Ontario Nurses' Association v. The St. Catherines General Hospital, 1982 CanLII 866

[1982] OLRB Rep. March 441

0791-80-U Ontario Nurses' Association, Complainant, v. The St. Catherines General Hospital, Respondent.

BEFORE: George W. Adams, Q. C., Chairman, and Board Members J. A. Ronson and B. L. Armstrong.

APPEARANCES: Donald F. O. Hersey and Susan A. Bisset for the complainant; and D. I. Wakely, A. Craig, M. Low, and E. N. Featherstone for the respondent.

DECISION OF GEORGE W. ADAMS, Q, C., AND J. A. RONSON; March 16, 1982

1. This is a complaint filed under section 89 of the Labour Relations Act alleging violations of section 64, 66 and 70 of the Act. The grievor, Mrs. Cathryn Mancini, is a registered nurse, and, at the time of the incident giving rise to the complaint, was president of Local 26 of the complainant association. The complainant alleges that the respondent hospital filed an unsubstantiated complaint against the grievor with the College of Nurses of Ontario (hereinafter “the College”) because the grievor spoke to the press about the alleged failure of the respondent to implement certain staffing recommendations of an Assessment Committee constituted under the collective agreement between the association and respondent. The complainant submits that the grievor's actions at a press conference called by the complainant on or about June 18, 1980, amounted to protected activities under the Labour Relations Act and that the respondent sought, by reporting the grievor to the College, to interfere with such protected activity.

2. The respondent submits that at the aforesaid press conference the grievor improperly linked the staffing arrangements at the hospital with the death of a patient in order to sensationalize the staffing issue and advance the demands of the complainant concerning this issue on Community Ward 5 of the hospital. The respondent submits that the grievor's statements to the press were without substance; that they were made without proper investigation; and that they caused damage to the respondent's reputation as a community resource. The respondent further submits that it believed the grievor's actions constituted professional misconduct as defined by section 21 of Ontario Regulation 578-75 made pursuant to section 74(h) of the Health Disciplines Act SO. 1974, c. 47, as amended and that, on the basis of this belief, Marion Low, the Director of Nursing of the respondent, informed the College of the actions of the grievor. The respondent is a 450 bed hospital in the City of St. Catharines. It employes 250 registered nurses and a total nursing staff of 450.

3. Marion Low has been Director of Nursing for the respondent since 1974 and a nurse since 1948. She admitted writing the following letter dated July 4, 1980 to the College concerning the grievor:

“Miss Joan C. MacDonald,

Director,

College of Nurses of Ontario,

600 Eglinton Avenue, East,

Toronto, Ontario.

M4P 1P4

Dear Miss Macdonald:

Re: Mrs. Cathryn Martha Mancini,

Reg. No.: 75-3397-9

On Wednesday, June 18, 1980, at a press conference called by the Ontario Nurses' Association to publicize a dispute between The St. Catharines General Hospital and O.N.A., Mrs. Mancini, as President of O.N.A. Local 26, made certain statements concerning the care of a patient by the Hospital. These statements were recorded and repeated a number of times in various radio reports.

We contend that:

a) These statements had no basis in fact.

b) Mrs. Mancini had been told this on two different occasions prior to her making these statements. At a meeting on Monday, June 16, 1980, attended by representatives of the Hospital and O.N.A. Local 26, at which Mrs. Mancini and Miss Anne Gribben, Executive Director of O.N.A., were both present, it was stated that the situation described was inaccurate and yet in spite of this, Miss Gribben too supported Mrs. Mancini in her statement to the news media.

c) In spite of having been so advised, these statements were made to dramatize an alleged situation which the Association felt existed at the Hospital.

d) Mrs. Mancini had no personal knowledge of the incident and could not name the patient involved when questioned both before and after the press conference.

e) As a result of these actions, the listening and reading public could have been left with the impression that the Hospital was consciously ignoring its responsibility regulating safe patient care.

Mrs. Mancini's actions are considered by us to be professional misconduct as defined in the Ontario Regulation 587/75 (Nursing) under The Health Disciplines Act 1974, as amended to O. Reg. 719/78, September 1979; page 6, article 21(m).

Documentation is available to support the above statements.”

Section 21(m) of O.R. 578/75 provides:

21. For the purposes of Part IV of the Act, "professional misconduct" means,

(m) Conduct or an act related to the performance of nursing services that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional.

Article 33 of the collective agreement between the complainant and respondent is entitled ‘Professional Responsibility’ and provides:

33.01 In the event that the Employer assigns a number of patients or a workload to an individual nurse or group of nurses such that she or they have cause to believe that she or they are being asked to perform more work than is consistent with proper patient care she or they shall:

(a) (i) complain in writing to the Nurse-Management Committee within five calendar days of the alleged improper assignment. The Chairman of the Nurse-Management Committee shall convene a meeting of the Nurse-Management Committee within ten calendar days of the filing of the complaint. The Committee shall hear and attempt to resolve the complaint to the satisfaction of both parties.

(ii) failing resolution of the complaint within five calendar days of the meeting of the Nurse-Management Committee the complaint shall be forwarded to an independent assessment committee composed of three registered nurses; one chosen by the Ontario Nurses' Association, one chosen by the Employer, and one chosen from a panel of four independent registered nurses who are well respected within the profession. The member of the committee chosen from the panel of independent registered nurses shall act as chair-person.

(iii) the assessment committee shall conduct a hearing into the complaint within fourteen calendar days of its appointment and shall be empowered to investigate as is necessary to properly assess the merits of the complaint. The assessment committee shall report its findings in writing to the parties within fourteen calendar days following completion of its hearing and investigation and shall forward a copy of its report to the medical advisory committee.

(b) (i) the parties shall meet within fourteen days of the release of this award and select a panel of four independent registered nurses who are well respected within the profession. The members of the panel shall sit in a rotation agreed upon by the parties. If a panel member is unable to sit within the time limit stipulated the panel member next scheduled to sit will be appointed by the parties. If the parties are unable to agree upon the composition or rotation of the panel within sixty days of the release of this award, these matters shall be remitted to this Board of Arbitration for determination.

(ii) each party will bear the cost of its own nominee and will share equally the fee of the chairperson and whatever other expenses are incurred by the Assessment Committee in the performance of its responsibilities as set out herein.

For a background to the insertion of this provision into hospital collective agreements reference should be made to Mount Sinai Hospital and Ontario Nurses' Association, Interim Award, May 31, 1977 and Final Award, August 12, 1977 (Burkett); and Swan, Professional Obligations, Employment Responsibilities and Collective Bargaining, Industrial Relations Centre, Queen's University at Kingston, Reprint Series No. 46 (1979).

4. The respondent received a complaint under the said article by nurses working on the patient care unit, Community 5, concerning the alleged inadequacy of staffing arrangements to meet essential patient care requirements. At the time Community 5 consisted of a 5 bed intensive care unit (ICU); a 4 bed coronary care unit (CCU); an 8 bed day care surgery unit; and a 26 bed medical/surgery floor. The complaint related to events arising during the period of October 25-31, 1978. The Assessment Committee constituted under the collective agreement reported February 26, 1979. The report notes that "the action taken by nurses marked the first time in Ontario nursing that the collective bargaining structure had been used to adjudicate claims that staffing and work-load decisions endangered patient care including compromised professional integrity". It further points out that its recommendations were not intended to be "blueprints" but rather "a stimulus for reflection and action and a fresh viewpoint from which to approach the problems on the unit". Because the recommendations in the report bear on the incident and surrounding events with which this Board is concerned, the following portion of the report is reproduced:

PART III

FINDINGS AND RECOMMENDATIONS CONCERNING COMMUNITY 5

The conclusion of the Nursing Assessment Comittee is that prevailing circumstances on Community 5 during the period, October 25 -31, 1978, placed some patients at considerable risk and created a dilemma for nursing staff regarding their professional obligations and responsibilities. However, the Committee wishes to point out that the taxing patient care loads carried by nurses on Community 5 at this time, especially by those in the ICU and CCU during the evening and night shifts, were managed conscientiously and with considerable skill.

In the view of the Committee, the difficulties during the week in question stemmed mainly from the immediate organization of the work environment and staffing arrangements. The most pressing problems concerned staffing on the 7 bed ICU, the 4 bed CCU, and the 8 bed care surgery unit. On the basis of the evidence at hand, the Committee believes that these difficulties still exist on Community 5 and still pose threats to patient safety.

Safety of Patient Care

Among the staffing problems identified by the Committee as endangering patient safety in the ICU, CCU and day care surgery unit were:

• the allocation of only two registered nurses to the ICU on the evening and night shifts to care for seven critically ill patients;

• the failure to ensure that patients in the ICU or CCU requiring ventilatory assistance had a registered nurse in attendance at all times;

• the failure to provide for constant surveillance of the cardiac monitoring console in the CCU;

• the habit of leaving post-anaesthetic patients in the day care surgery unit unattended at various times such as the supper hour.

These staffing problems are exacerbated by the practice of drawing the nucleus of the hospital cardiac arrest team from the nurses assigned to the ICU and CCU. When these nurses leave their assigned patients to respond to an arrest elsewhere in the hospital, their patient care responsibilities must be given over to another member of the Community 5 nursing staff.

A second and closely related factor exacerbating the staffing situation in the ICU and CCU concerns relief staff. The hospital relies heavily on relief staff to meet peak demands on Community 5 and rightfully so. However, there appears to be no well thought out contingency plan for providing staff to the ICU and CCU who possess the requisite competencies in critical care nursing.

There was a high degree of congruence between the Committee's views of the most pressing problems on Community 5 and those presented by the nursing staff at the hearing on February 16, 1979. The evidence presented by nursing staff was not challenged by the hospital. Indeed, in the hospital's submission to the hearing, it was stated that:

The number of patients, the complexity of their treatment and their nurse dependency varies sometimes greatly from day to day and tour to tour on this floor. The notes made by the nurses (copies of which are also included with the material presented to you) were reviewed by nursing administration and we believe indicate that the nurses were indeed very busy during this period (October 24 -31, 1978) but there is no indication that necessary care was not given. We also agree that additional staff was needed.

Obviously, agreement over which problems to grapple with is an important first step in resolving them. However, successful problem resolution also depends on the development of an adequate repertoire of responses. In the Committee's opinion, both hospital administration and the nurses of Community 5 have tended to rely too heavily on ad hoc and expedient measures. We recognize that such measures provide a great deal of flexibility and often facilitate responsiveness in emergencies and crises; but they do not determine the direction of response.

Therefore, in the interests of ensuring a greater degree of safety for critically ill patients and a more effective response capability on the part of nursing staff, the Assessment Committee puts forward the following recommendations and strongly urges their immediate implementation.

1. THAT THE BASE STAFF OF REGISTERED NURSES IN THE ICU BE INCREASED ON THE EVENING AND NIGHT SHIFTS.

2. THAT PROVISION BE MADE FOR CONSTANT NURSING ATTENDANCE OF PATIENTS REQUIRING VENTILATORY ASSISTANCE.

3. THAT PROVISION BE MADE FOR CONSTANT SURVEILLANCE OF THE CARDIAC MONITORING CONSOLE IN THE CCU.

4. THAT PROVISION BE MADE FOR THE CONTINUOUS PRESENCE OF A NURSE IN THE DAY CARE SURGERY UNIT WHENEVER ANY POST-ANESTHETIC PATIENTS ARE RECOVERING THERE.

5. THAT WHENEVER RELIEF STAFF ARE NEEDED IN THE ICU OR CCU THAT THESE BE DRAWN FROM AMONG THE QUALIFIED NURSES ASSIGNED TO THE 26 BED UNIT ON COMMUNITY S RATHER THAN FROM OTHER SOURCES.

6. THAT ON THE NIGHT SHIFT, A NURSE EXPERIENCED IN CRITICAL CARE BE HIRED AS FLOAT STAFF TO INCREASE THE AVAILABILITY OF QUALIFIED NURSES FOR RELIEF DUTY ON COMMUNITY 5.

7. The report acknowledged that the respondent was planning to undertake certain renovations in relation to Community S and Miss Low testified that the work delayed consideration and implementation of certain recommendations. Renovations commenced in June 1979 and construction was not completed until April 1980. During that period of time, the ICU was moved to another location pending completion of the work. When the unit returned, eight nurses were added on two tours, however, the bed structure was different than that prior to the renovations. The respondent had also, in the meantime, hired consultants to assist it in the development of a patient classification system which was central to it developing rational staffing standards. Miss Low emphasized that the Assessment Committee report did not detail precise staffing levels. The classification system would permit the respondent to detail its requirements and was not completed until July 31, 1980. The formal response of the respondent to the report of the Assessment Committee is recorded in a formal document dated February, 1979 and the association's reaction is set out in a letter to Miss Low from Miss O'Connor dated July 4, 1979. By the spring of 1980, the association was not impressed with the respondent's progress in responding to the report. This impatience is revealed in two letters, one to Miss Low of May 2, 1980 and the other to Mr. H. G. Barnes, Chairman of the respondent's Board of Governors of the same date, threatening release of the report to the Minister of Health and the news media. The letters read:

“Dear Miss Low:

Re: Community 5

It is indeed discouraging to note that staffing on Community 5 is again a matter of concern to the nurses working in this area.

At this time, I do not see much point in reiterating our problems. It is evident that the Hospital intends to ignore the findings of the Nursing Assessment Committee by its failure to implement many of the Committee's recommendations. For these reasons the Association will now provide a copy of this report to the Chairman of the Bcard of Governors, Mr. H. G. Barnes. This, we believe, will afford the Hospital one last opportunity to deal with the situation before we make it known to the Minister of health and release the report to the news media.

Yours truly,

Margaret O'Connor

Senior Executive Officer - Operations”

“Dear Mr. Barnes:

Re: Community 5

We write once again regarding the report of the Nursing Assessment Committee, staffing and work assignments on Community 5.

It is indeed discouraging to find these problems have not been alleviated.

To review the sequence of events, two nurses assigned to night duty on Community 5 on October 25-31, 1978 filed a work assignment complaint which was reviewed by an independent Nursing Assessment Committee in accordance with Article 33 of the collective agreement between the Ontario Nurses' Association and St. Catharines General Hospital (see Appendix B, Nursing Assessment Committee Report). The report was released to the parties on February 16, 1979. The Hospital Administration failed to reply to our questions related to a plan of action with respect to the report. On April 27, 1978 the Association addressed a letter to Mr. E. C. Robinson which was copied to the Board of Governors. Subsequent to that letter, we met with the Hospital to discuss the implementation of the report. The respective positions of the parties are enclosed for your further information. Community 5 has now been renovated and reopened with essentially the same staffing pattern as the one which caused the problems in October, 1978. The unit has in fact, increased in size to 12 beds now located in eleven separate. rooms, including both ICU and CCU beds. The staffing pattern on evenings and nights includes a charge nurse, a monitor nurse, and three Registered Nurses.

When compared with the previous staffing pattern, (see page 5 Nursing Assessment Committee Report), one can easily determine that there are still only 4 registered nurses assigned to, not II, but now 12 beds located in 11 separate rooms. The addition of the monitor nurse appears to be the only recommendation related to safe patient care implemented on a consistent basis.

We would appreciate having an opportunity to discuss this matter and other recommendations with yourself, the members of the Board of Governors, and Hospital administration whom you consider to be appropriate.

At this time, we should also inform you that the Association intends to formally make this situation known to the Minister of Health and the news media, if our last effort to deal with it is unsuccessful. The Association has been reluctant to take these steps because we believe that the Hospital could be seriously undermined as a community resource. On the other hand, failure to deal with recommendation related to safe patient care is of concern to the public as well.

It is indeed unfortunate that the nurses have so much internal conflict in their attempts to do their job. Most employees when they accept employment, anticipate that the employer will provide adequate physical and human resources. Further need to reiterate their position in the public forum will not lessen that conflict. In view of these circumstances, however, there appears to be no alternative except to let the public decide what they believe is fair.

Yours truly,

Margaret O'Connor

Senior Executive Officer - Operation”

We note that Miss O'Connor's frustration was apparent as early as April 27, 1979 in a letter to Mr. Robinson indicating that the association was providing copies of the report to each member of the Board of Governors and that it would be asking the next interest arbitration board to make such recommendations binding.

