Practical Nurses Federation of Ontario v. 678114 Ontario Inc. c.o.b. as Vistamere Retirement Residence, 1994 CanLII 9922

[1994] OLRB Rep. September 1274

1321-94-M Practical Nurses Federation of Ontario, Applicant v. 678114 Ontario Inc. c.o.b. as Vistamere Retirement Residence, Responding Party

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. A. Ronson and P. V. Grasso.

APPEARANCES: Douglas T. Wray, Josephine Gibbs and Louise Dubaud for the applicant; Andrea F. Raso, Sally Hung, Gloria Lindsay and Tom Kitchen for the responding employer.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER P. V. GRASSO; September 7, 1994

I

1. By decision dated July 28, 1994, the majority of the Board (Board Member Ronson dissenting) granted the application for interim relief herein by directing the responding employer "to forthwith revoke the new scheduling system (as reflected in the schedules for July 18-31 and August 1-14, 1994), and to reinstate the scheduling system in effect for Registered Practical Nurses prior to July 18, 1994, on an interim basis pending the disposition of the main application (in Board File No. 1322-94-U), or further direction by the Board". The following are our reasons.

II

2. Subsection 92.1(1) of the Labour Relations Act provides that:

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.

3. As its name suggests, the responding employer ("Vistamere") operates a retirement residence in Oakville. It is managed under a management contract with Extendicare Health Services Inc. Vistamere has a "residential wing" and a "care wing". It appears that the primary difference between the two wings is the amount of personal care provided to the residents; namely, that the occupants of the "care wing" receive more of it. (We note that there was no suggestion in the materials or at the hearing that the Hospital Labour Disputes Arbitration Act applies to Vistamere.)

4. On April 21, 1994, the Board certified the applicant as the bargaining agent for employees of Vistamere in the following bargaining unit:

"all employees of 678114 Ontario Inc. c.o.b. as Vistamere Retirement Residence employed in a nursing capacity as Registered and Graduate Practical Nurses in the City of Oakville, save and except supervisors and persons above the rank of supervisors".

The parties are currently engaged in negotiating a first collective agreement.

5. By letter dated May 16, 1994, Vistamere provided the applicant with collective bargaining information concerning the terms and conditions of employment of bargaining unit employees. Vistamere also advised the union that:

'The facility is currently experiencing a reduction in occupancy levels in their care wing and as a result we will have to reduce the R.P.N. hours in this area. It is important that we meet to discuss this concern as soon as possible. Please give me a call to arrange a mutually satisfactory time."

6. It appears that this issue was discussed at a subsequent collective bargaining meeting at which Vistamere presented two alternative proposals for reducing Registered Practical Nurses ("RPN") hours. By letter dated May 25, 1994 in that respect, Vistamere wrote to the applicant as follows:

"This letter will confirm the Employer's requirement to reduce staff at Vistamere due to declining occupancy levels and will set out our revised position in this regard, as discussed with you at our meeting in Mississauga on Tuesday May 24th, 1994, as follows:

1. Registered Practical Nurses where employed on the care wing effective August, 1991 when the occupancy level reached eighteen (18) residents and it was no longer practical to meet the needs of the entire facility with one RPN.

2. Due to our current occupancy level in the care wing of fifteen (15) residents and with further reductions anticipated, it is critical that we reduce our staff in the building effective as soon as practically possible.

3. Considering the concerns raised by the Union in our morning meeting and in particular the protection of both full-time and part-time bargaining unit members, the Employer will agree limit [sic] the current layoff to the elimination of the day shift RPN from Monday to Friday. This will result in the following:

RPN's

Current 315.0 hours per week Reduction 37.5 hours per week Revised hours 277.5 hours per week

This results in an hourly reduction of 11.9% for the RPN's.

HCA's

Current 63.5 hours per week Reduction 26.0 hours per week Revised hours 37.5 hours per week

This results in an hourly reduction of 40.1% for the RCA's.

4. Proposal A on the schedule I gave you would result in;

• full-time RPN's continuing to work 10 shifts biweekly

• no part-time RPN's would be laid off but would work reduced hours with priority given to the most senior employees providing they are available to

work the shifts required

• current practice of allowing employees every other weekend off would continue based on the availability of staff

Proposal B on the schedule I gave you would result in;

• full-time employees continuing to work 10 shifts biweekly

• probationary part-time employees being laid off

• remaining part-time employees working more hours than in proposal A

• employees required to work three weekends in four in order to accommodate the schedule

5. As discussed this layoff would be temporary and employees will be called back to work when the occupancy level in the care wing is at eighteen (18) residents or greater.

