement had attached to it a commitment form to be executed by nurses classified as regular part-time. In the commitment form, the regular part-time nurse promised, among other things, to work a minimum of thirty-seven and one-half (37-1/2) hours during a two-week period. It was accepted by the parties that a regular part-time nurse could refuse to work hours beyond the minimum commitment, and that a casual nurse could refuse to work whenever called. Prior to October 23, 1981, the rate of pay would depend on the terms of the agreement between the parties. After October 23, 1981, the rate of pay would depend on the terms of the O'Shea award.
The second witness for the complainant was Debbi Cecconi, who was at all material times a regular part-time nurse employed by the respondent in its Emergency Department. In February 1981 she also became Executive Secretary of the complainant's local. She was asked to sign the form in question during the week of October25, 1981 (after the O'Shea award) and did sign it. To her knowledge four other regular part-time nurses also signed the form at the same time.
At the time that these forms were executed the work schedules for the Emergency Department had been posted for the period November 15, 1981 to February 6, 1982 inclusive. All of the nurses in question had already been pre-scheduled to work certain hours. All of the forms signed by those nurses were essentially the same as that signed by Ms. Cecconi, to wit:
I agree to work in Emergency for the scheduled shifts between November 15th, 1981 and February 6th, 1982 at my regular rate of pay.
The previous blank portions of the form were filled in by hand by Annette Schiratti, the supervisor of the department.
Ms. Cecconi had never been asked to sign such a form before, and has never been asked to sign such a form since then. During the two-week period from December 13, 1981 to December 26, 1981, she was pre-scheduled to work more than thirty-seven and one-half (37-1/2) hours; she agreed that a regular part-time nurse can agree to be scheduled for more than that number of hours. She was fully aware of the number of hours she had been scheduled to work when she signed the form.
Mr. Frank Empey also testified for the complainant. At all material times he was employed as a full-time registered nurse in the respondent's Emergency Department. After considering his evidence and that of Ms. Schiratti, his supervisor, the Board finds that on January 5, 1982, Mr. Empey signed the following agreement:
I agree to work in Emergency on Jan. 7/82 at my regular rate of pay.
At the time the form was executed Mr. Empey was scheduled to work fewer than seventy-five (75) hours in the appropriate two-week period. He wanted to work the shift which became available for January 7, 1982 to make up his full seventy-five (75) hours. The above form was the only one which Mr. Empey ever signed.
Ms. Schiratti also testified. She confirmed that Mr. Empey was the only full-time nurse whom she had sign the form, and that she used the form for regular part-time nurses whom she scheduled for more hours than the minimum committment.
In Mr. Empey's case, Ms. Schiratti said that she knew that she had to replace a nurse on a shift, and that Mr. Empey said that he would work the shift because he was short his full complement of hours due to having taken three statutory holidays in the period. She said that she told him that he could have the shift at straight time and had him sign the form. Ms. Schiratti said that she could have called in a casual nurse at straight time to do the work and wanted to have the work done at straight time. She also said that she believed the form to be unnecessary because Mr. Empey would not have worked more than seventy-five (75) hours in any event.
Ms. Schiratti said that she never used the form to cover any shifts for regular part-time nurses which were not pre-scheduled. She said that she did not know who drew up the form or why the line "at my regular rate of pay" was put on the form. She said that she was not familiar with any form used for nurses to agree to waive the premium rate for call-in.
It was agreed that all nurses (full-time, part-time and casual) are members of the bargaining unit.
The respondent's position is that any dispute between the parties concerning the manner in which the employees were paid rests solely on the interpretation of the O'Shea award. The respondent does not rely on any of the forms signed as giving rise to a waiver of any employee's rights under the O'Shea award, nor does it intend to rely on the forms to support an estoppel argument concerning any rights granted in the O'Shea award. That being the case, the only use which we can see the forms having, at least in the cases of the regular part-time nurses, is to confirm their agreement to work their scheduled hours which exceeds the minimum commitment. In Mr. Empey's case, the form is not being relied on as the basis upon which his pay was calculated and, in light of the respondent's position, would appear to have no effect whatsoever.
The complainant asserted that the essence of its complaint was that the respondent did not restrict itself to bargaining with the complainant bargaining agent, but has dealt directly with the employees. In support of its position, it cited Windsor Airline Limousine Services Limited, [1980] OLRB Rep. July 1147. In that case the employer attempted to justify a change in working conditions during the freeze period by relying on a vote it took among the employees. The Board pointed out, in paragraph 20, that such a vote could not affect the decision concerning the freeze period and "may be viewed as an attempt to circumvent the certified bargaining agent whose consent is required for any change in terms or conditions of employment".
In this case there is no evidence to show that any working condition or term of employment, as set out in the O'Shea award, was altered or affected by the forms signed by the employees. If nothing changes as the result of the execution of a document, can it be called evidence of a bargain or an attempt to bargain in any sense of the word? The respondent's position is that the forms signed by the employees did not affect the way in which it calculated their pay under the O'Shea award, and the hospital's interpretation of the employees' rights was made independent of the forms.
There is no evidence to suggest that the respondent ever refused to recognize the complainant as the bargaining agent for the employees in the bargaining unit.
There is no evidence to suggest that the respondent ever attempted to interfere with its employees’ rights to be represented by the bargaining agent of their choice or to exercise any other rights under this Act, or that it discriminated against any employee by virtue of membership in the complainant.
The Act does not preclude an employer from dealing directly with an employee to ensure that he/she understands what his or her schedule is and how the employer views its obligation to pay for those scheduled hours. The dissemination of such information is not bargaining. The forms in question may, on their face, possibly be interpreted as an attempt to have employees waive their rights under the O'Shea award; however, in the light of all the evidence heard, it is not possible to support such a view as the purpose for which they were intended or used. As a consequence, we cannot conclude that the respondent ever circumvented the complainant and struck any bargains directly with the employees.
In conclusion, for all of the reasons set out above, the Board concludes that there was no violation of sections 64, 66 or 67, and the complaint is dismissed.