Meadowcroft Holdings Inc. v. London and District Services Workers' Union, Local 220, 1997 CanLII 15531

[1997] OLRB REP. JANUARY/FEBRUARY 74

3885-95-U Meadowcroft Holdings Inc., carrying on business as Execu-Care Nursing Services, Kitchener Meadowcroft Limited Partnership and 5M Management Services Limited, Employer v. London and District Services Workers' Union, Local 220, Union

BEFORE: Christopher Albertyn, Vice-Chair, and Board Members S. C. Laing and P. V. Grasso.

APPEARANCES: P. Straszynski and Margaret Carpenter for the employer; Audrey McKay and Brenda Rehkopf for the union.

DECISION OF THE BOARD; January 8, 1997

1This is a referral from the Minister of Labour for the Board to determine the question of whether the Hospital Labour Disputes Arbitration Act applies to the parties. The question referred to the Board is the following, is the employer a "hospital" within the meaning of the Hospital Labour Disputes Arbitration Act?

2The applicant is referred to as "the Employer" or "the Employers" or as "Meadowcroft" or as "Execu-Care".

3The terms "hospital" and "hospital employee" are defined in section 1 of the Hospital Labour Disputes Arbitration Act ("HLDAA") as follows:

1(1) "hospital" means any hospital, sanitarium, sanatorium, nursing home or other institution operated for the observation, care or treatment of persons afflicted with or suffering from any physical or mental illness, disease or injury or for the observation, care or treatment of convalescent or chronically ill persons, whether or not it is granted aid out of moneys appropriated by the Legislature and whether or not it is operated for private gain, and includes a home for the aged;

1(2) Unless the contrary intention appears, expressions used in this Act have the same meaning as in the Labour Relations Act.

1(3) A laundry that is operated exclusively for one or more than one hospital shall be deemed to be a hospital for the purposes of this Act.

1(4) A stationary power plant as defined in the Operating Engineers Act that is operated principally for one or more than one hospital shall be deemed to be a hospital for the purposes of this Act.

The position of the union is that the employer is a hospital and that the union's members employed by the employer are hospital employees within the meaning of HLDAA.

Facts

4Meadowcroft is one of many distinctive retirement living centres located throughout Ontario and Florida, U.S.A., owned and operated by the Meadowcroft Management Group, who have been providing geriatric care and accommodations for some 20 years. Meadowcroft provides the following facilities and services: activities, a beauty salon, beauty shop, dining room, a medical practitioner, emergency assistance, entertainment and special events, Execu-Care, garbage collection, housekeeping, laundry, mail delivery and pick-up, maintenance of accommodation, administering of medications, nail care, nurse attendance, religious services, residence council, room service, snacks, coffee and tea, tuck shop, laboratory and pharmacy delivery. The following services are not provided directly by employees of Meadowcroft, but by other parties on a fee for service or contract basis acting on behalf of Meadoweroft: beauty salon/shop, nail care, laboratory and pharmacy delivery and the services of a medical practitioner. Some residents of Meadowcroft are either on portable oxygen or they have oxygen in their rooms. The delivery, set-up and fitting of the initial tanks is done by an outside agency. Should any resident require assistance in using their oxygen, then Meadowcroft employees provide that assistance. On average there are about ten residents using oxygen.

5There are approximately six managerial or other excluded persons employed by Mead­owcroft at the site in respect of which this application is made. There are 17 full-time bargaining unit employees and there are almost double that number employed part-time who are not part of the union's bargaining unit. The following are the job classifications of the employees. The management staff report to the Administrator who manages the facility. The Director of Care, who is not in the bargaining unit, supervises the medical care in the facility.

6There is one RPN/charge nurse in the bargaining unit and six RPN's/charge nurses who are not in the bargaining unit. They report to the Director of Care, they give medication as required and handle medical emergencies.

7There is an Activity Director who is not in the bargaining unit, who reports to the Adminis­trator and who oversees the residents' daily activities.

8There are 5 full-time Execu-Care/bath aides who are in the bargaining unit and 6 part-time Execu-Care bath aides who are not in the bargaining unit. They report to a charge nurse and they assist residents with their personal needs, they answer call bells, change beds as necessary, and serve meals in the dining room.