6. Miss O'Connor sent another letter dated June 3, 1980 to Miss Low detailing the on‑going concern of the association over the respondent's lack of response making mention of an incident involving a “patient on telemetry who suffered the attack of ventricular tachycardia…” We might also point out that the grievor was copied in regard to all of Miss O'Connor's correspondence. The letter reads:

“Dear Miss Low:

As indicated in our telephone conversation the day you called, I have met with nurses from Community 5. By way of general comment it is to be noted that they do not share your view with respect to communications or to improvements which have occurred as a result of the Nursing Assessment Committee Report.

There were still complaints concerning the portering of patients, nursing assignments, the availability of orderlies, ordering of supplies from pharmacy, and the placement of newly hired part-time nurses in ICU on an ad hoc basis. Orientation has not been provided to these nurses, one of whom had not worked in thirteen years. We found out, for example, that a nurse has been assigned as the nurse-in-charge, to give meds, and observe the monitor since the report came down.

With respect to the classification system, the nurses observe that it may be beneficial in assessing the needs of patient census. However, when ICU census is low, staff is not readily available to meet subsequent emergency admissions. On occasion when ICU nurses have been assigned to other areas of the hospital, it has taken approximately two hours to have them returned to the unit. One nurse reported that on her return to the unit, she left a nurse on the floor with team leader duties for twenty-seven patients.

With respect to the matter regarding the patient on telemetry who suffered the attack of ventricular tachycardia, the nurses do not agree on the presence of clinical observation being available on the ward. In any case, cardiac monitoring is supposed to provide the fastest possible intervention. It is difficult for either the Association or the nurses to accept the current state of staffing and other problems in light of the findings of the Nursing Assessment Committee, particularly those related to safety of patient care. The intervening time span should have enabled the Hospital to plan effectively to meet the problems.

It is with regret, that I must inform the Hospital that the Report of the Nursing Committee will be provided to the Minister of Health and the news media in St. Catharines. Miss A. Gribben, Chief Executive Officer will make the necessary arrangements.

We have come to the time when we believe the Hospital has had ample time to deal with the problems. We have used every available internal mechanism, including the Chairman of Board of Governors, to make the Hospital aware of our problems and views on safe patient care.

As always, the representatives of the Association and the writer are available should the Hospital wish to discuss this matter at any time.

Miss Gribben is proceeding to set a date to carry out our responsibility to make the public aware of the problems.”

7. Miss Low testified that she and Miss O'Connor had discussed the situation involving the patient on telemetry (hereinafter referred to as "Mrs. S."). She said it had been alleged that Mrs. S. had died because of insufficient nurses. Miss Low testified she had investigated the incident and found that the patient had received excellent and expedient care and that she did not die bacause of a lack of staff. Elaborating on the incident, she said she had a meeting with the grievor on May 9, 1980 wherein the grievor "related a story of a patient dying in our hospital because of staffing". The grievor told her that a patient who was on telemetry in another ward may not have died if there had been more staff in the ICU. Miss Low asked the grievor to name the patient and she could not. However, she did say that the patient in question died on the same day as did a patient with gunshot wounds who had been located in the ICU. Miss Low testified that by this latter information she was able to identify the patient subsequently. She said she was upset with the story she was told and could not believe it. The respondent, she stated, had an excellent communication system and there was nothing in the formal reports to indicate an error over the way in which the patient died. She read the log book and supervisor's report of the shift in question and no unusual concern was expressed by anyone at the time. Miss Low also reviewed the patient's chart and the relevant nursing notes. She also interviewed a Mrs. Lewis, the nurse in charge of patient care at the time.

8. She testified that her investigation revealed the following: Mrs. Lewis and Mrs. Morrison, a registered nursing assistant, made rounds on C3 west at the beginning of the shift. Mrs. Morrison helped the patient in question back into bed after she had gone to the bathroom. Mrs. Morrison left the room but the patient rang and Mrs. Morrison answered immediately. Mrs. Morrison discovered the patient in distress. Mrs. Morrison concluded she needed immediate care by a nurse. As she stepped into the hallway, she met the evening nurse, Mrs. Rolf, who had returned to the floor having forgotten something. Mr. Rolf recognized the seriousness of the situation and immediately commenced cardiac pulmonary resuscitation of the patient. Mrs. Morrison, in turn, advised Mrs. Lewis and Mrs. Lewis telephoned the switchboard to report that there was a cardiac arrest. Mrs. Lewis was advised by the switchboard that an arrest team was already on its way because a call had come in from the ICU on CS. There was monitor on C5 monitoring this particular patient on C3. Mrs. Butler, a supervisor, and Mrs. Lennard, another nurse, had gone up to C5 just before this situation arose because another patient in the ICU suffering from gunshot wounds was deteriorating. At some point after they had arrived, a Miss Berges, who was watching the monitors, exclaimed "VT!" A Mrs. McArthur who was now free because of the death of the gunshot wound patient and Mrs. Lennard proceeded to C3 with the arrest cart and Mrs. Butler called the switchboard to advise of the situation. Miss Low testified that as a result of her investigation she was not aware of the monitor being unattended at anytime during the incident and that, based on her review of the situation, the patient received immediate and excellent care. Indeed, in her view, the care could not have been improved upon.

9. Low testified that she advised the grievor of this latter fact by way of a casual remark when they met sometime later in a hallway but she did not provide the grievor with any details of the investigation. In cross-examine on, she admitted that when the grievor raised the matter with her on May 9, 1980, the grievor was making reference to notes in her possession at the time and Miss Low was quite aware that the grievor was delaying the concerns and information she had received from other nurses. Against this background, a casual remark in a hallway seems like an inadequate response to so serious a charge. However, Miss Low testified that she told Miss O'Connor "the same thing" at a meeting held on June 16, 1980. This meeting was attended by Anne Gribben, Chief Executive Officer of the complainant; Miss O'Connor, the grievor; Mrs. Katz; Mr. E. C. Robinson, Executive Director of the respondent; Miss Low and Miss Low's assistant, Mr. Forrester. Miss Low testified that they discussed items relating to the Assessment Committee's report and Miss Gribben referred to the patient on C3 west who had died. Miss Low testified that in speaking to Mr. Robinson, Miss Gribben stated a patient had died in the hospital because there were not enough staff in the ICU. Miss Low told the meeting she had investigated the circumstances of the patient's death and the patient had received excellent care. Without using the actual name of the patient, she asked the grievor if it was the same person about whom she had spoken earlier and the grievor acknowledged that it was. Miss Low said this was the last mention of the incident and she assumed that she had “set the matter right” until she overheard the media reporting of the association's press conference held on June 18, 1980.

10. The association remained unsatisfied with the respondent's response to the Assessment Committee's report following the meeting of June 16, 1980 and carried out its threat of publicity contained in Miss O'Connor's letter of June 3, 1980. By letter dated June 18, 1980, Miss Gribben wrote to the Minister of Health in the following terms:

“Dear Mr. Timbrell: Re: St. Catharines General Hospital

Your Ministry has been informed of the problem of safe patient care at the above-mentioned hospital from time to time. We are now bringing this matter to your personal attention.

In February 1979 an independent Nursing Assessment Committee, composed of three highly-respected members of the nursing profession, released a report dealing with patient care and other related matters in ICU, CCU, Day Care Surgery and a 26-bed medical surgical ward at St. Catharines General Hospital (report enclosed). This Committee met, in accordance with a provision contained in the Collective Agreement between the Ontario Nurses' Association and St. Catharines General, following a written complaint submitted by two nurses assigned to night duty, You will note, the Nursing Assessment Committee made a number of recommendations, in particular, to the area of "Safety of Patient care". Problems in this have not yet been alleviated.

The Association has corresponded with the Hospital Administration and the Board of Governors, and has met with the Hospital Administration on a number of occasions to deal with the implementation of this report - particularly those recommendations related to “Safety of Patient Care” (see enclosures). The Hospital Administration takes the position that it must give further study to the Committee's findings in spite of the fact that the report was released to both parties some 16 months ago. It is our understanding that at this late date the Hospital Administrator is now approaching your Ministry requesting a review of staffing patterns in this area.

In view of the existing report, the Association insists that this step is redundant. The contents of the report are of public concern and address themselves to the quality and safety of care in a public hospital in Ontario. As previously stated in correspondence to the Hospital's Board of Governors, the Association has been reluctant to release this report to the public because we believe that the Hospital's services could be seriously undermined as a community resource. On the other hand, it is the responsibility of a Hospital Administration to ensure the delivery of a safe standard of care to the public. Failure to deal with recommendations related to safe patient care is an abdication of that responsibility! This should be of major concern to the public.

In spite of our attempts to resolve these issues, conditions remain unsafe. As professional nurses we have no alternative but to inform the public. No doubt public reaction will serve as a guideline to your Ministry.”

A press conference was also held and Miss Low recorded a number of media reports of this press conference. The following two reports are representative and the first report constitutes the primary basis for the respondent's filing of the complaint with the College.

#1

C. H. S. C. 10:00 p.m. Wednesday, June 18th, 1980

REPORTER: ….…were understaffed based on two things. One is a report commissioned by the O.N.A. under the provision of the agreement between O.N.A. Local 26 and the General Hospital. The independent Nursing Assessment Committee says the General’s ICU is severely understaffed and nurses working there agree. In fact, Kathy Mancini, the President of Local 26 of the Nurses Association says, there was a tragic situation recently where a patient actually died because the nurse monitoring ICU patients had to leave their post.

MANCINI: The nurse, because of a very critically ill patient which we had on the unit at the time had to go the another nurse’s assistance, left the monitor as she was in charge as well and weighing the pros and cons of the situation and making a nursing judgment, went to the aid of the nurse with this patient for a matter of three minutes maximum, when she came back, a patient on another floor who was being monitored at the time, needed emergency assistance. The patient expired unbeknown to us whether how long it was going on or whatever.

REPORTER: the patient died?

MANCINI: Yes.

REPORTER: Mancini says she can't blame the death directly on the shortage of nurses in the intensive care unit but she can't rule it out either.

#2

C.H.S.C. 8.~00 p.m. Wednesday, June 18th, 1980

REPORTER: …Ontario Nurses Association. C.H.S.C.’s Tim Fletcher has more:

The Ontario Nurses Association said the intensive care unit at The St. Catharines General is critically short of nurses. O.N.A. Local 26 President Cathy Mancini told me one incident where only 3 nurses were on duty. The one nurse watching the patient monitor panel had to leave to help the other nurses when a critically ill patient came in. When she came back a few minutes later, the panel showed a patient was in deep trouble. Although corrective action was taken, the patient died. The O.N.A. wouldn't blame the death though directly to the shortage of nurses. What is more likely they charge is that when only 3 nurses are on duty, that is nights and weekends, patient care can suffer to a great degree with only I nurse per 4 patients when the ICU is full. Ironically evenings and weekends when there are the least number of nurses on, that's when often the intensive care unit is the busiest, full up with the 12 patients it can handle at a time. The nurses say an independent nursing review committee, 16 months ago, says there should be more staff on the ICU at all times, not just during the day time on weekdays. The Hospital will only say its studying the report. Sometimes when they know the ICU will be busy because of operations schedule in advance they will bring in more nurses on a temporary basis, but only temporary. And here's another irony for the last 2 months the equivalent of 3 full time nursing postions have been temporarily assigned to the night or weekend shift, has not caused any problems elsewhere in the Hospital. Why, the nurses ask, can't they be there all the time. The Hospital in a reply to the nurses report, said it believes safe practices are being followed. The nurses say the public's lives are in jeopardy at the St. Catharines General Hospital if the intensive care unit gets active when only 3 nurses are on duty, and since the Hospital refuses to act, the nurses have to bring their case directly to the public.

The press conference and a review of the respondent's response to the issues raised at it were reviewed by the St. Catharines Standard of June 19, 1980 under the heading “Patient At General In Danger, Nurses Claim - Hospital Director Denies Union Charge.” The newspaper report reads:

PATIENTS AT GENERAL IN DANGER, NURSES CLAIM

By ED McKENZIE

Standard Reporter

Is the St. Catharines General Hospital putting patients’ lives in danger by understaffing its critical But Carey Robinson, executive director of the care unit?

Or is the labor union which makes this claim - in all others, the hospital's "first concern is good the Ontario Nurses' Association (ONA) - trying to patient care. use the General to win more clout province-wide?

Those were the key questions yesterday as the Health Minister Dennis Timbrell to take immediate ONA brought its top officials to St. Catharines to action to correct what she termed "the abdication of warn the community that “the public's live are in the hospital's reponsibility to provide safe care to the jeopardy.”

ANNE GRIBBEN, ONA chief executive officer, accused the hospital of showing “a lack of regard for the sefety of patient care” and of placing “the health and safety of the public in “imminent danger.”

But Carey Robinson, executive director of the General, denied the claim, saying that in this case, as in all others, the hospital's “first concern is good patient care.”

Miss Gribben announced the ONA has asked Health Minister Dennis Timbrell to take immediate action to correct what she termed “the abdication of the hospital's reponsibility to provide safe care to the public.”

But a spokesman for Mr. Timbrell said in the minister's view, "this appears to be in large measure a labor-management concern." The minister feels "quality of care of patients at the St. Catharines General rest with the board of directors2 and Mr. Timbrell expressed "confidence in their ability."

However, the minister will look into the situation if it should turn out that an examination is war­ranted, and Mr. Robinson said he has already invited the health ministry to do a special assessment of the hospital's critical care area, to verify that staffing is, indeed, adequate in this key section of the General.

BOTH SIDES in the dispute referred to the report made by a nursing assessment committee which was completed in 1979. That committee was set up under the collective agreement between the hospital and ONA.

Under the section dealing with the safety of patient care in the coronary care and intensive care units, six recommendations were made. The first one is that the base staff of registered nurses be increased on the evening and night shifts, and it was in this area the Miss Gribben concentrated her remarks.

She said there are only three nurses for 12 beds. Asked how many ONA feels there should be, she said that ideally, there would be 12 — one for each patient.

Miss Gribben said between April 1 and May 31, there were 116 extra tours of duty in the area. This means extra nurses were called in to back up the regularly-scheduled staff. She said this indicated there should be at least three extra staff nurses.

BUT MR. ROBINSON maintained staffing is at an acceptable level, noting the critical care area and the progressive (intermediate) care area are adjacent now that renovations have been completed on the Community Wing's fifth floor.

He said if extra nurses are needed for critical care, they can be brought in from progressive care. In addition, supervisors can assess caseload, and when demand warrants, extra nurses can be called in from a special duty roster.

Miss Gribben said ONA takes the position it's dangerous to operate this way. The critical care area

should be fully-staffed to take care of a full load. If some of those nurses aren't needed, they can be sent to other duties.

Mr. Robinson called this "putting the wrong end-to,'.

He noted the report of the nursing assessment committee is not binding on the hospital (although he claimed the General has implemented virtually all of the recommendations made in the 44-page docu­ment presented a year ago last February).

HE SAID ONA HAS tried and failed to make such committee recommendations binding across the province, citing several arbitration cases in which the issue has been decided against ONA.

"They're trying to get from us something they could not get from an arbitration board," Mr. Robinson stated, pointing to what he called the "wide implications" of the case here.

But Miss Gribben denied that the charges ON A is making could be viewed as part of a union-management squabble.

She insisted the nurses who belong to the union feel they have an obligation to "fight for patient care", and she claimed the General has been "lucky" so far in that the lack of staff has not resulted in a case of death or serious injury to a patient.

Miss Gribben cited one case recently in which a patient's heart monitor was being constantly watched by a nurse (this was one of the six commit­tee recommendations). But because no one else was available, that nurse had to go to other duties in the intensive care area.

WHEN SHE GOT BACK in "five or 10 minutes," the patient's heart pattern had changed. Emergency steps were taken, but the patient died.

The ONA spokeswoman said it could not be said, in this case, that the woman would have lived if the nurse had been watching the monitor all the time. But she maintained that in another case, it might very well make a difference.

Noting that the General recently used its own funds to renovate the critical care area, after the health minstry said it could not supply money for the project, Miss Gribben agreed "all the equip­ment's there:' but "they've neglected to put (suffi­cient) staff in there."

