[1998] OLRB REP. MARCH/APRIL 159
3103-97-U Ontario Nurses' Association, Applicant v. Comcare (Canada) Limited, Responding Party
BEFORE: Robert Herman, Alternate Chair.
APPEARANCES: Jacek Janczur, Karen Leeder and Cynthia Melo for the applicant; Patrick Moran, Glenn Christie, Margaret McAlister and Norma Johnston for the responding party.
DECISION OF THE BOARD; April 17, 1998
This is an application filed pursuant to the provisions of section 96 of the Labour Relations Act, 1995, in which the applicant, the Ontario Nurses' Association ("ONA") alleges that the responding party, Comcare (Canada) Limited ("Comcare") has breached sections 70, 72, 76, and 78 of the Act.
The events the subject of the instant application arise out of a lawful strike engaged in by members of the ONA bargaining unit working for Comcare in Kingston, Ontario and the application challenges certain actions of Comcare, some in response to the strike. The strike began on November 7, 1997. Hearings were held on December 11, 1997, January 8, 1998 and February 6, 1998. As of February 6th, the strike was still ongoing and because of this, the Board provided a short oral decision at the conclusion of the hearing. The Board now provides its decision in written form.
The application was filed on November 18, 1997, shortly after the strike began. In the application, ONA complains about a number of actions taken by the responding employer. First, on November 11, 1997, Comeare issued a letter to its striking employees to ascertain whether they were available for work, and whether they would be available for work. ONA asserts that contacting employees in this manner was calculated to intimidate them, with a view to coercing them into returning to work, and as such constituted breaches of section 70, 72, 76 and 78 of the Act.
Second, the same letter informs striking employees that the employer would be issuing Records of Employment to those striking employees who did not plan to be available in the near future. ONA notes that a Record of Employment is issued to enable the recipient to collect unemployment insurance benefits, but striking employees are ineligible for such benefits. Given this, submits ONA, the employer's purpose in informing striking employees that they were to be issued these Records of Employment was to lead them to believe that their employment would be terminated if they persisted in striking. ONA submits that Comcare intended to intimate and coerce employees into returning to work by this statement, in breach of sections 70, 72, 76 and 78 of the Act.
Third, the same letter informs striking employees that they will no longer be eligible for benefits, and itemizes every benefit that will no longer be available. ONA had previously offered to pay the premiums for these benefits, so that no employee otherwise eligible would lose benefit entitlement during the strike. ONA submits that the failure of the employer to accept the union's offer to pay the benefit premiums, and the statements in the letter notifying employees that their benefits were discontinued, were deliberate attempts by the employer to increase the hardship experienced by the striking employees, and as such, constituted breaches of sections 72 and 76 of the Act.
Fourth, around November 11, 1997, Comcare began utilizing personnel from other Comcare operations to work as replacement workers during the strike. These replacement workers were being paid up to 150 percent of the strikers' rates of pay, even though during negotiations Comcare had relied upon a lack of funds as a reason for its inability to agree to the wage proposals of the union. The purpose of paying the replacement workers at this level, asserts ONA, is to prolong the strike, and therefore these replacement workers fall within the definition of "professional strike breaker", set out in section 78(2) of the Act, and as such, their utilization by the employer is in breach of section 78(1) of the Act.
ONA filed additional particulars and raised additional grounds by way of letter dated December 3, 1997. First, it asserted that employees who worked during the strike were being assigned hours in excess of the hours permitted by section 17 of the Employment Standards Act, and were not being paid as required under that Act, in breach of sections 17,21 and 24 of that Act.
Second, the continued insistence of the employer that it has no funds to finance the Kingston operation was clearly false, in light of the payment levels for replacement worker wages and expenses, and was therefore a breach of section 17 of the Labour Relations Act, 1995.
One allegation was ultimately withdrawn. At the commencement of the third and final day of the hearing, February 6, 1998, ONA withdrew its allegations that there had been a breach of section 78 of the Act, and indicated it was withdrawing its allegations with respect to the "professional strike breaking" provisions.
Turning to the facts, some of the facts recited below were not dealt with by the parties through viva voce evidence, but were not really in dispute. These facts include small details, such as the size of the bargaining unit, and a description of the general chronology leading up to the events that form part of the instant dispute. The parties did not lead evidence with respect to these non-contentious background matters, in an effort to litigate expeditiously, both parties recognizing the urgency of the application.
