Ontario Nurses' Association v. Comcare (Canada) Limited
2068-99-U Ontario Nurses' Association, Applicant v. Comcare (Canada) Limited, Responding Party.
BEFORE: Christopher J. Albertyn, Vice-Chair.
APPEARANCES: Caroline Cohen, E. Holroyd and L. James for the applicant; Glenn P. Christie and John MacKenzie for the responding party.
DECISION OF THE BOARD; July 17, 2000
The style of cause is hereby amended to reflect the correct name of the responding party: “Comcare (Canada) Limited”.
This is an unfair labour practice application filed pursuant to the provisions of section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1 (“the Act”) alleging violations of sections 5, 70, 72 and 76 of the Act. Those sections read:
Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.
No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
Two preliminary matters were argued at the hearing on July 4, 2000. The first was a motion by the responding party (“the employer”) for the application to be dismissed for failing to disclose a prima facie case; the second a request by the applicant (“ONA” or “the union”) for production of a document.
The no prima facie case motion
Among other allegations, ONA explains the background to the application. The following details are taken from the application (and, for the sake of completeness, from appendices to the application). The application is the document upon which the “no prima facie case” motion of the employer will be evaluated. On November 27, 1996 ONA was certified as the collective bargaining representative of all employees of the employer in the City of Kingston employed as registered nurses and registered practical nurses, subject to certain exclusions.
The employer carries on business for profit in community based, health care services.
ONA gave notice to bargain on December 17, 1996. ONA alleges that the employer’s approach to bargaining indicated a desire to discourage its employees in other areas of Ontario from unionizing. Negotiations occurred over several months until mid-September 1997 when ONA brought an application to the Board for a declaration that a first collective agreement be settled by interest arbitration. On October 17, 1997 the Board dismissed the application. ONA and the bargaining unit employees went on strike on November 7, 1997. The strike lasted some three months. ONA brought a fresh first contract application before the Board. That application met with more success. The Board made a finding, under section 43(2)(b) of the Act, that the employer had adopted an uncompromising bargaining position without reasonable justification and referred the conclusion of a first collective agreement between the parties to interest arbitration.
The board of arbitration, chaired by Graham McKechnie, issued an interim award in February 1999, and a final award on September 8, 1999.
Very shortly thereafter, on September 20, 1999, the employer informed the union that, as a result of the financial impact of the McKechnie award, the employer was not able to provide nursing services under its existing contracts with the Community Care Access Centre (“CCAC”) and with private clients. It was “returning” those contracts to the CCAC and its other clients. The impact of the cancellation by the employer of the contracts with its customers is to deprive those in the union’s bargaining unit from work they would otherwise have been assigned.
ONA says that the employer’s decision to cancel its contracts for the provision of nursing services with the CCAC and private clients constitutes an unfair labour practice because it violates sections 5, 70, 72 and 76 of the Act. ONA contends that the employer’s motivation for the prompt termination of its contracts, thereby effectively depriving its members of work for the employer (whether or not they continue to be its employees) is to penalize the members of the bargaining unit for unionizing, striking and acting in concert with the union in securing a first collective agreement by arbitration. It contends that the decision has had the effect of discouraging employees in the employer’s operation in other parts of Ontario from being unionized, although no examples in support of that allegation are particularized.
ONA seeks various relief, including an order that the employer re-open its nursing services in Kingston, alternatively that the employer compensate the union and the employees in the bargaining unit for the losses suffered by reason of the alleged violations of the Act.
The issue to be decided is whether the above allegations constitute a prima facie case which should proceed to hearing. The employer says they do not.
The employer has several reasons for suggesting the application does not disclose a prima facie case. It contends that all the members of the bargaining unit are classified as casual employees. (The union disputes the allegation). Accordingly, the employer argues, employees have no entitlement to work and their status as members of the bargaining unit remains unchanged by the actions of the employer following the issuance of the McKechnie award. Accordingly, says the employer, there has been no refusal by the employer to continue to employ the employees on terms and conditions of employment no different from those which prevailed previously. In the employer’s submission, the employees are employed on precisely the same terms as before.