6. As discussed, this proposal impacts other, non-bargaining unit employees and must be kept confidential until finally resolved.

As set out in our meeting the Employer wishes to work with the Union and it's members to resolve this and any other issues on a mutually satisfactory basis.

I look forward to hearing from you in this regard at your earliest convenience."

(Vistamere conceded that the 11.9% figure in its letter is incorrect. It should be 13.5%.)

7. Vistamere alleged that the union accepted, in principle at least, the proposal which would reduce the hours of part-time RPN based on seniority, but which would avoid lay-offs. The union denied that it agreed to anything and points to the counter-proposal it made at a collective bargaining meeting on June 16, 1994, which counter-proposal Vistamere asserted would increase the RPN hours by 15 hours bi-weekly while completely eliminating Health Care Aide's scheduled hours.

8. Vistamere stated that it rejected the union's counter-proposal and informed the union, by letter dated June 28, 1994, that it would implement an overall reduction of 37.5 part-time RPN hours per week, along with the 40% reduction in Health Care Aid hours as follows:

"In line with my telephone call to you yesterday the occupancy in the care wing has now dropped to fourteen (14) residents. It is necessary therefore, based on economic reasons, to reduce the staffing in the facility effective as soon as practically possible.

Consistent with our meeting on June 16th, our approach will be to eliminate the day shift RPN from Monday to Friday resulting in an overall reduction of RPN hours of seventy-five hours biweekly. As you are aware, hours for employees outside of the bargaining unit will be cut with hours in the health care aide classification being reduced by 40 percent.

It is unfortunate that your committee did not provide us with some constructive suggestions with regard to minimizing the impact on employees effected. Notwithstanding this we will consider the seniority of all employees, their preference with regard to shifts, attempt to retain the full-time positions and give all employees the opportunity to work some scheduled shifts.

Management will meet with the employees today and discuss the above. The reduction in hours will be treated as a layoff and employees will be given notice in line with the requirements of the Employment Standards Act.

If you have any questions or concerns with regard to the above please let me know.

9. By letter dated June 27, 1994 to Louise Dutaud, one of the grievors herein, Vistamere advised that:

"Please be advised that the employer is required to reduce staffing as a result of current occupancy levels. This letter is formal notice that your bi-weekly hours will be reduced from 37.5 hours to approximately 22.5 hours effective August 9, 1994. This six week notice of layoff includes the notice requirement under the employment act."

Similar letters, but with different effective dates, were apparently sent to other part-time bargaining unit employees.

10. Vistamere did in fact implement this new schedule.

III

11. The applicant alleged that the two grievors, Louise Dutaud and Josephine Gibbs, were the two most senior bargaining unit employees and that they had been targeted by Vistamere's new RPN scheduling system for "special treatment" because they were known to be the union's chief employee supporters and spokespersons. The applicant alleged that Vistamere's improperly motivated unilateral conduct violates sections 65, 67, 71, 81, 81.2, 82 and 82.1 of the Labour Relations Act. The applicant argued that if the interim relief was not granted it would severely "prejudice the affected employees and the Applicant will suffer irreparable harm in its efforts to bargain and represent it members."

12. Vistamere argued that the applicant's materials in this application did not disclose an arguable case for interim relief, and that the union was not entitled to the interim relief it sought because it had consented to a reduction of RPN hours. Further, Vistamere argued that the harm the union alleged it would suffer if interim relief was not granted is remote, speculative and does not warrant intervention by the Board. Vistamere argued that there was no indication that the scheduling changes have had any impact on collective bargaining or bargaining unit support for the trade union. Vistamere also argued that this application should be dismissed because of the delay in bringing it. Vistamere argued that the individual harm alleged is largely economic and can be compensated for in the main application, the hearing of which was scheduled to begin on August 10, 1994 and continue day to day Monday through Thursday until it was completed, and does not otherwise justify the interim relief sought. On the other hand, Vistamere asserted that it would suffer inconvenience and incur unrecoverable expenses if the interim relief was granted.

