Ontario Labour Relations Board

[1983] OLRB Rep. January 79

0988-82-U Ontario Nurses' Association, Jean Berger and Carol Lindsay, Complainants, v. Grey Owen Sound Joint Homes for the Aged (Grey­Owen Lodge), Respondent

BEFORE: G. Gail Brent, Vice-Chairman and Board Members J. A. Ronson and C. A. Ballentine.

APPEARANCES: Richard Nixon, Philomena Frisina, Ella Johnson, Jean Berger and Carol Lindsay for the complainants; R. C. Filion, H. L. Van Wyck, Q. C., R. G. Butcher and C. Peterson for the respondent.

DECISION OF THE BOARD; January 20, 1983

1. The following chronology of events is essential to the understanding of this matter:

(a) On January 20, 1981 the complainant association was certified as bargaining agent for registered nurses employed by the respondent.

(b) Between January 20, 1981 and January 4, 1982 there were negotiations between the parties; however, these negotiations did not result in a collective agreement.

(c) On January 4, 1982, the complainant association served notice on the respondent to submit all outstanding issues to arbitration pursuant to the Hospital Labour Disputes Arbitration Act, R.S.O. 1980 c. 205.

(d) On August 18, 1982 the complainant association filed its origi­nal complaint against the respondent. This complaint did not allege any violation of section 15 of the Act.

(e) On September 27, 1982 a hearing was convened to hear and determine the complaint. The complainant association amended its original complaint to include an allegation of bad faith bargaining. There was a request for particulars to be filed and submissions were requested on the matter of who would proceed first. The hearing adjourned.

(f) On September 29, 1982 representatives of the complainant association and the respondent met and resolved all outstanding issues. A memorandum of agreement was signed that day.

(g) On October 6, 1982 the collective agreement was ratified and it was signed on November 3, 1982.

(h) On November 18, 1982 the Board convened a hearing to deal with the complaint.

2. In the period between September 27, 1982 and November 18, 1982 counsel for the complainants filed particulars setting out the facts which were being relied on in connection with the section 15 complaint. Counsel for the respondent, being unaware of the memorandum of settlement, had also informed the Board that the respondent would be prepared to proceed first and adduce all of its evidence.

3. When the hearing convened on November 18th, the Board was informed for the first time about the existence of the collective agreement. Having regard to the fact of the collective agreement and the particulars filed by the complainants, the Board questioned counsel about the appropriateness of proceeding to hear the allegations of the breach of section 15. Counsel for the complainants informed the Board that in view of the collective agreement, the complainants were only seeking a declaration to the effect that the respondent had bargained in bad faith during the course of the negotiations. Counsel for the respondent asked to have the allegation concerning section 15 struck out.

4. The Board then invited counsel for the parties to make written submissions on whether the issues raised by the complaint were moot or whether they should be heard.

5. The particulars upon which the complainants would rely are set out in a letter from counsel for the complainants dated November 1, 1982. They are set out in full below:

First, it is apparent from a cursory review of the Reply filed by the Respondent that the Respondent knew prior to May of 1981 that the role of Grey Owen Lodge Home for the Aged was under review by the Ministry of Community and Social Services. The Complainants further submit that the Respondent knew as early as November of 1981 that the Ministry had decided that the role of Grey Owen Lodge Home for the Aged would be changed and that the Respond­ent knew, or should have known, that the positions of the Associa­tion's members could be adversely affected. Nevertheless, it was not until after April 22, 1982 that the Association was advised by Mr. Harold L. Van Wyck "of the changing role of Grey Owen Lodge" which he warned would lead to a "major reduction in staff'. Furthermore, the Association's negotiating committee was not ad­vised by the Respondent's negotiating committee until June 8, 1982 of the Ministry's involvement at Grey Owen Lodge Home for the Aged and, more importantly, of the adverse affects of the Ministry's involvement on the positions of the Association's members. The Complainants submit that the Respondent owed a duty under Section 15 of the Act to reveal forthwith to the Complainants on its own initiative the involvement of the Ministry at Grey Owen Lodge Home for the Aged, the decision of the Ministry to change the role of Grey Owen Lodge Home for the Aged, and the Respondent's decision to reduce the number of positions held by the Association's members.

Second, Grey Owen Lodge Home for the Aged is one of two facilities operated by the Respondent. The Complainants submit that by November of 1981, the Respondent had decided to construct a third home for the aged in Durham, Ontario. The Complainants submit that one of the reasons why the Respondent decided to construct a home for the aged in Durham, Ontario was to have a union free facility to which residents from Grey Owen Lodge Home for the Aged would eventually be transferred. At no time was the Association's negotiating committee advised by the Respondent of the Respondent's decision to construct a home for the aged in Durham, Ontario. The Complainants submit that the Respondent owed a duty under Section 15 of the Act to reveal forthwith to the Association on its own initiative its decision to construct a third home for the aged in Durham, Ontario.

Third, the Complainants have learned that one of the reasons why the Respondent decided to transfer certain patients from Grey Owen Lodge Home for the Aged was as a result of the Respondent's decision to effect certain renovations to Grey Owen Lodge Home for the Aged. The Complainants were not immediately advised of the Respondent's decision to effect the said renovations. As a consequence, the Complainants were denied the opportunity to discuss in a meaningful way the implications in terms of patient care of the said renovations with the Respondent. The Complainants submit that the Respondent owed a duty under Section 15 of the Act to reveal forthwith on its own initiative its decision to effect certain renovations to Grey Owen Lodge Home for the Aged and to discuss in an open and frank manner ways in which the said renovations could be effected with a view to minimizing the effects on patient care, eliminating any need to transfer any patients from Grey Owen Lodge Home for the Aged, and preserving the positions of the Association's members.