The employer’s counsel points out that the union has filed a grievance challenging what the union treats as a lay-off of the bargaining unit members. Some of the relief sought in the grievance is akin to that being sought by the union in this application. Counsel argues that the application has been duplicated by the grievance, although he does not go so far as to suggest that the application should be deferred to the grievance arbitration. The employer’s defence to the grievance includes the submission referred to above, that the employees in the bargaining unit are casual employees with no expectation of work. Thus any diminution in the amount of work they receive is within the expectation of their employment. They have not been laid off, nor terminated. They are merely awaiting work from the employer, as they were before, albeit with somewhat less expectation of their being given any.
As the union’s counsel points out, the employer’s argument is somewhat formalistic. Assuming, as the employer contends, that the employees in the bargaining unit are casual employees, there is no formal change in their employment status by them being deprived of work. There is no refusal to employ them. However, in substance, the absence of work is a critical loss for them. Notionally the employer is willing to give them work, but, on account of a decision made by the employer, there just is not any work available. The fact that they are notionally still employees does not satisfy their need to earn an income. The union’s application is intended to deal with the real effects of the employer’s decision to jettison its contracts with the CCAC and other health providers, rather than just with the formal impact of what has been done. In that sense, ONA’s allegation that there has been a refusal to employ its members is, at least, arguably at issue in the application.
The employer suggests that there is an absence of a proper nexus between the historical narrative provided by the union and the conclusions of unfair labour practice which it wishes the Board to draw. In the employer’s submission, the union must do more than merely set out a background and then suggest that the decision by the employer to terminate the contracts it had with the CCAC and other health services in Kingston must have been because of an anti-union motive, or otherwise in violation of the Act. Counsel for the employer suggests the application is fatally flawed in that it contains conclusions in search of facts. He argues that the critical nexus, between the background facts alleged by the union and the conclusions of law it wishes to draw, is missing. What is needed, in counsel’s submission, are some facts which might lead the Board to conclude that the employer violated the Act when it decided to abandon its contracts with the CCAC and other health providers. Counsel refers to Muskoka Board of Education [1996] O.L.R.D. No. 584. In that case a union alleged that an employee’s termination was related to the replacement of one bargaining agent by another. The only allegation made by the union was a coincidence between both events. The Board found that to be an insufficient basis for establishing an arguable case.
In response, the union’s counsel argues that the juxtaposition in time - a period of a few weeks between the issuance of the interest award and the effective closing of the employer’s business in Kingston - is sufficient to create the nexus to establish, at least arguably, that the employer acted for reasons which violate the sections of the Act referred to in the application.
The facts in this case, although also based upon the juxtaposition of two events in time - the issuance of the McKechnie award and the effective closure of the employer’s Kingston operation - are closely related and are admitted by the employer to be causally connected. This distinguishes this case from that in Muskoka Board of Education.
Counsel for the employer makes much of the fact that the employer has, over a lengthy period, supplied detailed financial information to the union as to its financial circumstances and as to the likely impact which the union’s demands might have upon the viability of its operation in Kingston. Counsel suggests that ONA refused to treat the employer’s financial warnings seriously and that, when those warnings were realized and the employer’s operation in Kingston was substantially curtailed, the union should not have been alarmed, nor should it have brought this application because the financial reasons for the employer’s actions were vividly apparent for a long period of time prior to the moment their threatening import was realized.
This submission goes more to the general merits of the application than to its prima facie worthiness. It depends upon a determination of the disputed facts, not an assessment of the application on its face.
The grievance filed by ONA - claiming that the employees have been laid off in violation of the parties’ collective agreement - involves an issue which is sufficiently different from that in the application as to counteract the suggestion that the essence of this case is subsumed by that in the grievance arbitration. The grievance concerns whether the employees in the bargaining unit are entitled to particular limited relief following what ONA alleges is a lay-off, viz. severance pay. The application is concerned with whether the Act has been violated and whether ONA and its members have suffered losses on account of such violation. The remedies in the grievance arbitration are likely to be more limited than those which the union might seek in the application.