11. Miss Low's testimony emphasized statement #1 containing statements attributed to the grievor. She said Miss Berges, did not tell her what the grievor alleged at the press conference and therefore the grievor's statement that the monitor was unattended was untrue. She said Miss Berges did leave the monitor to make rounds but she was replaced by a Heather Rogers. Rogers then went on her regular assignment when Miss Berges returned. There was nothing unusual about the patient's pattern who was on telelmetry while Rogers was at the monitor and the pattern was normal on Berges’ return. Only after Berges returned did the patient's pattern become abnormal. Mrs. Booth, the 3 - 11 monitor nurse had told Miss Berges to keep her eye on this particular patient's pattern because of earlier abnormal rhythms. The patient was seventy-one years old with a long standing history of heart disease. Berges was therefore sensitive to potential problems. Low stated that Berges or someone else was at the monitor at all relevant times and the patient did not expire "unbeknown" to anyone as alleged by the grievor. Miss Low said Mrs. Lennard was most upset after having read the newpaper report and heard the newscasts and that Mrs. Lennard had told her the patient received exceptional care. Miss Low approached the grievor on June 19, 1980 and testified that she still did not even know the patient's name.

12. Low testified that because the patient in question had been in the hospital less than twenty-four hours prior to her death, the respondent advised the coroner. A coroner's inquiry was subsequently conducted by Dr. Peter O'Halloran and he was satisfied with the conditions surrounding the patient's death. Some further inquiries were made by the Regional Coroner after the news media coverage but no inquest was ordered. Miss Low testified that she filed a complaint with the College after a great deal of deliberation by the Administrative Committee of the respondent and after discussion with the chairman. She stated that they were very disturbed by the adverse publicity given to the respondent - an institution which has had an excellent reputation for well over one hundred years. They were, she said, concerned because the information given by the grievor was not true - a patient in the hospital did not die because of a lack of staff in the ICU unit. They felt they could not let the matter pass and consulted the respondent's local solicitor. They saw at least three possible courses of action: (1) dismissing the grievor; (2) commencing a lawsuit against her for defamation and slander; and (3) reporting her to the College for professional misconduct. The course chosen was to report her to the College. Miss Low saw this approach less detrimental for the grievor whom she said was a "fine person" and "a good nurse". However, because the incident was damaging to the respondent "in the eyes of the citizens of St. Catharines" they could not let it pass, she stated. Miss Low felt she had a professional obligation to report the matter to the College because the statements of the grievor were false and detrimental to both the respondent and the community. Miss Low said the respondent would have done nothing had the grievor "stuck to the facts". The respondent had no objection to the report being made public or to any accurate comment upon it. Miss Low stated that on or about July 9, 1980, she called the grievor into her office and advised her that she had been reported to the College because she had given false information to the press on June 18. Miss Low said it was her practice to speak to people "face to face" in such circumstances and she felt she had a good relationship with the grievor. The grievor became very upset saying 'it can't be true'; 'it can't be happening to me'; 'it's my profession'. She began to cry and left the office. Miss Low pursued her to comfort her and found her in the locker room. There the grievor said she wished she had not taken the job of local president and that she would resign. She said she had done all this "for the girls on CS". She said she "had acted on what they told (her)". She had accepted what they said at "face value". She said "(she) believed them and this is what (she gets)". She was concerned about the impact of the incident on her pregnancy and Miss Low spoke to her doctor who prescribed a tranquillizer. Miss Low then drove her home. Miss Low said that after the press conference she received "a lot of feedback from staff, people in the community, officials of the city". Everyone, she said, was questioning what was right or wrong with the respondent hospital and what kind of care it was giving. She said "a lot of harm" ensued from the publicity given.

13. Apparently as a result of the complainant's letter to the Minister of health, Mr. Robinson wrote to Dr. D. A. Dyer, Assistant Deputy Minister of Health by letter dated June 17, 1980 and officials of the respondent met with Ministry officials late in June. By letter dated July 7, 1980, the Ministry indicated its satisfaction with the respondent's ongoing response to the recommendations of the Assessment Committee's report. The Ministry therefore decided against sending a team of consultants as requested by the respondent. This letter, a related letter to Miss Gribben and the respondent's earlier letter of June 17, 1980, read:

“Dear Dr. Dyer:

As you are probably aware, there are several contracts between Ontario Nurses Association locals and hospitals in the Province of Ontario which contain a "Professional Responsibility" Clause. Ours is one of those hospitals. Very briefly, the professional responsibility clause provides for members of the bargaining unit to lodge complaints with management that they feel come in the area of professional responsibility and if a satisfactory solution between members of the bargaining unit and hospital's management cannot be achieved, then the contract provides for the appointment of a Nursing Assessment Committee composed of three nurses, one being the Chairman who is selected from a list of names previously agreed between the union and management, a nominee of the union and a nominee of the Hospital. Such a Committee is much like an arbitration board except that the findings of the Committee are not binding on the parties.

In October 1978, a number of our nurses working on what we refer to as Community 5, a floor which contained our 11 bed ICU‑CCU facilities s well as 26 general medical-surgical beds and an 8 bed day surgery unit, filed such a complaint, claiming understaffing, particularly in the ICU­CCU areas. This matter could not be resolved between the parties and as a result, a Nursing Assessment Committee was appointed to investigate this complaint. The Committee met in February 1979 and the report was received about a month later, in mid March 1979. As a result of discussions and meetings between the parties, including representatives from the O.N.A. Central Office on at least one occasion, most of the points were resolved by mid June 1979. Since we were then approaching the time when a major renovation programme on that floor was to start, we agreed to review a couple of the items which had not been resolved when the renovations were completed and the unit reoccupied.

Community 5 was closed at the end of June 1979 for the renovation programme and following completion of the project in early April of this year the new 12 bed ICU-CCU section, now known only as an ICU, was occupied on April 15 and we commenced to re‑occupy the progressive or intermediate care section of the floor on May 5.

Under date of May 2, the Senior Executive Officer-Operations of O.N.A. wrote to our Director of Nursing and to the Chairman of the Board of Governors reiterating their concern about staffing and work assignments on that floor and also the concerns to the nurses working in the area. The letter stated that "It is evident that the Hospital intends to ignore the findings of the Nursing Assessment Committee by its failure to implement many of the Committee's recommendations" and "At this time, we should also inform you that the Association intends to formally make this situation known to the Minister of Health and the news media, if our last effort to deal with it is unsuccessful". We acknowledged this letter from O.N.A. advising that the Director of Nursing and I had discussed the views expressed and that a further review was to be made and we would then be in a position to respond more formally to these letters. This acknowledgment was sent under date of May 8, 1980. Subsequently, there was a discussion between the Senior Executive Officer-Operations of O.N.A. and myself on the telephone on May 16 and also between our Director of Nursing and the same officer on May 26, the latter conversation suggesting that the Senior Executive Officer-Operations of O.N.A. visit this Hospital and that a meeting be arranged between the parties concerned in order that these matters could be discussed. We were therefore considerably surprised to receive under date of June 3, 1980, a further letter from O.N.A. regarding these matters. In that letter, it was stated in part as follows:

• It is with regret, that I must inform the Hospital that the Report of the Nursing Committee will be provided to the Minister of Health and the news media in St. Catharines. Miss A. Gribben, Chief Executive Officer will make the necessary arrangements.

• As always, the representatives of the Association and the writer are available should the Hospital wish to discuss this matter at any time.

While a meeting was offered in the above referred to letter, it was with great difficulty, in telephone communications with the Chief Executive Officer of O.N.A. on June 6 and 9, that I was able to get her to agree to a meeting which was held at this Hospital at 1000 hours on June 16. At that meeting, we attempted to explain to the O.N.A. representatives that we were having our Nursing Staff Co‑ordinator study the area and that, on completion of those studies, we would then have to reach conclusion regarding any indicated adjustment of staffing patterns. This was not acceptable to the O.N.A. representatives who felt that we had had 15 months, since March 1979, to do the necessary planning whereas we contended that only having re-occupied the unit in part in Mid April and fully on May 5, proper assessment could only be done under working conditions. After some 3 1/3hours of discussion, O.N.A. representatives stated that if the Hospital didn't act now, it would proceed to provide the Minister of health with a copy of the Nursing Assessment Committee report and ask him to investigate the staffing of this area and also provide information to the news media in St. Catharines: as it was stated in O.N.A.'s letter of May 2, “to let the public decide what they believe is fair”.

Very briefly stated, the most contentious issue, though not the only one, between O.N.A. and the Hospital is the recommendation of the Nursing Assessment under the heading of “Safety of Patient Care” which states as follows:

That the base staff of registered nurses in the ICU be increased on the evening and night shifts.

No suggestions of what such increases should be were made in the report.

At the time the Assessment Committee studied the area, prior to the renovations, it consisted of 37 beds including 11 ICU-CCU beds, with a staff of 44.6. After renovating, the same area now consists of 24 beds including 12 ICU-CCU beds, whereas the staff has been increased to 53.6. We feel that 13 less beds and 9 more staff members comprised of 1 ward secretary and 8 nurses, certainly shows a willingness to adjust. The Hospital has further proposed that is is seriously considering replacing 4 R.N.A.'s on the unit with 3 R.N.'s. This is base staff and is, of course, supplemented by adding the best part-time nurses available who are experienced in ICU-CCU nursing care based on patient requirements. O.N.A. contends that base staff should be planned on the basis of the maximum conditions which could be encountered, with surplus staff transferred to other areas when not needed.

Naturally, we are interested in providing the best possible care to our patients. In an attempt to measure this, our Director of Nursing made a survey of 12 other hospitals of similar size to ours with regard to ICU­CCU staffing and had come to the conclusion that the staffing now provided in our ICU is at least the equal of any or higher than all of the hospitals surveyed. Granted, this was a gross survey only and does not take into account the detailed analysis of the type of patients cared for but we feel that it is sufficient to maintain that, until our studies are completed, staffing is adequate.

It would be an easy solution to this matter to give in to the demands of the Ontario Nurses Association. However, we believe that we were the first hospital in the Province of Ontario to be taken to a Nursing Assessment Committee on the basis of a staffing and work assignment complaint and since the recommendations of the Nursing Assessment Committee are not obligatory to implement on the part of the Hospital, if we do accede to the Association's interpretations of these recommendations, it will set a far reaching precedent in the Province of Ontario, with very serious implications to the future financing of units such as our intensive and progressive care area. The inclusion of a "Professional Responsibility" clause is a central issue demand by O.N.A. n bargaining for new contracts, which bargaining will commence shortly for all hospitals in the Province of Ontario with which it has an agreement. In the last set of negotiations they not only wanted such a clause included in all contracts but they also demanded that the recommendations of the Assessment Committee be binding. This demand was denied whenever they took it to arbitration. Since they lost it through one process they are now attempting to gain it through establishing a precedent. We, therefore, feel that the implications of this are very significant. We are firmly convinced that O.N.A. is using this Hospital as a "test case".

We are therefore requesting you to appoint a high quality assessment and evaluation team of Ministry consultants to review the staffing pattems and work assignments on our newly renovated Community 5 floor, particularly the ICU, to assist us in resolving the differences which we have with the Ontario Nurses Association. We feel that this request is not only in the best interests of this Hospital but those of all hospitals having contracts with O.N.A. and ultimately, because of the financial implications, not only the Ministry of Health but the taxpayers of this Province.

We urge your serious consideration and early as possible response to this request.”

“July 7, 1980

Dear Mr. Robinson:

This is in reply to your June 17, 1980 letter, in which you describe the difficulties your hospital and the Ontario Nurses' Association are encountering in reaching a mutually agreeable course of action, following the Nursing Assessment Committee's Survey and recommendations for staffing The St. Catharines General Hospital's Intensive Care Unit.

I wish to express my thanks and appreciation to you and the members of your senior staff who came to Toronto on June 26, to meet with the Executive Director of the Institutional Division, the Director of the Institutional Operations Branch and Ministry consulting staff, who relate to The St. Catharines General. It was most helpful to discuss the entire situation with you.

It is evident that with the exception of an unresolved issue concerning staffing, you have implemented the majority of the recommendations of the Assessment Committee Report.

The fact that you are presently introducing patient classification in the Intensive Care Unit is commended. This tool will greatly assist in identifying patients' needs for nursing staff and altering staff in relation to changes in workload.

In view of the foregoing, the Minister of Health has concluded that it is not necessary to send a team of consultants into the hospital. The ultimate responsibility for patient care rests with the Board of Governors of The St. Catharines General Hospital, in whom the Minister has complete confidence.

Yours sincerely,

Allan E. Dyer, PH.D., M.D.

Assistant Deputy Minister

Institutional Health Services”

July 7, 1980

Dear Miss Gribben:

Re: The St. Catharines General

Hospital

This is in reply to you June 18, 1980 and June 23, 1980 letters to the Minister of health, The Honourable Dennis R. Timbrell. This letter also responds to Miss Margaret O'Connor's June26 letter to me. The Minister has requested me to reply on his behalf.

I note that your association is encountering difficulties with The St. Catharines General Hospital in reaching a mutually agreeable course of action, following the Nursing Assessment Committee's Survey and recommendations for staffing The St. Catharines General Hospital's Intensive Care Unit.

The hospital is presently introducing a patient classification system in the Intensive Care Unit. This will greatly assist in identifying patient needs for nursing staff and altering staff in relation to changes in workload.

In view of the foregoing, the Minister of Health has concluded that it is not necessary to sent a team of consultants into the hospital. Ultimated responsibility for patient care rests with the hoard of Governors of The St. Catharines General hospital, in whom the Minister has complete confidence.

Yours sincerely,

Allan E. Dyer, PH.D., M.D.

Assistant Deputy Minister

Institutional Health Services”

To this extent then, the publicity generated by both the complainant's and grievor's comments does not appear to have undermined the confidence of the governmental authority ulitmately responsible for the quality of care provided by the respondent.

14. On cross-examination, Miss Low was asked why a Miss Margaret Swarbrick, R.N., and an employee of the respondent was not reported to the College for writing the following letter to the St. Catharines Standard which was reported by newspaper on July 2, 1980.

Defends nurses' stand

I wish to respond to your recent article concerning the Ontario Nurses' Association and the St. Catharines General Hospital.

I work in the intensive care unit and feel entitled to defend ONA's stand.

The unit on frequent occasions on the evening and night shift is staffed in a fashion that leaves much to be desired.

I think the admission by the adminisrator that 116 extra nurses had been booked for various tours of duty since the renovated unit opened on April 15 speaks for itself - that more staff is necessary. One radio report stated that the staff had been increased to 54; that may be so but it certainly was not 54 registered nurses. ONA does not expect Utopia but the ad hoc basis of supplementing staff is not the most propitious for a safe working environment.

These and many other problems have been discussed at numerous nursing-management meetings without being resolved satisfactorily; indeed that last such meeting on June 16 wasn't even attended by any of these "concerned" board members. I personally dislike this washing of dirty linen in public but the hospital left ONA with little choice.

It's you, the public, for whom these services are available. Don't you think you are entitled to the best?

Margarent Swarbrick, RN.

230 St Augustine Dr.

Miss Low replied that the letter was not sensational and that the statement was true as far as it went. When asked why she did not report Anne Gribben to the College as well, Miss Low replied that in hindsight she probably should have but probably did not because Gribben was not employed by the respondent. She said, in retrospect, she may have been in error in failing to do so. She also agreed that Miss Berges was the charge nurse and on the monitor at the same time. One of the nurses scheduled for the shift in question called in ill at 8:20 p.m. and a replacement was not available. Berges therefore reassigned staff and performed the dual function of charge nurse and monitor nurse. She testified that the complaint to the College was with the approval of the respondent's Board of Governors and constituted a decision of the Administration Committee. The wording of the complaint was reviewed by the respondent's solicitor before being sent to the College. She said she "steered" the Committee in the direction of the College in considering the options against the grievor. It was felt that the laying of a complaint was the "kinder" thing to do. Miss Low said she did not contact Berges, Irene McArthur or Margery Rose (the three senior nurses on the ICU that night) prior to filing the complaint. She said she was satisfied with the report she received from the supervisors so she did not speak with these nurses. She acknowledges that, in reporting the incident to her on May 9, the grievor was genuinely concerned and that she was relying on information received from nurses on the ward. She also agreed that she never advised the complainant or grievor of the details of the investigation conducted.

