Ontario Nurses' Association v. Edward Street Manor Nursing Home, 1984 CanLII 1024

Ontario Nurses' Association v. Edward Street Manor Nursing Home

[1984] OLRB Rep. December 1704

1526-84-U Ontario Nurses' Association, Complainant, v. Edward Street Manor Nursing Home, Respondent

BEFORE: S. A. Tacon, Vice-Chairman, and Board Members W. H. Wightman and J. Kennedy.

APPEARANCES: Shalom Schachter, Maureen O'Halloran, Norma Bush and Sherrie Seeley for the complainant; K. W. Kort, P. Bogue, S. McKinnon and W. McKinnon for the respondent.

DECISION OF S. A. TACON, VICE-CHAIRMAN, AND BOARD MEMBER J. KENNEDY;

December 17, 1984

1. This is a complaint under section 89 of the Labour Relations Act alleging violation of sections 64, 66 and 89(7) in the lay-off of Norma Bush and the abolition of the head nurse position by the respondent.

2. The parties agreed to the following facts:

(a) On or about May 13, 1981, the complainant applied for certification of a bargaining unit consisting of registered nurses employed by the respondent.

(b) On or about May 29. 1981, the complainant filed with the Ontario Labour Relations Board a section 89 complaint (File #0458-81-U) alleging a number of violations by the respondent of the Labour Rela­tions Act and including in particular paragraph 10 an allegation con­cerning the reorganization of nursing work and the removal of a Norma Bush from the position of head nurse.

(c) On or about June 19, 1981 the Ontario Labour Relations Board granted the complainant two certificates covering full-time and part-time nurs­es in the bargaining units.

(d) On or about June 22, 1981, the parties entered into a settlement in respect of the unfair labour practice referred to in paragraph (b) above. The settlement included a paragraph 1 which was an acknowledgement by the employer that it had violated the Ontario Labour Relations Act and a paragraph 3 in which the employer agreed inter alia not to alter the wages, terms or conditions of employment, rights, privileges or duties of Norma Bush without the consent of the complainant and they further agreed to reinstate Norma Bush in her former status as Head Nurse.

(e) On or about June 23, 1981 the complainant served notice to bargain under section 14 of the Labour Relations Act of the respondent.

(f) On or about October 27, 1981, the complainant filed a second section 89 complaint against the respondent (Board File 1622-81-U). In its decision of February 24, 1982, in paragraph 7, the Board ruled that "the absence of evidence to the contrary, we are prepared to infer that the acknowledgement by the employer that it violated the Act, as set forth in paragraph 1 of the Minutes of Settlement dated June 22, 1981, is a blanket acknowledgement of all of the allegations contained in Appendix B to the previous complaint." The respondent had the opportu­nity to adduce evidence to rebut that inference but no such evidence was adduced.

(g) On or about January 15, 1982, the complainant was advised by the Deputy Minister of Labour that the conciliation officer appointed in the dispute had been unable to effect a collective agreement.

(h) On or about January 22, 1982, the complainant referred the matter to arbitration under the provisions of the Hospital Labour Disputes Arbitration Act.

(i) On or about June 21, 1982, the Board of Arbitration held a hearing in the matter.

(j) On or about April 3, 1984, the Board of Arbitration issued a supplement to the award ordering up the collective agreement under sub-section 10(6) of the Hospital Labour Disputes Arbitration Act. At no time during the negotiations or the arbitration proceedings did the respon­dent seek to include in the collective agreement a provision which would contain the consent of the complainant to remove Norma Bush from her status as head nurse.

(k) A collective agreement was executed by the parties, effective from June 23, 1981 to June 22, 1983 and, by operation of law, extended to June

22, 1984.

(1) The parties have utilized the grievance procedure under the collective agreement on several occasions, including Norma Bush's grievance filed August 2, 1984 regarding premium pay. This grievance was settled without an arbitration hearing.

(m) Notice to bargain for the renewal of the collective agreement, due to expire on June 23, 1984, was given on May 22, 1984.