9There are 9 housekeepers in the bargaining unit and 5 not in the bargaining unit, being part-time. The housekeepers report to the Administrator, they do the weekly cleaning of the residents' rooms, serve breakfast and lunch on weekdays, oversee the dietary aides at supper and on weekends and they are responsible for the general cleaning of the facility and the laundry.

10There is a Cook and an Assistant Cook both of whom are not in the bargaining unit. They report to the Administrator and they cook the lunch and dinner for the residents.

11There are two kitchen aides, one full-time and in the bargaining unit, the other part-time and not in the bargaining unit. They report to the Cook or the Administrator and they assist the Cook with the preparing and serving of meals.

12There are 16 dietary aides, all of whom are students and outside of the bargaining unit. They report to the Cook, they serve dinner during the week and all three meals on weekends.

13There is a Maintenance Supervisor and ten part-time maintenance employees, all of whom are not in the bargaining unit. They report to the Administrator. They do heavy cleaning, painting, general plumbing, electrical and heating repairs.

14The admission criteria for residents include the general requirement that the residents must be able to look after themselves upon admission and must not be nursing home candidates.

15At the date of the hearing there were 124 residents. Each resident has a room with a bathroom, but no kitchenette. The room has two call bells, one in the main room and one emergency bell in the bathroom. If two people live in one room there are no dividers.

16Meals are provided to the residents, but family and friends visiting must pay for meals in advance. Residents are assisted with dressing, eating and trays at an extra cost or fee-for-service if they are temporarily ill. Bathing is available to all residents free of charge. Extra personal care is charged for. One resident receives a breakfast tray every morning. Twelve residents have total 24-hour care, 8 residents have morning and afternoon care and 2 residents have just afternoon and miscellaneous care.

17Of the 124 residents approximately 25 do their own laundry. The laundry of the others is done by employees of Meadowcroft.

18For scheduled activities, transportation is provided by Meadowcroft to the residents. There is a direct line for taxi service and also a list of people and their numbers for project lifts. There is a monthly educational or social activity schedule and activities are scheduled everyday and sometimes on weekends.

19All doors of the facility are locked and a security code is used to open doors. Residents and visitors sign in and out. Some residents are restricted at their families request. There are four residents who wander and they are registered under the Waterloo Regional Wandering Patient Registry.

20There are no restrictions upon visits to the facility.

21All doors have locks and all staff, other than students, have keys to get into the doors at any time. All residents have keys to their own rooms and to the common areas that are locked. Staff may have access to the locked rooms, but such access is restricted to situations when the bell is rung.

22Banking services are offered once or twice a month. Certain medical services are provided at the facility. The majority of residents are independent, only 5 or so require extra personal care. The house doctor, who is not an employee of Meadowcroft, comes into the facility once a week for approximately four hours. Approximately 25 residents use outside doctors for their general practitioner needs. Although the residents are not required to use the house doctor, most of them do. Approximately 20 per cent of residents self-administer medication. Of the other treatments administered, there are 2 residents who may require morphine, approximately 5 who require insulin daily, about 5 who require puffers, about 5 who require eye drops, and approximately 3 who may require creams. Employees of Meadowcroft may handle short-term dressings required by residents. An outside agency handles all on­going or serious packing and dressing. Approximately 20 per cent of residents obtain their medication independently, while another approximately 15 per cent of residents do not require any medication. The remaining 65 per cent of residents receive medication from employees of Meadowcroft. Flu shots are administered once a year. While a medical file is maintained for residents, there is no charting. Infection control procedures have only been necessary on one or two occasions in approximately eight years. Physical examinations are performed by the house doctor or by outside doctors. Specimens are obtained only when necessary and, on average, one or two specimens may be obtained in the facility in a given week. Oxygen is provided by staff at the facility on a sporadic, as needed basis. If there is any on-going requirement for oxygen, the service is provided by an outside agency. There are only 6 or 7 individuals who require injections, I bimonthly and the others on a monthly basis. On average, there may be one suppository or enema required per week. There are approximately 10 or 15 individuals who may require the ordering of diapers, but do not require them all the time. Medical care is available on a 24-hour basis. The medical services are provided by both bargaining unit and non-bargaining unit staff at Meadowcroft, unless the services are provided by a doctor or outside agency.