15. On re-examination, Miss Low agreed that she did not like the idea of the complainant going to the press because the respondent was not being given a chance to do what it thought was right. Interim staffing adjustments had been made; there had just been a return to the renovated CS; the development of a patient classification was under way; and there was a need for the nurses to become oriented to the new physical arrangements. But while she did not like the idea, she said she did not fear the outcome in that any public description of the true situation would not have been upsetting particularly if the respondent's reactions to the Assessment Committee's report were accurately reported. The complaint to the College was filed because "the information given to the press was not accurate. A nurse should not be able to make a statement that is not true", she testified. Miss Low also stated that the patient who had died was the grandmother of a person living next door to her. She therefore took a personal interest in the circumstances surrounding her death. She spoke to the head nurse; reviewed the charts; spoke to Mrs. Lewis who was the night nurse; and Mrs. Lennard, the night supervisor who was involved in the cardiac arrest procedure. She spoke to Mrs. Sheild, the head nurse, the very next day after the death. She said she was assured by reading Mrs. Lewis' notes and in talking to her that the patient received immediate care. After May 9, 1980, she asked Mrs. Lewis to review again all her actions until the patient expired. From all of this information, she concluded the patient received immediate attention and everything that could have been done was done to save her. She said to her knowledge the monitor was not left unattended. In making this assertion, she relied on a written statement of Berges and conversations with Rogers, Butler and Lennard. After the press conference she asked Mrs. Lennard to write out her version of the incident. On the basis of all her investigations she understood that at the time of the cardiac arrest, Miss Berges was at the monitor although she may have been looking for a death notice in relation to the gunshot wound patient. She also thought that the most severe action the College would take was a letter of reprimand.

16. The Board was advised that by decision dated February 11, 1981, the complaint was dismissed by the College on the basis that it was alleged Mrs. Mancini made untrue statements to the press and "statements of nurses present in ICU at the time substantiate that the statements made to the press by Mrs. Mancini were technically true". An appeal to the Health Disciplines Board was also dismissed on the basis that the subject matter of the complaint was not conducted in the course of nursing and within the jurisdiction of the College. The latter decision dated August 1981 is a brief one which can be set out in full.

Miss Low requested a review by the health Discipline Board. The review was attended by Miss Low with counsel, Mr. David Wakely; Mrs. Man­cmi with counsel, Mr. Chris Paliare. The College was represented by Mrs. Jean Dalziel, Assistant Director, Complaints and Discipline, Mrs. Aleta O'Dea, Investigations Officer, and Mr. Michael Thurston, counsel to the College.

Mr. Wakely told the Board that statements made at a press conference by Mrs. Mancini, in her capacity as President of Local 26 of the Ontario Nurses Association (O.N.A.), were false and intended to damage the reputation of the St. Catharines General Hospital in the eyes of the public. Mr. Wakely explained that the press conference had been called to discuss the implementation of recommendations made to the Hospital by the O.N.A.

In her statement to the press on June 18, 1980, Mrs. Mancini said that a nurse, because of a critically ill patient, had to go to another nurse's assistance and left the monitor for a matter of three minutes maximum. When she came back, a patient on another floor who was being monitored at the time needed assistance. That patient expired.

Mr. Wakely said the nurse in charge of the Hospital's Intensive Care Unit had left her station at the monitor to assist with a critically ill patient but had assigned another nurse to attend the monitor in her absence. He said the charge-nurse was away for a matter of about three minutes and had been back at the monitor station for some ten minutes before the monitor indicated a female patient on another floor was in some difficulty. He stated the monitor was never left unattended and that immediate emergency care was provided the female patient. Mrs. Mancini was not present in the Intensive Care Unit at the time. She received her information from the nurses on duty in the unit.

Mr. Wakely told the Board Miss Low had advised Mrs. Mancini on two occasions prior to the press conference that her information regarding the incident was incorrect. Both Mr. Wakely and Miss Low made it clear to the Board that Mrs. Mancini's competence as a nurse was not in question. However, her action was considered to be professional misconduct as defined in Section 26(m) of The Ontario Regulation 577/75 made under The Health Disciplines Act.

Mr. Paliare told the Board that in his view, the matter is a labour relations issue and not one which should be properly referred to or considered by the Complaints Committee of the College.

Mr. Paliare referred to statements, gathered by the College of Nurses during its investigation, from the nurses on duty in the Intensive Care Unit. He said it was clear that the nurses had not been able to give their full attention to the monitors because of the many duties they were carrying out at the time, and because of the limited number of staff on duty. At that time, there were ten patients on the monitors.

Mrs. Dalziel summarized the College's investigation.

The Board, having heard the submissions of the parties and reviewed the documents before it, is of the view that the College conducted a proper investigation.

Ontario Regulation 577/75, Section 21(m) refers to conduct or an act relevant to the performance of nursing services and clearly applies to the actual practice of nursing. The Board is of the view that in making the statement complained of, Mrs. Mancini could not be deemed to be performing an act relative to the performance of nursing services and, therefore, does not contravene the Act or the Regulations.

The Board confirms the decision.

DATED AT TORONTO, THIS 31st DAY OF August, A.D. 1981.

Ronald Watson

Vice-Chairman

17. Miss Margaret O'Connor, Senior Executive Officer of Operations for the complainant, testified. She described for the Board the background to the complaint by nurses leading up to the establishment of the Assessment Committee and its report of February 1979. She further testified with respect to on-going discussions with the respondent hospital over the implementation of the Committee's report. She said the respondent was prepared to implement certain sections of the report but that parties reached an impasse over the complainant's demand for an increase in the base staff. The respondent, she stated, wished to increase staff on an ad hoc basis by the use of part-time nurses who may or may not be available and familiar with the ICU. She agreed that matters had been complicated by the move to Mills 4 pending renovation of CS. She also objected to the use of supervisors in the ICU because they were involved in administrative matters that can distract them from patient care. She felt that after the move back to CS, the staff remained essentially the same with sometimes someone on the monitor and sometimes no one on the monitor. She felt this problem was continuing to date. She testified that it was the decision of the complainant that if the Assessment Committee's report was going to be disregarded in the area of its recommendations dealing with safe patient care, the public should become aware of the situation. She said that at the conclusion of the meeting with the respondent on June 16, it was apparent that the respondent would not agree to implement the Assessment Committee's report in total. She said that the respondent wished to implement its patient classification system and wanted further time to evaluate the need for an increase in staff. On cross-examination, she said that she undertood the recommendation of the Assessment Committee for constant surveillance of the monitors to mean the use of a nurse whose job was confined to watching the monitor. She took the view that the nurse in question should be assigned no other duties but she was not prepared to say how many other hospitals employed one person to look at the monitors to the exclusion of everything else. She agreed that inaccurate information with respect to the respondent's responsibility for the death of a patient could have irreparable harm on its reputation in the community.

18. Laura MacPherson, currently the president of Local 26, testified that she attended the meeting with Miss Low shortly after she had received Miss O'Connor's letter of May 2 threatening to make the report public. She testified that Miss Low stated at the meeting that the approach was a form of 'black mail" and that "[she] had friends in high places and that [she would] go as far as [she] had to". Miss MacPherson testified that Miss Low seemed angry and "rattled". She further testified that she was at a meeting of nurses convened by the grievor to discuss the incident. Cathy Berges, Jan Dusek, Gladys Katz, and Irene McArthur were at the meeting along with "a couple of others from ICU". She said notes were taken at the meeting and although some nurses came with notes already written up, all of the documentation was reviewed at the meeting and additional notes were taken. She said she recalled Miss Berges saying that she was not present at the monitor and that she had other duties to perform. Miss MacPherson recalled Miss Berges saying that when she returned to the monitor, she noticed the patient had gone into VT. She seemed to recall that Miss Berges was involved with a patient sho had expired from gunshot wounds and that she was busy preparing a death certificate at the time. Miss Berges was the charge nurse and monitor nurse that evening. She testified that there was concern over allowing this to occur; that nurses were concerned about safe patient care; and that it was time something was done about it. Thereafter Anne Gribben was informed of the situation. On cross-examination, she admitted that she did not recall that Cathy Berges said she had to go to another room at the time. Rather she believed that Miss Berges was away from the monitor doing other duties. The nurses at the meeting were not told where Mrs. Lennard and Miss Rogers were at the time and there was no discussion about who actually attending the patient on the third floor. Miss MacPherson did not know how soon after the. patient's call light went on that she was attended to. The nurses who were attending to the patient on the third floor were not present at the meeting in question. However, Miss MacPherson emphasized that she recalled Miss Berges saying that she came back to the monitor and saw the VT and she vaguely recollected that three minutes was the period of time mentioned that she had been away from the monitor. It was her recollection that Miss Rose wrote out a document describing the events of that evening; that Mrs. Mancini questioned the nurses present to get a better understanding of the sequence of events; and that Mrs. Mancini made certain additions to the notes she was given. She said that Cathy Berges tried to explain to the group and to the grievor what she had been doing at the time because the notes did not explain this clearly. She said that Cathy Berges may have said she went to another room or that she was at the desk preparing a death certificate, but in either event, she was not right at the monitor. She said the idea of the meeting was to gather all of this information and to present it to Miss Low. The staff, she said, was clearly dissatisfied with the way things were running.

19. Mrs. Marjory Anne Rose testified that she was working on the night shift in the ICU unit at the time in question. She testified that there was a full-time monitor nurse on duty for the 3 11:00 shift. When she came on duty, it was learned that there was not sufficient staff to maintain the monitor nurse because one nurse who was going to come in had cancelled out and no replacement was yet available. She testified that she had a heavy workload that evening and that Miss Berges sent her and others to "cover" patients while she started to take night report. She said that the next thing that happened was that the arrest cart was going down the hall. Because she saw Mrs. McArthur go with the cart, she walked into the room where the expired gunshot wound patient was located to attend to matters there. She then carried on with her duties. She testified that the staff had been trying to document workload episodes in the unit because they believed there was a shortage of staff. She said the nurses at work that night, including Cathy Berges, Irene McArthur, and herself, concluded it had been an unsafe situation in the unit and that it would be worthwhile to take down documentation on how the patient died. This documentation was submitted to Mrs. Jan Dusek, their floor representative, the next day and, in turn, was given to the grievor, Mrs. Mancini. She testified that workload documentation was always written up and submitted to the floor representative responsible to deal with it. She testified that the document subsequently was discussed with a number of nurses including the grievor, Mrs. Dusek, Cathy Berges, Irene McArthur, Gladys Saxton, Sandy Soyko, the witness, and Laura MacPherson. It was her testimony that there were fourteen monitored patients that evening. She said it was left with the grievor to deal with the respondent and speak to Miss Low. She said she had not been approached by anyone in the respondent's management about the incident since she had submitted the documentation to the grievor.

20. Mrs. Irene McArthur testified that she has been an ICU nurse for the respondent for 11¼ years. She testified that, at the time of the incident, she was at the nursing station completing her nursing notes. She said that Miss Berges was there but with her back to the monitor. She said that she glanced up to the monitor and said to Miss Berges, "Look at the monitor". Miss Berges then exclaimed that the patient was in VT. She said that Mrs. Berges was otherwise engaged in paper work relating to the expiry of the gunshot wound patient. She testified that she and Mrs. Lennard then grabbed the arrest cart and proceeded to C3 west. She was concerned about the incident because there had been no full-time monitor nurse and it had been only fortuitous that supervisors were present to help out by manning the cart. She felt that a full-time monitor nurse may have been able to help in this situation but she was not sure how long the person had been in VT. She testified that all the nurses felt a sense of frustration and wished that they could have done more for the patient. She stated that no one could really say what would have happened had there been a full-time monitor nurse on duty and that this uncertainty bothered the nurses. She said she attended a meeting with the grievor a couple of weeks later when the incident was discussed. She further testified that from the date of the incident until the beginning of July she was not interviewed by any member of management about the matter. In August she was asked to write out a report for Miss Low and in this document she did not point out that she saw the patient's condition on the monitor first. Rather she wrote, "We noticed the patient on monitor appeared to be in ventricular tachycardia".

21. Cathy Berges testified. She was the charge nurse and at 23:00 had received a report from the outgoing charge nurse. Mrs. Booth was the monitor nurse on the earlier evening shift and Marjory Anne Rose was to be on monitor duty for Miss Berges' shift. However, when Miss Berges came on duty, she was told that a nurse had cancelled at the last minute and the hospital was looking for a replacement. Thus, Miss Berges' shift had one less nurse than the previous shift and she therefore took over the monitor after having put Mrs. Rose on the floor. Mrs. Booth stayed until 23:40 and ran strips for all of the monitors. Miss Berges reviewed the strips right after taking report in order to impress on her mind the normal patterns for the various patients. She testified that a junior nurse, Miss Rogers, was on the floor for her first night in the unit. Miss Berges gave her a quick idea of what the night routine was and, at about this time, Mrs. McArthur, who was looking after the gunshot patient, came out of that room to say that the patient was deteriorating rapidly. Miss Berges asked Miss Rogers to stay at the monitor while she went to examine the gunshot patient. She testified that she probably went into a number of other rooms at about the same time but very quickly. She returned to the monitor and asked Miss Rogers whether there was anything new and Miss Rogers replied in the negative. She testified that shortly after Mrs. McArthur came to the station and said her patient looked like he was really "going" and Miss Berges started to document strips of a dying heart. She also placed a call to the family of the gunshot wound patient. She testified that she then began looking for death certificate papers and was having difficulty finding them because the physical arrangement at the station was new. When she did manager to locate the forms, she turned around and saw the VT on the monitor. Miss Berges did not recall where Mrs. McArthur was at the time but Mrs. Butler was nearby on the telephone. She did not recall Mrs. McArthur drawing the VT to her attention. Miss Berges advised the people around her of the problem and went to the monitor to run a strip. She also called C3 west and someone there advised her that they were having a "terrible" time with the patient. She replied that the patient was in VT and that an arrest cart was being sent down. She dispatched Mrs. McArthur and Mrs. Lennard to C3 with the cart. Miss Berges said the nurses felt it was an unsafe situation because there was no full-time monitor nurse and because there were limitations on who could be sent with the arrest cart. She further testified that she was concerned that the VT was not discovered until it was already in effect. However, she estimated that there had only been a 60 second interval between her observations of the monitor. The incident caused the nurses sufficient concern to report it to the head nurse and document it for the complainant who would take it to Miss Low. She said a monitor nurse might have caught the VT more quickly and that one or two minutes could make a difference. In her view it would have been better to have had a monitor nurse on duty that evening but she hesitated to say that the patient would have received better treatment. She simply did not know. She testified that no one connected with the management of the respondent spoke to her from the time of the incident until July 4. She apparently was not contacted until August by Miss Low when she was asked to write up a report. This report reads:

April 30, 1980 2300-0700 Shift

11 patients in ICU

5 Registered Nurses

One nurse who had been called in was unable to come at the last minute.

Mrs. Irene McArthur looking after Mr. S. unconscious and in critical condition from a gun shot round.

Mrs. Chris Cheeseman and Miss Heather Rogers to care for remaining 10 patients. It was also Miss Rogers' first time on night shift in the General Hospital. Miss Marjorie Rose assigned to monitor duty was put on the floor.

Myself as charge nurse would watch the monitor until help could be obtained or when Mrs. McArthur's patient expired she would be assigned to monitor duty.

Report finished at about 2340. Mrs. Velda Booth watched the monitor during this time and ran monitor strips and read them for me. As Mrs. Booth went off duty she informed me to watch especially a Mrs. S on telemetry on another floor as her cardiac pattern would change at times.

I checked over the monitor strips comparing them with the monitor as to rhythm and rate.

At about 2355 or so Mrs. McArthur came to the desk to say Mr. S's condition was deteriorating.

Also Miss Rogers came to me asking about our routine on night shift. I quickly gave her a rundown of our duties. I wanted to look at some of the patients and especially Mr. S. I asked Miss Rogers to watch the monitor while I was gone - about 3-4 minutes. She reported no drastic changes in the monitor patterns when I returned.

I notified the family of Mr. S. that he was much worse. Looking at the monitor there were changes in Mr. S's pattern and I started running a strip. A call was placed to the night supervisors who said they were on their way up. They arrived in a couple of minutes and then Mr. S. expired shortly after. Miss Butler came to the desk to make several phone calls in regard to this death.