There were two previous applications filed with the Board arising out of the bargaining of an unfair labour practice complaint and an application that the first agreement be settled by arbitration (Board File Nos. 2279-97-U, 2280-97-FC). In the decision that issued in those applications, dated October 17, 1997, the Board set out the following facts:
The facts were not really in dispute. ONA was certified to represent RN's (Registered Nurses) and RPN's (Registered Practical Nurses) at Comcare on November 27, 1996. Notice to bargain was given by ONA, December 17, 1996. Though there was a communication problem concerning the commencement of bargaining (and the Board finds nothing turns on this communication problem in relation to this application) there were at least nine negotiation meetings, the last being a mediation meeting held on September 11, 1997. These meetings were held (March 19, 1997, April 2and 3, 1997, April 29, 1997, June 17 and 18, 1997, June 21, 1997,August 12,1997 and September 11, 1997).
Comcare as stated in the filed material, is a provider of community based health care services. The services take two forms. Visiting nursing consists of isolated visits to a client's home - the evidence led showed that usually such visits take less than an hour. Shift nursing consists of a fixed time period during which a nurse remains present in a client's home to provide nursing care that is necessary and can last for four hours or more. Shift nursing also occurs in penitentiaries under a separate contract with the federal government. The primary method through which Comcare obtains patient - clients is by way of referral from the Community Care Access Centre ('CCAC") on a contractual basis.
Comcare provides services on a "for profit" basis. The relationship between a CCAC and Comeare is a contractual one, and the CCAC refers clients who are in need of community-based nursing services to Comeare, where Comcare has been the successful bidder on the particular community care contract. These services are publicly funded. There may also be up to perhaps five percent of referrals which are contracted from Comcare on an individual basis.
The contracts with the Kingston Community Care Access Centre, which fund the services provided by Comcare through the nurses in the bargaining unit, are tendered at regular intervals. There is no guarantee that Comcare will be the successful bidder on any of those contracts. Indeed, the Board was advised that Comcare had recently failed to obtain a 1998 contract with the Kingston CCAC.
There appear to be four major issues in bargaining which have been the primary obstacles in negotiations: the way in which work shifts are scheduled, holiday pay, vacation pay, and sick leave pay.
The detail of the parties' negotiating positions was not the focus of this application, although the bargaining history did form part of the backdrop. Their differences with respect to scheduling merits some brief comment, at least because it helps explain their present stalemate. The parties have different understandings of the scheduling system that was actually in place and operating when the strike began, even though the scheduling system has been the same for at least ten years. Despite eight or nine negotiation sessions, and despite the several months during which the strike has been continuing, the parties still maintain different views as to how nurses are scheduled to work, and whether they determine their own availability, or whether the employer schedules them.
Comeare maintains it operates an "elect to work" scheduling system, whereby Comcare provides a timetable of the work that is available for the next scheduling period (usually a week or two in advance). The nurses can then accept or reject particular work opportunities, consistent with their own needs and wishes. According to Comcare, where a nurse declines to accept a particular shift or offer of a shift, because of that nurse's unavailability, there are no negative consequences of his or her decision not to work a particular shift or shifts, or not to accept a particular visit, other than the obvious consequence that the nurse will not be working the shift which the nurse declined. Nurses are not, therefore, assigned to particular shifts or patient-clients, but are offered shifts or patient-clients, to be accepted or rejected by the nurse without restriction or penalty. Even regular decisions not to work, asserted Comcare in evidence, will not reflect upon future offers of work to those nurses.
ONA disputes this characterization of the scheduling system for bargaining unit nurses. It asserts that a work schedule is posted, and nurses are required to report to work in accordance with that schedule. Some nurses prefer to work full-time hours and are scheduled in accordance with that desire, while others prefer to work on a part-time basis, and are similarly scheduled accordingly. If a nurse does not want to work a specific time slot or shift, as a general rule he or she is to advise Comcare before the schedule is posted. Occasionally a nurse advises of his or her unavailability after the schedule is posted, but this is not as common. Nurses are not free, in ONA's view, to accept or reject particular shifts or assignments.
It is unnecessary to resolve this factual dispute, although the evidence suggests that if nurses continue to decline shifts or assignments, they may find that they are not scheduled as often in the future. In any event, the four listed items continue to separate the parties.
ONA filed with the Board, on September 18, 1997, an application that the first contract be settled by arbitration. As noted, the Board issued a decision on October 17, 1997 dismissing that application. Though otherwise in a legal strike or lock-out position, the parties had agreed that there would be no strike or lock-out pending the issuance of that decision. Therefore, subsequent to October 17, 1997, ONA was in a legal strike position.