23Residents do not ordinarily receive physiotherapy or rehabilitative treatment on the premises although nursing staff or a doctor will arrange for physiotherapy or rehabilitative treatment to occur on the premises on occasion.

24The nursing staff receive and store the medication and maintain the medication room. They dispense medications and administer the medications to residents who require assistance. They record and document the administration of medication. Residents are generally entitled to dispense the medications themselves in their rooms.

25The average age of the residents is 83 years. The overwhelming majority of the residents are over 75 years of age. There a five residents with significant physical disabilities. Two residents have one leg amputated, one resident has both legs amputated and two residents are blind. There are six residents with demential Alzheimer's and one resident who has schizophrenia. There are 42 residents who are mobility impaired and ten residents require wheelchairs. Thirty-two other residents require walkers.

26The type of medications used by residents are the following:

Lopressor Cytotec Dyazide Trental Oral Diabeta Suppositories Insulin Antibiotics Meloril Enteric Coated Aspirin Haldol Nitro sprays and pills Lactri-Lube Ear drops Timoptic Rubramin Topical cortisone creams

27The services provided to the residents are the provision of meals; housekeeping (full room cleaning once per week, daily bed making); laundry on a weekly basis; assistance with one bath per week, the cold system; access to nursing on a when needed basis; medication administration as agreed upon with the resident or the resident's family. These services are provided by both full-time (bargaining unit) and part-time staff.

28Execu-Care provides services to residents of Meadowcroft Place on a contractual fee-for-service basis, which contract can be terminated by the resident on 24 hours notice. Services that may be purchased by a resident vary as to the needs or desires of the resident (and!or their family) and may consist of incontinent care, bathing, meal deliver and/or personal assistance with daily living activities. These services too are provided by both full-time and part-time employees.

29Execu-Care services are purchased by the hour on an "as needed" or required basis. Residents are not, and cannot be, contractually obliged to use Execu-Care and are free to contract with its competitors at any time.

30Residents are free to purchase prescribed medication from any pharmacy and, save for limited exceptions, are free to self-administer their own medication.

Decision

31Both parties focused in their arguments upon the impact which a strike by the union might have upon the employer's operations. The employer argued that the services provided to residents would not be significantly disturbed by a union strike because members of management and part-time employees, who are not in the bargaining unit, could maintain the service more than adequately. The union argued the opposite.

32We are satisfied on the facts, the employer's submissions are more persuasive than are the union's on the question of the impact of a strike upon the services provided to the residents. In all likelihood the service to the residents would not be significantly disrupted were the employees in the union's bargaining unit to have engaged in a strike. But what is the relevance of that conclusion?

33The employer argues that that conclusion is decisive. It submits that if the employer would be capable of maintaining its service to the residents during the course of a strike by the bargaining unit employees, then the purpose for which the HLDAA was legislated would be achieved without the necessity of a reference to arbitration. In the employer's argument, reference to arbitration arises only if the delivery of the service to residents would be disrupted by a strike or lock-out. In other words, HLDAA operates to ensure an essential service; if the essential service can be maintained without reference to interest or contract arbitration, then no such reference should be made by the Board.

34The employer's argument appears sound from a labour relations perspective. Collective bargaining is a feature of a democratic society. The empowerment of parties to conclude their own agreements and to regulate their relationship without the interference of an agency of the state, like the Board, is a hallmark of a democratic society. Compulsory arbitration entails the interference of the state in free collective bargaining and that interference is customarily accepted as being legitimate only if a greater interest is to be served than the entitlement to free collective bargaining. Where the protection of life and health is put in jeopardy by the free exercise of collective bargaining and of the parties' respective rights to strike and lock-out, then the law conventionally interferes by requiring the parties to make use of compulsory arbitration as the means of concluding their collective agreement. The rights to life and health trump the entitlement to untrammeled collective bargaining.