3. The minutes of settlement in respect of the unfair labour practice complaint noted in item (d) above is reproduced here:

IN THE MATTER OF A COMPLAINT

UNDER SECTION 79

OF THE LABOUR RELATIONS ACT

BETWEEN

ONTARIO NURSES' ASSOCIATION,

(the Complainant),

-AND-

EDWARD STREET MANOR NURSING HOME

(the Respondent).

MINUTES OF SETTLEMENT

The parties agree to settle the above matter on the following basis:

1. The Employer acknowledges that it has violated the Ontario Labour Relations Act.

2. The Employer agrees that it will bargain exclusively with the Ontario Nurses' Association in the latter's capacity as the sole collective bargaining agent for the registered nurses.

3. The Employer agrees that it shall not alter the wages, terms or conditions of employment, rights, privileges or duties of any of its nurses and without restricting the generality of the foregoing, those of Ms. Norma Bush, without the consent of the Ontario Nurses' Association. The Employer further agrees that Ms. Norma Bush will be reinstated to her former status as Head Nurse.

4. The Association agrees to request leave of the Ontario Labour Relations Board to withdraw its Complaint under Section 79 dated May 29, 1981 and appearing on Board File #0458-81-U.

DATED AT TORONTO this 22 day of June 1981.

For the Ontario Nurses' For the Employer:

Association:

(Ontario Labour Relations

Board File #0458-81-U).

4. The respondent raised two preliminary objections. Firstly, it was submitted that the minutes of settlement ceased to operate once the collective agreement was in force and, therefore, a complaint could not be based on the defunct minutes of settlement. Secondly, even if there was a complaint, a grievance under the collective agreement was the appropriate forum for relief and, thus, the Board should defer to arbitration. The complainant opposed both these submissions. Both parties indicated they wished to make more detailed submissions but requested an initial ruling from the Board on the complaint as framed.

5. The Board made the following oral ruling:

"The Board has considered the submissions of the parties thus far. The Board is of the opinion that the complainant is alleging:

(a) a violation of section 89(7) of the Act, i.e., that the minutes of settlement have been violated;

(b) a violation of sections 64 and 66 of the Act, i.e., an "89(1) type" complaint triggering the reverse onus provision in section 89(5) of the Act.

In the Board's view, these allegations are discrete and should be dealt with separately or at least in seriatim.

Therefore, the Board wishes to hear the full submissions of the parties re: the alleged violation of section 89(7), i.e., the parties should fully address the respondent's preliminary objection that the minutes of settlement cease to operate when the collective agreement is signed and the complainant's response that the minutes of settlement survive the signing of the collective agreement.

This does not involve the hearing of evidence beyond the documents filed with the Board and the agreement of the respondent to the facts set out in Appendix II of the complaint, to the extent already noted.

Further, the Board wishes to hear the full submissions of the parties as to whether the Board should defer to arbitration in the circumstances, as contended by the respondent and opposed by the complainant. These sub­missions, too, do not involve the hearing of further evidence."

6. With respect to the minutes of settlement and section 89(7), the respondent submitted that the collective agreement, when signed, represents the sum total of the terms and conditions of employment. Counsel referred to Syndicat Catholique des Employes de Magasins de Quebec, Inc. v. Compagnie Paquet Ltee., 1959 CanLII 51 (SCC), [1959] S.C.R. 206, 18 D.L.R. (2d) 346, 59 CLLC ¶ 15,409. The minutes could not constitute "another" source of terms and conditions and, thus, were "spent" when the collective agreement was imposed through arbitration. Moreover, it was argued that the statutory violation with respect to Norma Bush was in regard to the freeze provision, section 79 of the Act. Paragraph 3 of the minutes incorporated the statutory language of the freeze provision. The freeze provisions of the Act are intended to preserve the status quo to afford the parties an opportunity to negotiate a collective agreement. The freeze provisions give way to the terms and conditions set out in a collective agreement. So, too, the minutes should cease to operate when that collective agreement was signed. Counsel referred to Scarborough Centenary Hospital Association, [1979] OLRB Rep. July 693. In reply, counsel for the respondent submitted that the language of the minutes embraced all employees in the bargaining unit and, if the minutes continued to operate, why negotiate layoff provisions, management rights clauses, etc. Further, it was contended that there was nothing improper in negotiating one's way out of the terms of the settlement of a Board complaint. The cases cited by the applicant (see below) were distinguished.