IV

13. As the Board observed in Loeb Highland, [1993] OLRB Rep. March 197, section 92.1(1) of the Labour Relations Act gives the Board a new broad discretion to intervene in any proceeding or intended proceeding. It has been described as an addition to the Board's remedial arsenal (Tate Andale Canada Inc., Board File No. 3438-92-M, October 13, 1993, unreported [now reported at [1993] OLRB Rep. Oct. 1019). There is nothing in section 92.1(1) which limits its use or suggests that it should only be used in extraordinary cases. On the other hand, neither does it suggest that interim relief is appropriate or should be granted in every case. While interim relief is not an extraordinary remedy within the context of the present legislation, neither is it there just for the asking. On the contrary, subsection 92.1(1) gives the Board a labour relations tool which is to be wielded carefully, having regard to the circumstances of each case. It is to be used like a scalpel, not as a hammer or other blunt instrument, in cases in which the Board is satisfied that there are good labour relations reasons for intervening in a labour relations dispute pending the litigation of the merits of that dispute.

14. Because section 92.1(1) is labour relations legislation intended to be used as a labour relations device, a civil litigation approach may provide some guidance but should not be rigidly applied by the Board (see Tate Andale Canada Inc., supra at paragraph 39). Similarly, when viewed as a whole, the Labour Relations Act in this province is unlike labour relations legislation in any other North American jurisdiction. Accordingly, the experience in these other jurisdictions is also of limited assistance.

15. The Board's approach to interim relief applications has been to avoid as much as possible prejudging the merits of the main application (which in the case of an "intended proceeding" may not even be formally before the Board). However, there will inevitably be some connection between the interim application and the main application such that some assessment of at least the apparent merits of the main application must inevitably be made.

16. In the result, a two-pronged "test" has emerged in the Board's interim relief jurisprudence to date. First, assuming the applicant's assertions to be true, is there an arguable breach of the Labour Relations Act (or presumably any other legislation with respect to which the Board plays an adjudicative role) for which there is a remedy which the Board is arguably empowered to give? Second, if so, does the balance of labour relations harm favour the granting of interim relief?

17. In Tate Andale Canada Inc., supra, the Board observed in paragraph 52, that:

……where the employer bears the legal onus of establishing that it has not contravened the Act, it is hardly surprising that the union requests that the "pre-discharge" status quo be maintained until the employer meets the statutory onus cast upon it. If the employer is obliged to establish that its removal of the employees from the workplace was not unlawful, there is nothing counter-intuitive about keeping them there until it does so....

This comment must be read in the context of the situation before the Board in that case; namely, the discharge during an organizing campaign of employee organizers, and not as a suggestion that the onus in interim proceedings necessarily lies with the party which bears the onus in the main application - which may not even have been brought. There is nothing which absolutely prohibits discharges, lay-offs, scheduling changes, or other management initiatives prior to certification, before a first collective agreement, or between collective agreements. Nor is there anything which requires that a discharged or laid-off employee be reinstated, or that other management initiatives be reversed, on an interim basis, in such circumstances.

18. The two-pronged test developed by the Board suggests that at least the initial onus is on an applicant for an interim relief to satisfy the Board that interim intervention is appropriate. Consequently, an applicant must plead an arguable or prima facie case. This is not a particularly onerous hurdle since an applicant should be able to describe its allegations in a manner which suggests that it may have something to complain about. Further, an applicant must establish that interim relief is appropriate; namely, that it will suffer some substantial labour relations harm unless the Board intervenes pending the disposition of the application it has pleaded on its merits. This is not terribly onerous either, since it only requires an applicant to explain why it seeks interim relief and what labour relations harm will occur if it does not obtain the interim relief it seeks. In determining whether interim relief is appropriate, the Board also looks at the responding party's assertion of harm to see whether there are any countervailing labour relations harm which makes interim relief inappropriate. That is, the Board weighs the respective harms and assesses whether interim relief is appropriate.

19. Because of the wide variety of proceedings and circumstances in which interim relief may be sought, a flexible approach to the two-pronged test is indicated, so that the appropriate labour relations result may be achieved in each case.

20. The nature of interim relief proceedings is such that the Board will not normally hear evidence. Consequently, and because of the nature of the two-pronged test applied by the Board in such cases, it is crucial that the parties file complete pleadings and declarations, which declarations should as much as possible be first hand accounts of matters which are relevant to the Board's considerations. The declarations which the parties must file (pursuant to the guidelines provided by Rules 86 and 89) should not contain any hyperbolic, rhetoric or conclusions for which no factual basis is set out.

