1329-01-U Canadian Union of Public Employees, Local 79, Applicant v. Riverdale Hospital, Responding Party.

1632-01-U Canadian Union of Public Employees, Local 79, Applicant v. The Board of Governors of the Riverdale Hospital, Responding Party.

1681-01-U The Riverdale Hospital, Applicant v. Canadian Union of Public Employees, Local 79, Responding Party.

BEFORE: Mary Ellen Cummings, Alternate Chair.

DECISION OF THE BOARD; October 26, 2001

1. These are three unfair labour practice complaints which all appear to arise in the context of collective bargaining for a new collective agreement between the Canadian Union of Public Employees, Local 79 (CUPE) and the Riverdale Hospital (Riverdale) with respect to a full-time and part-time service unit.

2. In Board File 1329-01-U, Riverdale has asked to have the application dismissed in whole or in part because it fails to make out a prima facie or arguable breach of the Labour Relations Act, 1995 (the “Act”). In addition to considering that motion, the Board will take this opportunity to look at all three files and consider how best to organize them for hearing. We note that counsel for CUPE in a letter dated September 27, 2001 has requested that its complaint in Board File 1329-01-U be scheduled for hearing. Since all three files concern recent events in ongoing negotiations, it is appropriate that they be listed together for hearing. The panel hearing the matter will determine the method of proceeding.

Board File 1329-01-U

3. This complaint alleges that representatives of Riverdale removed copies of memos that CUPE had circulated in the hospital, thereby interfering in CUPE’s legitimate activities. CUPE alleges that a senior manager engaged in an inappropriate discussions about the reasons bargaining had broken down, thereby interfering with CUPE. CUPE also alleges that the Hospital intentionally sought to resume bargaining on dates when it knew CUPE was unavailable and scheduled a “fun lunch” on a date it knew CUPE was conducting meetings with members, in an attempt to lure employees away from the union meeting.

4. CUPE finally alleges that Riverdale made unilateral “Recognition Bonus” payments to full-time employees in the amount of $1,000 and to part-time employees in the amount of $500. In its pleadings CUPE writes, “While the union is not seeking the rescission of the bonus, the Union submits that this was also a violation of the Act, and an attempt to interfere with bargaining by undermining the certified bargaining agent”. CUPE alleges that Riverdale’s conduct breaches section 17, 70, 72 and 76:

17. The parties shall meet within 15 days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.

18. 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.

19. 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.

76. 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.

5. By way of remedy, CUPE seeks a declaration that Riverdale has violated the Act; a direction that Riverdale cease and desist from violating the Act; a direction that Riverdale post a notice to all employees advising them of their rights under the Act; and a direction that a senior manager of Riverdale provide a written apology, to be distributed to all members.

6. In her request that this application be dismissed for failure to make out a prima facie case of either a breach of the Act or an arguable case for the remedies requested, counsel for Riverdale particularly noted that since a trade union is not a “person” under the Act, it cannot bring a complaint that section 76 has been violated. Further, counsel submits that it would be contrary to the guarantees of freedom of expression provided in the Charter of Rights and Freedoms to compel her client to make an apology.

7. To this point, the Board has not sought the submissions of CUPE in response to the request that this application be dismissed for failure to make out a prima facie case, and given how I propose to deal with that motion, CUPE’s submissions are not necessary.

8. In Woodall Construction Co. Ltd. [1979] OLRB Rep. June 597, the Board held that because a trade union is not a “person” under the Act, it could not complain about conduct that was a breach of the Act only when committed against persons. Section 76 prohibits intimidation and coercion of “persons”. I note that no individual has come forward and alleged that he or she was intimidated or coerced by Riverdale’s actions. It would appear, then that CUPE cannot maintain an allegation that Riverdale has coerced and intimidated the union.

9. There is an even more fundamental problem with CUPE’s request that the Board order a senior manager of Riverdale to publicly apologize. That is a remedy that the Board has consistently declined to make. In Sarnia Jail [1997] OLRD No. 3512, the Board wrote:

With respect to the relief requested by the applicant, it would be the extraordinary case in which the Board would consider ordering an apology. Indeed, I am not aware that the Board has ever done so.

10. This is certainly not an extraordinary case, about which I will have more to say below. The Board will not order the employer to apologize. It appears, then, that the remaining remedies available to CUPE are a declaration; an order to cease and desist and the posting of a notice.

11. The Board is satisfied that accepting all the allegations made by CUPE are provable, it has made out a prima facie breach of sections 17, 70 and 72 of the Act.

Board File 1632-01-U

12. This application concerns CUPE’s complaint about how Riverdale has treated its unit officer in the service employees’ bargaining unit. CUPE complains that the unit officer was denied a 3-day leave of absence to attend a union conference and that she has been denied an opportunity to participate in bargaining for the collective agreement of the professional unit, a practice, CUPE asserts, that has been in place for some time, because there are common issues in each collective agreement.