35Were the employer's argument correct, then HLDAA would have taken the form of the Crown Employees Collective Bargaining Act for dealing with this matter. In that statute, the Board can declare essential services so as to ensure that there is no danger to life, health or safety. The Board would consider, when exercising that discretion, what the effect would be of a strike or lock-out on the provision of the particular service under consideration.

36But that is not the approach adopted in HLDAA. The legislature adopted an "institutional" rather then a "labour relations" approach to the issue. It said, in effect, that whether or not the effect of a strike or lock-out would, in fact, be a danger to the life, health or safety of the residents of an institution, if that institution has the characteristics of a hospital, then it is a hospital and impasse in collective bargaining will not result in industrial action, but in mandatory arbitration instead.

37The “institutional" approach has some considerable advantages. It avoids the necessity of speculating upon what the effect of a strike by the bargaining unit employees or a lock-out would be upon the services provided by the institution. It avoids considerable litigation over that speculation.

38There is a further consideration. If we were to endorse a purely "labour relations" approach then certain anomalies would necessarily arise. The definition of a "hospital" would come to depend upon the relative bargaining powers of the parties. So, for example, if the bargaining unit were large such that the health service provided might be disrupted in the event of dispute, then the employer would be a hospital, otherwise not. What if there were two bargaining units, which singly could not cause a threat to the health service, but together could disrupt it? Would the employer be a hospital in these circumstances'? If we were to adopt the employer's argument and focus singly upon each bargaining unit, then in the example, the employer would be deemed not to be a hospital. But if there were to be a strike simultaneously, by the unions representing the two bargaining units, then the employer's service would cease. In that circumstance, we would reasonably be called upon to declare the employer a hospital. So, on the same set of facts, the employer would not be a hospital in some circumstance, but it would be in others. That anomaly helps to explain why a purely "labour relations" approach to the issue can lead to absurd results, and why the "institutional" approach is to be preferred.

39Accordingly the capacity of bargaining unit employees, such as those represented by the union, to disrupt the service of the employer to the residents of its establishment although relevant, is not the sole consideration.

40It is necessary to determine the nature of the institution: who it serves, what it does and how it does it. We now consider those matters.

41This case was argued upon the basis of whether Meadowcroft is a hospital or not. Little attention was paid in argument to the matter of whether Meadowcroft is a home for the aged although, in our view, that is a significant matter for us to consider in our inquiry. The parties made reference to the test stated in Canadian Red Cross Society (Ontario Division), [1995] OLRB Rep. May 612:

21. As the Society and Brant County correctly point out, given the balancing that must go on, it is not every provider of medical and related services to individuals afflicted with or suffering from any physical or mental illness, disease or injury ...". that qualifies as a hospital" or a "hospital employee". This much seems clear from the Board's decision in Extendicare, supra. and from at least certain 01 the examples cited by the Society and Brant County, to which no reference was made by the union. It is up to the Board, then, to attempt to give meaning to the relatively open-ended statutory language and to place it in purposive and practical context. The Board has attempted to fulfill this role by considering a variety of factors as relevant to the definition of 'hospital" and "hospital employee", including:

(i) the nature or kind of care provided by the institution in question;

(ii) the degree or extent of the care;

(iii) the extent to which the recipients depend upon the care for their continued health or safety;

(iv) whether the institution is under a statutory obligation to provide the care;

(v) whether the individuals providing the care are employees of the institution or a third party;

(vi) the location at which the care is provided;

(vii) the existence of alternatives to the provision of the care by the employees in question;

(viii) the historical practice of collective bargaining in the industry.

When all of these factors are considered in this case, we are persuaded that neither the Society Homemaker Services Program nor the Brant County Home Care Program is a hospital" within the meaning of the HLDAA.

We now consider the various factors.

The nature or kind of care provided by the Institution:

42Meadowcroft provides meals, housekeeping (full room cleaning once per week and daily bed making), laundry each week, assistance with one bath per week, a cold system, access to nursing on an as needed basis and medication administered as agreed upon with the resident or the resident's family. Execu-Care provides incontinent care, assistance with bathing, tray deliver of meals and personal assistance with various activities. These services are purchased directly by residents on an as needed basis or on a fee-for-service basis. Residents are not contractually obliged to utilize Execu-Care and are free to engage outside agencies to have the personal services provided.