As the bargaining unit was newly organized, ONA made sure that the nurses in the bargaining unit were aware of their rights. ONA told the nurses that they were legally entitled to strike and could not be fired for doing so. Nurses were also advised that they would not be entitled to collect unemployment insurance benefits while on strike, and that Comcare would be able to use replacement employees to perform their work during the strike.
ONA realized that a strike would result in the cessation of benefits for its members, and wanted to protect them. It contacted Comcare and asked to be allowed to pay the cost of the benefits premiums itself, so that benefits would remain available to the nurses, but at no cost to the employer. Comcare refused, thus ensuring that benefits coverage would terminate with the commencement of the strike (for any nurse on strike). Comcare's refusal was in large part motivated by a desire to exert economic pressure against the striking nurses, so that those on strike would receive neither wages nor benefits.
Both parties knew that a strike was imminent, and likely to begin around the end of the first week of November. Any strike would obviously have scheduling implications for both Comcare and the nurses. Generally speaking, nurses submit weekly time logs, by Thursday or Friday morning each week, showing their availability for the upcoming week, which begins on Saturday. Comcare then tries to match particular nurses' availability with particular patient-clients or shifts.
The time logs for the week beginning Saturday, November 8, 1997, were to have been received by Comeare on Thursday, November 6, 1997, or at the latest, by the next morning. Some of those received on November 6th indicated that the nurse would not be available for work, should ONA begin a strike. Other logs indicated that the nurse would be available. Not all the time logs made reference to an impending strike.
Around 11:57 p.m. on Thursday, November 6, 1997, Comcare officials received a phone call from union officials advising that the strike would begin the next day and that nurses would not be showing up for their shifts or assignments.
Since many of the individual logs for the following week had been filed prior to the commencement of the strike, and since not all the logs made clear whether the nurse would work if a strike was called, Comcare was not confident that the logs provided it with an accurate picture of which nurses would be withdrawing services. Accordingly, beginning on Friday, November 7, 1997, Comcare phoned individual nurses to check into their availability, and to ask them whether they would be showing up for scheduled shifts and whether they ought to be scheduled for shifts during the duration of the strike. These phone calls took place over the next several days. Some nurses were not in when initially called, and messages were left asking them to phone Comcare. Patient-clients were also contacted directly by Corncare, both to arrange visits for them and to confirm that nurses had been showing up as scheduled.
Approximately fifty of the nurses in the bargaining unit continued working during the early days of the strike. Comcare arranged for replacement workers for the nurses who were striking, either by increasing the shifts of nurses in the bargaining unit who were still working, or by assigning the patient-clients or shifts to non-bargaining unit Comcare nurses working in the Kingston area, or other Comcare nurses based outside Kingston, who were relocated for this purpose to the Kingston area.
Comcare absorbed any costs that replacement workers would have incurred, such as expenses for travel and relocation, or temporary housing in the Kingston area. As well, all replacement nurses were paid at the same rate that would have been paid to the striking nurses, or the rate at which the replacement nurses were customarily paid, whichever was higher. Thus, a Comcare nurse from outside Kingston, who was ordinarily paid a higher wage than the bargaining unit nurses, ordinarily received all expenses of relocation to the Kingston area, including temporary lodging and expenses, and continued to be paid at his or her customary wage rate.
It was costing Comcare more to pay these expenses and (in some cases) higher wage rates than it would have cost Comcare to pay the rates sought by the union in bargaining. There is no evidence that Comcare's scheduling of nurses or payment of them breached any provision of the Employment Standards Act.
The strike continued. The majority of the nurses remained off work and on strike. The combination of replacement workers and nurses in the bargaining unit who continued to work enabled Comcare to service the needs of its patient-clients.
On November 11, 1997, four days after the strike began, Comcare sent a letter to all of the nurses in the bargaining unit and to ONA. Many of the letters were delivered by courier or in person. The letter began by noting Comeare's obligation to continue serving its clients, despite the strike, and indicated that Comcare had contacted each of the nurses "to determine [their] availability to accept or continue assignments [in order to] ensure continuity of care". Comcare wrote that it would "be issuing Records of Employment to those of you who have chosen not to work since Friday, November 7, 1997 and who do not plan to be available in the immediate future." The letter advised employees that "the benefit package enjoyed by eligible nurses will no longer be available to those nurses not working after Friday, November 7, 1997." The letter itemized every benefit otherwise available in the benefit package. Finally, the letter noted that it had come to Comcare's attention that nurses had been contacting clients in an effort to involve them in the labour dispute. Comcare stated that such conduct was inappropriate and unacceptable and that clients were being instructed to contact the College of Nurses of Ontario and the CCAC with any concerns they might have regarding the conduct of nurses. Comcare advised its nurses "to refrain from calling clients for any reason other than to schedule visits for the assignment you have accepted as required through the course of your employment." It is this letter that ONA asserts breaches the Act in a number of different respects.