7. The respondent also submitted that the Board should defer to arbitration. The collective agreement contained several clauses relevant to management rights concerning reorganization and the propriety of management's actions regarding Norma Bush should be determined in the context of the collective agreement provisions. The parties had utilized the grievance and arbitration process in the past. There were no policy reasons for the Board not to defer to arbitration. That the applicant would not have the benefit of the "reverse onus" at arbitration was not a reason to refuse to defer the issue to an arbitrator. In fact, it was argued that not to defer would permit the applicant to "forum-shop". The applicant and Norma Bush were the authors of their own misfortune when Norma Bush elected layoff rather than bumping into another position and then when they exceeded the time limits for filing a grievance. Ramada 400/401, [1983] OLRB Rep. July 1192 and The Canadian Union of Operating Engineers and General Workers, [1983] OLRB Rep. Oct. 1633 were referred to in support.

8. The complainant submitted the minutes of settlement survive the collective agreement for several reasons. The undertakings of the employer had no fixed termination date and, even though a formal Board order would have had application for a limited time, the minutes were for all time. There was nothing improper in one party achieving more through a settlement than could have been obtained through adjudication. The applicant confirmed that its position was that all employees in the bargaining unit (not just Norma Bush) were affected by and covered by the terms of the minutes. The complainant was objecting to both the layoff of Norma Bush and the abolition of the head nurse position as constituting violations of the minutes, i.e., a contravention of section 89(7). Further, on policy grounds, the Board should not permit a party to negotiate its way out of a settlement since negotiations permitted the use of bargaining power. That is, section 89(7) of the Act was a statutory right to have settlements enforced; one cannot contract out of a statutory right. The Board should exercise extreme caution in permitting one side to use its bargaining power to force a contracting out of statutory rights. The minutes of settlement could co-exist with the collective agreement as a source of rights. Finally, the "freeze" provisions in the Act protect rights and privileges as well as the terms and conditions of employment. Specifically, the second freeze (which the complainant asserts was violated) protected the terms and conditions of the collective agreement (which had yet to be finally signed but which had already expired) and the rights and privileges of the first freeze (as expressed in the minutes of settlement). Cases referred to in support include: Scarborough Centenary Hospital Association, supra; Perfection Rug Co. Ltd., [1984] OLRB Rep. Jan. 68; Brentwood Manor Nursing Home Limited, [1984] OLRB Rep. Mar. 415; John T. Hepburn, Limited, [1984] OLRB Rep. Jan 39; Irwin Toy Limited, [1983] OLRB Rep. July 1064; Greens Ambulance, [1978] OLRB July Rep. 637; The Children's Aid Society of Ottawa-Carleton, [1984] OLRB Rep. Feb. 340.

9. In the alternative, the complainant urged the Board not to defer to arbitration. It was submitted that the factors in deciding whether to defer, as discussed in Valdi Inc., [1980] OLRB Rep. Aug. 1254, were largely applicable in the instant case. That is, an arbitrator would not consider the Board doctrine of anti-union animus in interpreting the collective agreement. The benefit of the reverse onus provision in the Act would be lost at arbitration. There was a real question as to the weight an arbitrator would give to the earlier Board findings in Edward Street Manor Nursing Home [1982] OLRB Rep. Feb. 167. Moreover, an arbitrator could not respond to a violation of the Labour Relations Act. Thus, the Board should not deny the applicant, having alleged violation of sections 64 and 66 the right to be heard under the Act. Also referred to were: Irwin Toy Limited, supra; The Children's Aid Society of Ottawa-Carleton, supra; Kennedy Lodge Inc., [1984] OLRB Rep. July 931). Finally, if the Board did defer to arbitration, it was submitted that the Board should retain jurisdiction and, secondly, in view of the close timing of the union s response to the employer's actions, should direct the arbitrator to hear the merits notwithstanding the time limits in the collective agreement.

