Ontario Nurses' Association v. Comcare (Canada) Limited, 1998 CanLII 18310

Ontario Nurses' Association v. Comcare (Canada) Limited

[1998] OLRB REP. MAY/JUNE 363

4352-97-FC Ontario Nurses' Association, Applicant v. Comcare (Canada) Limited, Responding Party

BEFORE: Lee Shouldice, Vice-Chair.

APPEARANCES: David Nicholson, Shalom Schachter, Karen Leeder, Eleanor Holroyd, Marilynn Dee, Lin James and Cynthia Melo for the applicant; M. Patrick Moran, Glenn Christie, John Mackenzie, Marg McAlister and Norma Johnston for the responding party.

DECISION OF THE BOARD; May 15, 1998

I. Introduction

1This is an application brought by the Ontario Nurses' Association (hereinafter "ONA" or "the union") pursuant to section 43 of the Labour Relations Act, 1995 (hereinafter "the Act"). The union requests that the Board direct that a first collective agreement be settled by way of arbitration. The application was filed by the union on February 13, 1998. A response to the application was filed by Comcare (Canada) Limited (hereinafter "Comcare" or "the employer") on February 25, 1998. This Vice-Chair was authorized, by the Alternate Chair, to sit alone as a panel of the Board by way of memorandum dated March 2, 1998. The hearing of this proceeding commenced on that same day, and was completed on March 6, 1998.

2On March 9, 1998, the Board issued the following endorsement:

This is an application brought to the Board pursuant to section 43 of the Labour Relations Act, 1995. I have considered the evidence and argument of the parties. In the circumstances, I am satisfied that the process of collective bargaining has been unsuccessful because of the uncompromising nature of a bargaining position adopted by the responding party without reasonable justification. I therefore direct the settlement of a first collective agreement by arbitration in accordance with section 43(2) of the Act. Full reasons will follow.

These are the reasons for that decision.

II. The Facts

(a) The Broader Factual Context

3The union pleaded, and the Board heard evidence of, certain facts which were asserted by the union to be relevant to the context of this application. The employer did not object to the admission of this evidence, which was called primarily through Mr. Shalom Schachter, a Coordinator employed by the union. Ms. Karen Leeder, an Employment Relations Officer with the union, and the lead negotiator for the union in collective bargaining, was also cross-examined regarding some of the assertions made by ONA.

4The current government in Ontario has determined to shift the delivery of health care from acute care institutions to the community through home care programs. The downsizing of the hospital sector has the consequence of moving work from a highly unionized environment to one which is lightly unionized with a larger private sector component. The union disagrees with this overall strategy of the government, and prefers an integrated delivery system for all health care in Ontario, and one which attracts the five principles identified by the Canada Health Act. A by-product of this system would be the maintenance of the bargaining rights currently held by ONA as work moved throughout the integrated network.

5Currently, the structure for the delivery of community care services reflects a system which has eliminated barriers to privatization. There are no statutory successor rights provisions to ensure that successful contractors for the delivery of nursing services are required to inherit any bargaining rights previously obtained by ONA (or any other trade union). Contracts for the delivery of nursing services are obtained by way of bidding on a tender. The lack of such a successor rights provision permits successful bidders to escape the rights reflected by existing collective agreements when work is obtained from the public sector, and to make greater profits, and therefore encourages more private sector bidders to enter the market.

6Community Care Access Centres (hereinafter referred to as "CCAC's") have been created with a mandate to coordinate access to services in the community. As noted above, it is the role of local CCAC's to secure companies to deliver health services through the mechanism of a tendering system. The work is to be contracted out by the CCAC in its entirety. In fact, the government has directed any CCAC that still delivers these services through direct employees to lay off those employees within three years of the establishment of the CCAC. It would appear that recently the government has accelerated its desire to terminate the provision of care through direct employees of the CCAC's. In awarding work, CCAC's are mandated to consider both cost and quality of care, but there is some question as to whether they truly consider the latter factor.

7It is ONA's view that the movement to delivery of health care services by way of the CCAC will lead to turmoil in labour relations. Employers will inevitably desire to keep their labour costs down in order to remain competitive with new entrants to the market, which will inevitably lead to the "low balling" of bids to obtain work. The result of this will be the loss of tenders by existing contractors, and loss of employment and collective bargaining gains. There will always be a threat that unionization or serious collective bargaining will result in job loss.

8In Mr. Schachter's view, ONA's experience with Comcare in Kingston is evidence that this is happening. He stated that the CCAC system creates a "treadmill", in that once a trade union negotiates a decent collective agreement with a health care provider, it almost certainly will create a hardship for that employer to become a successful bidder in the next round of bidding. In light of the lack of a statutory successor rights provision, the next successful bidder for the work need not apply the previous contractor's collective agreement, and the process of achieving gains for employees must commence once again, until employees come to the conclusion that it is just not worth the effort. However, without collective bargaining, compensation for nurses will ratchet downwards, creating low paid and insecure employment, until the labour market becomes so tight that it stabilizes the level paid to workers.

