Ontario Nurses' Association v. Oakridge Villa Nursing Home

[1987] OLRB Rep. July 1026

2516-86-U; 2693-86-U; 2995-86-M Ontario Nurses' Association, Complainant v. Oakridge Villa Nursing Home, Respondent; Extendicare Health Services Inc., Complainant v. Ontario Nurses' Association, Respondent; Oakridge Villa Nursing Home (Extendicare Health Services Inc.), Employer v. Ontario Nurses' Association, Trade Union

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BEFORE: Rosalie S. Abella, Chair, and Board Members D. A. MacDonald and B. Armstrong.

APPEARANCES: Loretta Mikus, Mary Hodder, Cathy Green, Edith Klassen, Jean Jordan on behalf of Ontario Nurses' Association; Paul Jarvis, and Judith Clarkson on behalf of Oakridge Villa Nursing Home (Extendicare Health Services Inc.).

DECISION OF THE BOARD; July 30, 1987

1. The central issue in these consolidated proceedings is whether or not a collective agreement has been entered into between the Ontario Nurses' Association (O.N.A.) and Oakridge Villa Nursing Home/Extendicare Health Services Inc. Several issues are before us, all of which depend on our determination of whether the agreement exists as a binding legal document. There is a complaint by O.N.A. that Oakridge has violated sections 15 and 79 of the Labour Relations Act and section 13 of the Hospital Labour Disputes Arbitration Act. Oakridge/Extendicare has complained that O.N.A. has violated sections 15 and 70 of the Labour Relations Act by refusing to recognize the collective agreement as valid. In addition, there is a referral by the Minister pursuant to section 107 of the Labour Relations Act questioning his authority to appoint a conciliation officer in this case.

2. O.N.A. has had two previous collective agreements with Oakridge. Bargaining for those two agreements, as for all of O.N.A.'s agreements, proceeded through a process whereby O.N.A.'s elected Joint Bargaining Objective - Setting Committee devised a questionnaire for all 45,000 members, tabulated the results, and ultimately formalized a document setting objectives for the next round of bargaining.

3. O.N.A. represents 105 nursing homes and homes for the aged. Of these, 22 are owned by Extendicare. Oakridge, one of Extendicare's homes, was organized in 1982. One of O.N.A.'s traditional bargaining objectives has been parity for nurses in nursing homes with wages received by nurses in hospitals. Except for the period when wage restraints were imposed, O.N.A. has consistently refused to enter into a collective agreement if parity could not be achieved, preferring to allow the matter to go to arbitration. O.N.A. continues to refuse voluntarily to agree to bargaining terms which do not meet this central objective for nursing homes.

4. O.N.A.'s locals are not, in some significant respects, autonomous. O.N.A., rather than the local, is the party to any agreement. It has always been O.N.A.'s practice that collective agreements entered into bear the signature of a centrally employed Employment Relations Officer. It was O.N.A.'s evidence that no collective agreement has ever been executed without either the signature of the Employment Relations Officer or of O.N.A.'s Chief Executive Officer, who has the constitutional right, with O.N.A.'s Board of Directors, to resolve any disputes between the local and the central office.

5. In July 1986, Cathy Green, O.N.A.'s Employment Relations Officer with responsibility for Oakridge, served notice to bargain. The first meeting took place on December 3, 1986. She, Pat Gallinger, Pat Sinclair, and Barb Meloche constituted O.N.A.'s negotiating committee. Other than Green, the negotiating committee consisted of bargaining unit members. Sam Mandelbaum, Extendicare's Manager for Labour Relations and Diane Cole, the Administrator for Oakridge attended for the employer. Green identified herself as the spokesperson for the negotiating committee and indicated that if anything were to be signed, she would have to sign on 0 .N.A. 's behalf. proposals were exchanged, starting with Green's presentation on O.N.A.'s behalf. Agreement was reached during the morning on several issues, but negotiations broke down on the question of parity. Green explained that, in accordance with the O.N.A. bargaining objectives, she was unable to settle for less than parity. The negotiations adjourned at lunch to give Green an opportunity to discuss the parity issue with her negotiating committees all of whom were anxious to accept the employer's wage proposals rather than await the outcome of arbitration. In the two previous rounds of bargaining at Oakridge, the refusal to grant parity had resulted in arbitration~ a process which had in each case resulted in long-delayed awards and no parity.

