Ontario Labour Relations Board

3631-02-U  Ontario Hospital Association, Applicant v. Ontario Public Service Employees Union, Responding Party v. Attorney General for Ontario, Intervenor

BEFORE:  Kevin Whitaker, Chair, and Board Members R. O’Connor and R. Montague. 

APPEARANCES:    Angela Rae, Andrew Ashenhurst, Shelagh Quigley and Steve Shemluck for the applicant; Kate Hughes, Jeffrey M. Andrew, Catherine Bowman, Moya Beal, Aimee Axler, Tim Hadwen and Shaun O’Brien for the responding party; Robert E. Charney for the intervenor. 

DECISION OF THE BOARD;  February 11, 2003

1.            This is an application regarding an unlawful strike.  The applicant Ontario Hospital Association (the “OHA”) alleges that the respondent trade union Ontario Public Service Employees Union (“OPSEU”) has breached the provisions of section 11 of the Hospital Labour Disputes Arbitration Act (“HLDAA”) by calling an unlawful strike for Thursday, February 13, 2003.

2.             Section 11 of HLDAA reads as follows:  

11. (1)        Despite anything in the Labour Relations Act, 1995, no hospital employees to whom this Act applies shall strike and no employer of such employees shall lock them out.

(2)        Sections 81 and 82, subsection 83 (1) and sections 84, 100, 101 and 103 of the Labour Relations Act, 1995 as amended or re-enacted from time to time apply with necessary modifications under this Act as if such sections were enacted in and form part of this Act.

3.              Section 11 of HLDAA provides that employees who are covered by this statute may not strike or be locked out.  Where parties cannot agree on a collective agreement, the dispute is to be resolved by binding arbitration.  This arrangement – that is no strike or lock out and binding arbitration if necessary – is one of the most significant features of the special legislation that applies to labour relations in the hospital sector in Ontario.

4.              The OHA is a voluntary employer’s organization that conducts collective bargaining on behalf of forty Ontario hospitals.  OPSEU represents as bargaining agent, over 5,500 health professionals at the OHA’s forty hospitals.

5.               OPSEU and the OHA have been negotiating for a new collective agreement since March 2002.  They have been unable to agree on a collective agreement.

6.                OPSEU has called on its members to support what it describes as an “Emergency Day of Action” to be held on Thursday, February 13, 2002.

7.               The OHA alleges that what OPSEU has really done is to have called on its members and others, to engage in and/or support and assist with an unlawful strike on Thursday, February 13, 2002. 

8.               A hearing into this case began on the morning of Monday, February 10, 2002 and concluded this afternoon.  At the hearing the OHA, OPSEU and the Attorney General of Ontario provided the Board with material, evidence and information about what has happened between the parties to date and what is likely to happen on Thursday, February 13, 2003.  The Attorney General of Canada was given notice of the hearing and declined to participate.  All parties had a full opportunity to make their arguments to the Board about whether or not OPSEU had in fact called for an unlawful strike on Thursday, February 13, 2003.  Further, all parties had a full opportunity to make arguments about what the Board should do if it found OPSEU to have called for an unlawful strike on Thursday, February 13, 2003

9.               In view of the short time between now and Thursday, February 13, 2003, it is not possible to give full reasons for our decision at this point.  Despite our inability to issue our full reasons now, the Board has decided to provide the parties and the public generally with this abbreviated ruling so that our decision may be clearly understood as soon as possible.  Our full reasons for this decision will follow at a later date.

10.              For reasons which will follow, we find that OPSEU has breached the provisions of section 11 of HLDAA.  We find that what OPSEU has called the “Emergency Day of Action” (scheduled for Thursday, February 13, 2003) is actually an unlawful strike and therefore contrary to the provisions of section 11 of HLDAA.

11.              The Board declares that OPSEU through the acts of its officers, officials and agents, has called, authorized, encouraged, supported and threatened an unlawful strike to occur on Thursday, February 13, 2003.  Further, the Board orders and directs that OPSEU, its officers, officials and agents cease and desist from calling, authorizing,  encouraging, supporting or threatening an unlawful strike.

12.               Employees, as well as the parties should be aware that if an unlawful strike does occur, the employer may seek a number of remedies: 

(1)     An employer can seek a cease‑and‑desist order enforceable in the Ontario Court of Justice (General Division) as an Order of that Court.  Disobedience can result in fine or imprisonment. 

(2)     An employer may seek damages at arbitration for any lost profits or economic losses.  

(3)     An employer can discipline employees who engage in unlawful concerted activity because engaging in a strike is a breach of their employment obligations which warrants at least some discipline, depending on the circumstances.   

(4)     The employer may seek a consent to prosecute and subsequently prosecute employees or the trade union for their breach of the law. A successful criminal prosecution may result in fines of up to $2,000 per day for employees and $20,000 per day for the Union. 

(5)  A variety of remedies may also be available to interested parties who are injured by an unlawful strike, or in respect of picketing in connection with an unlawful strike. 

13.                The Board orders and directs the OHA to post a copy of this decision in all worksites where OPSEU bargaining unit members may be employed in the forty member hospitals.  OPSEU has undertaken to post a copy of this decision on its website forthwith.  Further, OPSEU is ordered and directed to post a copy of this decision on all bulletin boards under its control or the control of its member locals in all hospitals within the forty participating members of the OHA.

14.                 Finally, the Board orders and directs that picketing on February 13, 2003 is prohibited in and around those access points or areas where it will interfere in any way with employees’ access to work or ability to work.

“Kevin Whitaker”
for the Board