9The testimony of the union established that existing "not for profit" employers which deliver health care services are pressing for rollbacks at the bargaining table, and are concerned about being pushed out of business. In the community care sector, the largest "not for profit" employer is the Victorian Order of Nurses (hereinafter "the V.O.N."). The V.O.N. is concerned about the lack of a "level playing field", and is pressing ONA for rollbacks in negotiations. The V.O.N. has lost contracts (including one to Comcare in Waterloo), and is concerned that the CCAC system will put it out of business. In the long run, the union is concerned that the effect of the CCAC system will be to establish a small number of large, multinational "for profit" companies controlling the delivery of these health care services in Ontario.

10All of this, in the union's view, will result in a lower level of quality of health care in Ontario. Money which could otherwise be spent in the delivery of providing health services will be consumed in preparing proposals in response to the various Request for Proposals issued by local CCAC's, and in the profits earned by successful bidders. The union foresees the day when the staff hired to provide health care services in Ontario have few skills, are paid little compensation, suffer from low morale and move between jobs regularly. The quality of care received by those in the community will not be equal to that which can be received in a hospital.

11In the above context, the union considers the bargaining with Comcare to be critical to future bargaining in the home care field. It is concerned that all of the gains made in bargaining will be lost, having come "full circle" from the position experienced in prior decades. Furthermore, the union is concerned that the minimum standards as reflected by the Employment Standards Act be real for employees in the community care sector. It was Mr. Schachter's testimony that it is generally acknowledged that the protections of the Employment Standards Act are most effectively enforced if the workplace is unionized. It was Mr. Schachter's testimony that the negotiations with Comcare reflected a desire by Comcare to provide a disincentive for its employees to unionize. By attempting to foist an "elect to work" system of assignment of work onto its employees (the details of which will be set out below), the employer was signalling that it would not modify such systems elsewhere, in its other work locations.

12Ms. Leeder was of the view that the Comcare negotiations could be viewed in a broader context because the result of a reasonable collective agreement in these negotiations would be that other persons would join the union, or another trade union. She noted that ONA's goal, in the long run, is to have all nurses treated equally with regard to wages and benefits, irrespective of the sector - community care, hospital, or homes - worked in. Ms. Leeder conceded that it is very likely that higher rates of pay would not permit Comcare to attract work, and that if Comcare could not stay competitive in the rates of pay that it pays nurses, it "could very well be" that it would secure no work. However, Ms. Leeder suggested that the solution to such a problem would be for Comcare to take a smaller amount of profit.

13With this broader context established, the parties also called evidence regarding the facts specific to the negotiations which have occurred at Comcare's Kingston location.

(b) The Facts Specific to the Parties

14Although there were some differences in the evidence adduced by the parties, there was, to a large extent, consensus on the relevant facts of this proceeding. The union represents approximately 43,000 Registered Nurses and Health Professionals in Ontario. The employer is a "for profit" provider of health care services that operates in various provinces throughout Canada, including Ontario. In Ontario, there are numerous locations serviced by Comcare, including Kingston, which is the focus of this particular proceeding.

15On November 27, 1996, the union was certified as the bargaining agent for "all employees of Comcare in the City of Kingston employed as Registered Nurses and Registered Practical Nurses, save and except managers and persons above the rank of manager, and save and except the positions of Quality Management Coordinator, Office Administrator, Team Leader and Scheduling Leader". This bargaining unit encompasses approximately 84 employees of Comcare.

16By way of letter dated December 17, 1996, the union provided the employer with written notice of its desire to bargain with a view to making a collective agreement. Some time later, negotiations commenced, and it would appear that there were nine negotiation, conciliation or mediation meetings between the parties through to mid-September, 1997. At that point, negotiations not having progressed to the satisfaction of the union, ONA brought an application to this Board for a declaration that a first collective agreement be settled by way of arbitration (Board File 2280-97-FC).

17The Board made certain findings of fact in that proceeding. Ms. Leeder, before this panel of the Board, stated that she still agreed with certain facts found in the previous application, which facts read as follows:

With regards to the elect to work system, Ms. Leeder was a candid witness who clearly stated that it was ONA's objective to negotiate what she referred to as the "standard language" in regards to the definition of a full-time and part-time nurse. In her view, such language had been negotiated with the VON, and others in a similar business. She was of the view that employees at Comcare should not be treated any differently than other nurses ONA represents. She was aware of no other ONA contract in which such definition had not been agreed to. She acknowledged that ONA's system was a charge [sic] from the existing model at Comcare and would have a number of inherent costs. She further agreed that Comcare had made proposals addressing one of the concerns raised at negotiations - namely that senior nurses often got less work than junior nurses. She agreed that there was currently no obligation to give preference to senior employees.

18On October 17, 1997, the Board dismissed the union's initial first contract application. Distilled to its essence, the Board concluded that the situation as it then stood was not of such a nature that the Board ought to direct that a first collective agreement be settled by way of arbitration. The evidence before the Board, at that time, established that the employer's positions on the "elect to work" issue and its monetary proposal were both reasonable.

19The parties had received, from the Ministry of Labour, notice in writing dated August 29, 1997 that the Ministry had decided not to appoint a Board of Conciliation in reference to this dispute. After the mediation session of September 11, 1997, the parties had executed a Letter of Understanding to the effect that no strike or lock-out would occur until the union's initial first contract arbitration application was decided by the Board. Accordingly, upon receipt of the decision of the Board dated October 17, 1997, the union and the employer were in the position that one of them could initiate a strike or lock-out, as the case may be. In fact, the union and the bargaining unit employees of the employer commenced a legal strike on November 7, 1997, and that strike continued to the date of the hearings in this proceeding.