During this time, I remained in the desk area looking at the monitor every few minutes checking Mrs. S's pattern first. No undue changes were noted while I was looking for the required death forms that had to be filled out. I looked at the monitor and saw that Mrs. S. was in ventricular tachycardia. I went to the monitor and started running a strip and called the floor, telling the nurse her patient was in VT. and that I was sending down the arrest team. Mrs. McArthur and Mrs. Lennard ran to the floor while Miss Butler put in the arrest call.

The patient subsequently died despite treatment. When Mrs. McArthur returned to the floor and had cleared up matters regarding her previous patient, she took over watching the monitor at about 0200 hours.

This is about as accurate as I can recall the situation from memory.

(Miss) Cathy Berges, Reg. N.

Upon cross-examination, she agreed that the staffing situation that night was a temporary one. It was also expected that the gunshot wound patient would expire and that she would send Mrs. McArthur to look after the monitors. This was the plan in any event. She also testified that Mrs. Booth, the 3 - 11:00 monitor nurse, had advised her at the commencement of the shift that the patient on C3 was having some difficulty and therefore she was concerned about her and paid special attention to her monitor. She further testified that she had returned from the gunshot wound patient and replaced Miss Rogers at about 5 minutes to 12:00. She testified that at 12:00 a.m. she was running monitor strips for the gunshot patient just before he expired. She said that she did not tell any of the nurses at their meeting after the incident that she had been replaced by Miss Rogers and, in discussing the situation with the grievor, no mention was made of this fact. She also acknowledged that while she did not speak to anyone connected to the management of the respondent before August 4, 1981, the two supervisors, Mrs. Butler and Mrs. Lennard, who had been beside her at the time of the incident, may have given reports to Miss Low. Her final comments were that she was not asked to get the death certificates and that it was the responsibility of Mrs. Butler. However, she was just trying to help out and expedite matters. At the time she observed the rhythm on the monitor she was going back and forth in the desk area. Lennard and Butler were there as well.

22. Miss Anne Gribben, Chief Executive Officer, of the complainant, testified. She stated that the Assessment Committee report was the first report to arise out of professional responsibility clause. She stated that the complainant experienced many problems in trying to encourage the respondent to implement the recommendations of the report. She felt that the recommendations under the heading "Safe Patient Care" were very critical and needed immediate attention. She did not accept that the recommendations had been fully implemented after the renovation had been completed. She acknowledged that the meeting of June 16, 1980 was the first face to face meeting of the complainant with the respondent over the report although there had been considerable correspondence between the parties. The key recommendations over which the complainant had concern were the increase in base staff; cost of monitoring of patients; and the constant surveillance of the cardiac monitors. She said there had been assignments of other duties to the monitor nurse and in her view this was totally out of tune with the recommendations of the report. She agreed that the death of the patient in C3 west was not the key focus of the meeting. The matter was, however, raised and Miss Low indicated she had investigated and believed the person had received the best of care. She testified that some of the representatives of the complainant found Miss Low's explanation inadequate but no one challenged her version at the meeting, or indicated that the complainant was unsatisfied. Miss Gribben did, however, think that she had made it clear that the complainant did not accept the response of the respondent to the report and, indeed, she gave the respondent 48 hours to implement the required staffing pattern and the continuing surveillance of the monitor before she made the report public and referred it to the Minister. She further testified that Mr. Robinson told her that the respondent needed time because he had written to the Minister asking for an outside study of the problem. Miss Gribben indicated that the complainant was not interested in further study.

23. Miss Gribben described the press conference held on June 18. She chaired the meeting. She made an opening statement and submitted herself to questions. A reporter asked why the report was important and how the issues affected the public. She and other members of the complainant explained in general terms. They were then asked by the press if they were aware of any situation that had been unsafe. At this point, she and other representatives briefly touched on the death of the patient of C3 west. Miss Gribben said she was very concerned about mentioning the patient's death and to this extent down-played it. However, she thought it was important for the public to be aware of the situation although she tried to make it clear that the outcome may not have been different. In her view, mentioning the incident was "just another way to stress the need for concern for patient care". On cross-examination, she testified that she obtained her information from the grievor. She revealed that at no time was she familiar with the fact that Miss Rogers was put on the monitor during Miss Berges' absence. She said that she was under the impression that the monitor had been left unattended for five to ten minutes. In speaking with the nurses in the ICU, she said that it was very much in their minds that something else could have been done although, she stated, "we will never know". She also could not recall whether she was aware at the time of making the public statement that Mrs. Butler and Mrs. Lennard were at the nursing station near the monitors.

24. Mrs. Cathryn Mancini has been employed by the respondent since 1977. She was president of Local 26 at all times relevant to this matter. She testified that the day after the patient on the monitor expired (Mrs. S.), the floor representative got in touch with her about the concerns of certain nurses in the ICU. She asked the floor representative to get the information and get the nurses to compile a letter that they could meet about and discuss. She met with the affected nurses in the first week of May. At the meeting she was presented with a set of notes and she proceeded through them asking questions and making notes of her own. People at the meeting included Cathy Berges, Irene McArthur and Marjory Rose. She said they were concerned that the inadequate staffing would persist. She was told that the monitor nurse had to be taken away so that patients would receive adequate care elsewhere. Mrs. Mancini wanted to know what the charge nurse was doing when the incident was happening. She asked questions in this respect and added some information to the notes. Her impression from the meeting was that the nurses were very busy and that the charge nurse was under extreme stress because of the death of the gunshot wound patient. While her initial testimony was far from clear on the point, on cross-examination she testified that from the information she received, she "believed" that the charge nurse, Miss Berges, was in the desk area looking for forms and that as she was doing that, she turned and noticed the patient in VT. She claimed that this is what she meant in making the public statement that she did. Mrs. Mancini said she believed that Miss Berges did not see the patient go into an erratic rhythm. Mrs. Mancini asked the other nurses at the meeting if anyone had seen the rhythm when the VT commenced and no one had. Mancini then asked where the supervisors were at the time and was told that Mrs. Butler was on the telephone and they were not sure where Mrs. Lennard was except that she was not at the monitor. Thereafter, she arranged a meeting to discuss the concern with Miss Low. This meeting took place a couple of days later. At the meeting with Miss Low, Laura MacPherson and Gladys Katz were in attendance. The grievor had all the various notes she had taken before her and referred to the notes when she wanted to convey certain statistics to Miss Low. She told Miss Low that she had received some of the notes from nurses on the floor. Miss Low did not ask for copies of the notes but said that she would look into the matter and get back to Mrs. Mancini. Mrs. Mancini could not remember any reply by Miss Low until the meeting of June 16, 1980 when Miss Low said that she had investigated the situation and was satisfied that the patient had received adequate care. Miss Low advised that she had gone through the coroner's report and the patient's chart. Mrs. Mancini said it appeared that Miss Low was telling Mr. Robinson this for the first time and that he did not appear to be aware of the incident. The grievor stated that at the same meeting Miss Low went on to say that it did not matter that the patient had taken the telemetry equipment off to go to the bathroom. This comment undermined the Director's credibility with the nurses attending on the complainant's behalf in the sense that they concluded Miss Low did not understand the monitoring equipment properly and that she was confused. The grievor on cross-examination testified that she believed Miss Berges told her that she had a nurse watching the monitor while she was doing normal rounds but she was not advised who the nurse was.

25. The grievor could not repeat exactly what she said to reporters. However, it was her recollection she said the patient did not die due to a shortage of staff but that in another case it could be the direct cause of death. She did not recall saying that she could not "rule out" the patient's death because of a shortage of staff. Mrs. Mancini said virtually nothing throughout the major portion of the press conference and, indeed, was at the back of the room when Miss Gribben spoke. She denied that any attempt was made to sensationalize the patient's death. Her comments were in response to a question posed by the local media and at that point she was trying to "keep everything in its place". She said that she did not want the press to think "that the charge nurse was running around willy-nilly slapping the unit together". She thought it could have been "a lot worse" if she had told everything that was going on at the time. She testified that on June 19th when she was approached by Low she was only asked if she knew the patient's name. Low did not ask where the grievor got her information from and whether a proper investigation had been conducted. She said that there was no further attempt by the management of the respondent to investigate her conduct before a complaint with the College was laid. She testified that Miss Low spoke with her after the laying of the complaint and she recalled Miss Low saying that the grievor was "being used" by the Toronto head office of the complainant who wanted to make an example of the respondent. The grievor replied that she was "doing this for the nurses in the ICU and not for the good of [her] health". The grievor was cross-examined extensively on her statement to the press reproduced above as statement #1. She testified that she knew that Miss Berges had been replaced by Miss Rogers and in the public statement she was really referring to Miss Berges assisting with the death forms and thereby being distracted from the monitor. She denied saying that a patient died because a nurse left her post but admitted that she did not take any steps to have public reports to this effect corrected. She also could not explain where Miss Gribben got the impression that Miss Berges had been away from the monitor for "ten minutes" as was reported in the newspaper report set out earlier in this decision. She agreed, however, that "we were leaving it open to infer" the death was related to under-staffing. She further testified that when Gribben spoke about the death and a "5-10 minutes interval" she tried to get Miss Gribben's attention but, because she was located at the back of the room she was unable to do this. She ended her testimony by saying that at the time she spoke she believed what she said to be true and that she was never approached by the hospital to seek a retraction.

26. Mrs. Marilyn Lennard testified that she was one of the supervisors and has been a nurse for 29 years. She has worked in the ICU for 9½ years and has been a supervisor for 4 years. She was at work on April30, 1980 at 11:00 p.m. She was told that someone had phoned in sick for the ICU and that it was not possible to get a replacement as of that time. She was also told that they expected the gunshot wound patient to expire shortly. Indeed, the nurses on the earlier shift had expected him to die before 11:00 p.m. Soon into her shift her fellow supervisor, Mrs. Butler, received a call indicating that the gunshot wound patient was deteriorating. She and Mrs. Butler went upstairs to the ICU. They had a quick look into the waiting room for the relatives of this patient and then went on to the patient's room. On arriving there, a location which was directly across from the nursing station, Mrs. McArthur told them that the patient "had gone". Mrs. Butler then left the room and proceeded to the nursing desk where Miss Berges was located. Mrs. Lennard stayed back with Mrs. McArthur for a few moments and testified that as she crossed the hall to the nursing station she looked up to view the monitors and they looked normal. A telephone call was placed and, to the best of Mrs. Lennard's recollection, Miss Berges then looked at the screen and said that a patient was in VT. The arrest carts are kept at the nursing station and Mrs. McArthur and Mrs. Lennard grabbed the cart and proceeded to C3 west. Mrs. Lennard testified that it was a matter of seconds between the time she looked at the monitor and the time Miss Berges observed that there was a VT. When she and Mrs. McArthur arrived at C3 west, Mrs. Lewis was already in the patient's room and a Dr. Merrill came in just after Mrs. Lennard and Mrs. McArthur. A nursing assistant was also in the room and an orderly came in just behind the two supervisors. A full arrest procedure was undertaken and Mrs. Lewis had already commenced this procedure before anyone else had arrived. The patient, however, could not be saved. Mrs. Lennard believed that the patient got a faster arrest procedure than normal because Mrs. McArthur and herself were immediately at the nursing station. They did not have to be called. Because the patient had got up just before the incident to go to the bathroom, Mrs. Lewis and Mrs. Morrison, a registered nursing assistant, were immediately available as well. In fact, Mrs. Lewis and Mrs. Morrison knew something was wrong before they had received the call from Intensive Care. She testified that one of the nurses filled out an accident or incident report and no one connected with the matter mentioned that the procedure for the patient was less than adequate. She said that she did not know of any concern until she read about it in the newspaper. In her view a shortage of staff had no bearing on the patient's death. Mrs. Lennard did not see Miss Berges leave her post while she was at the nursing station and at the time of the incident, the gunshot wound patient was already dead. Therefore, she did not accept the grievor's public statement as an accurate or true representation of what actually occurred. Mrs. Lennard was not aware of all the written reports submitted to the grievor by the other nurses but she was the one supervisory nurse who would have known the most about that evening. Sometime after the incident was reported in the press following the complainant's press conference, she spoke to Miss Low and prepared a report for her dated June 20, 1980. Quoting from the report, we note the following narration of events pertaining to the monitors.

“Miss Berges was at the desk and Miss Butler and I standing at the desk, heard Miss Berges say that patient is in 'VT' on C3W. Mrs. McArthur who was no longer required to be with the gunshot wound patient and myself, grabbed the arrest cart and started running for C3W. Miss Butler called switchboard to say 'Arrest'. At the same time down on C3W, Mrs. B. Lewis apparently now was aware of the patient's condition and she called the arrest who arrived there immediately before Mrs. Lewis really had had time to do very much. The patient had a full arrest procedure done for almost an hour in which time Dr. Gruber had been contacted. The patient was intubated, shocked, brought back with a pattern, went on to lose the pattern, brought back again. Everything was done for the patient that could have been done for her and we were there for almost an hour, as I say.

Dr. Gruber was called twice during this time by Miss Butler and told of the patient's condition. The patient expired. Dr. Gruber came in and the coroner was notified. However, when Miss Butler and I were in ICU, if Miss Berges had been away from that monitor at any time, she was fully responsible for the monitor because she had sent the monitor nurse to look after a patient. She said the patient is in ‘VT’. She was standing at the monitor and said VT and that is when we ran. That patient got excellent care actually on C3W because we got there even faster than would have been if they had had to call an arrest and had the team go from there and then asked to be called from somewhere else, as we were both there, we could go right from the unit.”

Miss Low did not tell her why the respondent wanted a written report nor did she suggest that Mrs. Lennard speak to other ICU nurses in preparing the report.

SUBMISSIONS

26. On behalf of the respondent, it was submitted that the complainant had failed to establish that the complaint to the College had been filed, either in whole or in part, on the basis of an anti-union motive. He stressed that the respondent was concerned that there had been no basis for the grievor's public statements; that she had been told on at least two different occasions that this was the case; that the intent of the public statements was to dramatize or sensationalize the situation and discredit the respondent in order to achieve the complainant's political goals; and that the grievor had no direct knowledge of the incident. It was further submitted that the grievor owed a duty of loyalty to the respondent to the extent that if she was going to make a public statement that could potentially damage the respondent, the statement had to be accurate and correct. It was submitted that this was particularly so in light of the grievor's position as a professional. From this viewpoint, counsel submitted she shouldered a responsibility to be properly informed before speaking out. In support of the obligation of an employee to serve his employer with good faith and fidelity, the respondent relied upon Regina v. Fuller et al Ex parte, Earles and McKee, 1968 CanLII 326 (ON CA), [1968] 2 O.R. 564; Re U.E.W. Local 524 and Canadian General Electric Company Limited (1958), 9 L.A.C. 83 (Fuller). In support of the submission that an employee is not entitled to disparage his employer publicly, the respondent relied upon Re Office and Professional Employees International Union, Local 263 and Lord N. Burnham Company Limited (1972), 1972 CanLII 2008 (ON LA), 24 L.A.C. 218 (Hanrahan); Re Bell Canada and Communications Workers of Canada (1978), 1978 CanLII 3459 (ON LA), 22 L.A.C. (2d) 119 (Springate). In support of the submission that the grievor, as a union official, did not have an unfettered licence to disparage the reputation of the respondent, reference was made to Re Corporation of the City of London (1978), 1978 CanLII 3475 (ON LA), 19 L.A.C. (2d) 147 (Kruger); Re Chedore (1981), 1980 CanLII 3989 (CA LA), 29 L.A.C. (2d) 42 PSSRB, (MacLean); Re Firestone Steel Products of Canada (1975), 1975 CanLII 2068 (ON LA), 8 LAC (2d) 164 (Brandt); Arthur J. Stewart, 166-2-200, August 12th, 1975, PSS RB (Jolliffe), upheld 1977 CanLII 3158 (FCA), [1978] 1 F.C. 133; Robert Goyette and Gerard Guidon v. Treasury Board, 166-2-2914/2915, July 22nd, 1979, (Grant). Counsel for the respondent also drew the Board's attention to a number of American cases bearing on the issue. They included NLRB v. Electrical Workers (1953), 33 LRRM 2183 (USSC); Coca-Cola Bottling Works Inc. (1970), 186 NLRB 1050 (Miller); University of Southern California (1978), 349 CCH NLRB, 20,200.

