Ontario Nurses Association v. The General Hospital of Port Arthur and Ontario Hospital Association

[1986] OLRB Rep. September 1218

2579-85-U Ontario Nurses Association, Complainant, v. The General Hospital of Port Arthur and Ontario Hospital Association, Respondents.

BEFORE: G. T. Surdykowski, Vice-Chairman, and Board Members J. Murray and J. Sarra.

APPEARANCES: Beth Symes, David Nicholson, Dan Anderson, Evelyn Burne and Margaret Dyck for the complainant; F. J. W. Bickford, L. B. Gilman, Donna Johnson, B. Anderson and E. D. Blassic for the General Hospital of Port Arthur; Janice Baker and Ted Crabtree for the Ontario Hospital Association.

DECISION OF THE BOARD; August 29, 1986

1. This complaint under section 89 of the Labour Relations Act came on for hearing in Thunder Bay on August 19th, 20th and 21st, 1986. The Board first heard submissions from the parties with respect to a number of preliminary objections or "motions" made by the respondents. After hearing from the parties, the Board issued an oral decision as follows:

"This is a complaint under section 89 of the Labour Relations Act in which it is alleged that the respondent Hospital and Ontario Hospital Association have breached sections 3, 15, 64, 66, 67, 70 and 79 of the Labour Relations Act and section 13 of the Hospital Labour Disputes Arbitration Act. At the outset there are a number of preliminary objections taken by the respondents in this proceeding. In essence, the respondent Hospital submits as follows:

1. That the allegations, on the face of the "pleadings", do not reveal a prima facie case against it and that the Board should therefore dismiss the complaint pursuant to section 71 of its Rules of Procedure.

2. That the matters complained of relate to and are congruent with a contractual dispute between the parties and that the Board should therefore defer to arbitration.

3. That any discussions between the parties subsequent to January 15, 1986 and which relate to a possible resolution or settlement of the matters in dispute are privileged as being settlement discussions and therefore are not properly raised in this complaint and should be struck therefrom.

4. That the complaint is insufficiently particularized insofar as it is alleged that the Hospital is in breach of its obligations under section 15 of the Act.

The respondent Ontario Hospital Association submits that the complaint is:

1. Untimely, at least in part.

2. That it lacks particularity.

3. That it reveals no prima facie case against it, and

4. That it is frivolous and vexatious.

The Ontario Hospital Association urges, through its counsel, that the Board dismiss the complaint against it in its entirety pursuant to its authority under section 71 of the Rules of Procedure or, in the alternative, that the complainant be required to provide further particulars.

The complainant withdraws its allegations that the respondents or either of them have breached section 79 of the Ontario Labour Relations Act or section 13 of the Hospital Labour Disputes Arbitration Act. It also agrees that the respondent Ontario Hospital Association cannot be in breach of section 15 of the Act since, not being a "party" within the meaning of that provision, it has not duty thereunder (see Ontario Hospital Association and Hospitals Negotiating Team - CUOE and Participating Hospitals, unreported decision dated December 15, 1983 in Board File No. 1501-83-U). Consequently, that aspect of the complaint is also withdrawn and is so noted. Other than that, the complainant denies that there is any merit to the preliminary objections or motions.

The complaint herein has been developed or "pleaded" over a period of time. The allegations upon which the complainant bases its case are found in a number of documents which include the following:

(a) the original complaint dated January 22, 1986;

(b) a letter dated February 13, 1986;

(c) a letter dated February 19, 1986;

(d) a letter dated March 18, 1986;

(e) a letter dated April 9, 1986, and

(f) a letter dated July 28, 1986.

The thrust of the complaint seems to be as follows:

1. That the respondent Hospital is in breach of its duty to bargain fairly with the complainant by reason that it did not advise the complainant, either directly or through its bargaining representative the Ontario Hospital Association, that it would, or that it would be possible that it would, discontinue scheduling bargaining unit nurses for extended tours if the complainant was successful in their interest arbitration. The complainant asks that the Board clarify the application of section 15 of the Act and the duties and responsibilities of an employer thereunder. Counsel seeks to persuade the Board to put a gloss or extension on the Board's application of section 15 in Consolidated Bathurst Packaging Ltd., [1983] OLRB Rep. Sept. 1411 (overturned by the Divisional Court on a point of natural justice and presently before the Court of Appeal) and Westinghouse Canada Limited, [1980] OLRB Rep. April 577. Counsel relies in part on the different collective bargaining "circumstances".

