Clover Catering c.o.b. at Barton Place Nursing Home v. Hotel Employees' and Restaurant Employees' Union, Local 75 of H.E.R.E. Int'l Union, 1998 CanLII 18313

Clover Catering c.o.b. at Barton Place Nursing Home v. Hotel Employees' and Restaurant Employees' Union, Local 75 of H.E.R.E. Int'l Union

[1998] OLRB REP. JULY/AUGUST 570

4725-97-M Clover Catering c.o.b. at Barton Place Nursing Home, Applicant v. Hotel Employees' and Restaurant Employees' Union, Local 75 of H.E.R.E. Int'l Union, Responding Party

BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.

APPEARANCES: Malcolm Winter and Philomena Oliver for the applicant; Mary Hart, James Jackson, Timoteo Duenas for the responding party.

DECISION OF RUSSELL G. GOODFELLOW, VICE-CHAIR, AND BOARD MEMBER H. PEACOCK; July 3, 1998

1. This is a reference to the Board pursuant to section 3(2) of the Hospital Labour Disputes Arbitration Act (the "Act"). The issue is whether the employees of a third party company, working as cooks, dietary aides, and porters at a nursing home, are "hospital employees" within the meaning of the Act.

2. Section 1(1) of the Act defines "hospital" and "hospital employee" as follows:

"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;

'hospital employee" means a person employed in the operation of a hospital.

FACTS

3. The case was argued on the basis of agreed facts. The facts were taken from the parties' pleadings and were supplemented by an additional statement prepared on the day of hearing. The agreed facts in the employer's pleadings provide:

1. Clover Catering is a private company which provides various food services to its clients. These services range from the delivery of complete "dietary services", including the supply of management and staff, as well as food, to function specific catering.

2. The Employer provides complete "dietary services" at Barton Place.

3. Barton Place is a Nursing Home, licensed under the Nursing Homes Act.

4. As such, Barton Place is considered to be a "hospital" within the meaning of that term under the Hospital Labour Disputes Arbitration Act R.S.O. 1990, c. H. 14.

5. Clover Catering employs persons in a variety of settings, including private sector establishments. It does not operate exclusively, or principally for one or more than one hospital.

6. The persons hired to provide the dietary services at Barton Place are hired by Clover Catering, and are employees of Clover Catering. They work under the direction of the staff of Clover Catering, and receive their pay cheques from Clover Catering.

7. Clover Catering has two collective agreements with the Union at Barton Place: one covering the full time employees and one covering the part time employees of the Employer.

8. The Employer carries on contract negotiations with the Union independent of any negotiations carried on between Barton Place Nursing Home and its employees.

9. Alternative sources for resident diets and food are readily available in the quantities, and of the quality, required. As an indicator that this is the case, we ask the Board to consider that a number of the larger food services providers are beginning to discuss with clients, including those in the hospital sector, total off site preparation of meals, resulting in virtually no on site staff.

4. The agreed facts in the union's pleadings provide:

4. There are presently twenty-seven full-time and part-time employees covered by the collective agreements between Clover Catering and the Hotel Employees' and Restaurant Employees' Union working in food preparation and service at the Barton Place Nursing Home. All of the employees are employed on-site at the Barton Place Nursing Home.

5. The employees work as dietary aides, cooks and porters under the direction of a supervisor who also works on site at the nursing home. The dietary aides assist with the preparation of food and also assist in serving food in the dining room. Dietary aides deliver the prepared meals to both the dining room and, where a resident is not able to eat in the dining room, to the resident's rooms. These individuals also provide some assistance in the serving of residents who require support. The cooks, of whom there are three, have primary responsibility for food preparation. Food is prepared to meet the specialized needs and preferences of the residents of the home. Meals are prepared, for example, in accordance with medical direction, such as in the case of residents requiring a specialized diabetic diet. Meals are also prepared to meet the cultural preferences of the residents. Porters are responsible for the cleaning of the kitchen and the other related duties. The food service employees work at the facility on both the day and evening shifts and are responsible for the preparation and provision of all meals in the facility. The food service employees also prepare snacks for the residents in accordance with their medical restrictions.

5. The additional facts prepared on the day of hearing appear precisely as follows:

1. Current Food Services Supervisor & Assistant Food Supervisor are trained and have experience in food preparation and delivery.

2. This experience of these two individuals is, however, not recent and these persons have not been involved in either the preparation or delivery of food except on a very sporadic basis in the last two years or so. They are responsible for supervision of the dietary aides but may not be in the dining room for every meal or for the entire meal.

3. Dietary staff with the exception of two cooks have received no special training. All staff provided with orientation when they start. Orientation provided by Food Services Supervisor. The majority of employees in this bargaining unit have many years of experience at Barton Place Nursing Home. A significant number have been employed with facility for eight or more years.

4. In the event of a strike or lockout the persons who might be used as replacement workers would have no experience with the facility or residents.

5. Cleaning services are provided through a contractor, the employees of whom are unionized by the service employees union.

6. For further clarity to union's points on the seventh floor a dietary aide portions the food on the plates which are then delivered by the nursing staff. On 6th floor the food is plated in the kitchen and delivered to floor by porters. Trays are delivered by other nursing home staff.

