GSB# 2077/02

UNION# OLB425/02

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Control Boards Employees’ Union (McIlwain)

Grievor

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE UNION

Julia Noble Counsel Ontario Liquor Boards Employees’ Union

FOR THE EMPLOYER

Rhonda Shirreff Heenan Blaikie Barristers and Solicitors

HEARING

May 28, 2003.

At the hearing of May 28, 2003, both parties presented an opening statement with respect to the merits of the dispute. The Union then made application for interim relief. The application was opposed by the Employer.

In her opening statement, counsel for the Union advised that the Union's evidence will be as follows:

1. The Grievor, Mr. Bill McIlwain, commenced his employment with the Employer in 1988 as a Casual employee in the store system. He required a transfer to another district in 1994 for family reasons. The Employer would not grant the transfer. The Grievor, therefore, resigned his employment. He was rehired in the new district in 1995;

2. The Grievor began working in the Petrolia Store, Store #133, in June, 1995 as a Casual employee. The Grievor's Store Manager was Mr. John Nenez;

3. The Grievor was scheduled to work Sunday shifts in Store #133 from approximately April, 2002 on an ongoing basis. He was scheduled to work four (4) hour shifts on Sundays, from 12:00 noon to 4:00 p.m. These were also the hours that the Store was scheduled to be open. The Grievor was the only employee scheduled to work in the Store for these Sunday shifts. It was necessary for him to come to work well in advance of 12:00 noon in order to make the Store ready for business at 12:00 noon. It was also necessary for him to stay in the Store working well after 4:00 p.m. in order to perform the Store closing procedures. The Grievor did not get a break during his four (4) hour scheduled shift. The Grievor was compensated for four (4) hours of work by the Employer for the Sunday shifts;

4. The Union takes the position that the Employer acted in violation of the collective agreement, including Article 31.1(d)(i), with respect to the above-noted scheduling practices. Article 31.1(d)(i) reads:

There shall be one (1) fifteen (15) minute rest period for each four (4) consecutive hours of work.

5. The Grievor raised the issue of Sunday scheduling with his Store Manager, Mr. Nenez. He was advised by the Store Manager that the District Manager, Mr. Bob Poulin, was not prepared to give the Grievor a fifteen (15) minute break during a Sunday shift, nor in any way change the four (4) hour shift on Sundays. The Grievor indicated that he would be proceeding to file a grievance;

6. The Grievor was advised by his Store Manager that the District Manager, Mr. Poulin, would make life difficult for him if he filed a grievance concerning this scheduling issue. The Grievor was later advised by his Store Manager and by the Acting District Manager, Mr. Peter Loupos, that if he persisted with this complaint and filed a grievance, the District Manager would arrange to transfer him out of the Petrolia Store #133 to Store #202, the Lakeshore Store in Sarnia. Such a transfer would be detrimental to the Grievor, who would be scheduled for fewer hours at Store #202 and therefore receive less income. At the material time, the Grievor was the senior Casual employee in Store #133. The adverse consequences arising from this threatened transfer to Store #202 were well known to the Employer;

7. The Grievor communicated to both his Store Manager and the Acting District Manager that he had no intention of dropping his complaint or agreeing not to file a grievance. He was then advised by the District Manager that he was being transferred to Store #202 in Sarnia;

8. Since his transfer to Store #202, effective October 14, 2002, the Grievor has experienced a drastic reduction in hours and income. Subsequent to the transfer, the Employer transferred another casual employee into Store #133. This employee has more seniority than the Grievor.

Counsel for the Union advised that the Union's position on the merits will be that the Employer, and persons acting on behalf of the Employer, threatened the Grievor with reprisals when the Grievor indicated that he was considering asserting his rights to file a grievance and that they attempted to coerce him into not pursuing same. On the Union's analysis, by transferring the Grievor to a store assignment with anticipated adverse consequences, the Employer in fact carried out the substance of its unlawful threat when the Grievor would not give up his rights to file a grievance. Counsel submitted that the Employer's conduct constitutes a violation of articles 2.1 and 27 of the collective agreement, section 2 of the Crown Employees Collective Bargaining Act, 1993, and sections 70, 72, 76 and 87 of the Labour Relations Act, 1995.