6. At lunch with her committee members, Green explained to them that she had no mandate to accept anything less than parity. In the face of their obvious frustration and concern, she suggested the committee meet that afternoon with Mary Hodder, then the Manager of Employment Relations for O.N.A. Green informed Mandelbaum of her intentions and told him that she would let him know if she got O.N.A.'s authority to accept his offer. He gave her his card and told her to contact him with her position.

7. At the meeting later that afternoon with Hodder, Hodder showed the committee the Joint Bargaining Objectives Guidelines and explained that accepting an agreement for less than parity would have harmful effects on O.N.A.'s bargaining positions with other employers. Oakridge's offer was 2% below parity. She explained that in the absence of approval from O.N.A.'s Board, she herself could not authorize a settlement that violated the parity objectives. The next available board meeting was not to be until February 4, 1987.

8. On December 4, Green called Gallinger to tell her that they could accept an interim agreement to bring the nurses up to the 1986 wage rates provided it was without prejudice to negotiations for the final wage package. When Green called Meloche and Sinclair the same day to advise them of this possibility, she was told by them to hold off on requesting an interim arrangement because they had called a membership meeting for that evening. Green asked if she could attend and was told she could not. Green understood at this point that her committee members were "upset" at not being permitted to sign an agreement.

9. On December 5th, Judith Clarkson, Director of Labour Relations for Extendicare's Eastern Canadian Region, attended negotiations with Meloche, Gallinger and Sinclair at Cole's request. Mandelbaum could not attend because of a death in his family. Cole told Clarkson the negotiating committee wanted to meet with her to accept Mandelbaum's proposals. Clarkson met first with Cole and Marilyn Karn, Regional Director at Extendicare, to review the proposals. She then met with the negotiating committee and asked if Green would be attending. She was told by them that they had tried unsuccessfully to reach Green, but that they were the bargaining unit negotiating committee and had the right to do the bargaining. Clarkson offered to adjourn the negotiations until Green and Mandelbaum could attend the following week, but was told by the nurses they wanted to conclude the agreement that day. The agreement was in fact signed that day, notwithstanding Clarkson's former bargaining experience with O.N.A. which ought to have alerted her, at the very least, to being wary in accepting the bargaining unit member's assertions of authority to bargain.

10. There was a meeting of the membership of the O.N.A. local purporting to ratify the agreement reached earlier in the day by Meloche, Gallinger and Sinclair in Green's absence. On December 8th, after talking to Clark, Mandelbaum drafted a collective agreement based on the December 5th memorandum of settlement. Mandelbaum admitted that he had never personally experienced a situation in which a collective agreement was finalized with O.N.A. without the signature of an Employment Relations Officer. He also admitted that he knew of no occasion when O.N.A. agreed to settle at less than parity. There was "no doubt" in his mind what Hodder's position on parity was throughout 5 years of an "excellent relationship" with her. Although Mandelbaum learned on December 8th about Green's December 5th letter, he did nothing about it.

11. On December 5th, Green spoke to Meloche who advised her that she had signed a memorandum of settlement with the employer on behalf of the negotiating committee. Green, in turn, advised Meloche that it was not a valid collective agreement without Green's signature. After talking to Meloche, Green immediately sent a letter by courier to Judith Clarkson, Director of Labour Relations at Extendicare. It read:

"Dear Ms. Clarkson:

Failure to bargain with the Association is contrary to the Labour Relations Act. If you continue to meet with the local to bargain without the Association, who is the bargaining agent, we will file charges at the Labour Board. We also draw to your attention that any settlement not agreed to or signed by the representative of the Association itself is invalid.

Cease and desist negotiations without Association representative immediately."