7. Approximately 254 residents, there are two dining rooms, one on the 7th floor and one in the basement. Kitchen located in the basement adjacent to the dining room. The majority of the residents, approximately 200 for each meal, are served in the basement dining room. There are two sittings of approximately 95 to 100 residents. There are three main meals and two snacks served daily. For breakfast the first sitting is at 7:30 and the second sitting between 8:00 and 8:15. Lunch the first sitting is at 11:30 and the second at 12:30. Dinner - the first sitting is at 4:30 and the second sitting at 5:30. Residents spend approximately 1/2 hour in the dining room for each meal. In between sitting dietary aides clear tables, clean tables and reset the dinning room. There is one sitting per meal on the 7th floor serving approximately 35 to 40 residents.

8. Current staffing for dietary aides is 4 over breakfast and lunch in the main dining room and one upstairs. Three dietary aides in the main dining room for dinner plus one upstairs. One porter at each meal time.

9. Dietary aides in the main dining room obtain food from the kitchen staff to deliver to the residents. The dietary aides takes orders from the residents of regular or alternative meals and responsible for deliver of special meals as required or ordered to particular residents. Special meal include mince or puree. diabetic meals. Need for special meals on a card on the table. Each resident has a card at their place setting. Dietary aides also serve special ethnic food to particular residents. Dietary aides are responsible for ensuring the right meal reaches the right resident. Food does not have to be delivered by someone in the dietary aide classification.

10. All types of meals required in the nursing home including specialty meals are available through a number of providers in the city on a just in time basis. All nursing homes are required to have alternate providers of food in the case of an emergency. Clover Catering has been contracted to provide food in an emergency but has never been required to.

SUBMISSIONS

6. On the basis of these facts, the employer argued that the employees are not "hospital employees" within the meaning of the Act. The employer urged us to apply a "labour relations", as opposed to an "institutional", test to the definition, balancing the fundamental right of employees to strike against the need of the public to uninterrupted hospital services. The employer relied on the following passage from Extendicare Diagnostic Services, [1982] OLRB Rep. March 371 at 375:

12 …..The legislature has determined that the need of the public to uninterrupted hospital services takes precedence over the right of certain individuals to resort to economic sanctions in support of collective bargaining objectives. It is against this backdrop that effect must be given to the definition of who is a hospital employee. This is not to say, however, given the statutory encroachment upon individual freedoms, that the Board should not be circumspect in applying the definition.

7. The employer also referred to The Canadian Red Cross Society (Ontario Division), [1995] OLR.B Rep. May 612 at 625, and the following factors drawn from the case law as relevant to the definition of "hospital" and "hospital employee":

(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.

8. In this case, the employer submitted, most of the services provided by the employees are not technical or sophisticated; rather, they are quite basic. As such, they are easily replaced in the event of a strike or lockout. The dietary aides and porters have no special relationship with the residents and possess no knowledge that cannot be conveyed by the food services supervisor or assistant supervisor to replacement workers in the event of a strike. So also, the work of the cooks can be easily replaced by commercial suppliers of food products. There is no reason, with today's technology, why the cooking and "portioning" of food must be done on-site and, the employer submits, the Board's approach to the statutory definitions should reflect such developments.

9. Equally, if not more, importantly the employees in question are not employed by the nursing home but by a third party. Clover Catering's business is not tied to Barton Place but includes many other establishments as well. Among other things, this means that there is no real practice in the industry upon which to draw. Most food services are delivered by the employees of the institution at which they are provided in a bargaining unit which includes other categories of employees. Consequently, there is no real opportunity for the kind of separate assessment that we are invited to make in this case.

10. Although agreeing that the institution is under a statutory obligation to provide the dietary services, the employer notes that the regulations to the Nursing Homes Act only require one food services supervisor and one food services handler to be "on staff'. This, it is said, must be contrasted with the requirement to have food services staff "on duty". Thus, to deliver these services in another way, in the event of a strike, would not place the home in breach of its statutory obligations. There is no statutory requirement for on-site preparation or portioning of food.

11. The employer also submits that the total number of hours of work of the kind formerly performed by bargaining unit members that would need to be performed on-site in the event of a strike would be minimal. It would consist only of the delivery of meals at meal times. All other work could be accomplished through other commercial arrangements. Thus, the extent of the care that may be required to be provided here may be less than that which was considered in Red Cross, above.

12. While conceding that the facts of this case fall "somewhat closer to the line" than the diagnostic services considered in Extendicare, the employer submits that we ought to reach the same conclusion. The employees providing dietary services in this case should not be considered "hospital employees" within the meaning of HLDAA.

13. The union, too, relies on the Extendicare decision but takes the position that the facts in this case fall "way over the line".

14. The union submits that the appropriate starting point for the analysis is not Extendicare but the decision of the Divisional Court in Dignacare Incorporated c.o.b. as Orleans Community Health Centre (Court File No. 462190, released February 12, 1991, unreported). The union notes that, in Dignacare, the court took a liberal view of the statutory provisions having regard to the purposes of the Act. The purpose of the Act is to ensure that persons who are not adequately able to protect themselves, those who are among the most vulnerable in our society, are not placed at risk in the event of a work stoppage.

