Ontario Labour Relations Board
File No.: 2239-99-U Marie L. Murchison, Applicant v. Ontario Nurses’ Association, Responding Party v. Hotel-Dieu Grace Hospital, Intervenor.
Before: David A. McKee, Vice-Chair.
Decision of the Board; March 14, 2000
Decision
1This is an application made under section 96 of the Labour Relations Act, 1995, S.O. 1995 ch. 1 (the “Act”) alleging that the responding party, the Ontario Nurses Association (“ONA”) has violated section 74 of the Act. The facts giving rise to this complaint stem from the process of consolidating hospital services in the Windsor area. The facts are complex and numerous in detail, but the applicant has been able to identify the relevant issues with a high degree of precision the nature of her complaint.
2ONA has filed an extremely detailed reply and has asked, among other things, that the Board dismiss the complaint without a hearing pursuant to Rule 46 of the Board’s Rules of Procedure. Rule 46 provides as follows:
- Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
3Rule 46 requires the Board to examine the complaint exclusively in light of the facts as alleged by the applicant. While I have reviewed the response filed by ONA and the intervention filed by Hotel-Dieu Grace Hospital, the facts that are alleged therein do not form any part of the basis of a consideration of the sufficiency of this application. Accordingly, this review of the complaint is based exclusively on the facts as alleged by the applicant.
4The results of the rationalization of hospital services in Windsor have had an extremely unfortunate effect on the applicant. She commenced employment as a registered nurse at Grace Hospital in September 1971. From January of 1980 until November 1997, she worked exclusively in the Chronic Care Unit at Grace Hospital. Needless to say, this work requires a specific set of skills and the performance of a finite number of tasks. For those 18 years, the applicant did not perform the full range of nursing functions to which she might have been exposed in an acute care situation. This is not a criticism of the applicant; the work she did was important and valuable. It did, however, mean that in November 1997 she found herself in a very difficult position.
5At some time in 1994, the decision was made to concentrate chronic care services at the Western campus of the Windsor Regional Hospital. The Chronic Care Unit at Grace Hospital was to be closed. This did not occur for several years. In 1996 Grace Hospital and Hotel-Dieu Hospital were amalgamated. In 1996 Hotel-Dieu’s Chronic Care Unit was moved to the Grace Hospital site. Staff were transferred from Hotel-Dieu to Grace and seniority was dovetailed.
6Ultimately in 1997, the Hotel-Dieu Grace Chronic Care Unit was closed. Windsor Regional Hospital, of course, had a collective agreement with an ONA local which did not include any of the persons at the Hotel-Dieu Grace Hospital. However, pursuant to various agreements, including the Human Resource Plan for Hospital Reconfiguration in Essex County and a dispute resolution memorandum dated 21 February 1995, there might be some obligation on Windsor Regional Hospital if the transaction fit the definition of a “reconfiguration” under the Human Resources Plan.
7Both hospitals involved took the position that this was not a reconfiguration. In October 1997 all staff in the Hotel-Dieu Grace Chronic Care Unit, including the applicant, were sent a letter offering them four choices:
(1) lay-off;
(2) early retirement package;
(3) exit package (pursuant to the Human Resources Plan);
(4) bump an individual with lower seniority within the Hotel-Dieu Grace Hospital bargaining unit.
8The applicant discussed her options with her ONA representative, Ms. Fatima Hage. Options 2 and 3 did not interest her. Her initial preference was to take a lay-off rather than to try to bump to a job within Hotel-Dieu Grace. Ms. Hage advised her against a lay-off and urged her to consider bumping into another job. With the benefit of hindsight, it is now possible to say that the applicant might be in a better position had she accepted a lay-off. This arises as a result of an arbitration referred to below by arbitrator Pathe. However, a trade union is not, under section 74, required to have perfect vision and to be presumed to be able to predict the future of all litigation with one hundred percent accuracy. The advice given to the applicant was:
(1) because of her lack of recent experience in any ongoing job at the hospital, staff with less seniority would be considered for any posted position before her;
(2) recall rights during lay-off would only last for two years;
(3) if she were “called in” to replace nurses when the hospital was short, she would not have any orientation to those areas;
(4) waiting for a job posting at one of the other hospitals was not likely to produce employment, since nurses employed in the bargaining units at those hospitals would have the first opportunity to claim such jobs.