V

21. In Beef Improvement Ontario Incorporated, [1994] OLRB Rep. April 341 (application for reconsideration dismissed June 3,1994, unreported), a recent interim relief case involving section 81 of the Act, the Board reviewed the purpose and effect of the statutory freeze provision as follows:

15. Section 81 is a strict liability provision in that an employer or trade union need not be improperly motivated for its actions to be in breach of it (see Beaver Electronics Ltd., [1974] OLRB Rep. March 120, Kodak Canada Ltd., [1977] OLRB Rep. Aug. 517). Commonly referred to as a "freeze" provision, section 81(1) of the Labour Relations Act prohibits both an employer and the trade union which represents that employer's employees from altering anything which affects the employment of those employees after an appropriate notice to bargain has been given, unless its collective bargaining partner consents. The purpose of these provisions is to provide a stable point of departure for collective bargaining, thereby facilitating the collective bargaining process, by maintaining the working conditions and circumstances in place when the freeze is triggered. This serves to provide a fixed, though not necessarily static, basis for collective bargaining and operates to preclude the unilateral alteration of any bargainable aspect of the employment status quo which might give one party an advantage in negotiations.

16. Although the "freeze" label has stuck, it may be somewhat of a misnomer. The words of section 81(1) of the Act might be read to mean that there can be no change in anything which affects employment during the specified period. However, the Board has interpreted this provision as operating to preserve the pattern of employment which exists when it comes into effect, rather than specific terms, conditions or other circumstances of employment. Consequently, both the employer and the trade union continue to be entitled to operate within the parameters of the established pattern of employment. (see, for example, Simpsons Limited, [1985] OLRB Rep. April 594, Mohawk Hospital Services Inc., [1993] OLRB Rep. Sept. 873).

17. The Board has taken a flexible, and purposive labour relations approach to the statutory freeze under the Labour Relations Act. Further, and as the language of section 81(1) itself suggests, there is nothing wrong or even unusual with an employer and trade union negotiating with respect to matters which are subject to the statutory freeze.

18. The other harm asserted by the applicant is a collective bargaining harm. In the Board's view, it is not accurate to say that the applicant is seeking to gain an advantage in collective bargaining through this interim proceeding. On the contrary, the applicant seeks to have the collective bargaining positions of the parties restored to what they were at the time of the transfer from the Crown to OSI and BIO respectively. That is what section 81(1) is all about; namely, providing a period during which there is a fixed and stable point of departure for collective bargaining. The scheme of the Labour Relations Act recognizes that a change in the terms, conditions or other circumstances of employment by one party can cause harm to collective bargaining position of the other party to a collective bargaining relationship. This is a significant labour relations harm.

19. The responding parties OSI and BIO submitted that this sort of collective bargaining harm need not be addressed in an interim proceeding and that collective bargaining can proceed, on other issues, pending the disposition of the main application. The Board does not agree. It is true that collective bargaining can take many routes, and that some items can often be bargained before and sometimes without reference to others. However, in the big picture, the starting point for bargaining can have a significant impact on what is given or taken in one area which can in turn affect what is given or taken in other areas. The statutory freeze is just that and it addresses situations which readily lend themselves to interim relief.

We agree. However, this should not be taken to suggest that the interim relief will be appropriate in every "freeze" case.

22. In addition, the Board has held that interim relief is appropriate in circumstances in which it will serve to neutralize the potential impact of an alleged unfair labour practice or preserve the status quo in order to stabilize a labour relations situation pending the disposition of a dispute on its merits (J.C.V.R. Packaging Inc., [1993] OLRB Rep. Nov. 1145 at paragraph 13).

VI

23. In the majority's view, that reasoning was equally applicable to this case.

24. In our view, the delay between June 27-28, 1994 and July 15, 1994, when this application was filed, was not, in the circumstances, untoward. The application was a response to Vistamere's decision to implement the scheduling changes complained of, which for purposes of this interim application we accept were not agreed to by the union. This "delay" of at most 18 days must be viewed in the context of the previous dealings between the parties. The scheduling issue was raised on May 16, discussed on May 24 (8 days later) and again on June 16 (23 days after the first meeting), followed by Vistamere's notice to bargaining unit employees on June 27 (11 days later) and to the union on June 28 (12 days later) respectively. Further, in this case there is nothing in the materials or Vistamere's representations at the hearing which suggested that the employer did anything in reliance on a belief that the applicant was not going to pursue the matter, or that it was otherwise prejudiced by the delay in bringing the application. Finally, although a party which seeks interim relief should move for it expeditiously, the Board does not expect a party to run to it at every turn, but rather that it will first consider its position and properly prepare its application. There may be cases in which a delay of 18 days is fatal, but the majority did not consider this to be such a case.

