[1994] OLRB Rep. July 934
4509-93-M The Practical Nurses Federation of Ontario, Applicant v. The Mississauga Hospital, Responding Party
BEFORE: Judith McCormack, Chair, and Board Members G. 0. Shamanski and P. V. Grasso.
DECISION OF THE BOARD; July 29, 1994
- This is an application for interim relief under section 92.1 of the Labour Relations Act. On April 6th, 1994, the Board issued the following oral decision:
After carefully considering the parties' submissions, we direct that the employer restore the status quo which existed as of March 30, 1994 with respect to the jobs of RPN's, and maintain that status quo until the main application has been disposed of by the Board. To minimize the impact of this order on the employer, the main application will be scheduled for hearing on an expedited basis starting April 14, 1994 and continuing day after day, Monday to Thursday, until it is completed. The issue of deferral is remitted to the panel hearing the main application. Our reasons will follow.
We now provide our reasons.
The interim relief application before us relates to a complaint under section 91 of the Labour Relations Act. To understand both that complaint and this application, some background information is necessary. Most of the facts in this matter are not in dispute.
The applicant union originally applied for certification for a group of approximately 165 registered practical nurses in February of 1991. The Board issued a preliminary decision on the appropriateness of the bargaining unit on December 5, 1991. The hospital then applied for reconsideration of that decision, which was rejected by the Board on February 8, 1992. On June 15th of that year, the union was certified as the exclusive bargaining agent for the employees in question.
The parties commenced negotiations for a collective agreement and met on a number of occasions in 1992. A no-board report was issued on February 22, 1993. In the same month, the Board rejected the Hospital's second request for reconsideration of the certification decision.
The union also filed its first complaint under section 91 of the Labour Relations Act. The parties entered into minutes of settlement on April 29, 1993 with respect to that complaint. Those minutes provided in part as follows:
The Hospital represents that there are no present plans for permanent bed closures or amalgamation of units. If such plans are proposed, the Hospital agrees to meet with the union and the employees for the purposes of discussing the proposed plans.
A second complaint was filed by the union in December of 1993 in regard to the transfer of nine nurses in the neurosurgery unit, which the parties adjourned sine die.
In the meantime, the parties were proceeding to interest arbitration under The Hospital Labour Disputes Arbitration Act. The hearing was held on February 18, 1994. Two days before the hearing, the hospital advised employees that it was projecting a 4.3 million dollar deficit for its fiscal year April 1, 1994 to March 31, 1994. Six options to deal with the projected deficit were presented, with a seventh added on the day of the hearing of the interest arbitration. All options involved the elimination of full-time hours of work. Among the issues in dispute at the interest arbitration was a union proposal which would require six months notice (or pay in lieu thereof) in the event of a permanent or long-term layoff.
Employees were invited by the hospital to attend staff open forums on February 24th and 25th. On March 2nd, the hospital posted a budget brief to staff indicating that the previous evening, the Board of Directors had approved in principle the closure of sixty-two beds. On March 17th, the hospital met with the union and advised them that of approximately 133 remaining RPNs, fifty would be required to apply for alternate placements, and twenty-five would likely be laid off. The union's local president requested the names of RPNs affected, and copies of the letters to them. The Hospital refused to provide this information but supplied the union with blank copies of the letters. The reason given for not providing the names of RPNs affected was that it was "personal". At the interim order hearing, the hospital agreed to provide these names in response to a question from the Board.
With one exception, all the layoffs in the nursing division of the hospital were imposed on the newly-certified RPN unit rather than other groups of employees such as the non-unionized nurses. Approximately one-half of the members of the RPN unit were affected by the letters. Ultimately, only 16 RPNs were given final layoff notices, due to internal adjustments.
The union then wrote to the hospital asking that the hospital's actions be revoked or postponed until the award of the interest arbitration board had issued, a course of action which the hospital declined.
The union subsequently brought this application, which the hospital acknowledges was delivered to it on March 30, 1994. Because of the intervention of a holiday weekend, a hearing was scheduled for April 5, 1994. On April 4th, the hospital implemented the changes.