Comcare issued this letter for several purposes. It wanted to advise employees of what it was doing in contacting them, and wanted to emphasize to them the consequences of being on strike. The termination of their benefits was one such consequence. While part of the reason for detailing the benefits to be lost was to make employees fully aware of which benefits would no longer be available, so they could govern themselves accordingly, a meaningful part of the motivation for this aspect of the letter was the desire to directly convey to employees the economic consequences of their actions.
The reaction of some of the nurses in the bargaining unit was hardly surprising. Some felt threatened, because they interpreted this letter as somehow suggesting they could lose their jobs or be fired because they were striking. Some nurses assumed that the reference to a Record of Employment being issued was indicative of this risk. Others felt threatened or concerned because of the reference to reporting to the College of Nurses, raising for them the spectre of disciplinary proceedings because of their participation in the strike. However, even where some nurses initially responded to the letter in this fashion, by the next day, or the day after at the latest, ONA again reassured the nurses in the bargaining unit that they could not be fired for engaging in the lawful strike. ONA told the nurses that the issuance of a Record of Employment did not mean that they were fired.
Both because of these reassurances from ONA and these repeated explanations as to their rights, and because of ONA's preparation of the nurses and communications to them prior to the commencement of the strike, it is quite unlikely that nurses were truly concerned that they might be fired for striking, and if some were, their worries would have lasted only a day or so after receiving Comcare's letter.
Pursuant to Regulations issued under the Employment Insurance Act, an employer is required to forward a Record of Employment, on a form supplied by the Employment Commission, to an employee who has an interruption of earnings, and is required to do so not later than five days after the commencement of the first day of the interruption of earnings. An employer is to note on the form the reason for issuing the Record of Employment. Approximately two weeks after the strike began, Records of Employment were forwarded to those nurses who had not been working during the strike. Preprinted on the back of each Record of Employment is a listing of the code letters employers are to utilize in providing the reason for issuance. The code for "strike or lock-out" is noted as "B". Comeare used code letter "K" as the reason for issuing the Record of Employment. "K" is the code for "OTHER SEE COMMENTS SECTION". Along with noting "K" as the reason for issuing the Record of Employment, in the "COMMENTS" section of the individual Records of Employment, the employer wrote "strike".
No nurse in the bargaining unit who was on strike prior to November 11, 1997 returned to work either as a result of Comcare's letter of November 11, 1997 or as a result of the subsequent issuance of a Record of Employment to that nurse.
The strike continued through November and December. By December 26, 1997, there were no longer any replacement employees who were Comcare employees relocated to Kingston for the strike. All bargaining unit work was being performed by nurses in the bargaining unit and by other nurses who had worked for Comcare in the Kingston area.
Little meaningful bargaining has taken place since the filing of the initial first contract application. No bargaining took place between approximately November 11, 1997, shortly after the commencement of the strike, until late January, 1998. In late January, while the instant matter was being litigated, the parties did meet, but no progress was achieved.
Finally, during final submissions and for the first time, ONA asserted that Comcare had been engaged in surface bargaining, and was therefore in breach of section 17 of the Act. As this assertion was not made earlier in the proceeding, and was objected to by Comcare, the Board ruled that it was too late for ONA to raise this allegation.
At the conclusion of the hearing, and after a recess, the Board provided the following decision orally (not all the comments made orally are repeated here):
Written reasons will follow, and will he more complete; however, in the Board's view, and no doubt in the parties', it is important that the parties have an answer quickly to this dispute, as there is an ongoing strike.
I will not repeat the allegations made by ONA, but I note that the Board here is only dealing with the case that was alleged at the beginning of the proceeding, and not additional matters that were alleged for the first time in final submissions.
Generally a strike can be disruptive, severely difficult, damaging to the parties and the individuals involved, and in many cases, irreparably so. A strike is economic warfare of a sort, and the Board ought not lightly to intrude into this arena. Both sides in a lawful strike are entitled to exert their relative and respective economic strengths.
