[1985] OLRB Rep. March 382
0275-84-R London & District Service Workers' Union, Local 220, Complainant, v. Caressant Care Nursing Home of Canada Limited, Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. Murray and L. C. Collins.
DECISION OF THE BOARD; March 14, 1985
This is the continuation of a successorship application filed under section 63 of the Act, the unfair labour practice aspects of these consolidated proceedings having previously been dismissed by the Board.
The Board in its decision of August 24, 1984, (see, [1984] OLRB Rep. Aug. 1060) determined that there had been a "sale of a business", represented by a 75-bed nursing home licence for the City of St. Thomas, from the operators of Willson Nursing Home to the respondent Caressant Care Nursing Home of Canada Limited, and that the applicant's collective agreement with Willson continued to apply to that business. Because employees of that business came to be "intermingled" at the new facility in St. Thomas with employees of a business owned by the respondent itself, in the form of an independent 41-bed nursing home licence for the City of St. Thomas, the Board directed the taking of a representation vote, in order to determine the question of union representation (and the applicability of the terms and conditions of the "Willson" collective agreement) for all affected employees in a uniform way. The problem with proceeding to take that vote, however, was the acknowledgment by the respondent that the new facility was not presently being staffed or operated in accordance with the terms of the Willson agreement. The parties were therefore directed to attempt to resolve between themselves in a reasonable fashion an appropriate model for "re-staffing" the new facility in a manner that would not be inconsistent with the terms and conditions of the collective agreement. Offers of employment could then be made to the former Willson employees improperly laid off at the time of the closing of the Willson Nursing Home, and a voters' list constructed on the basis of those individuals, together with the appropriate number of existing Caressant Care employees, who accepted employment at the new facility.
The parties have, however, been unable to come to terms on their own as to what an appropriate re-staffing model for Willson would be. The Board accordingly has no alternative but to fix that model itself, although in doing so, it must be recognized that a certain degree of arbitrariness will now be unavoidable.
Prior to considering the staffing model, however, the issue of the scope of the voting constituency must first be addressed. The new facility includes a 40-bed Rest Home, and it was the consensus at the initial hearing before the Board that all employees of the new Home, including the Rest Home, would be entitled ultimately to vote, so that the question of union representation could be decided "across the board". The respondent did not agree, however, that that was the appropriate bargaining unit, and reserved its right to make representations on that point after the result of any vote was known. At the hearing held to determine the present issues, the applicant reiterated its view that an "all employee" bargaining unit would be the appropriate one, especially if the Board were to hold the vote itself on that basis. If not, the applicant suggested, the vote should be conducted on a piecemeal basis, in line with the ultimate bargaining structure envisaged by the Board for the Home.
After discussion in the hearing, the respondent took the position that the Nursing Home and the Rest Home should be separated for the purpose of union representation, as well as the full-time and part-time employees in each. The applicant continued to maintain its position that one bargaining unit and one vote was appropriate for this facility.
Upon consideration of the positions put forward by the parties, and the dispute over what would ultimately be appropriate as a bargaining unit, it is the view of the majority of the Board that no compelling reason exists for sweeping the Rest Home employees into the question of union representation which, as a result of the Board's finding of a "sale" of the "Willson" nursing home business, must be determined for employees of the integrated Nursing Home. No such integration or "intermingling" of employees exists for the Rest Home portion of the facility, and the operation of that aspect of the enterprise is not regulated or controlled by the provisions of the Nursing Homes Act. "Guest attendants" in the Rest Home are not interchanged with "Nurse's Aides" in the Nursing Home; the only commonality of staff employed between the two is with respect to three part-time activity directors, who share their time between the two operations. The respondent's own collective bargaining history, in particular, reveals a pattern of separate bargaining units for the Nursing versus the Rest Homes, at each of the other locations in the province where that is applicable. It is the decision of the Board, therefore, to confine the representation vote arising from the sale of the Willson Nursing Home licence to the Nursing Home portion of the respondent's St. Thomas facility. On the other hand, the Board notes that the collective agreement flowing from Willson, while making reference to the initial certificates for both a full-time and a part-time unit, now combines the two units under one collective agreement. It is the decision of the Board, therefore, that a single collective agreement (and bargaining structure) shall continue to apply after the vote to both full-time and part-time employees of the nursing home portion, unless the parties mutually agree otherwise.