27. On behalf of the complainant and grievor, it was submitted that the respondent had, by lodging the complaint with the College, sought to retaliate and prevent further public discussion on the Assessment Committee's report. It was submitted that the grievor, as a trade union official, had a statutory right (on the basis of section 3 and section 64 of the Labour Relation Act) to make public comment on the report as she did. The report, it was submitted, arose out of a provision contained in a collective agreement and was, therefore, a proper labour relations concern of the complainant association and the grievor as local president. Counsel to the complainant emphasized that the professional responsibility clause in the agreement between the complainant and respondent was a new concept in hospital collective bargaining and one that the respondent had opposed from its inception. Counsel further submitted that the Director of Nursing was very concerned about the complainant's threat to make the report public and that this concern culminated in the improper and unlawful actions taken by the respondent after the press conference was held. Counsel emphasized that the respondent itself failed to investigate the incident properly and that little purpose would have been served by the nurses or the complainant lodging another complaint under the professional responsibility clause. Finally, it was submitted on behalf of the grievor that the issue was not whether the grievor's comments were true or untrue but rather whether the respondent's actions were intended to punish the grievor for exercising a right under the legislation.

Decision

28. We find that the grievor spoke to the media as recorded in statement #1 above. We find that the grievor was. not aware that Miss Berges had been replaced by Miss Rogers when she went to see the gunshot wound patient and that her investigation led her to believe that Miss Berges noticed that Mrs. S. was in VT when she returned from seeing the gunshot wound patient. We further find that it was this perception of what happened that caused the grievor and the nurses with whom she conferred to be concerned in that Mrs. S.'s monitor may have been showing an irregular rhythm in Miss Berges' absence. We are also satisfied that the nurses on C5 were under considerable pressure at the time of the incident because of the absence of one nurse and the presence of the gunshot wound patient who required "one to one" attention. There can be little doubt that these circumstances, together with the death of two patients, magnified the existing concern over adequate staffing in the minds of the affected nurses. Understandably, any uncertainty in the minds of these employees over whether more could have been done to save the life of a patient would have caused significant personal frustration. We are satisfied the greivor received the full force of these frustrations at the meeting she held to inquire into the situation. We are also satisfied that the incident was raised in good faith and promptly with the respondent. The incident occurred on April 30. it was brought to the grievor's attention on May I. She held a meeting with other nurses soon after, and then scheduled a meeting with Miss Low on May 9, 1980. It was not, in our view, a “manufactured” concern aimed solely at supporting the complainant's efforts to have the Assessment Committee's report implemented.

29. However, the grievor's understanding of the incident was inaccurate and this inaccurate understanding was conveyed to Miss Gribben and the press. in fact, Miss Berges was replaced by Miss Rogers for that period of time during which she visited the gunshot wound patient and possibly a few other rooms. When she returned Mrs. S's monitor was normal and Miss Rogers did not report any problem. It was only after Miss Berges' return to the nursing station, and while she was looking for certain death certificate forms, that she observed Mrs. S. in VT. Having regard to the grievor's public statement and the testimony of her fellow employees and Miss Gribben, we cannot and do not accept the grievor's testimony that she was aware that Miss Rogers replaced Miss Berges. Miss Berges, in giving her testimony, was obviously concerned that she had not observed the commencement of the VT and obviously this was because she was not certain how long an interval had passed between observing the VT and preceding time she had looked at the monitor. She estimated sixty seconds but it may well have been longer and she could not be certain given the distractions at that particular time associated with the gunshot wound patient's death and her charge nurse responsibilities. It was this uncertainty that was conveyed to the grievor and not the precise facts surrounding Mrs. S.'s death. Mrs. Lennard testified that she had looked at the monitor only seconds before Miss Berges announced a VT and observed a regular pattern. She said she then looked at it again and when she saw the irregular pattern she drew it to Miss Berges' attention. Unfortunately, her note of June 20, 1980 provides none of this detail and the version contained therein was very incomplete if her testimony before this Board is accurate. Her recollection of first seeing the VT is also inconsistent with Miss Berges' testimony.

30. Having regard to all of these circumstances, we find that the interval between the observations of the monitor by any nurse was at least sixty seconds and could well have been an additional minute or two longer. However, the evidence suggests that even a full-time monitor nurse could reasonably let such an interval pass when performing other minor but normal duties and therefore the situation at that precise moment was not irregular. Moreover, we are satisfied that any short delay in discovering the problem was more than compensated for by the immediate availability of Lennard and McArthur to handle the arrest cart. Accordingly, any particular staffing problem experienced that night or any ongoing staffing problem of the kind examined by the Assessment Committee's report did not contribute to Mrs. S.'s death in our opinion. We are satisfied on the evidence that everything that could have been done was done.

31. It is true that a more complete inquiry by the grievor and complainant association may have led them to the same conclusion and avoided any adverse impact of the grievor's public statement on the respondent. It is also true that a complaint file by the complainant or grievor under Article 33 of the collective agreement would have caused an investigation that also may have arrived at the same conclusion. in both instances we have used the word "may" because the College conducted its own inquiry and came to the conclusion that the grievor's statement was "substantially correct". It is fair to assume that Article 33 was inserted into the agreement to provide an opportunity for fact finding in similar situations. In our view it is no answer, as submitted by the complainant's counsel, that a sencond report would have been of little value. It would have been of considerable value in demonstrating what actually occured on the occasion in question and would also have provided an opportunity for an outside body to examine the significance of the physical renovations to the earlier report. Instead, the complainant proceeded "full steam ahead" to its press conference and its attempt to put public pressure on the respondent to implement the complainant's interpretation of the Assessment Committee's report, a report that was recommendatory only and representing "a stimulus for reflection". It appears to this Board that the grievor was, by virtue of her office and the complainant's tactics, drawn into a situation over which she had very little control. It was Miss Gribben who first mentioned the incident involving Mrs. S. to the press and she gave a liberal interpretation of the grievor's inaccurate understanding which could have only heightened media interest. The grievor then compounded the problem by giving her version when asked.

32. However, we are satisfied that neither official (Gribben or Mancini) went to the press conference with the express purpose of mentioning the incident in that it was not part of Miss Gribben's initial presentation. The statement was made in response to questioning by media representatives and, after it was made by Miss Gribben, the grievor's comments were somewhat inevitable and possibly surplus. The grievor was, however, the source of Miss Gribben's information, and therefore, she cannot escape responsibility on this basis. We are also satisfied that when the grievor spoke she believed what she said to be accurate and any doubt that she had over what happened that evening was conveyed to the press by her use of tentative language. This language was picked up in many of the newspaper reports and other media presentations. There can be little doubt, however, that the incident was given to the press by Miss Gribben to dramatize the complainant's dispute with the respondent over the report and to bring public pressure on the respondent. The matter having been raised, it was somewhat inevitable that the grievor would be encouraged to make public comment as well. The issues before this Board are whether the grievor is entitled to the protection of the Labour Relations Act in having acted as she did and, if so, whether the respondent improperly attempted to interfere with the exercise of her freedom under the statute by filing the complaint with the College of Nurses.

33. Before proceeding to deal with these legal issues, the respondent's conduct needs greater analysis. The grievor raised an exceptionally important issue with Miss Low on May 9, 1980. Miss Low knew that the grievor was conveying the concerns of number of nurses who had been working in the vicinity of the incident and that they or the grievor had taken the time to record their concerns in writing. Miss Low also had to be aware of the ongoing concern of the nurses over the adequacy of staffing in the hospital in light of the Assessment Committee's report. Miss Low's actions and response fell considerably short of assuring the grievor and her fellow nurses that the concerns raised had been quickly and carefully reviewed. She did not ask for the notes in the possession of the grievor. She did not ask the grievor for the names of nurses she might interview. She did not say when she would get back to the grievor. On completing her investigation, Miss Low says she was satisfied. The investigation did not include personal interviews of many of the key nurses, particularly Miss Berges, and we are not certain on the evidence that even she knew, as of June 16, 1980, that Miss Rogers had replaced Miss Berges. She testified that she informed the grievor of her conclusion in a "casual" encounter in a hallway sometime before June 16, 1980 but, unsurprisingly, the grievor has no recollection of that chance meeting. If it occurred, it was not a satisfactory way to respond to such a serious complaint. An informal response of this kind can easily lead to a misunderstanding over the completeness and relibility of the respondent's investigation. Miss Low's response at the June 16, 1980 meeting was not much better. By failing to detail her understanding of the incident and who she had contacted she left questions surrounding the accuracy of her understanding. Indeed, there is the distinct possibility that the Executive Director of the hospital was not aware of the charge until June 16, 1980. Thus, "two sides" or two versions of the incident were allowed to challenge each other. In our view, it is in the respondent's interest to avoid the filing of complaints under Article 33 if at all possible, but the provision of so few details as in this instance can only encourage the formalization of such grievances.

34. In considering whether the grievor's actions are protected by the Labour Relations Act regard must be had to section 3 and 64. They provide:

35. Every person is free to join a trade union of his own choice and to participate in its lawful activities.

36. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall paritcipate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

37. There is no doubt that a substantive protection for the legitimate activities of trade unions flows from these sections. In Valdi Inc., [1980] OLRB Rep. Aug. 1254, the Board was confronted with the discipline of a union steward for, as the Board found, pursuing the grievance of a fellow employee who had been discharged. In finding that the grievor was exercising a statutory right by her actions as a union steward and that the respondent had intended to interfere with this right, the Board wrote:

In our view, the absence of previous conflict between Dragon and the Grievor; the grievor's good relationship with her immediate supervisor, Keith Walker; the grievor's superior job performance; and the fact that her dismissal followed on the heels of her actions as union steward in the Carol Etserig matter, all go against Dragon's assertion that he had simply got up the nerve to implement the previous advice of Messrs. Ludgns and Black. The grievor's proper actions as union steward are not only supported by the collective agreement between the parties but by section 3, 42, 56, 58 and 61 of The LabourRelationsAct. The grievor, Local 175 and the other employees in the bargaining unit all have statutory rights to this effect. The grievor has a statutory right to act as she did. Her fellow employees have a statutory right to be so represented. And Local 175 has a statutory right to have employees act as union stewards on its behalf. In our view, these rights are fundamental to effective collective bargaining and contract administration. See J. Harris & Sons Ltd. et al (1960), 60 CLLC ¶16,177.

36. A similar approach to section 3 was elaborated in Imperial Tobacco Products (Ontario) Limited, [1974] OLRB Rep. July 418 where at paragraph 25 it was stated:

In the alternative, the Board rules that it was proper to join the individuals and employer based upon the allegations of conspiracy to defeat rights of the complainants under the Act. Surely if an individual or employer assists or causes a trade union to act contrary to the requirements of section 60, that individual or employer is a proper party to the proceedings based upon that section under section 79. In this regard, the National Labor Relations Board has held that an employer and a trade union will be jointly and severably liable where both have discriminated against an individual and the fact that the employer yielded to union pressure does not appear to be a defense. (Imparato Stevedoring Com­pany and International Brotherhood of Longshoremen, 113 NLRB 883; H. Milton Newman et al and Local 456, Teamsters, 85 NLRB 725). Surely the wording found in section 58, 61 and 79 is broad enough to embrace such a theory of liability.

For instance, section 3 of the Act provides that "[e]very person is free to join a trade union of his own choice and to participate in its lawful activities." One lawful activity must be the enjoyment of rights derived under a collective agreement as these rights are administered by the trade union bargaining agent subject to the requirements of section 60. (For a somewhat similar use of section 3 in relation to the right to strike see: Regina v. Canadian Pacific Railway Co. (1961), 1961 CanLII 431 (ON HCJ), 31 D.L.R. (2d) 209 at p.218 and C.P.R. Co. v. Zambri (1962), 1962 CanLII 11 (SCC), 34 D.L.R. (2d) 654 at p.664). Section 60 provides that the trade union must "not act in a manner that is arbitrary, discriminatory or in bad faith" in regard to such people. It is therefore possible to say that a person has a right to participate in these lawful activities of a trade union (ie) enjoying the rights derived from a collective agreement, without being dealt with in an arbitrary, discriminatory or bad faith manner, and accordingly, if an employer assists a trade union in violating its duty under section 60 it can be argued that the employer may be in violation of any or all of the subsections of section 58. Similarly, where individuals cause or assist a trade union to violate its duty under section 60 it can be argued that section 61 has been violated in that the actions of those individuals have coerced someone "to refrain from exercising any other rights" under the Act. Moreover, it could be argued that the same actions have coerced the trade union "to refrain from performing any obligations under the Act." And, a remedy for both of these alleged violations could be sought under section 79(l)(a) and 79(4)(a).

37. A recent judicial recognition and application of the rights flowing from section 3 is found in Re United Steelworkers of America, Local 2900 and Inglis Ltd. (1977), 1977 CanLII 1207 (ON HCJDC), 77 D.L.R. (3d) 722. In that case a board of arbitration found that a union steward had grossly misconducted himself by urging employees to perform below the required level of performance. However, the grievor had been discharged and the board considered that penalty overly severe. It therefore reinstated the grievor on the condition that he could not hold union office for a fixed duration. In quashing the imposition of that condition, the Court relied upon section 3 and section 64 (then section 56) in writing:

Since the decision of the Supreme Court of Canada in McLeod et aL v. Egan et al., 1974 CanLII 12 (SCC), [1975] 1 S.C.R. 517. 46 D.L.R. (3d) 150, 2 N.R. 443 sub nom. Re MacLeod, it is no longer in doubt that the principle which allows an arbitrator to construe a collective bargaining agreement in a sense which the words thereof will reasonably bear regardless of whether the reviewing Court would reach the same conclusion does not apply to the construction of a public enactment such as a statute or a by-law. No "curial deference" to use Laskin, C.J.C.'s arresting phrase, will be accorded such a construction when the reviewing Court construes otherwise. We are of the opinion, therefore, that if the learned arbitrator thought that he was justified by the provisions of s.37(8) of the Labour Relations Act in imposing the penalty he did which was not specifically provided for in the collective bargaining agreement, he erroneously failed to apply the provision fo s.3 which guarantee to the grievor the right to participate in the lawful activities of his union, and of s.56 in compelling the employer to interfere in union representation by accepting a self-denying undertaking from him.

He had no juridiction to do this and accordingly the award must be set aside and the matter remitted to the learned arbitrator to proceed in accordance with the principles enunciated by the Court. Since the difficulty arose, as we respectfully suggest, of the learned arbitrator's own motion as it were, we think there should be no costs.

38. The Supreme Court of Canada has also recently considered the effect of a statutory provision resembling section 3 in Gralewicz v. The Queen, 1980 CanLII 43 (SCC), [1980] 2 S.C.R. 493. In that case, the accused had been charged with conspiring to effect an unlawful purpose contrary to section 423(2)(a) of the Criminal Code, in that they had prevented members from engaging in the lawful activities of their trade union contrary to section 110(1) of the Canada Labour Code. That section provides:

Every employee is free to join the trade union of his choice and to participate in its lawful activities.

The Court allowed an appeal by the accused and restored the order of the Provincial Court judge quashing the information on the grounds that it did not disclose an offence known in law. The majority of the Court held that “… to prevent members of a union from participating in the lawful activities of their union is not necessarily unlawful…” since there was no explicit provision of the Canada Labour Code upon which a prosecution could be based for preventing members of a trade union from participating in the lawful activities of their union. The Court noted that the general prohibitions set out in section 186 of the Code related to union membership only, and did not refer to participation in the lawful activities of a trade union. Furthermore, the information charging the accused did not relate to the offences set out in section 184 and 185 of the Code which prohibit certain conduct by employers and trade unions. It appears that the Supreme Court of Canada has found that section 110 of the Code cannot be violated, but that the rights created by that section are protected by the specific unfair labour practice sections of the Code. The right to participate in lawful trade union activity under the Canada Laobur Code is not unlimited, and interference with that right is violation of law if another section of the Code provides a protection for that right. The minority judgment of the Court recognized the limitation of the Canada Labour Code at page 497:

Section 110 of the Canada Labour code confers rights upon employees to join trade unions and participate in their lawful activities. ... it may be doubtful if any effective sanctions for the enforcement or protection of such rights appears in the Canada Labour Code...

but held that the Criminal Code provided the necessary provision to create an offence for interfering with that right. The Ontario Lbour Relations Act differs from the Canada Labour Code in that it contains the "effective sanctions" against interference with the rights created by section 3 in, among others, sections 64, 66 and 70. Sections 66 and 70 provide in part:

60. No employer.., or person acting on behalf of an employer…

(a) shall.. discriminate against a person in regard to employment because the person was or is... exercising any other rights under this act....

