Ontario Labour Relations Board
File No.: 3488-99-U Date: May 3, 2000
Between: Group of Employees, Applicant v. Service Employees International Union, Local 220 and Grand River Hospital Corporation, Responding Parties.
Before: Mary Ellen Cummings, Alternate Chair.
Decision of the Board
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”). The applicants allege that both the Grand River Hospital Corporation (the employer) and the Service Employees International Union (the union) have breached a number of provisions of the Act. Although a number of detailed allegations have been made the dispute centres around the union and the employer's decision to open 7 collective agreements, well before their expiry (indeed, within weeks of their ratification) in order to combine bargaining units. The employer is the result of the 1995 amalgamation of the Freeport Hospital and Kitchener-Waterloo Hospitals. Prior to the round of negotiations that are at the core of this dispute, there had been no merger of bargaining units. The applicants allege, in a nut shell, that the union had promised the employees that no such merging would happen, and that the union and the employer are both in violation of the Act in engineering a process that would bring this about, without a proper early termination application and without allowing the employees to ratify the result.
2Both the union and the employer have raised preliminary issues. The first is with the respect to the status of the applicant to bring this application. It is brought in the name of the Grand River Employees Association (the GREA). Mr. Ligtenberg, the President of the GREA has provided the Board with a number of signatures of persons who are members of the GREA, and who he represents. He requests that their names not be disclosed to the other parties. In parts of the application, the GREA appears to be a simple group of employees who have come together to make a complaint. As long as the group of employees raises issues and seeks remedies that are available to individuals, whether singly or as a group, the application can proceed. But in other parts of the application, the GREA styles itself as a bargaining agent. In fact, one of the remedies it seeks is to have itself declared as bargaining agent. Even if the Board were to contemplate such a remedy (which is quite doubtful) the GREA has not met the criteria to be either a "trade union" or a bargaining agent under the Act. Henceforth, to ensure no confusion, the Board will refer to the employees who have made the complaint as "the applicants" or "the group of employees".
3The employer also notes that, on the one hand, it is named as an intervenor, and on the other hand, the applicants seek remedies with respect to it. It is likely that the applicants do not appreciate the legal distinction; a responding party is one against whom remedial relief is sought; an intervenor is one who is affected by the proceeding but against whom no remedial relief is sought. In this case, it appears that the applicants seek remedial relief against both the union and the employer, and so the employer should properly be named as a responding party. The employer will be given an opportunity to respond on that basis.
4The union and the employer have both sought to have this application dismissed because it discloses no prima facie or arguable breach of the Act. Or put another way, the union and the employer assert that even if everything the applicants allege is proved, they are not entitled to the remedies sought. To make that assessment, it is necessary to review the application in some detail.
5Essentially, the applicants raise two areas of complaint. First, they allege that the collective agreement term providing part-timers 2% of wages in lieu of statutory holiday pay is a violation of the Employment Standards Act. Second, they allege that in 1998, employees were promised that there would be no merger of bargaining units. Then in the summer of 1999, two months after ratification of their collective agreements, the employer and the union entered into negotiations to combine bargaining units and collective agreements, a process that occurred without ratification. I understand from the supporting materials filed by the applicant that the group of employees are affected by the dovetailing of seniority that was part of the negotiations. The employees of the former Freeport Hospital had less seniority than the employees at the former Kitchener-Waterloo Hospital, so are more vulnerable, it is claimed, to layoffs once bargaining units are combined.
6Turning to the first allegation, that is, that the union has negotiated a term that is in violation of the Employment Standards Act, although the applicants allege that the 2% of salary in lieu of statutory holiday pay "…is far less than the Employment Standards…." that is not necessarily so. It could be that 2% would exceed an individual's statutory holiday pay entitlement. In any event, it is not clear how the Board would order the remedy requested by the applicants, that is, the reimbursement of monies lost. First, the Board is not generally, the first level decision-maker about alleged breaches of the Employment Standards Act. Typically an individual employee makes a complaint to the Employment Standard Branch and an employee represented by a bargaining agent can make a complaint about a violation of the Employment Standards Act to its trade union, who can then grieve it. I understand that in this case the group of employees alleges that the union is the cause of the problem, and so may be reluctant to bring a grievance, but in my view, that must still be the first avenue of redress the applicants seek. It is only if the union fails to pursue the grievance for reasons that are arbitrary, discriminatory or in bad faith that the Board would inquire into the issue. For these reasons, the Board concludes that it will not inquire into the alleged breaches of the Employment Standards Act as part of this complaint.
7The real issue in this case revolves around the manner in which the employer and the trade union came to reopen the collective agreements, and combine the bargaining units, in a process that did not include ratification by the bargaining units. It does not appear that the union and the employer brought an application for early termination of the collective agreements, pursuant to section 58 of the Labour Relations Act. Section 58 provides that unions and employers can mutually agree to revise any provision of a collective agreement, except for its term. At this point, I do not know precisely how the union and the employer went about combining the bargaining units and creating new collective agreements, or whether that process had any effect on the term of the agreements. That issue will have to be determined, should the matter go to a hearing. And I do conclude that the applicants have, with respect to this issue alone, pleaded enough of a case that the matter should continue.
8However, a note of caution, and a bit of advice. The applicants have entered a particularly complex aspect of labour relations. The applicants challenge the extent to which employers and unions can make collective agreements that are not popular with all employees. Traditionally, the Board has given considerable deference to the tough choices that unions and employers have to make in bargaining. However, provisions such as section 58 provide safeguards to ensure that the actions of employers and unions do not eliminate mechanisms for employees to exercise their democratic rights, such as the open period. This case may well be about reconciling some of these competing interests. But, I repeat, the area is complex, and I strongly urge the applicants to retain professional advice. At a hearing, it is not enough to set out a list of provisions of the Act, accompanied by shopping list of demands and leave it to the Board to sort out. I note for example, that the applicants have relied on section numbers and sought remedies that bear no relationship to their application. There is no basis, for example, on which the Board would order representation votes pursuant to section 11, as the applicant requested. Section 11 is about certification applications. This is not a certification application.
9I understand that essentially, the applicants want the Board to reverse things, and put the parties back to where they were with multiple bargaining units and separate collective agreements. The applicants should consider that when the trend in the public sector (including hospitals) is to fewer and larger bargaining units, for very good labour relations reasons, the Board may not be willing to grant the remedies the group of employees seek. Even if the Board determined that the process followed by the employer and the union was flawed, the Board will still consider the broader labour relations impact of its decisions, and may award remedies well short of what the applicants seek.
10To summarize, the only issue that the Board will consider in this application relates to the union and the employer's actions from March to August 1999 around the negotiation of the merger of the bargaining units and collective agreements. Both the union and the employer requested an opportunity to respond more fully, once the Board determined the preliminary issues. The employer and the union are directed to deliver and file their responses within 21 calendar days of the date of this decision.
11If further procedural issues arise in this case, the Registrar is directed to put them before this panel of the Board if practicable.
“Mary Ellen Cummings”
for the Board