The first step in arriving at a Voters' List is to identify that portion of the work in the new Nursing Home fairly allocable to the "business" transferred from Willson, as opposed to that acquired through Caressant Care's own licensed operation. There are 110 Nursing Home beds occupied at the present time, which is the relevant date for the purposes of the issue before the Board: i.e. the immediate re-staffing of the Home for the purpose of arriving at a Voters' List and thus completing the "sale" application before the Board. We recognize that the occupancy level has not been that high throughout the full period of the operation of the new Home, but that is a factor going to the assessment of damages payable under the collective agreement, and not an issue with which this Board is directly concerned. Of the present 110 occupied beds, the most Caressant Care itself can claim "credit" for is 41 beds, the maximum allowed to it under the licence which it obtained on its own from the Ministry. We are prepared to allocate the full 41 beds to the respondent's licence on that basis, leaving 69 resident beds attributable to the 75-bed Willson Nursing Home licence. Those 69 beds represent 63 per cent of the present occupancy level of the new facility.
There was at the point of closing out the Willson Nursing Home, some 62 or 63 beds occupied. The weekly "nursing" hours required to service those beds was 603. With the variations in design and economies of scale in the new Home, however, the total nursing hours (i.e. for Nurse's Aides) required to service the entire 110 beds occupied is now 803 hours per week. All of those hours are, for the reasons set out in the earlier Board decision, presently scheduled on a part-time basis, with an average of 18 3/4 hours per week for each employee. Notwithstanding its submissions to the board in the earlier hearing, the Willson agreement do not prevent its conversion of the Home to a totally part-time basis. Once again, a majority of the Board do not agree. The "Hours of Work" provisions of the collective agreement provide:
10.01 The normal work day shall consist of eight hours including thirty minutes allowed for lunch, such lunch periods to be determined between the Employer and the employees.
10.02 The regular work period will consist of 80 hours which may be averaged over a two week period. It is understood that employees may be required to work up to and including seven consecutive days, any excessive days being subject to agreement between the Employer and the employee or employees involved.
10.03 Subject to paragraph 10.06 (b), overtime at the rate fone and one-half (l-1/2) times and employee's regular hourly rate will be paid for all time worked in excess of the regular work period referred to in paragraph 10.01 and 10.02 above. The Employer may request an employee to work overtime at any time prior to the shift in which overtime hours will be accumulated, and the employee has the option to accept or refuse such overtime. Time off work due to paid holidays which are paid in accordance with the provisions of Article II shall not be considered as time worked for the purpose of calculating overtime.
We recognize that Articles 10.01 and 10.02 have, as a major purpose, the setting of a base from which overtime is to be calculated and paid under Article 10.03, and do not constitute a "guarantee" of hours of work each week. On the other hand, we find that the use of the words "normal" and "regular" do provide some outside limits on the extent to which an employer can unilaterally re-structure his entire method of operation during the term of a collective agreement (or the extension of the agreement's provisions by statute). We find that the arbitration award in City of Nanaimo, 1982 CanLII 5102 (BC LA), 7 L.A.C. (3d) 245, cited by the applicant, aptly sets out the jurisprudence on this issue, to the effect that (at page 256):
.... .a statement of 'normal' hours will not be offended by a scheduling of abnormal hours; a change to a new schedule of normal hours is, however, not permitted".
Whatever flexibility remained open to the respondent under the Management's Rights clause of the collective agreement, therefore, did not extend so far as to permit it to convert the "Willson" portion of its new Home to a schedule made up totally of part-time hours.