(c) shall seek by threat of dismissal or by any other kind of threat, orby the imposition of a pecuniary or other penalty, or by any other means to compel an employee.., to cease to exercise any other rights under this Act."

70. No person.., shall seek by intimidation or coercion to compel any person... to refrain from exercising any other rights under this Act.

[emphasis added]

Thus, the right created by section 3 is protected from violative conduct through sanctions set out in other sections of the Act. (See also Frank Manoni and Labourers' Union, Local 527, [1981] OLRB Rep. Dec. 1775.)

39. On the other hand, these statutory protections are not unlimited. An employee is not entitled to immunity from dismissal or discipline because he or she is a union adherent. See Swing/me of Canada Limited, [1971] OLRB Rep. 765. For example, where an employee engaged in organizing activity on behalf of a union also engaged or was believed to have engaged in the threatening of other employees, the resulting discipline issued by the employer was held not to be contrary to the Labour Relations Act in Toronto Star Limited, [1971] OLRB Rep. Sept. 582. A not dissimilar limitation to certain rights and freedoms under the statute is revealed in Kitchener-Waterloo Hospital, [1977] OLRB Rep. Feb. 112 where a strong supporter of a trade union asked to consolidate her two 15-minute coffee breaks and her half-hour lunch break so that she could be away from work 11:00 a.m. to noon to take part in a protest against the Anti-Inflation Program. In dismissing the complaint the Labour Board framed and resolved the issue in the following manner:

40. Having reached this point we now turn to the issue of whether or not the respondent violated section 58(a) of the Act by first denying the grievor's request to alter the timing of her work breaks so as to allow her to attend a demonstration against the anti-inflation program even though it probably would have granted a similar request for certain other purposes, and by then refusing to reinstate her when she left work despite a warning that to do so would result in the termination of her employment. Section 58(a) states as follows:

“58. No employer, employer's organization or person acting on behalf on an employer or an employer's organization,

(a) shall refuse to employ or to continue to employ a person; or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;”

12. As noted above, we are of the view that the position adopted by the respondent with respect to the grievor's request was not aimed at severing her employment relationship with the respondent because of her activity on behalf of, or any possible membership in, a trade union. Thus if a breach of section 58(a) has occurred it must be because the respondent has either refused to continue to employ or refused to reinstate the grievor because she was exercising some other right under the Act. Counsel for the complainant argued that such a right was the right of the grievor pursuant to section 3 of the Act to participate in the complainant's lawful activities. The lawful activity involved, he submitted, was the demonstration against the anti-inflation program.

13. Attending a demonstration against the anti-inflation program is, of course, a lawful activity. However, what the Board in reality is being asked to hold in this case is that the right to attend such a demonstration during regularly scheduled working hours is an activity protected by The Labour Relations Act. This we decline to do, even on the assumption that a demonstration is a union activity within the meaning of section 3 of the Act. While employees certainly have the right to participate in lawful union activities, this right does not go so far as to put a positive obligation employers to alter established work schedules so as to facilitate this participation. Further, the mere fact that an employer may voluntarily agree to change work schedules for certain specific purposes does not have the effect of creating a general obligation upon him to do so. Just as the respondent was free in this case to refuse a request by the grievor to have breaks consolidated so as to allow her the time to attend a political rally or a social event, so it was also free to disallow the change where she wanted to attend a union sponsored activity.

14. Thus, legitimate employer interests are not swept aside by the legislation. The legislation must be interpreted in the context of an employment relationship and the reciprocal responsibilities of such a relationship. In many cases, indeed most, the accommodation is made on the basis that the requisite unlawful intent of the employer is absent when he is seeking to protect a legitimate interest. Swing/me, cited above, is a locus classicus in this regard. But this is not always the case. Sometimes the very actions of the employee to which the employer objects are alleged to constitute union activity which is protected by the statute. In these cases, some balancing of interests by this Board in light of the purposes of the Labour Relations Act is required in order to ascertain the limits of the employee or employer freedom claimed. Kitchener- Waterloo Hospital, supra, falls more directly in this category of cases. Fortunately, this Board has not been confronted with a great number of such cases.

15. One of the Board's cases closely resembling the situation before us in The Board of Health Northwestern Health Unit, [1971] OLRB Rep. April 256. There the grievor was a member of the union's negotiating committee which had reached an impasse in negotiation with the respondent health unit. She was instrumental in presenting a brief to the Town council which was reported in the local newpaper, a direct consequence of which was the immediate removal of a certain individual, a chairman of the health unit. The grievor was dismissed for participating in the presentation and sought relief before this Board. It was established that contents and presentation of the brief were never submitted to the membership for approval although the international representative and local union president concured in both. Others on the negotiating committee knew of the brief and understood it "merely as a lever to pry the Board (e.g. the respondent) into fairer negotiations on its part." Unfortunately, the Board's decision does not detail or dwell on the particular contents of the brief. The employer's representative, however, stated that "when she took it upon herelf to represent all of the employees of the health unit and make a statement in the open Dryden Council meeting that was defamatory if not libellous and full of untruths - I just couldn't put up with this". He also felt that the brief should have been initially presented either to the health board or its chairman or to himself. However, the Board did not have to balance the grievor's interest as a union official in speaking publicly on collective bargaining matters against the duty she owed her employer to serve with good faith and fidelity nor did it have to assess the precise content of the brief because of the conclusions (a) that she was not acting on behalf of the complainant trade union and, therefore, (b) the actions for which she was dismissed did not constitute union activity. We might point out that federal public sector cases have come to a somewhat similar conclusion when union officials speak publicly on matters outside the restricted scope of collective bargaining. See Re Stewart and Treasury Board, File 166-2-200, upheld 1977 CanLII 3158 (FCA), [1978] 1 F.C. 133; and Goyette et al and Treasury Board, File Nos. 166‑2‑2914 and 2915.

16. To the extent that the Northwestern Health Unit case seems to require that every action of a union official be submitted to the membership in order to trigger the status of union activity under the Act we would decline to follow it. While there may be circumstances where a union official would clearly be on a "frolic" of his own, the Act specifically recognizes by section 88(2) the concept of "scope of authority" with respect to the everyday action of trade union representatives. We decline to hold that the grievor before us, Mrs. Mancini, was not representing the complainant association in attending the press conference and making the statements that she did. She and the complainant were interested in the implementation of the Assessment Committee report which was a report prepared under the terms of the collective agreement between the parties. The report and the concerns of the grievor related to staffing. Staffing is a legitimate employee concern particularly in the context of nursing. Such issues have given rise to significant grievances and arbitral responses. See Re Mount Sinai Hospital and Ontario Nurses' Association (1976), 1976 CanLII 2118 (ON LA), 13 L.A.C. (2d) 103 (Brandt). Nurses, as are other health care professionals, are legally accountable for their actions and can be joined in negligence actions arising out of inadequate patient care. See W. D. Griffiths, Q.C., Claims For Contribution or Indemnity as Between Hopitals, Doctors and Others, [1963] Lectures L.S.U.C. 237. M. W. Ross, The Nurse as an Employee in S. R. Good and J. C. Kerr, Contemporary Issues in Canadian Law For Nurses (1973) c.10; H. Krever, Libility for Negligence in S. R. Good and J. C. Kerr, Contemporary Issues in Canadian Law For Nurses (1975) c.11. We would also accept that, because of the involvement of patients, the matter was of potential interest to the public and it was this overlap in interest that the union officials sought to exploit. We must consider whether statements that seek to involve the public (as opposed to more inwardly directed statements at employees or the employer) constitute a protected lawful activity of a trade union under the Act and, if so, whether the precise content and circumstances of the grievor's statements in the context of this collective bargaining relationship support her claim for statutory protection. We specifically reject the notion that statements must be "timely" to be even considered as trade union activity. Conduct giving rise to this type of problem can reasonably arise during an organizing drive: during negotiations; during grievance meetings; and on other ad hoc occasions. A collective bargaining relationship is an ongoing relationship. The adoption of timeliness considerations in analyzing alleged union conduct would create artificial rules quite inconsistent with the dynamics of collective bargaining.

17. In considering the issues before us a number of approaches are possible. One approach might be to hold that public disparagement of an employer is inconsistent with an ongoing employment relationship and never a lawful activity under the Act worthy of protection. This approach would seek to discourage attempts by trade unions to involve and inform the public although it would only do this in respect of employees. Full time union officials could carry on such efforts subject only to the laws of libel, slander and defamation. There would also be the problem of the press reporting statements directed to employees and the general interest of the public for explanations of particular industrial disputes. At the opposite extreme is the option of permitting employee union officials an unlimited licence to speak publicly about an employer provided the statements relate in some general way to the collective bargaining relationship. This approach would assume that employers could adequately respond in kind and that anything short of such total protection would have an undue "chilling effect" on this type of union activity. An employer could still try to invoke the sanctions available to him in the civil courts and, in doing so, our courts would have to consider the relationship between statutory collective bargaining laws and the laws of libel and slander. In between these two polar positions are a variety of other options. This Board could impose procedural requirements of internal discussion and investigation by the parties before recourse is made to public statements. There might be the limitation that only true statements are to be made publicly with the risk that a statement is untrue residing with the maker. There might also be an approach protecting heated rhetoric and public statements made without malice. This latter approach would not protect statements known to be untrue or made recklessly without concern for truth or falsity but would seek to accommodate the fragile nature of speech rights and the inevitable emotions associated with labour relations.

18. Arbitration cases have, on a case by case basis, grappled with similar problems and have devised a number of useful principles. The court in Regina v. Fulleretal, Exparte Earles and McKee, 1968 CanLII 326 (ON CA), [1968] 2 OR. 564, reviewing an arbitration award, emphasized that an employee is under a duty to serve his employer with good faith and fidelity and not deliberately do something which may harm his employer's business. Public vilification of an employer and its officers by individual employees does not have to be tolerated. See Re Office and Professional Employees International Union, Local 263 and Lord & Burnham Co. Ltd., supra. Physical obstruction in the form of picketing "ostensibly" for the purposes of informing others, but in fact designed to impede employees at a secondary location, can be reacted to by an employer in the form of discipline. See Re Bell Canada and Communication Workers of Canada(1978), 1978 CanLII 3459 (ON LA), 22 L.A.C. (2d) 119 (Springate). See also Re Edmonton General Hospital and United Nurses Association (1980), 1980 CanLII 4003 (AB GAA), 26 L.A.C. (2d) 393 (Anderson) where improper activity arose out of a public statement, A balancing of interests was undertaken by the arbitrator where an employer set limits on the freedom of its employees to speak out because of the particularly sensitive nature of the employer's business. This most interesting case arose in the context of the War Measures Act R.S.C. 1970 c. W-2 when the Canadian Broadcasting Corporation imposed guidelines on its employees involving themselves publicly in the related political controversy. See CBC and NABET(1974), 1973 CanLII 2022 (ON LA), 4 L.A.C. (2d) 263 (Shime). In concluding that the directives were permissible but with limitations the arbitrator wrote:

In the instant case we are concerned with an employer involved in an enterprise which differs considerably from the normal manufacturing plant. It is involved in communications which is a sensitive area. For example, in presenting a news broadcast whether by radio or television, the CBC must be conscious of its impartiality, and it is therefore of legitimate concern that the person communicating the news maintain an integrity that neither impairs the CBC's attempts at impartiality, nor its image of impartiality. That is not to say that there is not a subjective element in many news programmes-but nonetheless, we are prepared to take notice that there is an attempt to maintain an objective and impartial presentation of news. It is in areas such as this that the CBC has a real and direct concern.

The problem, of course, is to what extent can the interests of the CBC encroach upon the personal lives of the employees. Where is the line to be drawn? We do not think, for example, that the interests of the CBC in maintaining the image of impartiality would extend to interfering with the political rights and freedoms of the machinists, wiremen or mechanical riggers in this bargaining unit. In those situations there is no legitimate or substantial reason for the employer to impose restrictions on employees who publicly engage in political controversies. The CRC has no further rights in these situations than the ordinary private employer. The issue is not whether the CRC will be embarrassed because some of its employees engage in political controversy.

Dealing with the Canadian Bill of Rights, Mr. Shime, Q.C. observed:

In another context the parties have presented argument concerning the relationship between the Canadian Bill of Rights, R.S.C. 1970, App. III (hereinafter referred to as the Bill of Rights), and the collective agreement. To some extent that argument is allied with the reasonableness of the rule. The values expressed in the Bill of Rights are indicative of not only prevailing community attitudes, but beliefs and values very strongly woven into our national fabric and to the extent therefore that an employer seeks to encroach on all those values it must have very cogent reasons for so doing. In this respect the Bill of Rights suggests a standard against which the reasonableness of the policy directive may be measured, and in our view suggests that there should be some limitation on the scope of the directive in so far as its reasonableness is concerned.

We point out that our determination to this point is only as to the reasonableness of the directive. Whether the company may properly discharge or discipline individual employees is subject to arbitration and the just cause provisions of the collective agreement.

The case, of course, did not assert nor did it concern any alleged right of individual employees under the Canada Labour Code to speak out on "political matters" but it is illustrative of an arbitral approach dealing with conflicting interests similar to those before us in this case. See also Re Air Canada and Canadian Air Line Employees' Association (1980), 27 L.A. C. (2 d) 289 (Simmons). See also Ministry of the Attorney General and British Columbia Government Employees' Union, August 7, 1981 (J. M. Weiler) dealing with the so-called right to "blow the whistle".

45. Considerably more relevant are those arbitration cases where trade union officials have been disciplined or dismissed for engaging in heated rhetoric or public statements of an adversarial flavour. In Re Firestone Steel Products of Canada and United Automobile Workers, Local 27 (1975). 1975 CanLII 2068 (ON LA), 8 L.A.C. (2d) 164 (Brandt) a union steward pursued an employee's grievance in a vigorous, heated and profane manner for which he was disciplined. In overturning the discipline the arbitrator characterized the steward's behaviour as insulting but not insubordinate "for it is not necessarily to be expected that a union commiteeman possess the charm and diplomacy of someone differently situated". He found it was not the grievor' s purpose to threaten the supervisor. He had simply become angry and started to shout and swear when the supervisor refused to argue the matter. A similar result under similar circumstances was obtained in Re Ormet Corporation and International Union of Disctrict SO, United Mine Workers of America (1970), 54 L.A. 363 (Williams). In upholding the grievance, the arbitrator outlined his understanding of the correct arbitral approach in writing:

Arbitrators carefully uphold the right of Union representatives to speak freely at Company-Union meetings. I can find no decision where discipline of an employee for words spoken as a Union representative to a Company official at a Company-Union conference, has been upheld. While the Grievant's words were harsh and unnecessary, they were spoken in the course of the Grievant's performance of his duties as a Union representative, and they were not intended to be personally abusive toward the Supervisor. During the meeting, the Company and Union representatives met as men of equal stature for the purpose of discussing the business at hand, rather than as superiors and subordinates. The very nature of the collective bargaining process is that an employee who is designated as a Union representative must be free to discuss Union matters as though he were not a Company employee. Otherwise, an employee would be inhibited in the performance of his duties as Union representative, by fear of discipline for the use of strong language. Furthermore, the Grievant's words were heard by no one outside the room, and possibly not even by Bourque himself; there was no adverse effect on production, and no affront to managerial authority.

The company is correct in saying that Company - Union meetings should be conducted in an orderly and gentlemanly manner. But as a practical matter of industrial life, they frequently are not. Tempers flare, voices are raised, and profanity is frequently used by both sides in the give-and-take atmosphere of such meetings.

