[1994] OLRB Rep. July 904
2546-93-U Ontario Nurses' Association, Applicant v. The Board of Governors of the Belleville General Hospital, Responding Party
BEFORE: Gail Misra, Vice-Chair, and Board Members R. M. Sloan and K. Davies.
APPEARANCES: Jennifer Webster, Elizabeth Dewar, and Kathleen Sarty for the applicant; Kees Kort, Gary Williams, E. Temple, and P. Bement for the responding party.
DECISION OF THE BOARD; July 26, 1994
The correct name of the responding party is "The Board of Governors of the Belleville General Hospital".
This is an application filed under section 91 of the Act alleging that the responding party has violated section 13 of the Hospital Labour Disputes Arbitration Acf (hereinafter also referred to as "HLDAA") and sections 65, 81, and 81.1 of the Labour Relations Act. The applicant alleges that in granting non-bargaining unit staff one extra week of vacation entitlement, and in refusing to extend that benefit to the applicant's bargaining unit members who are without a first collective agreement, the responding party has violated the HLDAA and the Labour Relations Act by changing working conditions during the statutory "freeze" period.
For ease of reference the section of the Hospital Labour Disputes Arbitration Act referred to by the applicant is set out below:
Despite subsection 81(1) of the Labour Relations Act, where notice has been given under section 14 or 54 of that Act by or to a trade union that is the bargaining agent for a bargaining unit of hospital employees to which this Act applies to or by the employer of such employees and no collective agreement is in operation, no such employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees, and no such trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees, until the right of the trade union to represent the employees has been terminated. R.S.O. 1990, c. H.14, s.13.
The relevant sections of the Labour Relations Act are as follows:
- No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
81.-(1) Where notice has been given under section 14 or section 54 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees,
(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,
(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or
(ii) fourteen days have elapsed after the Minister has released to the parties a notice that he or she does not consider it advisable to
appoint a conciliation board,
as the case may be; or
(b) until the right of the trade union to represent the employees has been terminated.
whichever occurs first.
(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer or the employees until,
(a) the trade union has given notice under section 14, in which case subsection (1) applies; or
(b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.
(3) Where notice has been given under section 54 and no collective agreement is in operation, any difference between the parties as to whether or not subsection (1) of this section was complied with may be referred to arbitration by either of the parties as if the collective agreement was still in operation and section 45 applies with necessary modifications thereto.
81.1-(l) This section applies with respect to employment benefits, other than pension benefits, normally provided directly or indirectly by the employer to the employees.
(2) This section applies only when it is lawful for an employer to lockout employees or for employees to strike.
(3) For the purpose of continuing employment benefits, including coverage under insurance plans, the trade union may tender payments sufficient to continue the benefits, to the employer or to any person who was, before a strike or lock-out became lawful, obligated to receive such payments.
(4) The employer or other person described in subsection (3) shall accept payments tendered by the trade union under that subsection and, upon receiving payment, shall take such steps as may be necessary to continue in effect the employment benefits including coverage under insurance plans.
(5) No person shall cancel or threaten to cancel an employee's employment benefits including coverage under insurance plans if the trade union tenders payments under subsection (3) sufficient to continue the employee's entitlement to the benefits or coverage.
(6) No person shall deny or threaten to deny an employment benefit, including coverage under an insurance plan, to an employee if the employee was entitled to make a claim for that type of benefit or coverage before a strike or lock-out became lawful.
(7) Subsections (4), (5) and (6) apply despite any provision to the contrary in any contract.
As a review of section 81.1(2) discloses, this section has no application to the case before us. For the purposes of reaching a decision in this case we will therefore only consider the other sections which the applicant has claimed the responding party has breached.
At the hearing the parties agreed that all particulars alleged in the application and response filed with the Board were to be accepted by the Board as facts, and the parties proceeded directly to make their arguments. For the purposes of this decision, the following are the facts upon which our decision is based.
The Home Care Unit of the Belleville General Hospital has been in existence for approximately twenty years. Prior to certification the staff of the Unit were subject to the policies, terms, and conditions of employment applicable to the non-union hospital staff. They received regular percentage increases in their wages and improvements in their benefit packages, along with other unorganized staff of the Hospital. Such enhancements in the compensation package were usually granted annually.
On July 14, 1992, the Board issued separate certificates for the full-time and part-time Home Care Case Managers of the Belleville General Hospital recognizing the Ontario Nurses Association, the applicant, as the exclusive bargaining agent for these employees (Board File No. 2268-91-R). To date the parties have not reached a first collective agreement, but are scheduled to appear before an interest arbitration board on August 16, 1994, to make submissions for their first collective agreement.
