[1993] OLRB Rep. January 54
2486-92-R Riverview Manor Nursing Home, Applicant v. Ontario Nurses' Association, Responding Party
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members R. W. Pirrie and R. R. Montague.
APPEARANCES: Loretta P. Merritt and Fraser Wilson for the applicant; George P. Rejminiak, John Vance, Louise McKay, Mary Hodder and Marie Calberry for the responding party.
DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER R. W. PIRRIE: January 19, 1993.
This is an application for a declaration terminating certain bargaining rights held by the Ontario Nurses' Association (the "ONA"). It was made and litigated prior to the coming into force, on January 1, 1993, of amendments to the Labour Relations Act.
The application is made under section 60(2) of the Act, which provides that:
- (2) Where a trade union that has given notice under section 14 or section 54 or that has received notice under section 54 fails to commence to bargain within sixty days from the giving of the notice or, after having commenced to bargain but before the Minister has appointed a conciliation officer or mediator, allows a period of sixty days to elapse during which it has not sought to bargain, the Board may, upon the application of the employer or of any of the employees in the bargaining unit and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit.
The application came on for hearing on December 18, 1992. The parties were prepared to call evidence but at the Board's suggestion were able to agree that, with the exception of one small point, the application could be argued and disposed of by the Board on the basis of the materials filed. The Board then heard the evidence of the parties on the one point (relating to paragraph 19 of the ONA's reply), and their representations.
The ONA was certified as the exclusive bargaining agent for certain employees of the applicant in May, 1988. Because the parties could not come to an agreement on some of the issues between them in their bargaining for a first collective agreement, the matter was submitted to arbitration pursuant to the provisions of The Hospital Labour Disputes Arbitration Act. The resulting interest arbitration award, for a collective agreement which expired on June 30, 1990, was not finalized until May 30, 1992 (the date appearing on an "Addendum Award" issued by the interest board of arbitration). It was not until July 21, 1992 that the ONA gave notice to bargain for a new collective agreement and suggested meeting in late August or early September 1992 to begin negotiations. The applicant employer responded by telephone on July 31, 1992 and suggested September 15, 16 or 17, 1992 as possible meeting dates. By letter dated August 19, 1992, the applicant confirmed that telephone call, and indicated that it had received nothing in response to its suggestions with respect to dates and requested a "prompt" response from the ONA.
The ONA replied by letter dated August 28, 1992. It explained that it had not responded to the applicant's offer of dates because of its internal transfer of responsibility for the bargaining unit in question. The ONA advised that it would be in touch regarding negotiations in early October 1992.
Nothing more was heard from the ONA trade union until late October 1992, when, by letter dated October 28, 1992 the responding party advised the applicant of an employee's "leave of absence for ONA business". There is nothing in either this letter, or in any other communication with the applicant up to the December 18, 1992 date of hearing herein, in which the responding party addressed or even mentioned bargaining for a new collective agreement to the applicant.
Though trite, it it perhaps necessary to note that labour relations delayed are labour relations defeated and denied (Journal Publishing Co. of Ottawa Ltd. et al v. Ottawa Newspaper Guild, Local 205 OLRB et al, [1977] 1 A.C.W.S. 817 (Ontario Court of Appeal)), and that delay in labour relations matters often works unfairness and hardship (Re United Headwear and Builtmore/Stetson (Canada) Inc., (1983) 1983 CanLII 1852 (ON HCJ), 41 O.R. (2d) 287). This is as true, for collective bargaining as it is for other labour relations matters. Further, section 60 of the Act provides specific statutory recognition that delay in collective bargaining is harmful to a collective bargaining relationship. It operates, in conjunction with a statutory obligation to bargain in good faith, to require a trade union to pursue collective bargaining in a timely manner or face the prospect of losing its bargaining rights in that respect.
The Labour Relations Act grants rights to and imposes obligations on employees, trade unions and employers. The purpose of section 60 is to protect an employer and employees from a trade union which fails to pursue collective bargaining in a timely manner (Dominion Stores Ltd. 56 C.L.L.C. ¶18,047; Medi-Park Lodges Inc., [1979] OLRB Rep. Oct. 1007; Fuller's Restaurant, [1981] OLRB Rep. Feb. 156; Prescott Machine and Welding Inc., [1983] OLRB Rep. Feb. 250). In circumstances in which a trade union has not complied with section 60, it must explain its failure to do so. If a trade union has sought to bargain soon after the times specified in section 60, or provides a reasonable explanation for its delay, an application under section 60 will generally be dismissed (Trizec Equities Ltd., [1978] OLRB Rep. Feb. 189; Mohawk Construction Limited, [1981] OLRB Rep. Aug. 1156). Where a trade union has not pursued collective bargaining in a timely manner without reasonable explanation, the Board will generally terminate its bargaining rights (Darrigo's Supermarkets Ltd., [1982] OLRB Rep. Jan. 32; Fuller's Restaurant, supra,). In cases where a trade union has failed to bargain for a substantial period of time without reasonable explanation, but has demonstrated an interest in actively representing the bargaining unit employees, the Board has ordered a representation vote (see, for example, F. C.M. Construction Limited, [1982] OLRB Rep. May 670).
In this case, the ONA did nothing of any substance to pursue collective bargaining with the applicant after giving notice to bargain on July 21, 1992 (which notice was itself rather late in coming). In our view, the ONA's internal re-alignment of collective bargaining responsibilities for the affected bargaining unit does not constitute a satisfactory explanation for its failure to do so, and was itself rather tardy. There is nothing before the Board which even suggests that either the applicant employer or the bargaining unit employees have in any way caused or contributed to the delay in collective bargaining. On the other hand, the material before the Board indicates that the responding party has continued to actively represent the bargaining unit employees in their employment relations with the applicant in that it pursued the cumbersome process which led to the now long expired first collective agreement between the parties, and has continued to have contact with and pursue grievances on behalf of the bargaining unit employees.
We are satisfied that it is appropriate, in the circumstances herein, to let the affected employees have their say in the matter. We therefore find it appropriate to exercise our discretion
under section 60(2) of the Act to direct that a representation vote be taken among those employees.
We therefore direct that a representation vote be taken of all registered and graduate nurses employed in a nursing capacity by Riverview Manor Nursing Home, save and except the Director of Nursing and persons above the rank of Director of Nursing, on the date hereof who are so employed on the date the vote is taken.
Voters will be asked to indicate whether or not they wish to continue to be represented by the Ontario Nurses' Association in their employment relations with Riverview Manor Nursing Home.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER RENE R. MONTAGUE: January 19, 1993
I concur with the above but would observe that one can easily see how the Ontario Nurses Association can fall into a sense of false security in being tardy with time limits. When the Ontario Nurses Association was certified in May of 1988 and the first Collective Labour Agreement was submitted to arbitration pursuant to provisions of The Hospital Labour Dispute Arbitration Act, it took until May 30, 1992 to finalize the collective agreement when in fact it had already expired on June 30, 1990. Truly in my opinion this alone is a travesty.