The union takes the position that the hospital's conduct was motivated by anti-union animus and an attempt to decimate the bargaining unit; that the hospital's actions are a reaction to the union's request for job security provisions in the collective agreement and an attempt to circumvent the impact of the arbitrator's award by laying off RPNs before the award issues; that the hospital breached the terms of the minutes of settlement above because it did not discuss the bed closures until after the decision had already been made by the Board of Directors and was in the process of implementation; and that the hospital breached the freeze provisions of the Labour Relations Act.
By way of interim relief, the union requests that the Board direct the hospital to revoke or postpone the implementation of the alternative placement and layoff notices until the section 91 complaint related to accompanying this application is determined or until the interest arbitration award is issued. It also asks for compensation for any affected employee. Counsel asserts that without such an order, the bargaining unit will be decimated, support for the union will be further undermined, and it will be difficult to restore the status quo subsequently. He argues that in light of the volume of difficult litigation between the parties, and because over three years have elapsed since the union applied for certification and there is still no collective agreement, the union's position is a fragile one, particularly since the open period is likely to follow the issuance of the interest award in short succession.
The hospital disputes the union's assertions with respect to violating the Labour Relations Act, and argues that the harm to the union is purely economic, which can be the subject of compensation in the section 91 complaint if necessary. In contrast, counsel asserts that the harm to the hospital consists of letting its deficit accumulate unnecessarily. Counsel is also of the view that the underlying issue in the related section 91 complaint is job security, and that that issue is presently before the interest arbitration board. As a result, the Board should defer hearing the section 91 complaint to that board. In addition, counsel notes that the union did not make an application for an interim order with respect to the December 1993 unfair labour practice complaint involving the transfer of 9 RPN's from the neurosurgery unit. Counsel argues that this indicates that the section 91 complaint related to this case which also involves transfers is less urgent than the union asserts.
Section 92.1 provides as follows:
92.1.(1) On application in a pending or intended proceeding, the Board may grant such interim orders, including interim relief, as it considers appropriate on such terms as the Board considers appropriate.
The language of section 924(1) makes it clear that the Board has a large measure of discretion in determining applications for interim relief. In applying this section, the Board has considered both whether the applicant has an arguable case on the main application, and whether the possible harm which might flow from granting the application outweighs that which may occur if the requested relief is denied. With this basic framework in mind, the Board has also considered such factors as delay, whether the harm is purely economic, the preferred labour relations circumstances to be preserved or created on an interim basis, the preservation of a meaningful remedy on the main application, the effect on the process of collective bargaining or the collective bargaining relationship, the scheme of the Act, and broader public or labour relations policy considerations. The Board's assessment takes place in the context of its specialized expertise in labour relations and the administration of the statutes it applies. (See, Loeb Highland, [1993] OLRB Rep. Mar. 197; Morrison Meat Packers Ltd., [1993] OLRB Rep. April 358; Price Club Canada Inc., [1993] OLRB Rep. July 637; Blue Line Taxi Company Limited, [1993] OLRB Rep. Aug. 793; La Section catholique du Conseil scolaire de languefrancaise d'Ottawa-Carleton, [1993] OLRB Rep. Sept. 844; Reynolds-Lemmerz Industries, [1993] OLRB Rep. Mar. 242; The Hydro-Electric Commission of the City of Ottawa, [1993] OLRB Rep. Nov. 1231; Metropolitan Toronto Apartment Builders Association, [1993] OLRB Rep. Mar. 219; The Bay-Kingston, et al., [1993] OLRB Rep. Dec. 1350; Fort Erie Duty Free Shoppe Inc., [1993] OLRB Rep. Dec. 1307; Tate Andale Canada Inc., [1993] OLRB Rep. Oct. 1019 and William Neilson Ltd., [1994] OLRB Rep. Mar. 326.
Turning to the arguments in this case, we find that the union has an arguable case in the sense that if its allegations with respect to anti-union animus are proven, they would amount to violations of the Labour Relations Act. This leads us to a consideration of the balance of harm.