12. Clarkson stated that she got Green's letter of December 5th at 4:15 p.m. the same day, but proceeded to sign anyway because the letter had "no meaning" for her since she felt she had a valid memorandum of settlement bearing the signatures of the negotiating committee. Clarkson also admitted, however, that despite several years of experience, she has never had negotiations without an O.N.A. Employment Relations Officer being present, or seen an agreement signed by O.N.A. without an Employment Relations Officer's signature. She was also aware of O.N.A.'s position on parity. She stated that she accepted the bargaining unit nurses' version that they had the authority to bargain.

13. A purported collective agreement was signed on December 19th by Gallinger, Meloche and Sinclair on behalf of the union and Clarkson, Cole, and Karn on behalf of the employer. Green next heard from the employer by registered mail in a letter dated December 22, 1986. That letter states:

"Dear Ms. Green:

Please find enclosed one signed original copy of the collective agreement between Extendicare/Oakridge Nursing Home and the Ontario Nurses' Association covering the period from January 1, 1986 to December 31, 1987 for your records. I have also forwarded three signed original copies to the members of the ONA. Negotiations Committee at Oakridge plus the Letter of Intent concerning Job Sharing and Cash Settlement, copies of which are also enclosed.

Sincerely,

Sam Mandelbaum."

14. It is clear both from O.N.A.'s constitution and its historic practices that collective bargaining takes place through O.N.A.'s central office. No agreement has ever been signed without an Employment Relations Officer or without the approval of O.N.A.'s Board of Directors. This practice was known to Mandelbaum and Clarkson, as was O.N.A.'s refusal willingly to sign an agreement which failed to achieve wage parity with the hospital sector. The local bargaining committee members were firmly told, first by Green and then by Hodder that they had no mandate to enter into an agreement unless parity was obtained. This local committee consisting of Meloche, Sinclair and Gallinger had no authority to sign any agreement, regardless of its terms, without the concurring signature of Green. Given the company's experience with, and knowledge of O.N.A.'s negotiating practices, particularly in light of Green's letter, it cannot rely on the ostensible authority of the bargaining unit members of O.N.A.'s negotiating committee. In the absence of O.N.A.'s signature through its Employment Relations Officer, O.N.A. was not a party to the agreement and therefore, absent Green's signature, no collective agreement exists between these parties. What has been signed is a document executed by Extendicare, which had legal authority to sign, and the local negotiating committee which, according to O.N.A.'s constitution, did not. The document is therefore null and void as a collective agreement and not binding on O.N.A.

15. What remains to be decided are the cross-applications pursuant to section 15 of the Labour Relations Act alleging bad faith bargaining, and O.N.A.'s complaint pursuant to section 13 of the Hospital Labour Disputes Arbitration Act. Extendicare is accused of bad faith in signing the document notwithstanding the warning it received via's Green's personally communicated caveats and her letter received by Oakridge on December 5th. O.N.A. is accused of violating the duty to bargain in good faith for its refusal to acknowledge the agreement. In our view, O.N.A.'s complaint must succeed. Extendicare was not only imprudent in signing the settlement and collective agreement, faced with Green's letter of December 5th and based on the personal experience Mandelbaum and Clarkson had in the past with O.N.A., they ought moreover to have known that they were circumventing the union in signing with the bargaining unit members. The union was, in this case, O.N.A., and Extendicare knew that O.N.A. was unwilling to sign. The bargaining unit members in these circumstances had neither the ostensible nor actual authority to bargain or sign without O.N.A. On the other hand, O.N.A. cannot be held to have violated section 15 of the Act for refusing to acknowledge as legal and binding a collective agreement it rightly perceived to be void and contrary to its own constitution.

16. As to the freeze violations, clearly there is a technical breach in Extendicare's implementation of terms and conditions the union had not agreed to, given our finding that there is no valid collective agreement.

17. In all the circumstances of this case, therefore, we find that there is no collective agreement between the parties and the Minister therefore has the authority to appoint a conciliation officer. The panel will remain seized in the event that the parties are unable to agree to an appropriate remedy for the remaining violations.