- We do not, however, accept the position of the union in this matter either, that Article 9.02of the Willson agreement means that all employees on the "full-time" seniority list at Willson must now be offered full-time work at the new facility, prior to any part-time work being scheduled. Article 9.02 provides:
In case of lay-off and recall, seniority shall apply provided the employees concerned can perform the normal requirements of the job. Under no circumstances will casual, new or part time employees be continuously employed on the job while any senior full-time employee is on lay-off. Such senior employees on lay-off will be given the first opportunity to accept casual, part time or new positions.
This, in our view, is not essentially a "scheduling" clause, but rather a "seniority" clause, as is borne out by both its language and its context (in the "seniority" article). Indeed, the prohibition against the use of part-time employees in sentence 2 is not in terms of any full-time employees being on lay-off, but rather of senior full-time employees being on lay-off. And we note, in this regard, that a number of employees on the part-time list have a higher seniority date than some of the employees on the full-time list.
Nor do we accept the submission of the applicant that the "part-time~~ seniority list represents a kind of "on-call" list of employees, to be slotted in on a replacement basis as needed. The evidence of the final 10 weeks of scheduling at Willson itself does not support that. Rather, the "part-time" hours, just like the full-time hours, make up a regular part of the weekly schedule, and are, like the full-time hours, scheduled and posted in advance. We note, for example, that all of the Nurse's Aides appearing on the "part-time" seniority list as of that point in time were scheduled for regular hours in each of the 10 weeks of scheduling filed with the Board.
The evidence discloses, in other words, that a "mix" of full-time and part-time hours were used in the scheduling of nursing hours at the Willson Home, and that mix, from the schedules filed, was virtually without exception in the ratio of 1.1 full-time employees to I part-time. For the purpose, therefore, of adopting an arbitrary staffing model, as we must, to provide the parties with guidelines for carrying out the "re-staffing" which now must take place in the Willson portion of the new facility, we adopt a scheduling ratio to be put into effect, at least for the present re-staffing purposes, of 1. 1 full-time to 1 part-time Nurses' Aides.
The final issue affecting the composition of the bargaining unit or voting constituency is the inclusion or exclusion of "bed-makers" and "activity directors". The "bed-makers" are students hired at the new facility to come in from 6:30 to 8:30 every morning to make beds, on their way to school. No such concept existed at the Willson Nursing Home. It is the view of a majority of the Board, once again, that the students employed in this limited capacity are distinct in their nature and interests from other "part-time" employees or even "students employed during the school vacation period" at the Home. So long as their use does not increase from the current level of 70 hours a week, therefore (other than in proportion to an increase in the number of occupied beds in the Home), we are content to leave the respondent with the flexibility of having these student bed-makers excluded from the bargaining unit. We recognize, however, that these bed-makers are performing work which at Willson was part of the bargaining unit, and in granting the employer's request, we consider it necessary to compensate the former Willson employees for the corresponding loss of work opportunities occasioned by the removal of all of the bed-makers from the unit. The information that we have is that the work of the current 10 bed-makers would translate into an additional 3-plus Nurse's Aides if the work was done on the latter basis. Relating that figure to the 43 Nurse's Aides presently employed to staff the Nursing Home, we find that the use of bed-makers represents the potential of an additional 7 per cent of the bargaining unit. We therefore grant the employer's request for the exclusion of bed-makers on the basis of increasing the "Willson" portion of the Nurse's Aide positions from 63 to 70 per cent of the total complement. The job of activity director, on the other hand, was one that existed within the bargaining unit at Willson, and no grounds have now been made out for its exclusion.
In sum, then, we find that the Nursing Home portion of the new facility now requires 803 Nurse's Aide hours per week to run. Seventy per cent of those hours (i.e. 562 hours) are allocable to the work coming from the Willson Nursing Home, and are to be scheduled for staffing purposes on a ratio of approximately 1.1 full-time to part-time employees. This staffing is to he done on a priority basis from amongst the employees on the full-time and part-time Willson seniority lists filed with the Board. The parties have agreed that this will he carried out by proceeding through the Willson seniority lists to offer whatever jobs are available to first the employees on the "full-time" seniority list, and then to the employees on the "part-time" seniority list. Any "full-time" jobs not filled from the "full-time" list would of course be offered to the employees on the "part-time" list; and, on the other hand, any of the jobs in the Willson portion of the Home not able to be filled from the available qualified staff on the two lists together would be open to be filled by the respondent Caressant Care through its own resources.