10. The Board must first deal with the complainant's argument that the minutes of settlement constitute a settlement within the meaning of section 89(7) of the Act and the respondent's contention that the minutes cease to operate when the parties enter into a collective agreement.

11. The cases cited to the Board are not especially helpful in resolving this issue. Several of the cases set out or reaffirm broad principles which this Board does not dispute. For example, that it is Board policy to encourage settlement activity as a highly desirable method of resolving labour relations disputes and not to impose unnecessary technicalities or limitations which might discourage such settlements is not in question (see Perfection Rug Co. Ltd., supra). In The Children's Aid Society of Ottawa Carleton, supra, the Board may be said to have reaffirmed the general principle that one cannot contract out of or waive statutory rights although, in the circumstances of that case, the Board did not dispose of the matter on such a sweeping basis. The passage in Brantwood Manor Nursing Homes Limited, supra, stressed by the complainant (i.e., paragraph 13) rejects the proposition that the Board will readily permit a party to repudiate a settlement in its entirety because some provisions of that settlement may be ambiguous in their application to particular cases or because one party merely claimed the settlement did not meet unexpressed expectations or supposedly implicit understandings which do not appear on the face of the document. However, even that passage is qualified by comments as to the possible unenforceability of the settlement (or at least portions thereof) pursuant to section 89(7) of the Act and by the refusal of the Board to absolutely preclude the possibility that a particular settlement in some circumstances may be void. With respect to Irwin Toy, supra, this Board regards that case as so removed from the facts of the instant case that the passages referred to by the complainant (paragraphs 18 and 19) are not of assistance. Finally, the Board does not consider Greens Ambulance, supra, John T. Hepburn, Limited, supra, and Scarborough Centenary Hospital Association, supra, as directed to the matters in issue here. Argument was directed by both counsel to the Scarborough Centenary Hospital case and the freeze provisions of the Act in relation to whether there was a statutory freeze in effect at the time of the reorganization and, if so, what precisely was "frozen". However, the allegations before the Board in this complaint do not allege violation of section 79 of the Act. The Board, then, does not intend to deal with this aspect further.

12. It is appropriate to set out section 89(7) of the Labour Relations Act at this point:

(7) Where the matter complained of has been settled, whether through the endeavours of the labour relations officer or otherwise, and the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties, the trade union, council of trade unions, employer, employers' organization, person or em­ployee who have agreed to the settlement and shall be complied with according to its terms, and a complaint that the trade union, council of trade unions, employer, employers' organization, person or employee who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1).

13. In this Board's view, the settlement entered into on June 22, 1981, cannot be read in the sweeping manner asserted by the complainant. It was not disputed that, in relation to Norma Bush, the respondent's admitted violation of the Labour Relations Act flowed solely from a contravention of the statutory "freeze" provisions in section 79. The language in paragraph 3 of the minutes of settlement reflects this. The freeze provisions of the Act do not create rights which exist throughout the relationship of the parties, as do the rights and protections in other sections of the Act, such as 64, 66 and 70. Rather, the statutory freeze comes into effect and comes to an end at specified points in the collective bargaining process. The freeze is intended to preserve the status quo, to maintain "business as usual", so as to provide a period of industrial relations stability and, thereby, facilitate the bargaining process. (See, A.N. Shaw Restoration Ltd., [1978] OLRB Rep. June 479; Windsor Airline Limousine Services Ltd., [1980] OLRB Rep. July 1147; K-Mart Canada Ltd., [1982] OLRB Rep. Jan. 64.)

14. Section 79(1) and (2) reads:

79.-( 1) Where notice has been given under section 14 or section 53 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees,

(a) until the Minister has appointed a conciliation officer or a media­tor under this Act, and,

(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or

(ii) fourteen days have elapsed after the Minister has released to the parties a notice that he does not consider it advisable

to appoint a conciliation board,

as the case may be; or

(b) until the right of the trade union to represent the employees has been terminated,

whichever occurs first.

(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer or the employees until,

(a) the trade union has given notice under section 14, in which case subsection (1) applies; or

(b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.