With respect to the particular allegations, the phone calls made to individual nurses to inquire whether the nurses would be available for work or not, after the strike began, did not constitute breaches of the Act. There was nothing untoward or unlawful in Comcare's phoning of these nurses in the circumstances, and from a professional service perspective, it might indeed have been incumbent upon Comcare to have made these phone calls.
With respect to obtaining replacement employees in the manner that it did, and paying them as it did, the Board only has evidence with respect to these replacement employees working at the beginning stages of the strike. It was not an unfair labour practice for Comcare to pay certain replacement nurses, who were Comcare employees, the rates that those individuals received in their home bases, together with any additional expenses incurred because of working in the Kingston area.
With respect to the communique of November II, 1997, the Board finds this the most troubling aspect of the case. I find that this letter was not issued only with a view to informing employees that Records of Employment would later issue if employees remained off work, and as a courtesy in order to list for employees their benefits and to advise them that their benefits would be lost. I find also that this letter was issued in order to bring home to employees the costs of engaging in and remaining on strike, and specifically, the loss of benefits that such actions would entail. With respect to the reference to the Records of Employment in this communique, that was at least in part made to bring home again to employees that a strike is a severing of employment, of sorts, and what that means for employees.
However, I do not find that the letter was intended to unlawfully intimidate or coerce employees into not exercising their rights under the Act, or to in any way seek to penalize them for doing so. Rather, the letter told employees graphically what some of the costs of the strike were or would be, and told them that Records of Employment would be issuing, which is as required by law. I do not find that the letter was inappropriately intimidating or coercive in motivation or content, even with its reference to reporting to the College of Nurses. In the overall context, issuing this letter was not an unfair labour practice, but rather can be more properly characterized as "playing hardball". The employer was entitled to do so, and to act as it did here.
The fact that some employees were intimidated is not unusual or surprising, given the contents and timing of the letter, and the fact that the letter might have made things more difficult for the union is also not surprising. Nevertheless, this letter, while close to the line, fell on the lawful side of that line.
With respect to the issuance of the Records of Employment itself, that is not an unfair labour practice. Indeed, the employer is required to do so pursuant to the Regulations under the applicable Act. I place no significance on the fact that "K" was marked off on the front of the Record of Employment, and the comment "strike" was placed in the "COMMENTS' section, rather than the letter "B being check off.
With respect to the alleged breaches of the Employment Standards Act (assuming I have jurisdiction to decide this matter in an application filed solely under the Labour Relations Act, 1995, in which I am sitting as the Alternate Chair of the Ontario Labour Relations Board, and not as an Adjudicator or Referee under the Employment Standards Act), there is no evidence before the Board to substantiate any such breach.
With respect to any breach of section 17 of the Act and the allegations that the employer is engaged in surface bargaining, the allegation is based upon the position of the employer in bargaining on the monetary items, and how inconsistent that position is with its subsequent payment of replacement workers (i.e. paying them more than the wages of the striking nurses and more than it would cost to accede to ONAs position in bargaining).
Comcare had a rational business reason for obtaining replacement employees in the manner that it did and for paying them as it did. In light of this, on the evidence there is not a breach of section 17. Although the employer chose to spend extra money on the need to maintain services during a strike, it is not a breach of the Act for the employer to decline to offer to ONA in bargaining the same amounts of money. Again, the employer has taken a stance of hard bargaining in this respect, but has not committed an unfair labour practice.
In summary, this application will be dismissed.
However, in doing so, I note a concern. The parties are now three months into a lawful strike, and it appears that the parties may still have a different understanding of how scheduling actually worked at Comcare in Kingston prior to the commencement of the strike. This reflects a serious communication problem between the parties. I make no suggestion as to whose fault such a communication problem might be. as that has not been the focus of the issues before me, but it appears to remain a problem.
There is one additional comment relevant to the question of whether the refusal of the employer to allow ONA to pay for and maintain benefits was in breach of the Act. Bill 40, the Act in effect just prior to the current Act (Bill 7), contained section 81.1, which required the employer to allow the union to pay for benefits during a strike. The current Act contains no such provision, and its removal suggests a legislative intention that an employer no longer be required to give its consent to such a union request, or to make arrangements to accommodate the change. Absent improper motivation, to conclude that the employer's refusal to accept ONA's offer to pay for benefits premiums was an unfair labour practice would be inconsistent with the statutory change eliminating the obligation to do so.
For these reasons, the application was dismissed.