Ontario Labour Relations Board
[1985] OLRB Rep. February 323
2019-84-M Renfrew County and District Board of Health, Applicant, v. Ontario Nurses' Association, Local 49, Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members F. W. Murray and W. F. Rutherford.
APPEARANCES: Gordon J. Weir and Norman Lemke for the applicant; Marion M. Perrin, Dorothy Fulford and Heather Ball for the respondent.
DECISION OF THE BOARD; February 7, 1985
Decision
1This is a proceeding purportedly launched pursuant to section 106 of the Labour Relations Act. The facts are not in dispute.
2On February 15, 1971, the Renfrew County Health Unit entered into an agreement recognizing the Nurses' Association, Renfrew County Health Unit as the exclusive bargaining agent for all registered and graduate nurses employed by the employer, save and except employees whose duties are of a supervisory nature. Over the years, both the health unit and the employee association underwent a change of name and form. By letter dated September 23, 1974, the Renfrew County and District Health Unit confirmed that it recognized the Ontario Nurses' Association as a successor union acquiring all of the rights, privileges, and duties under the Labour Relations Act of the former Local Nurses' Association. Subsequently, the parties continued to bargain collectively, signing a series of collective agreements in their present names. The most recent collective agreement was executed on July 26, 1984, and contains a recognition clause framed as follows:
The Employer recognizes the Association as the exclusive bargaining agent for all registered and graduate nurses employed by the Employer, save and except employees whose duties are of a supervisory nature.
Home Care Co-ordinators hired after July 16, 1984, who are registered or graduate nurses, will be members of the bargaining unit.
[emphasis added]
3The underlined portion of the above-noted recognition clause is new. Formerly, there had never been any mention of home care co-ordinators. Accordingly, if they are registered or graduate nurses, the terms of the collective agreement indicate that they should be included in the bargaining unit.
4But that was not the parties' practice. Apparently, the position of "home care co-ordinator" has existed for several years, but they have never been considered to be part of the bargaining unit — even though the terms of the collective agreement suggest the contrary. During the current round of bargaining, the parties decided to address that issue. The Association could have insisted on a strict application of the terms of the agreement. The employer might have been able to argue some form of estoppel. Either assertion would have precipitated an arbitration proceeding. Instead, the bargaining parties decided on the compromise set out above, which essentially maintains the status quo for existing employees, but provides that any new employees will fall within the bargaining unit.
5There is nothing unusual about what the parties have done. They have, through negotiations, altered the scope of the bargaining unit to exclude certain individuals who, by its terms (but not the parties' practice) would be included. The union was content to narrow the scope of the agreement to reflect the scope of its actual application. But the union was not prepared to compromise further. When the agreement was concluded in July, 1984, the parties were content with their bargain. The employer concedes that both parties were bargaining in good faith in an effort to resolve this as well as the other matters in dispute between them. Yet the thrust of this application is to re-open the settlement, and set aside or vary the collective agreement.
6We are satisfied that there is nothing in the circumstances of this case which would trigger section 106 of the Labour Relations Act. The employer concedes that the home care co-ordinators are "employees" under the Labour Relations Act. They do not exercise "managerial functions" within the meaning of section l(3)(b). Accordingly, there is no basis for the application of section 106(2) of the Act. Nor is there anything for the Board to reconsider under section 106(1). Bargaining rights were not initially based on any decision or order of this Board; and even if there had been a certificate issued, such basis for bargaining rights has long since been superceded by subsequent collective agreements. While a Board certificate creates an "initial licence" and obligation to bargain, once a collective agreement is signed the certificate is "spent" (see the remarks of Laskin, C.J.C. in Beverge Dispensers and Culinary Workers' Union, Local 835 et al. v. Terra Nova Motor Inn Ltd., 74 CLLC ¶ 14,253. There is no basis for interfering with what appears to be a sensible settlement arrived at by both parties acting in good faith.