These are all perfectly legitimate and realistic concerns which were properly placed before the applicant for her consideration. Indeed, on the basis of the application, I cannot say that there were any other considerations that should have been placed before her. Whether the advice was good advice at the time (and it seems to have been), or whether, with the benefit of hindsight, other advice might have been better (and we can only say at this point it might have been) is not the issue. Section 74 requires the union only to turn its mind to the issues at hand and to consider the relevant considerations, see: Walter Prinesdomu, [1975] OLRB Rep. May 444 at paras. 25-27. The advice the applicant was given falls well above that standard.
9Since the applicant wished to continue working, she did pick a job and bump into one elsewhere in the Hotel-Dieu Grace Hospital. Ms. Hage advised her that she “could get an extended orientation if [she] requested it”. In the end, the applicant bumped into a position in the “Short Stay Unit”. She found, however, that she was given less than two days’ orientation. This made her extremely uncomfortable because she felt she was unable to deliver the high standard of care consistent with her professional duty and the requirements of her nursing license. She was concerned that, absent greater orientation, she would not be delivering the proper level of care to patients, thus putting them at risk, as well as risking her nursing license and employment. She found that her unit manager was extremely unhelpful and characterizes her behaviour as “harassment”. The applicant contacted Ms. Hage, who told her that, given her new work location, her representative was Ms. Roberta Dickson.
10The applicant spoke to Ms. Dickson, who advised her that her only recourse was to file a grievance, asserting a right to further orientation. Although the applicant was not pleased with the advice, Ms. Dickson said that it was necessary to demonstrate, not that she was being treated unfairly or unreasonably, but that her treatment was a violation of the collective agreement. On reviewing the collective agreement (the applicant did not refer to any provision in the collective agreement), this advice does not appear to be incorrect. Ms. Dickson expressed the view that this would be a difficult grievance to win and that there was inevitably a delay of some months between grievance and resolution if the matter proceeded all the way to arbitration. Delay in litigating any grievance to its ultimate conclusion is simply one of the inevitable facts of life.
11The applicant then decided that her only realistic option was the Exit Package that had originally been offered. She contacted Kasia Bondy of Hotel-Dieu Grace Hospital, who advised her that this option was still available to her. She completed the necessary documentation and submitted it to the hospital. Two weeks later, she attempted to rescind her resignation, but was apparently unable to do so. The applicant, in fact, does not say specifically what happened in December of 1997 or January of 1998.
12The applicant appears to have permitted the situation to stand until September of 1988. At that time, she was informed of the arbitration award handed down by arbitrator Pathe. The applicant obtained a copy of this award and determined that she in fact might have benefitted had her case been examined along with two others in the issue labelled “Number Four” in that award.
13Attached to the application is the mediation/arbitration process by which Mr. Pathe was appointed and his award. These documents speak for themselves. The mediation/arbitration process was agreed upon on 21 February 1995. This is a framework sort of agreement; there are no specific grievances referred to. Indeed, the issues arising from the closure of the Chronic Care Unit only arose in late 1997. Nonetheless, that issue was referred to Mr. Pathe. The argument of ONA at that time was that the consolidation of chronic care at the Windsor Regional Hospital constituted a reconfiguration as defined in the Human Resources Plan. Accordingly, ONA argued that “the affected employees should have been dealt with under the Human Resources Plan by dovetailing the seniority in accordance with Article 2 of the Human Resources Plan”. In fact, arbitrator Pathe did determine that the transaction amounted to a reconfiguration. His award states:
“I find that the decision to close the Chronic Care Unit at the Hotel-Dieu Grace while the program continued at Windsor Regional was a reconfiguration, and accordingly employees displaced by the closing should have been afforded all the rights under the Human Resources Plan. At the hearing, I was advised that two employees represented by ONA were laid off from Hotel-Dieu Grace at the time the Chronic Care Unit closed. The parties are directed to meet to resolve the employment rights of these two employees in accordance with the terms of the Human Resources Plan. I will remain seized of this matter pending the outcome of the meeting between the Parties”.