20The next event which is salient to this particular application occurred in late November, 1997. The lead negotiator on behalf of ONA in these negotiations, Ms. Leeder, sought the input of nurses in the bargaining unit regarding the difficulties they had encountered with the "elect to work" system which appears to have been in effect at Comcare. I use the word "appears" here because it is evident, having heard the evidence of three witnesses during this proceeding, that there is no real consensus between the parties on the proper label to be attributed to the system of assigning work to nurses employed by Comcare.

21It is appropriate, at this point, to outline the positions that the parties have staked out respecting the "elect to work" system. It would appear from the evidence adduced before me that, from at least July, 1995, the employer has utilized a system of assigning work which results in the creation of a "visiting nurse schedule" each week, which schedule speaks to the assignment of work over the following four calendar weeks. One page of such a schedule was filed as an exhibit with the Board. It identifies certain individuals by name and indicates, horizontally across the page, the availability of that person for work on any particular day. How one construes this document, and the system that underlies it, is, in part at least, at the core of the dispute between the parties.

22The employer asserts that it employs nurses only on a "casual" basis. Each nurse employed by Comcare in Kingston has executed a document to that effect. It was the testimony of Ms. Norma Johnston, the employer's Regional Manager, that each nurse employed by Comcare makes the employer aware of her "general availability" at the time of hire, and that this "general availability" is taken into account by the employer in assigning work, subject to any "specific availability" of which that particular nurse may make Comcare aware. That is, over a period of time, a nurse may indicate, for example, a "general availability" for work of Monday to Friday only, and Comcare will fill in the boxes on the visiting nurse schedule with that expectation in mind. If that nurse is not going to be available on any particular day or days, she will inform the employer and that "specific availability" will be engrafted upon the expectation of the employer, as reflected by the visiting nurse schedule.

23Consistent with this approach, the employer asserts that the visiting nurse schedule is, in reality, a "list of availability" and not a true "schedule". The "specific availability" of a nurse is typically communicated to the employer by way of Projected Time Logs and Coverage Sheets which are delivered by nurses to Comcare on the Thursday or Friday of each week, and which speak to their projected work for the next calendar week. Comcare can tell, from these documents, the "specific availability" of any particular nurse, and fills in any gaps in nursing care coverage by calling other nurses (who, themselves, have provided Comcare with both their "general" and "specific" availability) to ensure that all of its clients are provided with the required nursing care.

24The union, on the other hand, asserts that the visiting nurse schedule is exactly what it says it is, a schedule, and that it reflects a world where there are three different types of employees; those who work, month in and month out, five days a week (called "full time employees"); those who work less than five days per week, but who work regularly (called "part-time employees"); and those who work on a sporadic, as needed basis (called "casual employees"). Accordingly, it is the union's view that the employer's characterization of all of its employees as "casual" is wrong, and that ONA's proposed categorization in the collective agreement of employees in the manner described above is appropriate, and ought to be accepted by the employer. Not surprisingly, the employer disagrees with the latter proposal made by the union. The level of disagreement on this issue was palpable at the hearing, and resulted in what can only be described as a bizarre exchange between counsel for the union and Ms. Johnston during the latter's cross-examination as they continually recast each other's characterization of the visiting nurse schedule to accord with his or her own.

25This is where the "elect to work" system comes into play. The employer is of the view that this system is "the defining characteristic" of Comcare, and is unwilling to structure its assignment of work in the manner urged by the union - i.e. through a formal schedule. The employer resists this approach for various reasons, which I will outline below. At this point, it is only important to note that, whether the parties do or do not agree on whether the employer's system is an "elect to work" system, there can be no doubt that the employer's system of assigning work is founded upon the employer having a large, extremely flexible work force which can be assigned work as required.

26Returning to late November, 1997, Ms. Leeder determined that it would make some sense to sit down with the employer and discuss the concerns that the ONA members at Comcare had regarding the "elect to work" system. Accordingly, she canvassed her members and reduced to writing the comments of seventeen nurses. These comments were forwarded to the employer on November 26, 1997. Two days later, Ms. Leeder met with Ms. Johnston and Ms. Marg McAlister, the employer's Vice-President of Operations, to discuss the comments of the nurses employed by Comcare in Kingston. A full discussion occurred regarding these comments. It would also appear that there was a discussion at that meeting regarding the concept of seniority. It was the union's view that if a nurse lost a patient, then she ought to be entitled to obtain another from a less senior nurse as a replacement. The employer did not alter its opinion on the merits of the "elect to work" system at that time.

27At the conclusion of that same meeting, Ms. McAlister advised Ms. Leeder that Comcare had been unsuccessful in bidding for the 1998 contract for delivery of shift and visiting nursing services from the Kingston, Frontenac, Lennox and Addington CCAC. As it turned out, this development has been of some significance in shaping the positions of the parties. I should note here that, during argument, counsel for the union submitted that there had been no evidence called to establish the failure of Comcare to successfully bid for the 1998 Kingston and area CCAC contract, and that there was, therefore, no evidence before the Board of such a loss. I have carefully reviewed my notes of the hearing and reject that submission. In fact, it was Ms. Leeder who, in cross examination, first identified the successful bidder for the contract (in her words, "an outfit called All-Care"). Both parties conducted this proceeding on this basis. There can be no doubt that Comcare's volume of work has shrunk as a result of its failure to successfully bid for this work.