15. Turning to Extendicare, the union invites us to consider the passages which follow those relied on by the employer:

13. We start by observing that the definition carefully avoids restricting the application of the statute to only those employed by a hospital. The definition extends to all persons "employed in the operation of a hospital". Given the purpose of the statute and the multiplicity of business arrangements under which an organization such as a hospital can meet its objectives, it is not surprising that the definition focuses, not on the identity of the employer, but on the function performed by those whose services are so important to society as to abridge their right to free collective bargaining.

14. The term "hospital" as defined in the Hospital Labour Disputes Arbitration Act includes hospitals, sanitariums, sanotoriums, nursing homes and certain other types of institutions. Because it is a person's function which is determinative of whether that person is a "hospital employee" and because a number of different types of institutions are covered by the definition of "hospital" contained in the Hospital Labour Disputes Arbitration Act, we accept that when determining if a person is a "hospital employee" reference should be had to the type of institution within which or to which that person provides a service or performs a function and to the statute which specifies the services which that institution is required to provide. At the least, it is the uninterrupted delivery of these services which the Hospital Labour Disputes Arbitration Act is designed to ensure.

16. The central questions which Extendicare invites us to address, according to the union, are: what are the functions in question; to what type of institution are they provided; and is there a statutory obligation to provide the services. In this case, the functions are "core" functions that are statutorily required to be provided to residents of the home. This stands in sharp contrast to the "routine laboratory investigations" considered in Extendicare. Such functions were incidental to the work of the home and the home was under no statutory obligation to provide facilities for the carrying out of such tests. In the present case, the home must provide on-site meal delivery.

17. The union also takes issue with the assertion that the services provided by the members of the bargaining units can be withdrawn and replaced with no disruption and no risk to the health, safety or well-being of the residents. Strikes are often called at the last minute and may be accompanied by picket lines. In this case, hundreds of residents must be fed at specific times of the day and there are requirements for special diets. A strike could interfere with the efficient and safe delivery of these services.

18. The union agrees with the factors identified in Red Cross, above, but notes that some are clearly more important than others. Critical among these are the degree of dependence on the services, the statutory obligation to provide them, and the location at which they are provided. Having regard to these factors, the union submits, there can be no doubt that the employees in question are "hospital employees".

DECISION

19. The Board agrees with the union.

20. We are dealing here with the provision of food services. Apart from nursing care, it is difficult to imagine an activity that is more central to the health and well-being of the residents.

21. The residents depend on the services provided by members of this bargaining unit for their very existence. While the work may not be complex or sophisticated, it is essential to the resident's security. While there may well be alternative sources of food supply, and persons willing to provide it in the event of a strike, such arrangements would not be without risk. The right meals must be served to the right residents at the right times. Errors and delays in the provision of meals (including "diabetic meals") could seriously compromise the health of the residents. The Board is of the view that the residents should not be required to bear such risks. While it is obvious that, like all labour relations decisions, there is a balancing of interests to be undertaken, that balance is drawn by the statute and the Board is of the view that it clearly favours the residents in this case.

22. The fundamental nature of these services is demonstrated by the statutory requirement to provide them. Along with the union, we have some doubts as to whether the the regulations admit of the degree of flexibility claimed by the employer. However, we need not decide that question. For us, the important points are the nature of the functions in question (the feeding of the residents), the agreed statutory obligation to provide the services (which demonstrates their essential nature), the degree of resident-dependence on the services provided (substantial) and the potential harm associated with errors or delays in the delivery of those services (significant).

23. We note, as well, that the Act does not define "hospital employee" as a person employed "by a hospital" but "in the operation of a hospital". We adopt the following passage from Extendicare as an accurate description of the rationale underlying that definition:

13. ... Given the purpose of the statute and the multiplicity of business arrangements under which an organization such as a hospital can meet its objectives, it is not surprising that the definition focuses, not on the identity of the employer, but on the function performed by those whose services are so important to society as to abridge their right to free collective bargaining.

24. Without suggesting that the contract in this case was entered into by the Home for the purpose of facilitating the employer's argument (a finding that we cannot and were not invited to make), we note that the specific "arrangement" undertaken here must be the most basic among the "multiplicity" contemplated by Extendicare. As the Board observed in that case, the language of the statute was intended to insure that such arrangements would not inhibit the fulfillment of the statutory objectives. Indeed, given what is fairly described as the "core" nature of the functions, we have serious doubts as to whether this issue would even have come before us had the services been provided by the Home, as opposed to a third party, whether or not the employees were included in an "all employee" or a separate bargaining unit. In short, we cannot attach much significance to the identity of the service provider.

25. Reduced to its essence, this case involves the provision of essential services (the preparation and delivery of food) to nursing home residents at the nursing home, a named institution within the definition of a "hospital". In these circumstances, the Board has no hesitation in advising the Minister that the employees in the two bargaining units who work at the Barton Place Nursing Home fall within the definition of "hospital employees" in the Act.

DECISION OF J. A. RUNDLE, BOARD MEMBER; July 3, 1998

I dissent.