The applicant contacted Ms. Dickson to ask if, as a result of this award, her situation could be re-examined. She was ultimately advised that she could not.
14The applicant alleges that ONA has breached its duty of fair representation in one of two ways. She asserts that her situation ought to have been included as a grievance when the original issue of the closing of the Chronic Care Unit at Hotel-Dieu Grace was referred to arbitrator Pathe. Alternatively, ONA ought to have attempted to file a grievance based on that award when the applicant requested ONA to do so in January of 1999. The applicant does not indicate why she thinks this award would be of any value to her, even if it were possible to apply this retroactively. Since any acute care position would likely have presented the same challenges and difficulties that the job in the Short-Stay Unit at Hotel-Dieu Grace did, an opportunity to bump into any acute care position at Windsor Regional Hospital is unlikely to be of much assistance to her. Presumably the applicant feels that, had she been treated in a manner consistent with arbitrator Pathe’s award, she could have bumped into a position in the Chronic Care Unit at Windsor Regional Hospital. Of course, factually this would be so only if there were nurses employed in the Chronic Care Unit at Windsor Regional Hospital whose seniority, on a dovetailed basis, was junior to hers. It is important to remember that the grievor was a part-time, rather than a full-time employee.
15Attached to the complaint is a part-time employee’s total seniority hours list dated January 20, 1997. It is not realistic to expect that someone in the applicant’s position would have access to all the necessary documents in order to ascertain whether there is any real basis for this complaint. As set out in more detail, I am directing ONA to provide the applicant with certain documents.
16However, even if it is possible to demonstrate that there was a junior nurse employed in the Windsor Regional Hospital Chronic Care Unit, that does not establish a violation of section 74. ONA has replied to this application in a detailed and thoughtful response. The specific issue of the Pathe award is dealt with in paragraphs 38-44 and 53-58 of this response. Again, it is not expected that the applicant would be aware of any of the facts alleged in that response since many of them relate to internal ONA considerations. The candor with which these details have been set out in the response certainly lends an air of credibility to ONA’s explanation as to what it did and why. Accordingly, once the applicant has been provided with the documents by ONA, I will require her response to the factual position of ONA as to what it did and why. I will also require the applicant to indicate why she believes what ONA did violates section 74.
17Accordingly, I make the following orders and directions:
(1) Within 15 days of the date of this decision (excluding Saturdays, Sundays and holidays on which the Board does not open), ONA is to provide to the applicant all necessary seniority lists which would enable her to determine her relative seniority standing to persons employed in the Chronic Care Unit at the Windsor Regional Hospital. The Board will expect that not only seniority lists will be supplied, but some means by which the applicant can identify persons employed in the Chronic Care Unit. The relevant time period would appear to be September 1997 to January 31, 1998. If ONA requires more time to assemble these documents, it is to advise the Board.
(2) Within 20 days (excluding Saturdays, Sundays and holidays on which the Board does not open), the applicant is to set out in writing to the Board, with a copy to ONA and the Hotel-Dieu Grace Hospital, a statement of:
(i) Whether ONA ought reasonably to have included her situation in the original grievance which was referred to Mr. Pathe as issue number 4 in his award;
(ii) precisely what position ONA ought to have taken with respect to the application of the Pathe award to her employment situation;
(iii) whether there was in fact a nurse employed in the Chronic Care Unit at Windsor Regional Hospital whose seniority was less than hers;
(iv) a detailed response to the factual assertions made by ONA in paragraphs 38-44 and 53-58 of its response, indicating which facts the applicant agrees with, which she disagrees with, and which she has no knowledge of;
(v) a statement of what the applicant believes that ONA should do, or should have done, to meet the standard of fair representation required by section 74.
18Once these documents have been filed with the Board, a decision will be made as to whether or not this matter is to be scheduled for a consultation. ONA and the Hotel-Dieu Grace Hospital are directed not to respond to the submissions of the applicant unless directed to do so by the Board.
19I am seized of this application.
“David A. McKee”
for the Board```