28The next event of significance was a meeting at the Board in early December, 1997. On November 18, 1997, the union had filed an unfair labour practice complaint with the Board (Board file 3103-97-U), alleging that the employer had violated, amongst other things, sections 17, 70, 72, 76 and 78 of the Act. (This application was, in fact, heard by the Board and dismissed on February 6, 1998. Reasons for the dismissal of the application issued on April 17, 1998.) The parties met at the Board with a Labour Relations Officer in early December in order to attempt settlement of the unfair labour practice complaint. In attendance for the employer was Ms. McAlister and Mr. Glenn Christie, a solicitor who was the employer's chief spokesperson during the course of negotiations. In attendance for the union was Ms. Leeder, Mr. Shalom Schachter, Mr. Jacek Janczur, and Ms. Marilynn Dee, a nurse in the bargaining unit who is also a Vice-President of the local union.

29At that meeting, unsuccessful attempts were made to settle the broader collective bargaining issues in dispute between the parties. Towards the end of the meeting, the parties met face-to-face, because Mr. Schachter wished to convey to the employer the message that the union was not going to restrict the economic sanctions it was then inflicting on Comcare to the Kingston area, but rather would inflict them across the province. Having regard to the evidence of Ms. Leeder and Mr. Schachter, it would appear, on balance, that Mr. Schachter also stated in the course of delivering that message that ONA did not see the Kingston strike as an isolated bargaining dispute, and that ONA could not accept a settlement in Kingston which would undermine collective bargaining outcomes in other areas of the province.

30The next event of significance was a negotiation session under the auspices of a Ministry of Labour mediator which occurred in Kingston on January 28, 1998. It is the events and the outcome of this negotiation session which anchor the union's request for a direction that a first contract be settled by way of arbitration. In attendance on behalf of the employer were Mr. Christie, Ms. McAlister, Ms. Johnston and Mr. John McKenzie, the employer's Vice-President of Human Resources. In attendance on behalf of the union were Ms. Leeder, Mr. Scbachter and, likely, other members of the union's bargaining team, though no evidence was called by the union at the hearing to identify those other members of the bargaining team present at the time.

31Ms. Leeder remained in her role as the union's chief spokesperson. At the outset of the meeting, the parties did not meet face-to-face, but permitted the mediator to move between their respective rooms. Ultimately, the union requested that the parties meet face-to-face. When they did, Ms. Leeder spent approximately 10 minutes talking about scheduling and the "elect to work" model. Ms. Leeder asked the employer to advise the union of the reasons why ONA's proposed language defining the categories of nurses and hours of work could not fit into the employer's "elect to work" model. The parties thereupon went into their respective rooms and caucused.

32Approximately one hour later, the parties met again to discuss the issues previously raised by Ms. Leeder. Mr. Christie went through a lengthy explanation of the employer's model. He raised concerns regarding the union's proposed model with respect to the notion of "continuity" - that is, the concept that a patient ought to be entitled, to the greatest extent, to continuity of care through one caregiver. Mr. Christie stated that Comcare's model satisfied the continuity concept better than ONA's model for five reasons. First, that if a nurse accepted an assignment, then the "elect to work" system made it hers. In that regard, the employer desired employees to work where and when they wanted, and felt that if nurses volunteered for an assignment, then they would see a case through to the end. The right to reject a case also would lead to greater continuity. Furthermore, the employer noted that nurses, as professionals, would ensure continuity in an "elect to work" model. As well, Mr. Christie communicated the employer's experience that once accepted, most clients did not, in fact, move from nurse to nurse. Mr. Christie, finally, noted that it was the employer's experience that once a general pattern of availability was established by a nurse, she would typically follow that pattern. All of this, submitted the employer, suggested that its "elect to work" model had built into it a greater prospect of continuity of care.

33Mr. Christie next addressed the cost issue. In his view, a move away from the "elect to work" model would lead to extra costs. This is particularly so as it relates to the payment of statutory holiday pay. He noted that the system was attractive to many nurses. He submitted to the union that ONA's model was an institutional one, not suited to the concept of community care. In particular, Mr. Christie focused on the fact that the ONA proposal would require the employer to "micromanage" employees, to ensure that their days were filled with appointments. Mr. Schachter took from this that the union's proposed system - with its "per hour" payment structure rather than a "per visit" compensation structure which was then in use by the employer - was seen by the employer as putting it at risk for the cost of a nurse's "down time". Mr. Christie also addressed the concerns of the employer respecting the absence of "daily tours", which concept was also a part of the union's proposal. He also noted that there was no need for certain premiums which are typically found in ONA agreements, and in the draft agreement proposed by the union, because employee freedom to choose to work is inherent in Comcare's proposal.

34After Mr. Christie's presentation, the parties once again caucused. Upon resuming face-to-face negotiations, Mr. Schachter responded on behalf of the union. Mr. Schachter stated that the employee desirability/motivational concerns of the employer could be met within the union's model, because it reflected the concepts of full-time, part-time, and casual nurses, which concepts themselves have "built in" degrees of motivation and desire to work a certain amount of hours. He raised the union's concerns about the employer's "elect to work" model and continuity of care, observing that a model that permits nurses to freely become unavailable may result in an occasional inability to service patients under the employer's care. Once again, the parties broke after this discussion.