In August 1993 it became known to the applicant that the responding party had provided its non-bargaining unit staff with one extra week of vacation entitlement for the vacation year July 1, 1993, to June 30, 1994. The responding party indicated to the applicant that as a result of fiscal restraints it had given the non-bargaining unit staff the extra week of vacation entitlement because those staff members would not be receiving any wage increase for that year. Since the parties had not reached agreement on compensation increases for the 1993-1994 year at that time, the responding party indicated to the applicant it would offer the ONA bargaining unit members the same deal as the non-union staff: No percentage increase in wages in exchange for one extra week of vacation entitlement for that year. The applicant declined that offer as the parties were going to be putting their respective compensation positions before an interest arbitration board, but nonetheless ONA wanted the responding party to give the Home Care Case Managers the one week of vacation entitlement in the interim. This application was filed after the responding party declined to grant the extra week of vacation entitlement.
The responding party takes the position that there has been no violation of the statutory freeze period as a result of its actions because it alleges it offered the applicant the same deal it had given the non-union staff, but the applicant does not want it. The Hospital alleges the applicant is “cherry picking" when it seeks to have the one extra week of vacation without taking the corresponding zero per cent increase in wages.
In George Six L.McCall Chronic Care Wing of the Queensway General Hospital, [1991] OLRB Rep. May 619, the Board described how section 13 of the HLDAA and section 81 (then section 79) of the Labour Relations Act operate:
12.... section 13 of the HLDAA and 79 of the LRA operate together to prohibit an employer to which the HLDAA applies ... from altering working conditions (which include all terms and conditions of employment, including wages) in the circumstances set out therein. These are what are commonly known as "freeze" provisions. The purpose of these provisions is to provide a fixed and stable point of departure for collective bargaining, and to thereby facilitate the collective bargaining process, by maintaining the terms and conditions of employment for bargaining unit employees in the pattern which existed at the time the freeze provisions came into effect. This ensures a fixed basis for negotiations and precludes any unilateral alteration to the status quo which might give one party an unfair advantage in bargaining or for propaganda purposes.
Although the "freeze" label has stuck, it is a bit of a misnomer. Sections 13 and 79 of the HLDAA and the LRA respectively do not necessarily contemplate a static situation. As the Board's jurisprudence demonstrates, it is the pattern that existed prior to the onset of the freeze and the reasonable expectations of employees which are preserved, not merely the terms and conditions of employment in effect at the point in time that the freeze provisions come into effect. As such, section 13 of the HLDAA and section 79 of the LRA are strict liability provisions in the sense that an employer's actions need not be necessarily improperly motivated for it to be in breach of them (see Beaver Electronics Ltd. [1974] OLRB Rep. Mar. 120, The Wellesley Hospital [1976] OLRB Rep. July 364, Kodak Canada Ltd. [1977] OLRB Rep. Aug. 517).
The Board has interpreted the freeze provisions in a manner which recognizes an employer's right to continue to manage its operations in accordance with a pattern which has been established prior to the freeze being triggered. This 'business as before" approach was articulated and applied in Spar Aerospace Products Limited [1978] OLRB Rep. Sept. 859. As subsequent cases demonstrate, it is not always easy to apply this test. Nor does applying it always lead to an obvious result. In that respect, for example, the Board has found that the freeze provisions do not prohibit first time events (see Grey Owen Sound Joint Homes for the Aged [1983] OLRB Rep. Apr. 522 where lay-offs occurred for the first time during the freeze; Corporation of the Town of Petrotia [1981] OLRB Rep. Mar. 261 where work was contracted nut for the first time during the freeze). To clarify the business as before approach, and to accommodate first time events, the Board developed the "reasonable expectations" test....
The Hospital argued that the Board doctrine of "reasonable expectation of employees" applies in this case: That since the non-union employees got the extra week of vacation in return for receiving no increase in wages, so the reasonable expectation of the ONA bargaining unit members would be for the same package.