The remaining Nursing Aide hours (803 — 562 = 241) are fairly allocable to Caressant Care's own portion of the Nursing Home, and will continue for the purposes of the Board's vote to be staffed in the same manner as at present, with employees averaging roughly 18 3/4 hours per week on a hi-weekly basis. Similarly, 2 of the 3 activity director positions are to be offered to any qualified "Willson" employees, on the basis of their seniority. When the "re-staffing" has been completed on this basis, and those employees who elect to accept the respondent's offer have demonstrated the firmness of that acceptance by commencing employment at the Home, the Board, through its officer, can proceed to make arrangements for the vote. Given the fact that the Board's "sale" finding in August of last year means that the qualified Willson employees should have been employed at the new facility, depending on their seniority, by as early as July 1983, and the Board's concern that the representation vote he determined by employees having a genuine commitment to continued work at the new Home, the Board is not persuaded to defer the re-instatement of entitled Willson employees, with the escalating cost to the respondent that that carries with it, until after, as the respondent has requested, the representation vote has been conducted. Rather, the respondent is directed to proceed with the actual re-staffing of the Home, in accordance with the scheduling parameters set by the Board, without further delay.
Clearly all Willson employees still on the seniority list who accept employment in the "Willson" portion of the new Home do so on the basis of the terms and conditions of the Wilison collective agreement, with no break in seniority or service credits under that agreement. That is not in dispute. The respondent raises a question, however, whether any obligation still exists to offer employment to former Willson employees who had come to work at the new facility and then quit. In the view of the Board, since such persons were at no time offered employment in accordance with the terms and conditions they were entitled to under the Willson agreement, they are still entitled to an offer of employment that is in accordance with the collective agreement, at least for the purposes of the issues before this Board.
The respondent also argues that the Board, because of the onerous nature of the collective agreement, should exercise its power under section 63(6)(a) to declare that the Willson collective agreement no longer is binding upon the respondent even if the union wins the vote. This is rather an astonishing submission. It is apparent that section 63(6)(a) would operate to cause the Board to do just that if the union were to lose the vote. The respondent would then he free to operate the entire Nursing Home, rather than just a part, on the basis of its own policies and employment terms and conditions (although obviously the provisions of the Labour Relations Act continue in such situations to act as a safeguard against any form of discrimination against formerly unionized employees). But if the union wins the vote, it surely should not be in a worse position, vis-a-vis the collective agreement, than it had been at the new facility prior to the vote. The Board therefore wishes to make it clear that, an opportunity having been granted for a representation vote to cure the anomaly of the respondent's two "intermingled" businesses being operated one under the terms and conditions of a collective agreement and one not, the result of a vote in favour of the union will mean that the terms and conditions of the Willson collective agreement will apply to the entire Nursing Home until, in accordance with the Hospital Labour Disputes Arbitration Act, a new collective agreement has been entered into between the parties.
The question of damages for the failure to date of the respondent to honour the seniority rights of former Willson Nursing Home employees does not form part of what is now a section 63 application. As pointed out orally to the respondent, however, that liability flows naturally from the Board's finding of a "sale", and the ultimate cost to the respondent continues to mount with each day that former Willson employees who should have been offered employment, remain on the street. For this reason, together with the Board's own interest in finalizing this matter by being able to conduct without further delay the representation vote directed in its August 24th decision, the Board herehy appoints its Officer, L. Stickland, to meet with the parties immediately upon receipt of this decision, in order to assist the parties to carry out all of the preliminary steps necessary to placing the Board in a position of holding its representation vote.