35Once the parties resumed negotiations at the same table, Mr. Christie indicated that the employer felt that it had a sufficiently large staff to ensure that continuity could be maintained. There was some discussion respecting the manner of paying nurses (i.e. per hour or per visit). Mr. Christie then observed that the union's counterproposal did not address the employer's concern regarding the element of choice for nurses, and specifically the ability of a nurse to choose the type of client or the type of work she desired to perform. After a short break, the union responded that it would modify its proposal to include a mechanism for nurses to indicate the kind of cases that they want to take on. After a further break, the employer returned and simply advised the union that it preferred its system, without any discussion as to how it was that the union had not accommodated the employer's interests.

36There is no dispute that, from the outset of the negotiations, the employer has taken the position that it cannot increase the monetary compensation paid to the nurses in the bargaining unit. It would appear that an early proposal that was perceived by the union as being in the nature of a concession was revised by the employer to reflect the maintenance of the status quo. In essence, the employer has steadfastly maintained that it cannot "increase the size of the economic pie" because of the pressures on it to remain competitive in the bidding process in the Kingston area.

37With respect to the employer's concerns over the cost of the union's proposals, and its general inability to "increase the size of the economic pie", the union's bargaining committee made two separate concessions at the January 28, 1998 meeting in order to create some "momentum" towards reaching a collective agreement. First, it dropped some proposed language which would have required the employer to pay holiday pay to part-time employees for worked holidays. Secondly, it revised some proposed language which would have permitted a nurse full credit on the wage grid (and therefore accelerated movement on the grid) for nursing experience obtained prior to employment with Comcare. Neither of these proposals caused the employer to respond with any monetary concessions of its own.

38Further to the issue of cost, at that time Mr. Schachter questioned the employer whether it was willing to "open its books" in order to prove to the union that it could not afford to agree to some of the union's demands because of the cost involved. (At the hearing, Mr. Schachter acknowledged that the union's proposals as at January 28, 1998 were more costly than the structure then in place in Kingston.) There was some disagreement by the parties at the hearing regarding the extent to which Mr. Schachter described what information it was that he was requesting of the employer. Having regard to the evidence, I am satisfied that Mr. Schachter requested more from the employer than merely that it "open its books". I am satisfied that Mr. Schachter indicated to the employer that the union would need full access to the data on cost, and not just information regarding the revenue it obtained per visit. I am also satisfied that he explained why he needed that information. Ms. Johnston did not dispute in her testimony that the employer was aware of the general nature of the union's request. The parties once again broke, and the union was advised, through the mediator, that the employer would respond to this request within seven days. At that point, the day was completed, and the parties departed.

39One week later, Ms. McAlister forwarded one page of correspondence to Ms. Leeder by way of facsimile. The letter notes that Comcare's bid for the 1998 Kingston and area CCAC nursing services tender was unsuccessful, having been underbid by "several competitors". It identifies the per visit revenue rate and identifies a number of elements that make up the costs of providing nursing services. However, the letter clearly does not "open Comcare's books" for the union. Nor does it directly answer the question posed by Mr. Schachter one week earlier. Shortly after receipt of that correspondence, the union filed this application.

40As at the time of the hearing of this application, the strike in Kingston continued. Ms. Leeder agreed with the employer that not all of the bargaining unit employees have taken part in the strike. Of the 84 persons in the bargaining unit (this number being proffered by the union in its application), 51 employees have either remained at or returned to work during the course of the strike.

III. Decision

41The provisions of the Act applicable to this particular proceeding are sections 43(1) and (2), which read as follows:

(1) Where the parties are unable to effect a first collective agreement and the Minister has released a notice that it is not considered advisable to appoint a conciliation board or the Minister has released the report of a conciliation board, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.

(2) The Board shall consider and make its decision on an application under subsection (1) within thirty days of receiving the application and it shall direct the settlement of a first collective agreement by arbitration where, irrespective of whether section 17 has been contravened, it appears to the Board that the process of collective bargaining has been unsuccessful because of,

(a) the refusal of the employer to recognize the bargaining authority of the trade union;

(b) the uncompromising nature of any bargaining position adopted by the respondent without reasonable justification;

(c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or

(d) any other reason the Board considers relevant.

42The principles which apply to the question before the Board are not in dispute. Section 43 of the Act is not intended to displace free collective bargaining between a trade union and an employer as the primary means of achieving the terms and conditions of employment applicable to employees in a bargaining unit. What section 43 does do is signify the Legislature's determination that first collective agreements can be, on occasion, particularly difficult to achieve, and that, in certain limited circumstances, there ought to be available a mechanism for the parties to a bargaining relationship to achieve such a collective agreement by way of third-party arbitration. Although it is, by now, trite to note that this provision of the Act ought to be liberally interpreted, there is no doubt that, even with that observation in mind, it cannot be that the Legislature envisioned that every situation which reflects a failure to reach a collective agreement ought to be settled pursuant to section 43 of the Act. The previous application between these parties establishes that conclusion.