2. That both the respondents, as a result of the manner in which they decided to, threatened to, and in fact did discontinue extended tours, threatened, intimidated, coerced, or penalized bargaining unit employees by seeking to have them give up rights under the collective agreement and therefore under the Act, and that the respondents are therefore in breach of sections 66 and 70 of the Act. In this regard counsel submits that "counselling" a breach of the Act may in itself be a breach of the Act. Implicit in this is the submission that the motivation behind the actions of the respondent were improper.

3. That the Hospital went behind the back of the complainant and bargained directly with bargaining-unit employees in violation of sections 64 and 67 of the Act and that the Ontario Hospital Association is in violation of section 64 by reason that it was its counselling that induced the Hospital to commit these unfair labour practices.

The parties spent some one-and-a-half days making their submissions with respect to the preliminary matters and the Board has given them the careful consideration that they deserve. In the result, we find that we cannot give effect to any of the preliminary objections or motions.

First, section 71(1) of the Board's Rules of Procedure entrusts the Board with the discretion to dismiss, without a hearing, a complaint which does not, on its face, make out a prima facie case for the remedy requested. In some circumstances, it would be entirely appropriate for the Board to exercise its discretion under that provision where it is obvious that the facts alleged could not support an argument that a violation of the Act has occurred. However, the Board must be cautious in exercising its discretion under section 71(1) and should do so only where a complainant's position is manifestly untenable and where there is nothing in the complaint which could, if established, induce the Board to grant some or all of the relief requested. However, where, as here, the complaint raises subtle questions of fact, law, and labour relations policy, some of which are dependent upon the inferences that may be drawn from circumstances and events that occurred over a period of time, it is not appropriate to dispose of the matter without a full hearing on the merits (see the International Association of Bridge, Structural and Ornamental Iron Workers, [1982] OLRB Rep. Feb. 233). In this proceeding, the complainant seeks to persuade the Board to break new ground. The fact that its arguments may be novel and that its case might be difficult cannot stand in the way of its right to have the matter determined on its merits by this Board. We are of the view that it cannot be said that the complaint, as set out in the various documents that constitute the pleadings herein, fails to make out a prima facie case against either respondent. Consequently, the motions of both respondents to dismiss this complaint without a hearing are dismissed.

Second, the issue of whether or not this Board should defer to a grievance arbitration of the dispute between the parties arises when such an alternative remedy exists. Since the respondent Ontario Hospital Association is not a party to any collective agreement with the complainant, there is no such alternative available with respect to the complaints made against it. With respect to the respondent Hospital, any such deferral can by no means be automatic. The Board's practice with respect to the issue of deferral to arbitration has, as its starting point, a policy that the practice and procedure of collective bargaining are to be encouraged and that dual litigation or forum shopping are to be discouraged. However, if the Board is to defer to arbitration, it must be satisfied that the resolution of the contractual issue is "congruent with" the resolution of the complaint that there has been a breach of the Act. That congruence is essential if the Board is to defer to arbitration. Where, the matters in dispute involve a significant elaboration or application of significant provisions of the Act and where the impugned conduct at least arguably constitutes a violation of fundamental rights under the Labour Relations Act, and where the complaint raises issues that transcend the interests of the immediate parties, the complaint cannot be characterized as being essentially contractual (see Valdi Inc., [1980] OLRB Rep. Aug. 1254 and the International Association of Bridge, Structural and Ornamental Iron Workers, supra). Consequently, even where the complaint does involve conduct which is either a violation or not a violation of a collective agreement, there may still exist an unfair labour practice that it is appropriate for this Board to deal with. A reduction of work hours, for example, might be a management right unfettered or even authorized by a collective agreement and yet be restricted in some way by the provisions of the Labour Relations Act (see K Mart Canada Limited, [1983] OLRB Rep. May 649 and Sunworthy Wallcoverings, [1986] OLRB Rep. Jan. 164). Nor does section 9(1) of the Hospital Labour Disputes Arbitration Act change that in this particular complaint. That statutory provision merely directs a board of arbitration to examine and decide whatever is necessary in order to produce a collective agreement. It specifically precludes such a board of arbitration from dealing with any matters within the jurisdiction of the Ontario Labour Relations Board. This complaint does involve a dispute, and indeed a grievance, with respect to the exercise by the respondent Hospital of a purported right under the collective agreement between it and the complainant. However, it appears clear to us that the action of the Hospital, i.e., the discontinuance of extended tours, whether or not it was authorized by the collective agreement (which issue is to be decided by a board of arbitration) is alleged to have been improper not only because it was in fact done, but also because of the motive alleged to have been behind it and the manner in which it was carried out. The complaint raises serious questions with respect to the application of sections 15, 64, 66, 67 and 70 of the Act, questions which could not be dealt with by a board of arbitration and which indicate that the matters in dispute cannot, in our view, be said to be essentially contractual in nature or that the resolution of the grievance will be congruent with the resolution of the unfair labour practice as alleged. Accordingly, the Board will not defer to arbitration.