Finally, the Complainants submit that one of the reasons why the Respondent decided to transfer its extended care residents as opposed to certain other residents from Grey Owen Lodge Home for the Aged was to provide an excuse to eliminate some of the positions held by the Association's members. In the alternative, the Complainants submit that the transfer of the extended care residents from Grey Owen Lodge Home for the Aged need not have resulted in the elimination of all of the positions held by the Association's members. The Complainants were not immediately advised of the Respondent's decision to transfer extended care residents from Grey Owen Lodge Home for the Aged, thereby denying the Complainants the opportunity to discuss the implications in terms of staffing requirements at Grey Owen Lodge Home for the Aged of the said transfer with the Respondent. The Complainants submit that the Respondent owed a duty under Section 15 of the Act to reveal forthwith on its own initiative its decision to transfer residents from Grey Owen Lodge Home for the Aged and to discuss in an open and frank manner ways in which the said transfer could have been implemented so that the positions held by the Association's mem­bers would not have been affected.

6. The particulars make it clear that by June 8, 1982 the complainant association was in possession of all of the information upon which it would rely as having given rise to a duty to inform on the part of the respondent. This was at least three and one half months before the memorandum of agreement was signed. There are no allegations to the effect that there was any information which should have been disclosed but was kept from the complainant association after June 8, 1982 and before September 18, 1982, therefore the only conclusion that one can draw from the complaint and its accompanying particulars is that the complainant association knew everything it alleges it ought to have known long before the bargain was struck. It therefore must be concluded that it had ample notice to enable it to re-assess its bargaining positions in view of the respondent's disclosures.

7. The Board has never declined jurisdiction to hear complaints alleging a violation of section 15 simply because the parties have entered into a collective agreement. The only case cited to us where the collective agreement was entered into between the date the complaint was filed and the hearing was K-Mart Distribution Centre, [1981] OLRB Rep. Oct. 1421. That case is of no real assistance in setting out any guidelines because the section 15 aspect of it was dealt with on the issue of the status of the complainants to bring such a complaint. At paragraph 27, the Board said that a group of employees lacked the status to bring such a complaint, and it can be concluded from that, that had the section 15 allegations been treated as a separate issue, as is the case here, the Board would have dealt with it as a question of jurisdiction and dismissed it.

8. In every other case cited by counsel, the Board was asked to determine whether there was a section 15 violation in the face of allegations to the effect that a trade union had been "kept in the dark" about a decision until after a collective agreement had been signed. The complaints were that bargaining in good faith could not take place when one party is misrepresenting certain material facts and so deprives the other party of its ability to bargain with full knowledge of all material facts. Such were the allegations made in Westinghouse Canada Limited, [1980] OLRB Rep. August 577 and Amoco Fabrics Ltd. [1982] OLRB Rep. Mar. 314. In both cases the complaints were against being kept in ignorance of a particular decision until after the collective agreement had been signed.

9. In this case there is no such allegation concerning the conduct of bargaining. There was no agreement consummated while the complainants were ignorant. In this case the section 15 violation was not alleged until approximately one month after the complaint was filed and approximately three and one half months after the disclosures were made. Moreover, knowing everything it alleges it should have known the complainant association then freely entered into a collective agreement with the respondent. This was done rather than waiting to appear before an interest arbitration panel before which the complainant association could have made out its case for any appropriate contractual language to meet the fact situation with which it was con­fronted. It is difficult to determine where the complainant association was harmed by any failure to disclose earlier, and it is difficult to interpret the complaint as anything other than a complaint that information should have been conveyed earlier in the process.

10. In our view, the Board has interpreted section 15 in such a way that complaints made after a collective agreement has been entered into are heard but, to hope to succeed, must show for a start, that the trade union was materially affected by a misrepresentation so as to deprive it of the opportunity of responding to the new state of affairs. It is our view that there would be no breach of section 15 shown on the face of the complaint where there was no failure to disclose and/or where the trade union was not deprived of any opportunity to respond to the true state of affairs in the collective bargaining process. Where the complaint, as particularized, does not disclose a breach of the Act then we can decline to hear it. It is our view that we should do so here.

11. In its written submissions the complainant association sets out policy consid­erations which it says should move us to hear the matter. With respect, the essence of the complaint as originally filed, deals with allegations of anti-union behaviour on the part of the respondent. These matters are still before the Board in their entirety, and represent the substantial issues in the dispute between the parties. It would, in our view, be counter-productive to lose sight of these real issues by dealing with a matter which the parties have dealt with through disclosure and bargaining following that disclosure. It is not the function of this Board to police bargaining so closely, that it will dictate to parties when in the course of bargaining to disclose material facts before consummating bargains. So long as the disclosure is made in time to give the other party the opportunity to respond, then they are in a position to determine their fate and make the best bargain they can. To penalize those who disclose could have the effect of discouraging disclosure, and that would be a result which this Board would not want to encourage.

12. It is our view that to refuse to hear this complaint would be neither unfair nor a windfall to the respondent. The respondent faces serious complaints which on their face do allege that the Act may have been violated. It would serve no useful purpose to proceed to deal with one which shows no such thing simply because the complaint has been articulated. The section 15 complaint was added to the original complaint almost, it would seem, as an afterthought; however, at the time it was not articulated so that the Board could judge whether on its face it disclosed a violation of the Act. Now that we have the particulars upon which the complaint was made we can determine whether we should hear it, and it is our decision that we should not.