43The Act provides, in essence, for a two stage process to be undertaken by the Board. First, it is incumbent upon the Board to determine whether it appears, from the circumstances of the case before it, that the process of collective bargaining has been unsuccessful. Assuming that the answer to that question is in the affirmative, the Board must next consider whether the unsuccessful nature of the collective bargaining process is caused by any of the reasons identified in subparagraphs (a) through (d) of section 43(2) of the Act.

44Does it appear that "the process of collective bargaining" has been unsuccessful in this case? Counsel for the union submitted, during the course of argument, that it does, and I am of the view that he is correct.

45There is no particular hallmark which identifies unsuccessful collective bargaining from that which is still capable of success. Obviously, it is not sufficient to note only that a collective agreement has not been achieved at the bargaining table, for the Act does not assume that a collective agreement need necessarily result from any bargaining relationship. However, the Board has, in its jurisprudence, identified certain factors which may be considered in any one case. As a general observation, the Board noted in the seminal case of Nepean Roof Truss Limited, [1986] OLRB Rep. July 1005, that the Board must review "the totality of the process" and be cautious "not to examine the complaint in a factual vacuum".

46One consideration to be taken into account is the number of bargaining sessions held by the parties (see, for example, Teledyne Industries Canada Limited, [1986] OLRB Rep. Oct. 1441). Here, there have been eleven. Of those eleven, four have been held under the auspices of a conciliator, and another three have been held with the assistance of a mediator. Although there is no "magic number" of meetings which the parties need to have attended in order to establish a lack of success in collective bargaining, a consideration of the number of meetings to date, the amount of progress made at those meetings, and the degree of Ministry of Labour involvement in those meetings, suggest to the Board that the bargaining process has not been a successful one. At the time of the application, there were literally dozens of outstanding issues between the parties.

47There are other "badges" of a failure to succeed which are apparent on the evidence before me. Any significant bargaining activity between the parties, which commenced in the spring of 1997, effectively ended in or about September, 1997, at or around the date of the first application made to the Board by the union for a direction that a first contract be settled by way of arbitration. Since then, the parties have met only three times, and only twice specifically for the purposes of collective bargaining. The process has essentially gone nowhere. The totality of movement in that time frame, which encompasses just slightly less than six months, is the union's two concessions made during the bargaining session held on January 28, 1998. Furthermore, a strike which was, at the time of the hearing, entering its fifth month, has resulted from the labour dispute.

48Additionally, the focus of the parties' bargaining efforts over the six month period prior to this application was the relative merits of the "elect to work" model as compared to the more "institutional" work scheduling system urged by the union. Looking at that issue only, it is apparent that the parties have not moved whatsoever off their respective positions. Having regard to the evidence before me, there can be no question that the bargaining process has ground to a halt, and that such a situation can only reflect that the process has, to date, been unsuccessful.

49The next inquiry that the Board must answer is whether it can be said that the process of collective bargaining can be said to have been unsuccessful because of one of the four enumerated reasons reflected by sections 43(2)(a) to (d) of the Act. As noted above, in my view this question also must be answered in the affirmative.

50It is my conclusion that the process of collective bargaining has failed as a result of the position taken by the employer on the "elect to work" issue. It will be recalled that, by the end of the January 28, 1998 meeting, the employer had determined that it would "stand pat" on its proposal that the work at Kingston be assigned on the basis of an "elect to work" model. At the same time, the union had asked the employer if it was prepared to "open its books" to the union, so as to provide it an opportunity to review the various cost items of running Comcare's operations in Kingston. Such an inquiry is not unusual during the course of collective bargaining where an employer argues that it is unable to afford an increase in the compensation paid to its bargaining unit employees.

51It is apparent from the employer's response to that request that it is unwilling to open its books to the union. Ms. Johnston, the employer's only witness, acknowledged in cross-examination that the letter which was sent to Ms. Leeder by Ms. McAlister did not respond to the question asked by Mr. Schachter at the January 28, 1998 meeting. However, that acknowledgement is merely one which considers the letter at face value. In my view, the letter does answer Mr. Schachter's question - in the negative. Quite simply, in context, that is the only conclusion that one can draw from the February 4, 1998 correspondence. Accordingly, by February 4, 1998, the employer's bargaining position was clear. In essence, it was saying to the union "we are of the view that it is not economically feasible to move off our position that the "elect to work" model be utilized in Kingston, and we are unwilling to provide you with the means of verifying that proposition".

52The effect of the employer maintaining its position on the "elect to work" issue and the related question of "opening its books" has to put to an end the possibility that any resolution to the "elect to work" issue can be obtained through negotiation. There can be no dispute that the employer's position on the "elect to work" issue is driven, at least in part, by its desire to keep its costs low, in order to ensure that it remains competitive in the bidding process that occurs in and around the Kingston area. Accordingly, if the employer can demonstrate to the union that its legitimate costs are relatively high, there could well be a resolution to the "elect to work" issue and the monetary issues. On the other hand, without such a demonstration, the parties will continue to bang their respective heads against what each considers to be the other's relatively more rigid brick wall. No amount of bargaining will be able to resolve the key outstanding issues.

53Accordingly, it is evident that the decision made by the employer to maintain its "elect to work" position, and to not provide open access to its "books" to the union, has caused the process of collective bargaining to become unsuccessful. Any possibility that the collective bargaining process could continue undoubtedly came to a halt at that point.