The degree or extent of the care:

43A resident receives care from both part-time and full-time employees and only the lull-time employees fall within the bargaining unit in respect of which the union holds bargaining rights. However, the care provided is on a 24-hour basis in respect of certain of the residents and other residents require some degree of care and attention in meeting their personal needs or in administering medication to them.

The extent to which the residents depend upon the services provided for their continued health or safety:

44Residents are not obliged to make use of the services provided by Meadowcroft and Execu­Care. They have available to them the opportunity of engaging the contractual services of other service providers. However, many of the residents make use of the medical pharmaceutical health and other facilities provided by Meadowcroft and Execu-Care. While the services provided by Meadowcroft and Execu-Care can be obtained from other sources in the event of a labour dispute in reality and in practice a majority of the residents make use of the services and facilities provided by Meadowcroft and Execu­Care and not by independent outside agencies.

Whether the Institution is under a statutory obligation to provide care:

45The employers (Meadowcroft and Execu-Care) are not obliged under any statute to provide care.

Whether the individuals providing the care are employees of the Institution or a third party:

46Predominantly the individuals providing care to residents are employees of the employers. While residents may choose at any time to have the care provided by a third party, in general that is not the practice and the bulk of the residents make use of employees of Meadowcroft and Execu-Care for their care and for the services they receive. Of the employees only the full-time employees fall within the union's bargaining unit.

The location in which the care is provided:

47The care is provided where the residents of Meadowcroft are located.

The existence of alternatives to the provision of the care by the employees:

48Many of the residents require little or no care over and above their basic accommodation and food. Thus, about 20 per cent of the residents self-administer their medication. The majority of the residents however do receive care from the employers and they make use of the services and facilities provided by Meadowcroft and Execu-Care.

49Residents are free to contract with other service providers besides those offered to them by the employers. Hence the residents are not obliged to make use of the services of the employer, although most do.

Additional Factors:

50As a landlord the employer does not have a right to enter the room of a resident without statutory or contractual authority. The statutory right is restricted to an emergency consent and presence of the tenant when notice of termination of the tenancy has been given. A contractual right of access requires 24 hours written notice. Nonetheless all staff of the employer have keys to the locked rooms and they may enter when the bell of the resident is rung. In addition employees of the employer perform housekeeping duties which involve their entering the rooms of the residents to perform their duties. In practice employees of the employer enter the rooms of the residents in order to perform their duties, to provide care and medication.

Conclusion

51For the purpose of deciding an application for compulsory arbitration under HLDAA, an institution should be looked at primarily by determining what it does and by what services and facilities it offers. The fact that, as in this case, the institution may yet function in the event of a strike or lock­out because of the limited size of the bargaining unit, is a consideration but does not alter the definition of the institution.

52Meadowcroft provides basic accommodation, meals, companionship, some medical care and social activity for its residents, all of whom are elderly and some of whom are frail or in need of care. Meadowcroft is concerned with the accommodation, observation, assessment and supervision of its aged residents. That is sufficient for it to be regarded as a home for the aged and hence covered by HLDAA. The matter was addressed as follows in Select Living (1991) Ltd., [1994] OLRB Rep. August 1082, at 1086 para. 21:

We have carefully considered the material before us. We view the statute in a manner consistent with that of the decision of the Divisional Court in Dignicare Incorporated, cited above, and therefore are persuaded that Barclay House should be covered by the HLDAA. We agree with the court's finding that observation does not have to be of a medical nature to be covered by the definition. From the material before us it is clear that a major component of the service offered by Barclay House is the observation and assessment of its aged residents. This is sufficient for it to by covered by the HLDAA. Further, the legislature did not distinguish between homes for the aged with a relatively well population and those with a very dependent population.

53In the circumstances, we conclude that the applicant is a home for the aged and hence a "hospital". We find that the employer is a hospital within the meaning of the Hospital Labour Disputes Arbitration Act.