In Re Corporation of the City of London and London Civic Employees Union, Local 107 (1978), 1978 CanLII 3475 (ON LA), 19 L.A.C. (2d) 147 (Kruger) a local union president was disciplined because of a series of articles in the union's newspaper authored by the president and which the employer alleged to be defamatory of its personnel director. The articles had been written in relation to a recent change in sick leave policy to which the union took vigorous exception. The majority of the board of arbitration set aside the discipline holding that, with respect to the excesses in the articles directed at the personnel director, the grievor should have been given the opportunity to apologize publicly. In the board's view, this would have been more appropriate under circumstances where there was no evidence to support the charge that the director was harmed or that labour relations was harmed. Describing the wider latitude in permissible speech of union officials, the majority stated:

The Board also accepts the position adopted by other arbitrators that union officials have somewhat wider latitude in permissible speech than other employees when they are acting in their capacity as union officers. The union is by nature a combat organization. Its relationship with management must be in large measure adversarial. Leaders of unions must at times be belligerent toward management and at other times must stir up their troops for combat. Unions depend in large measure on volunteers from among the rank and file members to provide leadership. Their ability to lead cannot be unduly restricted because of their employment relationship with the firm with whom they deal on behalf of the union.

The decision on the permissible limits of free speech must be judged on a case-by-case basis.

46. One of the most helpful Canadian arbitratrion cases in Re Burns Meats Ltd. and Canadian Food and Allied Workers, Local P139 (1980), 1980 CanLII 4012 (ON LA), 26 L.A.C. (2d) 379 (M. Picher). In that case the company had discharged the grievor because of what it considered false and defamatory statements about two company officers which he printed in a union newsletter in the course of his duties as chief steward of the union. The public statements were made by the grievor in interpreting the company's conduct with respect to a recent arbitration hearing. While the actual statements objected to are not reported, it is clear that he took exception to the company's bona fides in contesting the grievances. In developing a framework of principles against which to review the facts before it, the majority of the board of arbitration canvassed many of the key American cases that have arisen in the context of The National Labor Relations Act and adopted the test in that country laid down in Linn v. United Plant Guard Workers of America, Local 114 et al (1966), 383 U.S. 53 to the following effect as reported at pages 62 and 63.

We acknowledge that the enactment of s. 8(c) [of the National Labor Relations Act] manifests a congressional intent to encourage free debate on issues dividing labor and management. And, as we stated in another context, cases involving speech are to be considered "against the background of a profound … commitment to the principle that debate.. should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks." New York Times Co. v. Sullivan, 376 U.S. 254,20(1964). Such considerations likewise weigh heavily here; the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth. But it must be emphasized that malicious libel enjoys no constitutional protection in any context.

This test is accepted and applied by both the NLRB and the courts in related civil matters. The board in Burns Meats Ltd. went on to state the approach it thought Canadian boards of arbitration ought to follow in similar terms. At pages 386 and 387 it stated:

While generally a company may be entitled to expect a degree of faithfulness and respect from employees in statements which they make after working hours, it is clear that an employer cannot hold employees to a standard of unquestioning loyalty, especially where union business is concerned. It would be unrealistic not to expect that a union steward will, whether in a speech or a newsletter, occasionally express strong disagreement with the company and its officers, and do so in vivid and unflattering terms. Being at the forward edge of encounters with management, the shop steward becomes particularly vulnerable in the area of discipline. One study has found for example, that one-third of all disciplinary cases involving union stewards are for insubordination: see W. L. Leahy, "Arbitration and Insubordination of Union Stewards", 27 Arb. J. 18 (1972). This is substantially higher than the rate to be found among employees generally: see Adams, Grievance Arbitration of Discharge Cases, supra, p. 45.

If union stewards are to have the freedom to discharge their responsibilities in an adversarial collective bargaining system, they must not be be muzzled into quiet complacency by the threat of discipline at the hands of their employer. In our view the principles developed by the arbitral awards canvassed above and by the Court in the Linn case disclose the standard to be applied. The statements of union stewards must be protected, but that protection does not extend to statements that are malicious in that they are knowingly or recklessly false, The privilege that must be accorded to the statements of union stewards made in the course of their duties is not an absolute licence or an immunity from discipline in all cases. A steward who openly exhorts employees to participate in an unlawful strike obviously cannot expect that his union office will shield him from discipline for his part in engineering the breach of both a collective agreement and the Labour Relations Act, R.S.O. 1970, c. 232. Similarly, a steward may not use his union office and a union newsletter to recruit and direct employees in a deliberate campaign to harass a member of management: Re City of London, supra. Conduct so obviously illegal or malicious is outside the bounds of lawful union duty and can have no immunity or protection.

[my emphasis]

Applying this approach to the facts before it, the Board found that the grievor honestly believed what he said to be true although the board in no way endorsed his style or choice of words. The board concluded by writing (at page 389):

While the feelings of Mr. Anderson and Mr. Goetz in response to the newsletter are understandable, and the board in no way endorses the grievor's style and choice of words, the newsletter and the steward's account of the arbitration must be seen for what they are. Any union newsletter is in part a political pamphlet. It cannot be held to the standards of fairness and accuracy of a more disinterested publication. It should come as no surprise to the company that the union's account of the arbitration should be slanted in such a way to bring credit upon itself at the expense of the company and its officers. A thick skin has its place in industrial relations, and those who participate on either side must not be surprised to occasionally find themselves on the receiving end of a stinging verbal blow. Short of malice, such statements must be tolerated. Moreover, the company and its officers in this case were not entirely without recourse. If the company felt that the events had been critically misrepresented by the union it was free to publish and circulate to the employees its own account of what happened and the reason for what its officers said.

47. The statement of principle adopted in Burns Meats Ltd. can be traced in the United States from such early private sector cases as NLRB v. Electrical Workers (1953), 33 LRRM 2183 (Jefferson Standard case) to the more recent public sector equivalents such as in Pickering v. Board of Education (1967), 391 U.S. 563. See, for example, Lynd, Employee Speech in the Private and Public Workplace: Two Doctrines or One?(1977), 1 Indus. Rel. L. J. 711. If a trade union official publicly attacks an employer on non-labour relations issues, he breaches the duty of good faith and fidelity and the Jefferson Standard case supports the imposition of discipline or discharge. This is so even when the attack is to achieve a collective bargaining goal. See Coca-Cola Bottling Works, Inc. and Retail, Wholesale and Department Store Union, AFL-CIO (1970), 186 NLRB 1050. But if the statements relate to collective bargaining matters and are made without malice, the activity is protected under the National Labor Relations Act. It seems clear to us that an approach requiring malice draws its rationale out of a concern for the delicate nature of public comment. As noted in New York Times Co. v. Sullivan (1964), 376 U.S. 254 at 279:

A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions - and to do so on pain of libel judgments virtually unlimited in amount - leads to a comparable "self-censorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. See, e.g., Post Publishing Co. v. Hallam, 59 F 530, 540 (C.A. 6th Cir. 1893); see also Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875, 892 (1949). Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone". Speiserv. Randall, supra, 357 U.S. at 526. The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.

48. It might be questioned why there should be any statutory or arbitral protection for public statements causing an employer rightful concern. It can be argued that public statements "politicize" collective bargaining and are inconsistent with the peaceful resolution of private contractual disputes. By providing protection, some persons may be encouraged to employ such tactics with an adverse affect on industrial peace. Unfortunately, as compelling as this argument may be, collective bargaining can impact the public and vice versa. This is particularly the case in public sector collective bargaining where there is often a clear nexus between public funds and collective bargaining issues. Accordingly, employers as well as trade unions often feel it necessary to speak out and inform the public about collective bargaining issues. Indeed, communication to the public in order to inform and gain support is the essence of picket line activity. And while each situation must be judged on its own peculiar facts, employers can also claim a statutory privilege under section 64 of the Labour Relations Act to speak out. See, for example, The Journal Publishing Company Ottawa Ltd., [1977] OLRB Rep. June 309 at 321; and Canada Cement Lafarge Ltd. v. United Cement, Lime & Gypsum Workers International Union, Local368 (1980), 80 CLLC ¶16,075 at 14,662 et seq. Labour boards have been reluctant to involve themselves as the censor of public statements made in the context of collective bargaining negotiations on the understanding that such tactics have come to be part and parcel of that process. See The Journal Publishing Company Ottawa Ltd., supra; Noranda Metal Industries Limited, [1975] 1 Can. LRBR 145 (BCLRB); Fruehauf Trailer Company of Canada Limited, [1975] OLRB Rep. Jan. 77. We further note that in hospital collective bargaining this Board has already acknowledged the role and interest of a third party such as the Ministry of Health in collective bargaining issues. See St. Joseph's Hospital, [1976] OLRB Rep. June 255. Against this background, it would be naive and unduly restrictive not to acknowledge the legitimate role of public comment and media interest in the collective bargaining process, although we sense that public posturing is not always a constructive force in resolving labour and management disputes. See The Corporation of the Borough of North York, [1968] OLRB Rep. April 66. Undoubtedly, it was this reality of public sector bargaining that discouraged the respondent from objecting before this Board to the complainant writing to the Minister of Health or to holding the press conference in the first place. Indeed, counsel for the respondent made the specific point that the respondent had no objection to the Assessment Committee's report being made public provided that the complainant was accurate in its account of that document. What the respondent did object to, however, was the inaccurate comments of the grievor (and presumably Miss Gribben) relating to the death of Mrs. S.

49. This is the first time a labour relations board in Canada has had to deal with an asserted statutory right of an employed trade union official to speak out. While we have come to the conclusion that the grievor's speech constitutes protected activity, we are not at this time inclined to make a broad statement of principle similar to Linn v. United Plant Guard Workers of America, Local 114 et al (1966), 383 U.S. 53 and as adopted in Burns Meats Ltd., supra. We can readily appreciate why arbitrators would be attracted to the Linn approach in handling discipline cases, but there is justification for a somewhat more incremental approach where affirmative statutory rights are sought to be invoked. More candidly, the difficult facts of this case have discouraged us from seizing upon one general response to these kinds of problems and this time. We might also note that the law of libel and slander in Canada has not had much experience with statements made in a collective bargaining context and still is very much in a state of evolution in this regard. See particularly, Gatley, The Law of Libel and Slander (7d ed. London: Sweet & Maxwell Ltd., 1974) at 222-23 (s. 525).

50. We also wish to state that the Board does not endorse the complainant's tactics in this matter. The report of the Assessment Committee was in the nature of a recommendation and yet the complainant's officials conducted themselves as if they had a legal right to have their interpretation of the report fully implemented. If the complainant felt the respondent's response was inadequate, it seems to us that the preferable forum for that concern was the next round of negotiations. But notwithstanding the Board's approval or disapproval of the complainant's tactics, on the facts of this case, we must find that the holding of the press conference was trade union activity within the meaning of the Act and the respondent did not argue otherwise. We are confronted with a public sector collective bargaining relationship and an issue of vital importance to nursing professionals, the community, and hospitals. The conference was preceded by a complaint under a collective agreement culminating in the Assessment Committee's report and the parties were at an impasse over the implementation of that report. Thus, the more particular issue is whether the grievor's public statement constituted proper trade union activity protected by the statute.

51. Again, on the particular facts before us, we have come to the conclusion that she is entitled to seek the protection of the Act. Neither the grievor nor other representatives of the complainant convened and attended the press conference for the purpose of linking Mrs. S.'s death to the Assessment Committee's report. This is apparent from the fact that Miss Gribben made no mention of the incident in her opening remarks and during the initial round of questions. Also of relevance is the fact that Miss Gribben first mentioned the incident and her version was the most inaccurate. The complainant took no action against Miss Gribben and the grievor became involved only because Miss Gribben first raised the matter with the press. As the local union president, a response from her was almost inevitable. We are further influenced by the fact that the grievor had investigated the incident in a reasonable manner and had drawn the specific allegation to the attention of the respondent well before the press conference. In our view, the respondent's actions did not constitute the kind of response which might have placed the grievor's conduct outside the purview of the Act. Having raised such a serious allegation, the grievor was entitled to a detailed response which would assure a reasonable person in her position that an adequate investigation had been conducted and that the concern of the nurses was unfounded. This clearly did not happen. Finally, we have taken into account that the grievor believed what she said to be true and accurate at the time she made the statement. While the statement was inaccurate and, in this sense misleading, there is also evidence to suggest that the respondent itself had not, at that point, conducted an investigation sufficient to ascertain the true facts. In failing to so act, it deprived the grievor of an opportunity to know exactly what had transpired. The grievor's public statements therefore amount to lawful trade union activities within the meaning of section 3 and are protected by sections 64, 66 and 70 of the Act.

52. This then brings us to an assessment of the respondent's motive. We have no difficulty in understanding why a community hospital in the position the respondent found itself would be concerned about the grievor's public statement. If the statement was inaccurate, the respondent's reputation as a community resource could be irreparably impaired. We have found that the grievor's statement was not only inaccurate but that Mrs. S. clearly received adequate care. The staffing differences between the parties played no role in her death. From this point of view, the alleged concern by the respondent that the grievor's conduct was inconsistent with her status as a nursing professional is a concern not clearly lacking in substance. However, it is of fundamental importance that the respondent did not itself impose a punishment on the grievor but instead invoked legal procedures available to it to cause the College of Nurses to review the grievor's conduct. The College is a statutory agency empowered to respond to such a complaint and entitled to impose sanctions on a nurse where such is appropriate. In our view, the filing of such a complaint could only be viewed as the imposition of a penalty or improper interference under the Labour Relations Act if the person filing the complaint did not hold a genuine belief that an offense or violation had been committed and was, instead, intent on forcing the grievor through the hardships of defending against such a charge. The only evidence that might support this conclusion is the respondent's failure to file a similar complaint against Miss Gribben, thereby unfairly singling the grievor out. However, on the basis of Miss Low's testimony, we are satisfied that the respondent simply overlooked complaining against Miss Gribben because she was not the respondent's employee. While the lack of an employment nexus would not prevent such a complaint, we are satisfied that this is why the respondent concentrated its attention on the grievor. On the evidence before us, we are satisified that Miss Low and the respondent held a genuine belief that Mrs. Mancini's conduct constituted professional misconduct. We are therefore satisfied that the respondent lacked the requisite anti-union animus necessary to support a violation of the Act.

53. This complaint is dismissed.

DECISION OF BOARD MEMBER BROMLEY L. ARMSTRONG;

1. While I agree with the majority's review of the evidence and their finding that the grievor's conduct was lawful union activity protected by the Labour Relations Act, I dissent from the majority's decision dismissing the complaint.

2. The respondent submitted that at the press conference on or about June 18, 1980 the grievor improperly linked the staffing arrangement at the hospital with the death of a patient in order to sensationalize the staffing issue and advance the position of the association concerning the staff shortage issue in community ward S of the hospital. The respondent further submitted that the grievor's statements were without substance, were made without proper investigation and caused damage to the respondent's reputation as a community resource. The respondent also submitted that it believed the grievor's action constituted professional misconduct and on the basis of this belief, the respondent through Ms. Marion Low, its Director of Nursing, informed the College of Nurses of Ontario of the grievor's statement in order for it to conduct an investigation and possibly impose sanction on the grievor.

3. In my opinion, the only issue before the Board is whether the grievor's statements at the press conference were lawful trade union activities protected by the Labour Relations Act.

4. The majority concludes that the grievor is entitled to seek the protection of the Act. Neither the grievor nor other representatives of the complainant convened or attended the press conference for the purpose of linking the patient's death to the Assessment Committee report. Miss Gribben, Chief Executive Officer of the complainant, did not mention the incident in her opening remarks at the press conference or during the initial round of questions. Also relevant is the fact that Miss Gribben and not the grievor first mentioned the incident and Miss Gribben's version was most inaccurate.

5. The respondent took no action against Miss Gribben, who is also a Registered Nurse, but reported the grievor to the College of Nurses for the statements she made at the press conference which the majority have characterized as lawful union activity. An employee engaging in lawful union activity is, in my view, shielded from direct or indirect retribution by an employer for doing so. Therefore, I find the respondent's actions are a violation of section 66(c) and section 70 of the Labour Relations Act. The respondent, by reporting the grievor to the College, sought to interfere with her lawful activities as the president of her Local Union and was an attempt to discipline the grievor, albeit indirectly, for the statements made by her at the press conference; statements she made in her capacity as president of the Local which she believed to be true and which were made without malice. In my opinion, the respondent was doing indirectly what it could not do directly, that is, disciplining the grievor for engaging in lawful union activity.

6. I would find that the respondent violated the act and direct appropriate remedies.