54But this does not end the Board's inquiry. The next question that must be answered is whether the circumstances establish that the above-noted bargaining position adopted by the employer in this case is one of an "uncompromising nature" and is "without reasonable justification". I am of the view that the circumstances establish such a conclusion.

55First, there can be no question that the employer's position during bargaining on the question of the need to implement an "elect to work" system in Kingston is one which can be regarded as being incapable of compromise. From the outset of the negotiations, the employer has claimed that an "elect to work" model is the only means of assigning work in the Kingston area that will maintain its competitiveness within the market in which it bids for work. As noted above, there was no dispute that Mr. Christie had described the "elect to work" system during negotiations as "the defining characteristic" of Comcare's Kingston operations.

56Is this position - the need to maintain (or establish, depending on the viewpoint of the particular party) an "elect to work" system - one which has been adopted by the employer without reasonable justification? The Board's jurisprudence has considered the content of the word "reasonable" in the context of this provision. In Formula Plastics Inc., [1987] OLRB Rep. May 702, the Board made the following comments about the meaning of the word "reasonable" in section 43(2) of the Act:

24. But was the employer's position taken without reasonable justification? Much depends on our interpretation of "reasonable" in this regard. Obviously, the employer in this matter did have reasons for taking this position in the sense that it hoped to achieve a contract provision of benefit to itself.

However, in our view, "reasonable" must mean something more than simply a rational relationship between a bargaining position and a party's self-interest

25. Rather, in our view, the word "reasonable" imports an objective element into our consideration of the respondent's justification for its position. It is not simply a matter of whether the justification is reasonable from the respondent's view, or even from the applicant's. The legislation draws us into an unavoidable assessment of whether a given proposal or position is reasonable in objective terms, a task which to some extent takes the Board into unchartered waters.

26. This is so, in part, because reasonableness is a relative concept; what is reasonable depends largely, if not entirely, upon the context in which such an examination is made. In considering section [43(2)(b)] such a context will include both the general landscape of labour relations and the specific labour relationship between the parties. In many cases such an assessment will also require the weighing and balancing of the opposing interests of the parties which they seek to pursue by way of their negotiating positions.

27. The variety and social authority of the competing interest involved, together with the complex dynamics of the collective bargaining process make this task a difficult one. It requires a delicate assessment of the many differing factors which may be operating in and upon a given labour relationship, an assessment which must be approached from a perspective closely attuned to the practices and climate of labour relations at any particular point in time. Indeed, it is fair to say that this is a provision which will require the Board to draw heavily on its own expertise in labour relations.

In Fort William Clinic, [1997] OLRB June 406, the Board noted, at paragraph 105, that "a consideration of whether an employer has taken uncompromising bargaining positions without reasonable justification requires the Board to assess the content of the parties' negotiating proposals with a view to making an objective determination as to their reasonableness". The decision of Bourque Consumer Electronics Service Inc., [1990] OLRB Rep. Aug. 821 was cited as authority for that proposition. See also Crane Canada Inc., [1988] OLRB Rep. Jan. 13.

57In accordance with this approach, I have considered with some care the circumstances of this proceeding. As noted above, the broader context of this application reflects a desire by the government to move the delivery of certain health care services to private sector providers, like Comcare. As a result of the tender and bidding process, it is evident that health care providers will have an incentive to minimize all of their costs (including the labour component of those costs) in order to remain competitive and make successful bids for work from local CCAC's. I have no doubt that Comcare has the same goal as all other health care providers who bid on work from the Kingston CCAC - to make a lower bid than its competitors, and to acquire as much work as possible for its employees.

58Comcare asserts that it is necessary to ensure that its assignment of work in Kingston is effected through an "elect to work" system. It claims that to move to the union's proposed system of scheduling will cause it to incur greater costs, and make it uncompetitive in the Kingston area. It further argues that there are certain structural advantages to the "elect to work" model that makes it preferable to the union's proposed system - in particular, the greater likelihood that a patient will experience continuity of care. The union agrees that there are certain inherent costs which will result from the adoption of the scheduling model that it proposes. At the very least, the "risk of down time" is the employer's. As well, the payment of holiday pay is also of concern to the employer, and a move to the union's proposed model will affect that element of the employer's cost of doing business in Kingston. However, the union disputes the employer's position that its work assignment structure will fail to provide continuity of care for Comcare's patients.

59From the standpoint of "continuity", it appears to the Board that the employer's justification of its system as one which delivers superior continuity is not well-founded. As was pointed out by counsel for ONA during the course of argument, the factors relied upon by Comcare during bargaining as supporting the "elect to work" model are inherent in ONA's model as well. Furthermore, having regard to Ms. Leeder's testimony regarding the response by the employer to an instance when a number of the nurses employed by Comeare decided to become unavailable at the same time, it would appear that there is some legitimate argument to be made about the effect on continuity that the "elect to work" model reflects. This does not mean, though, that there are not any difficulties with the union's model from a continuity perspective. But, having regard to the evidence before me, I am not satisfied that the "continuity" argument put to the union by the employer is a reasonable justification for its uncompromising position on the "elect to work" model.