15. What the complainant seeks to do is to transform a "right" which is intended to be of finite duration into a right for all time. The complainant conceded that, had the settlement not been effected, a Board order to remedy the violation of the freeze provision would have been limited in time. The complainant asserts, however, that the fact that the respondent settled the complaint on less favourable terms than would have been imposed by the Board should not relieve the respondent of the obligations of his "bad bargain". The Board, however, considers that the minutes of settlement, as applicable to Norma Bush, must be read as of finite duration. The Board is neither seeking to regulate the terms of settlements voluntarily agreed to by the parties nor is the Board agreeing with the respondent's broad proposition that all settlements cease to operate when a collective agreement is entered into. Rather, in each case where the enforcement of a settlement is sought pursuant to section 89(7), the Board must examine the terms of the settlement but that necessarily includes consideration of the alleged violation of the Act which ultimately led to the settlement. To ignore the alleged statutory violation in the examination of the settlement provisions is just not sensible.

16. In the Board's view, to preserve a settlement in a time period beyond that in which the Board would normally extend a remedy (where the allegations were substantiated) would require clear and express language especially where, as here, the original complaint concerned a violation of a "strict liability section", i.e., where anti-union animus or motive is not an element of the violation. Moreover, the complainant is simply incorrect in its assertion that a decision not to enforce the minutes of settlement in this case (at least as applicable to Norma Bush and the head nurse position) would permit the contracting out of statutory rights.

17. Therefore, the complainant's assertion that the minutes of settlement of June 22, 1981, in respect of Norma Bush, are enforceable pursuant to section 89(7) of the Act at this point in time is rejected.

18. The Board must next deal with the respondent's preliminary objection that the Board defer consideration of the "section 89(1) type" complaint (to use the Board's terminology at the hearing) to arbitration. The classic exposition of the relevant factors in the Board's assessment whether to defer to arbitration is found in Valdi Inc., supra, at paragraphs 4 to 8, inclusive. It is useful to set out paragraph 7 in full, at this point:

19. It may be that the Board's approach has been somewhat less refined but the American treatment of deferral is not inconsistent with Board jurisprudence. Cases like Canadian Acme Screw and Gear Limited (1954), 54 CLLC ¶ 17,083; John Inglis Co. Ltd. (1953), 53 CLLC ¶ 17,049; Nation­al Showcase Co. Ltd. (1961), 61 CLLC ¶ 16,185; Heist Industrial Services Ltd. (1963), 63 CLLC ¶ 16,263; Wallace Barnes Co. Ltd. (1961), 61 CLLC ¶ 16,198 and Collingwood Shipyards, [1967] OLRB Rep. July 376 all approach the deferral doctrine as one that will encourage the practice and procedure of collective bargaining. These cases are also aimed at discourag­ing dual litigation and forum shopping by encouraging the parties to employ initially the contractual procedures for dispute settlement which they have created. See Kodak Canada Ltd., [1977] OLRB Rep. Feb. 49. But it is also apparent that in those cases the Board acted on the premise that the resolution of the contractual issues was congruent with the resolution of the statutory unfair labour practice issues. See Imperial Tobacco Products (Ont.) Ltd. et al., [1974] OLRB Rep. July 418 at para. 26. This congruence between the contractual dispute and the overlying unfair labour practice complaint is significant in the sense that the Board is able to take the view that the matter is primarily a contractual or factual difference between the parties. See Corporation of the County of Middlesex, [1976] OLRB Rep. Aug. 427 at para. 4. However, where key provisions of The Labour Relations Act require important elaboration and application or where the employer's or trade union's conduct represents a total repudiation of the collective bargaining process, it becomes more difficult to characterize the complaint as essentially contractual. It is in these situations that the Board has asserted its jurisdiction. The former situation is reflected in Thomas Built Buses Ltd., [1980] OLRB Rep. Feb. 264 and the latter can be seen in New Gregory House, [1977] OLRB Rep. Sept. 584. Other circumstances in which the Board has been unwilling to defer to grievance arbitration involve cases where arbitration may have been unavailable to the complainant or where relief in that forum could have been inadequate. See Wallace Barnes Company Ltd. (1961), 61 CLLC ¶16,198 and the general discussion in Imperial Tobacco Products (Ontario) Limited, supra. Moreover, where the Board defers to the arbitration process it will nevertheless retain jurisdiction as the NLRB in order to insure (a) that the dispute over the meaning of the collective agreement is resolved with reasonable promptness; (b) that the arbitration procedures have been fair; and (c) that the outcome of arbitration is neither repugnant to the purposes of the Act nor remedially inadequate. See Imperial Tobacco Products (Ontario) Limited, supra, for a full discussion of these subsidiary principles. We are also of the view similar to positions taken in Banyard and Stephenson, supra, that the Board will not defer or will exercise its retained jurisdiction where the grievance or board of arbitration fails to deal directly and explicitly with the unfair labour practice issues.