ONA’s application involves an allegation that employees within the bargaining unit have been deprived of work or employment as a result of the cancellation by the employer of its contracts in Kingston. Subsection 96(5) of the Act imposes a reverse onus on the employer to disprove allegations, among others, that an employee has been refused employment or has been otherwise dealt with contrary to the Act. As in related employer applications, in which a union is assumed to be less well informed of an employer’s decision than the employer itself is, in certain unfair labour practice claims a similar presumption applies.
The union is faced with a particular set of circumstances: after a lengthy, contested process of being certified, bargaining, seeking (unsuccessfully) a first contract order from the Board, engaging in a lengthy strike, securing a first contract arbitration order from the Board on its second attempt (on a finding of some fault by the employer), and then achieving a collective agreement through interest arbitration, the union finds itself, within a matter of weeks, of having achieved a collective agreement in a situation in which there is no longer any work for the employees in the bargaining unit. Furthermore, the decision to end the work of the bargaining unit employees was one taken by the employer voluntarily. It chose to abandon its contractual engagements with its clients. The union draws the conclusion from this sequence of events that the employer is motivated in its actions by an anti-union animus, or that the employer’s actions are such, despite a proper motive, as constituting a violation of section 70 of the Act. These are the allegations pled in the application. The employer may well have a sound and complete answer to the union’s complaint - it says it warned ONA over a lengthy period of the dire consequences of it being put into an uncompetitive financial position, and that, it says, is precisely what resulted from the McKechnie arbitration award - but that answer needs to be established in evidence. There is enough in ONA’s application to put the employer to its defence.
Taking the employer’s submissions as a whole, they are not sufficient to cause the application to be dismissed for failing to disclose a prima facie case. This case concerns, among other things, whether the employer’s motives for cancelling its contracts with the CCAC and other health care providers were purely financial, or whether they were tainted by an anti-union animus. That is a matter which the union has put in issue in its application, and which needs to be determined on the evidence to be presented at the hearing.
It is not necessary for me to make a detailed inquiry as to whether the union has established a prima facie case in respect of every section of the Act it alleges has been violated. That is because the facts to be presented in the hearing are the same in respect of all of the alleged violations of the Act and there is no benefit gained as regards the amount of evidence to be presented, or the duration of the hearing, if any particular allegation were dismissed at this stage.
As an alternative to seeking the dismissal of the application for failing to disclose a prima facie case, the employer’s counsel suggests that the relief sought in the application is wholly inappropriate, and should be struck. The employer’s counsel made reference to Grey-Owen Sound Health Unit, [1980] OLRB Rep. Feb. 223 in support of the employer’s submission that the damages sought by ONA in the application are too remote and cannot be granted. The question of remedies can more appropriately be addressed at the conclusion of the hearing.
ONA’s production request
ONA requests a production order against the employer that it provide a copy of a bid it made to the Kingston CCAC in March 2000. Counsel for ONA contends the document is relevant because it will show if the employer was genuinely seeking to secure a contract with the CCAC, or whether the bid was bogus, a mere ruse to pretend an interest in employing the nurses falling within ONA’s bargaining unit. The employer opposes the request on the basis that the document is irrelevant to the issues at stake in the application. The employer does not rely upon it in any way. Furthermore, counsel for the employer contends the document is highly confidential because it discloses the employer’s pricing structure. The document should not find its way into the hands of the employer’s competitors and the risk exists that that might occur if production is ordered.
Leaving aside the employer’s confidentiality concerns, I am not persuaded that the document has any material relevance to the issues in this case. What is at stake in the case is the extent to which the union was warned of the financial consequences of its economic demands prior to the employer’s decision to abandon its contracts in Kingston in September 1999, and the motivation, rationale and reasonableness of that decision. The employer’s bid in March 2000 has no bearing upon the determination of those issues.
ONA’s request is therefore denied.
Disposition
The employer’s request to dismiss ONA’s complaint for failing to disclose a prima facie case is denied.
ONA’s request for production of the employer’s bid to the Kingston CCAC in March 2000 is denied.
The matter is referred to the Registrar to set dates for the hearing of the matter. I will remain seized.
“Christopher J. Albertyn”
for the Board