60Is it truly necessary to utilize an "elect to work" system of work assignment in order to keep the employer competitive in the Kingston home care nursing market? It must be kept in mind that Comcare is a "for profit" provider of those services. Some of its competitors are "for profit" providers, and others are "not for profit" providers of nursing services. Boiled down to its most rudimentary elements, Comcare's profit from Kingston is the excess of revenues over its costs. If the adoption of a scheduling model in the nature of that proposed by ONA would have the effect of decreasing profits to a level still considered acceptable to the employer, then there is the possibility that bargaining could continue on the basis of the union's model. In the alternative, if the profit margin for the employer at Kingston is minimal, or negative, then there is the possibility that the union may have altered its position on the "elect to work" issue.

61Accordingly, the question arises as to whether the employer's position that an "elect to work" system be adopted in Kingston is reasonably justified on the basis of cost. The only evidence before the Board supporting the employer's position on this issue is its assertion during bargaining that it cannot afford to establish a model in the nature of the union's. As noted above, the union acknowledges that its model contains inherent costs which will affect Comcare if adopted by the parties. There is, however, no evidence before the Board which establishes the extent of these costs, or their effect on the employer.

62In a number of previous Board decisions, the Board has indicated in circumstances similar to those before this panel of the Board, that a party which claims that a position it has taken in bargaining is necessary for financial reasons ought to be prepared to justify that rationale. In Grant Forest Products Corporation, [1991] OLRB Rep. July 848, the Board made the following observations at paragraphs 56 and 57:

56. We were left with a number of unanswered questions about the company's financial justification for the final offer. One of the major problems was that the financial information presented by the company was incomplete. Complete and accurate financial data is critical in this kind of case, if we are to determine whether the company's financial condition provides reasonable justification for its position. More particularly, the financial documents presented by the company both to the union in bargaining and to the Board at the hearing raised more questions than they answered....

57. Excerpts from the company's financial statements were presented to the Board at the hearing, but these were also somewhat selective. ... To determine if the company's wage offer was reasonably justified by its losses, we needed to know the complete financial picture.

63Similarly, in Bourque Consumer Electronics Service Inc., cited above, the Board commented upon the failure of the employer to provide full economic data in that proceeding:

65. More important, in our view, than the survey the company did provide in negotiations, is the information it failed and refused to provide. The company declined several union requests for economic data to support the company assertions. Considering the magnitude of economic concession sought, we view this failure as unreasonable on the company's part. So long as the company refused to provide such information, the union's scepticism regarding the company's claim could hardly be expected to abate. In the circumstances of this case we find the company's refusal to be a further failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement.

66. Not only did the company fail to provide any data justifying its economic position during the course of negotiations, it also failed ... to provide any such information either as part of documentation filed or evidence tendered in support of its case. It was only as a result of cross-examination by the union and the union's consent to entering in evidence of a document not previously filed in accordance with Practice Note 18, that any specific economic data was brought to the attention of the union or the Board.

See also Kraus Carpet Mills Limited, [1991] OLRB Rep. Jan. 50, at paragraphs 17 and 18.

64In the circumstances, there is no evidence to establish the reasonableness of the employer's bargaining position on the "elect to work" system as it relates to cost. The employer may be able to establish that, from a cost perspective, the implementation of a work scheduling structure in the nature of that proposed by ONA is highly prejudicial, when compared to the "elect to work" system that it desires to negotiate into the collective agreement. It has not yet done so. Before this panel of the Board, the only evidence on "cost" offered by Comcare is the employer's assertion throughout negotiations that the cost of departing from an "elect to work" system would make it uncompetitive in the Kingston market. The union's concession regarding the increased cost of its model does not establish the reasonableness of Comcare's position.

65In my view, the employer's insistence on adopting an "elect to work" model was without reasonable justification. The evidence establishes that the employer is insisting on maintaining its position on the basis only of an assertion that the cost of moving off that position would make it uncompetitive in Kingston. It is unwilling to provide any information of substance to the union. Has the employer put any evidence before the Board to permit for the conclusion that there is a legitimate basis for its assertion? Merely asserting such a position before the Board in the context of a proceeding under section 43 of the Act is unsatisfactory. The employer must, when faced with such an application, establish some evidentiary basis before the Board so as to support its assertion that cost is a real and legitimate factor. The employer did not do so in this case.

66The employer asserted that the circumstances of this proceeding were similar to those reflected by Atway Transport Inc., [1991] OLRB Rep. Apr. 425. In that case, the Board concluded that the applicant's intransigence had caused the breakdown of negotiations, and did not grant the applicant's request for a first contract arbitration direction. There is no doubt that the union, in the case before the Board, was firm in its position respecting the work scheduling model it desired. However, it does appear from the evidence that the union was making limited efforts to seek some compromise acceptable to both it and the employer. In the face of those efforts, and in contrast to the facts reflected by Atway Transport Inc., the employer's position was unreasonable and sufficiently rigid so as to be the cause of the breakdown in negotiations.

67In the circumstances, then, I concluded that the position taken by the employer on the issue of the assignment of work - that an "elect to work" system was essential - was an uncompromising position taken without reasonable justification. In accordance with section 43(2)(b) of the Act, I granted this application on March 9, 1998.

68In light of the above determination, I do not find it necessary or appropriate to deal with the applicability of sections 43(2)(c) or (d) of the Act to these facts.