Third, on the question of privilege raised by counsel for the respondent Hospital, and considering the tacit, if not express agreement of the parties, we defer our ruling until such time as the matters are raised in evidence at which time they can be properly and more appropriately dealt with.

Fourth, both respondents complain that the complaint lacks particularity and refer to section 72 of the Board's Rules of Procedure. That rule requires a party alleging improper conduct against another to do so with sufficient particularity to enable the respondent to know what impropriety is being alleged and what case will have to be met or made so as to enable it to properly prepare for the hearing (see, for example, Trigiani Contracting Ltd., [1979] OLRB Rep. Feb. 141). However, in determining whether particulars are adequate in a specific complaint, the Board does not adopt standards as strict as those of the Courts. The question really becomes one of whether or not the respondents can reasonably understand what it is that is being said against them so as to enable them to prepare to defend themselves. In determining an issue of adequacy, the Board will look to all of the circumstances of the case including the six factors listed in Racine, Robert and Gauthier, [1978] OLRB Rep. June 559, which decision has been cited with approval in a number of Board decisions since. There is no requirement that the allegations in a complaint use any particular wording. We are of the view that the allegations in this complaint adequately identify the offences alleged and the conduct complained of and therefore satisfy the requirements of section 72 which requires only a concise statement of material facts upon which the complainant relies and not evidence thereof. The motions of the respondents in this respect are therefore dismissed. However, we do wish to stress that the complainant will be limited in the presentation of its case to the particulars actually pleaded, unless something unforeseen arises and there is a cogent and compelling reason that it should not be so bound.

Fifth, the respondent Ontario Hospital Association submits that some of the allegations against it are untimely and should not be entertained by the Board because of the delay in making them. As the Board stated in City of Mississauga, [1982] OLRB Rep. March 420, it does not have any rigid or mechanical practice with respect to the matter of delay in recognition of the fact that it deals with statutory rights. The Ontario Hospital Association does not allege prejudice here and the delay is not substantial. Having in mind the considerations set out in City of Mississauga, we are of the view that any delay here is not such as to prompt us to refuse to consider any of the allegations. Furthermore, any delay can be taken into account if and when we arrive at the issue of remedy. This preliminary objection is therefore also dismissed.

Sixth, given our conclusions, we cannot find that the complaint is frivolous and vexatious on its face. That objection is also dismissed.

Finally, we wish to emphasize that we have arrived at our conclusions on the basis of the allegations on the face of the pleadings and the submissions of counsel as those related specifically thereto. We have arrived at no conclusions whatsoever with respect to the merits of the complaint.

The matter will now proceed to be heard by the Board on its merits."

2. On agreement of the parties, the hearing into this complaint will continue in Thunder Bay on December 15, 16 and 17, 1986 and again on January 6, 7, 8, 9, 13, 14 and 15 of 1987 unless otherwise advised.