25. The majority was satisfied that the application for interim relief disclosed an arguable or prima facie case; that is, that if the applicant proves what it has alleged, there is a case to be answered.

26. Moving to the balance of harm, the majority did not consider the individual harms asserted to be a basis for granting the interim relief requested. Indeed, individual harm will rarely provide a sufficient basis for interim relief. The Board's interim relief power is a labour relations tool in a labour relations statute. It is to be applied for labour relations reasons, not personal ones. However, the majority recognized, as the Board did in Morrison Meat Packers Ltd., [1993] OLRB Rep. April 358, that a collective bargaining relationship can be particularly sensitive or fragile in its early stages, especially during negotiations for a first collective agreement, both from the representation/trade union support perspective, and from a collective bargaining perspective.

27. This does not mean that interim relief will be appropriate in every first collective agreement situation. On both representation and collective bargaining issues, the applicant must satisfy the Board that it will suffer a substantial labour relations harm if the interim relief sought is not granted in circumstances where there is no countervailing or offsetting harm which the responding party will suffer if interim relief is granted. In the context of this application (and indeed most interim relief cases) where the responding party is the employer, it must be remembered that the employer retains the right to manage the workplace, except to the extent that it has bargained away that right and subject to the provisions of the Labour Relations Act or other legislation. Section 92.1 is not a licence for Board management of the workplace. It is a mechanism available for use, where necessary, to stabilize the labour relations situation pending an adjudication of a labour relations dispute.

28. The Labour Relations Act is legislation which interferes with or modifies an employer's right to operate its workplace as it sees fit. More specifically, provisions like section 65, 66, 67, and 71 prohibit an employer from interfering with the formation, selection or administration of a trade union, or from "targeting" employees because they are members or supporters of a trade union, or because they are otherwise exercising a right under the Act. Section 81 is a more direct interference with the employer's right to operate its workplace. During the period to which it applies, it prohibits an employer from altering any term, condition or privilege of employment without the consent of the trade union which represents the employees.

29. In this case, the two grievors were the two most senior bargaining unit employees and also the employee representatives of the applicant trade union. Despite Vistamere's assertion (in its June 28, 1994 letter) that it would consider "the seniority of all employees, their preference with regard to shifts, attempt to retain full-time positions and give all employees the opportunity to work some scheduled shifts", there was nothing before the Board in this case which indicated how these factors were applied either generally or specifically to the two grievors, or at all. In our view, the representation harm likely to be suffered by the applicant in the interim as a result was neither remote nor speculative. It is precisely the kind of harm which strikes at the heart of the protections of the Labour Relations Act, particularly in a first collective agreement situation.

30. Further, the scheduling changes implemented by Vistamere constitute a clear alteration of conditions of employment which have been and are the subject of collective bargaining between the parties. That is, these changes have altered the point of departure for collective bargaining. Again, this collective bargaining harm to the applicant in these circumstances is manifest.

31. On the other hand, the harm alleged by Vistamere is that it will be inconvenienced and incur unrecoverable expenses. There is nothing before the Board which indicated that the inconvenience to Vistamere would be substantial and mere inconvenience cannot counter the sort of labour relations harm likely to be suffered by the applicant in this case. Further, there was nothing in the materials before the Board which indicated what the unrecoverable expenses which Vistamere would incur if the interim relief sought was granted might be, or that these expenses would be substantial, particularly since the hearing of the main application was scheduled to begin on August 10, 1994 and continue day to day on Monday through Thursday until it is completed. In the result, the majority was satisfied that the balance of harm favoured the applicant and granted the interim relief sought as aforesaid.

DECISION OF BOARD MEMBER J. A. RONSON; September 7, 1994

1. Because of its behaviour prior to the commencement of this proceeding, the applicant union is not entitled to the extraordinary remedy of interim relief.

2. Labour relations in this Province is not well served if the Board allows the applicant union to behave as it did in this matter. Having been advised of the employer's intention, the union then did nothing for a substantial period of time. It did not tell the employer that it would be bringing this complaint; it did not tell the employer that it would ask for interim relief abrogating the scheduling decisions made by the employer.

3. Instead, the union allowed the employer to crawl out on the limb, and now asks the Board to saw off the limb behind it. I would dismiss the application for interim relief.