20. In Valdi Inc., supra, the Board considered that the fact the complaint centred on the grievor' s union activity and involved a dismissal would not usually be sufficient justification for the Board to intervene in a collective bargaining relationship. However, the features which led the Board to exercise its jurisdiction were the probationary status of the grievor and the fact that the dispute arose under a first collective agreement. Specifically, the Board was influenced by the following:

(a) the context of the first collective agreement raised a question as to the adequacy of the arbitral remedy of reinstatement;

(b) the right of access of probationary employees to grievance arbitration was not certain, thus calling into question the efficiency of the arbitral route;

(c) the question of which party would bear the onus was in doubt at arbitration but clear before the Board;

(d) there was a question as to whether an arbitrator would apply the Board's "taint" theory in reviewing the dismissal.

20. The Board considers that many of the concerns which were influential in Valdi Inc., supra, are present in the instant case. Here, the parties are also at a relatively early stage in their collective bargaining relationship. In fact, the first collective agreement was imposed on the parties by an arbitrator because the parties could not negotiate a settlement themselves. Secondly, while the issue is not a probationary employee's access to grievance arbitration but management rights, the same question as to the efficacy of the arbitration route is raised. There is the extensive arbitral jurisprudence regarding the interpretation of management rights clauses, as, indeed, the respondent pointed out (see generally, Brown and Beatty, Canadian Labour Arbitration (2nd edition) at 1:2000, 4:2300 and 5:000). An approach to the grievance as a matter of the interpretation of management rights provisions in the collective agreement would deprive the grievor of the benefit of the reverse onus provision under the Labour Relations Act and even of the reverse onus at arbitration applicable in cases where unjust discipline is alleged. As in Valdi Inc., supra, there is a question as to whether an arbitrator would apply — or even consider — the Board's "taint" theory in reviewing, not a dismissal as such, but a reorganization of the workplace.

21. The Board would adopt the phrasing in Valdi Inc., supra, (para. 12):

Against this background of conflicting authority and philosophy, it can hardly be said that the grievor has free access to grievance arbitration and that the policies underlying the Labour Relations Act would be best effected by deferral to that process

The Board does not disagree with the reasoning in the cases cited by the respondent. The Board regards those cases as ones in which the principles enunciated in Valdi Inc., supra, were not applicable and, hence, clearly distinguishable from the instant case.

22. Thus, the Board is not prepared to exercise its discretion under the Act and defer to arbitration. The complaint, as restricted to an "89(1) type" complaint, is referred to the Registrar to be set down for hearing. This panel is not seized in this matter. The 89(7) complaint, for the reasons set out above, is dismissed.

DECISION OF BOARD MEMBER W. H. WIGHTMAN, CONCURRING IN PART AND DISSENTING IN PART;

1. I join with the majority in its finding that the section 89(7) complaint should be rejected.

2. I cannot agree, however, that the Board should entertain the outstanding issues rather than defer to arbitration. One has the feeling that the difficulties the complainant would face as a consequence of having failed to grieve weighed most heavily in the Board's decision not to exercise its discretion and to defer. Each occasion of this sort opens the door a little further to the use of the Board as an arbitration tribunal for progressively tenuous reasons.