Citing the Simpsons Limited, [1985] OLRB Rep. April 594, decision and the cases cited therein, the responding party relied on the Board's formulation of the "reasonable expectations of employees" doctrine wherein, on an objective standard, the Board considers the question of what a reasonable employee would expect to constitute his or her privileges and benefits in the specific circumstances of that employer. The "reasonable expectation" approach incorporates a review of the practice of the employer in the management of the operation with a review of the employees expectations. The freeze provisions are designed to address two categories of events: Those changes which can be measured against a pattern set in the history of the employer's operation, and, first-time events. In assessing each case the Board seeks to balance the employer's rights and the employee's rights following certification, and before the employer and the bargaining agent have reached a collective agreement. Thus, while the legislation seeks to protect the rights and privileges the employees enjoy at the time of certification, and until another regime is instituted, the Board also recognizes that the employer's business is not frozen in time by the statute.
The responding party argued that the granting of the extra week of vacation entitlement in lieu of an increase in wages constituted a first-time event driven by financial constraints and that the bargaining unit employees would therefore not have a reasonable expectation of getting that benefit without the corollary zero per cent increase in wages. However, the response filed by the Hospital indicates it had granted one extra week of vacation entitlement plus a one per cent increase in wages the year previous, for 1992-1993, SO that it does not appear that the granting of one extra week of vacation entitlement tied to a limited wage increment is a first-time event.
The applicant argued that the situation was closer to one of the employer having an ongoing practice and therefore conformed to the "business as before" model. It suggested that since the Home Care Case Managers were always treated in the same manner as the rest of the non-union employees and had received the same benefits which those employees received, so in the normal course of business the Home Care Case Managers should have received the extra week of vacation entitlement. It was the applicant's position that the union did not have to agree to a zero per cent increase at this time as the parties will be making their respective submissions on this issue to the interest arbitration board.
The applicant referred us to the unreported decision in The Sisters of St. Joseph of the Diocese of London, in Ontario, November 22, 1989, Board File No. 0782-89-U, in which the Ontario Nurses Association alleged that the employer had acted contrary to section 13 of the HLDAA and what is now section 81 of the Labour Relations Act. The employer had a practice of granting annual wage increases to its registered nurses to maintain parity with the rates of pay specified in the O.N.A. central collective agreement. After the registered nurses were organized by the Ontario Nurses Association, and before the parties had reached a collective agreement, the employer refused to grant the registered nurses annual increases in accordance with its usual practice although it did give non-bargaining unit employees a salary increase. At the hearing the employer argued, as the responding party did in this case, that since those parties had to engage in compulsory interest arbitration, the employer should not be required to grant the O.N.A. central agreement rates without any assurances that such rates would not be increased by the interest arbitration board. To do so, the employer argued, would be to give the union an unfair advantage. The Board found that based on custom and practice at that workplace the employees had a reasonable expectation that they would receive annual adjustments in their wages to maintain parity with the O.N.A. central agreement and that the privilege should be continued.
We are in agreement with the Sisters of St. Joseph decision, supra, and find it was a reasonable expectation of the Home Care Case Managers that they should receive the same package as did their non-union counterparts, as they had always received the same wage and benefit package in the past. This Board may only ensure that the freeze provisions of the legislation are complied with and that the affected employees receive the annual adjustments in wages, benefits, or privileges which they could reasonably expect based on the past practices of this employer.
For the above reasons, we find that the responding party has violated section 13 of the Hospital Labour Disputes Arbitration Act and section 81 of the Labour Relations Act. In order to
put the employees back in the position they would have been in but for the breaches of the Acts, we direct that the responding party grant to the employees of the full-time bargaining unit and the part-time bargaining unit the same compensation package which other non-bargaining unit employees were granted.
Having made the findings outlined above, it is not necessary to address the allegation of a violation of section 65 of the Labour Relations Act.
The Board remains seized of this matter in the event of any dispute between the parties in respect of the implementation of this decision.
CONCURRING OPINION OF BOARD MEMBER KAREN S. DAVIES; July 26, 1994
I am in complete concurrence with the majority decision in directing the responding party to grant to the employees of the full-time bargaining unit one week of vacation entitlement and to the part-time bargaining unit the same benefit of vacation entitlement which other non-bargaining unit part-time employees were granted.
This Board may only ensure that the freeze provisions of the legislation are complied with and that the affected employees have the benefit of any increases in wages, benefits or privileges which they could reasonably expect based on the past practices of the employer.
The issue of wage increases or improved benefits is a matter for the interest board of arbitration to determine. For the majority to have decided otherwise would be to exceed the Board's jurisdiction by attempting to restrict the authority of a properly constituted interest board of arbitration. Also a decision contrary to the majority decision would in fact fetter the collective bargaining rights of employees at minimum, if not render the collective bargaining process null and void.