13. Riverdale responds that the leave of absence was subsequently approved, rendering CUPE’s concern moot. With respect to the participation of the service unit officer in the bargaining for the professional unit, Riverdale agrees that the employer permitted this practice in one round (although not the last round) of bargaining stating, “… the Hospital would not commit to this arrangement for an indefinite period of time, but the Hospital would evaluate the need to continue the arrangement at each round of bargaining”.

14. With respect, I do not understand on what basis Riverdale would purport to play a role in determining the composition of CUPE’s bargaining team. The Board has long held (see Sack and Mitchell Ontario Labour Relations Board Law and Practice, 3rd ed. paragraph 8.265) that an employer breaches the duty to bargain in good faith in section 17 when it seeks to dictate the composition of the bargaining team. Perhaps the parties’ dispute has nuances that I am not appreciating, having regard to whether, for example, the unit officer is entitled to be paid for the time spent negotiating in the other unit. However, if, as it appears from the response, Riverdale is admitting to seeking to dictate the composition of CUPE’s bargaining team, that would appear to constitute a clear breach of section 17.

15. But similarly, if as Riverdale also pleads, the leave of absence to attend the union conference was subsequently approved, the Board might well query what labour relations purpose is to be served by enquiring further into that complaint. The Board has consistently exercised a discretion not to inquire further into a complaint if no useful labour relations outcome is likely for the workplace. The fact that a matter has become moot is not determinative, although a factor. The Board would not want to be seen as discouraging parties from taking a second look at their actions and remedying them, only to still be required to litigate what is, by then, a resolved issue. If, as Riverdale pleads, it approved the leave of absence, the parties should come to the hearing prepared to answer what labour relations purpose will come from pursuing that matter further.

Board File 1681-01-U

16. This file concerns an unfair labour practice complaint filed by Riverdale against CUPE. Riverdale alleges that CUPE breached the duty to bargain in good faith and section 76 of the Act (set out above).

17. Riverdale complains that CUPE has engaged in inappropriate picketing activity, in that CUPE has permitted patients, including those cognitively impaired, to participate in its pickets, carry placards, and wear CUPE attire into the hospital. Riverdale also complains that CUPE planned mass activity for August 22, 2001, notwithstanding that CUPE is not entitled to engage in a legal strike. Riverdale also alleges that CUPE bargained backward from its proposals, with timing that was intended to give the appearance of negotiating, while reserving for CUPE the threat of mass picket activity the following day. The hospital summarized its concern about this activity as follows:

This threatened activity, and the publicity surrounding it within the Hospital, was designed to have a direct impact on the Hospital’s ability to consider proposals as it was reasonable to believe that such activity would impact upon patient care and possibly have the effect of instigating an illegal strike, including an illegal strike by virtue of the inability of other staff to report to work.

18. As a remedy for this conduct, Riverdale seeks declarations that CUPE has breached section 17 and 76 of the Act; an order that CUPE cease and desist; and a Board notice to all employees advising them of their rights and obligations under the Act.

19. Interestingly, although this application was filed at least three weeks after the “threatened activity”, Riverdale has not pleaded what actually happened, which causes the Board to wonder if anything actually happened. We note that CUPE has responded that no mass picket activity occurred.

20. The Board is concerned about the bad faith bargaining allegations surrounding the alleged “bargaining in reverse”. However, I have the same reservations I expressed above about the labour relations purpose of enquiring into “threatened activity” that does not appear to have materialized.

21. It is clear from the pleadings in all of these unfair labour practice complaints that bargaining has been fractious. I understand that the parties have been without a collective agreement since 1998. No doubt each side has engaged in behaviour outside of the bargaining room that, seen through the prism of the other party’s assessment of what is “right” and “fair” is cause for concern. Consequently, CUPE has complained about senior managers’ interaction with staff about the bargaining progress and Riverdale has complained about CUPE’s public picket activity. Whatever each party is able to actually prove, it appears to the Board, with great respect, that these complaints are an unnecessary distraction from the real work the parties ought to be engaging in; bargaining a collective agreement.

22. Of course, as set out above, the parties have each made out, at the very least, prima facie cases that each has violated the duty to bargain in good faith. The Board will schedule these matters for a single day of hearing. I hope that in the interim, the parties will review my comments and consider their positions. If these matters need to be litigated, the parties ought to come prepared to address the panel about the labour relations purpose in proceeding with some of these issues.

23. These matters will be heard on November 19, 2001, commencing at 9:30 a.m., at the Board’s premises, 505 University Avenue, 2nd Floor, Toronto, Ontario.

“Mary Ellen Cummings”

for the Board