In this regard, we approach the matter as if the changes implemented by the hospital had not yet taken effect. In other words, the issue before us is whether to postpone the changes pending the outcome of the main application, not whether to revoke them. We do so because the hospital had notice of both the main complaint and the April 5th interim order hearing at the time it effected the changes on April 4th. If we were to allow a party with such notice to rely on the difficulty of undoing changes implemented with the full knowledge of the kind of order sought here, we would open up the possibility of the integrity of our processes being affected by self-serving activities. This is particularly so in circumstances where it is not clear that there was any reason why the changes could not have waited for one day until the interim order hearing.
With this in mind, we turn to the harm the union asserts is likely to flow if the interim relief is not granted. The combined operation of the Labour Relations Act and the Hospital Labour Disputes Arbitration Act means that the open period in which employees can apply to terminate the union's bargaining rights is likely to arise shortly after the issuance of the interest arbitration award. The effect is that after three years of waiting and uncertainty, employees will likely have the benefit of a collective agreement for only a brief moment in time before the stability usually provided by the closed period disappears. The normal sequence of events where parties have an opportunity to experience life under a collective bargaining regime for a significant length of time before the issue of representation can be raised again has been distorted by this process. Instead of a period of adjustment during which the parties would usually be building a labour relationship, there has been only the kind of delay and uncertainty which the Board has noted previously may erode the interest of employees in collective bargaining. This makes the case before us quite different from those addressed by the Board in William Neilson Ltd., supra, and Fort Erie Duty Free Shoppe, supra, which among other things, involved established labour relationships. In these circumstances, we accept that the union's position is more precarious than it might otherwise be.
The harm cited by the hospital consists of allowing the deficit to continue to accumulate until the main proceedings are completed. While there is no doubt that the deficit is a considerable amount of money, it appears from the hospital's material that it has been accumulating since at least July of 1993, some eight months. The layoffs, which presumably have the greatest impact on the deficit, are also staggered over a span of time in the hospital's plan, so that a number may not be affected at all by the interim order if the main application is heard expeditiously. With this in mind, it appears that the situation is not so pressing that a short postponement would make a significant difference. To ensure that such a postponement is indeed short, however, and to minimize any possible harm to the hospital, we are moving up the hearing date of the main application and scheduling it on an expedited basis.
On balance, we conclude that the harm which may flow from granting the interim order requested is less than that which may result from not granting it.
We are not inclined, however, to tie the duration of the interim order to the issuance of the interest arbitration award as the union requested. In the first place, we have no way of knowing when the award will issue, with the effect that an interim order intended to continue for several weeks at the most may subsist for several months. We do not think it would be fair to keep the hospital in limbo indefinitely.
Secondly, interim relief is related to proceedings under the Labour Relations Act. Section 92.1 provides that it is available "on application in a pending or intended proceeding", which we interpret as a proceeding under the Labour Relations Act, rather than the Hospital Disputes Labour Arbitration Act. While there is some overlap between these two statutes, the nature of that overlap does not suggest to us that the Board has the jurisdiction to make orders for interim relief under section 92.1 in proceedings under the Hospital Labour Disputes Arbitration Act alone. As a result, we have some doubt as to whether an interim order can survive the final disposition of the main application in the absence of any other Labour Relations Act proceedings. Given the expedited scheduling of the main application, it may well be determined prior to the issuance of the interest arbitration award, with the effect that it may compromise the jurisdiction of an extended interim order.
Finally, it is not unlikely that both the positions of the hospital and the union in this case reflect a backdrop of strategic considerations with respect to the interest arbitration award. In the circumstances of this case, we are not prepared to allow the Board to get caught up in those considerations by orienting our decision towards those other proceedings.
Turning lastly to the hospital's argument with respect to deferring the main application to the interest arbitration, we are of the view that it would be more appropriate to have this matter dealt with by the panel hearing that application. In essence, it is an issue which relates to the merits of that application rather than interim relief. As a result, we are remitting this issue to that panel.