I was informed that the Union will seek the following remedies on the merits:

i) An order directing the Employer to return the Grievor to Store #133 and to reinstate him as the senior Casual employee in the Store;

ii) An order directing the Employer to compensate the Grievor for all of his monetary losses in connection with his transfer from Store #133 to Store #202;

iii) An order directing the Employer to discipline the District Manager, Mr. Poulin, and the Acting District Manager, Mr. Loupos, for their threatening and intimidating conduct towards the Grievor and for the interference in the representation of the employees by the Union;

iv) An order directing the Employer to post, in a conspicuous place in every store in the Grievor's District, a statement outlining and confirming the rights of bargaining unit employees to file a grievance pursuant to the collective agreement and the Crown Employees Collective Bargaining Act, 1993, and to otherwise participate in the lawful activities of the Union, such statement to be signed by authorized representatives of the Employer and the Union;

v) A declaration that the Employer's scheduling practices with respect to Sunday work are in violation of the collective agreement, and an order that the Employer cease and desist from violating the collective agreement;

vi) An order directing the Employer to compensate the Grievor in an amount equal to fifteen (15) minutes pay for every Sunday shift that he worked at Store #133;

vii) An order directing the Employer to provide training to the District Manager and the Acting District Manager with respect to the rights of employees under applicable labour legislation and the collective agreement;

viii) Such further and other order as the Grievance Settlement Board deems appropriate.

In response, counsel for the Employer advised that the Employer's evidence and position will be as follows:

1. In April, 2002, the Grievor indicated that he was available to work on Sundays. Subsequently, the Grievor was scheduled on an ongoing basis to work a four (4) hour Sunday shift from 12:00 noon to 4:00 p.m. The Grievor's scheduled hours corresponded to the Sunday hours of operation for Store #133. The Grievor was the only employee scheduled to work the Sunday shift;

2. In late September, 2002, the Grievor raised the issue of Sunday scheduling with his Store Manager, Mr. Nenez, expressing concern that he was not scheduled for a fifteen (15) minute break during his four (4) hour Sunday shift. Mr. Nenez then discussed the Grievor's concerns with the District Manager, Mr. Poulin;

3. It is the Employer's position that Sunday work is voluntary and that a fifteen (15) minute rest period can be taken throughout the day if the employee is scheduled to work four (4) or more consecutive hours. The Grievor was advised that when he felt the need for a break during the Sunday shift, he could lock the Store and post a sign on the door indicating to customers that he would be back in approximately fifteen (15) minutes. Because the flow of business in Store #133 was generally slow on Sundays, there were sustained periods during the Grievor's four (4) hour shift when he would not have been required to serve customers and could have conveniently taken his break;

4. Neither Mr. Nenez, Mr. Poulin, Mr. Loupos nor anyone else acting on behalf of the Employer ever threatened the Grievor with reprisals if he proceeded to file a grievance on the scheduling issue. At no time did anyone acting on behalf of the Employer ever attempt to coerce the Grievor into not pursuing his grievance;

5. The Employer will emphatically deny that the Grievor's transfer to Store #202 was in any way intended to be punitive or that it resulted because the Grievor pursued his scheduling complaint. Rather, the Grievor's transfer was effected for bona fide operational reasons involving the transfer of a number of Casual employees within the geographic area. Such transfers were contemplated in September, 2002 just prior to the date on which the Grievor expressed his concerns about the Sunday schedule to his Manager. Contrary to the Union's allegations, the transfers were arranged by Mr. Loupos and Mr. Brian Parker, Manager of Store #202, and not by Mr. Poulin. Such transfers were precipitated by the following circumstances: (i) some senior Casuals were, at that time, getting fewer hours than some junior Casuals; and (ii) at least one (1) Store within the District required an additional Casual employee in order to meet operational requirements;

6. The transfer of the Grievor to Store #202 was a lateral transfer and, as such, had no impact on his salary. The Employer notes that the Union has not substantiated the Grievor's perceived loss of hours since his transfer to Store #202;

7. It is the Employer's position that there has been no violation of the collective agreement, the Crown Employees Collective Bargaining Act, 1993 or the Labour Relations Act, 1995.

As mentioned, the Union seeks interim relief on behalf of both the Grievor and the Union in the form of an order that the District Manager, Mr. Poulin, the Acting District Manager, Mr. Loupos, the Employer and any other persons acting on behalf of the Employer forthwith cease and desist from interfering with the rights of the members of the bargaining unit to file a grievance. The Union's intent to seek this remedy was communicated to the Employer in the former's statement of particulars contained in a letter of May 14, 2003. At the hearing, counsel for the Union advised that the following additional interim relief was being sought: an order that the Employer and any of the persons referenced above not threaten any member of the bargaining unit as follows: (i) with adverse consequences on the filing of a grievance; (ii) with a transfer to a less desirable Store as a result of proceeding with a grievance; or (iii) with a reduction in scheduled hours as a result of filing a grievance.

It was the position of the Union that it has an arguable case with respect to both aspects of the dispute. With respect to the scheduling issue, counsel noted that the Grievor was scheduled to work four (4) consecutive hours on Sundays without a fifteen (15) minute break, contrary to the clear direction contained in article 31.1(d)(i) of the collective agreement. With respect to the transfer issue, counsel submitted that the facts alleged, if proven on a balance of probabilities, are sufficient to establish a breach of both the collective agreement and the applicable legislation.

Counsel further argued that the balance of inconvenience or harm favours the Union. From her perspective, granting the interim order requested would not cause harm to the Employer. In her submission, such an order would not require a finding of fact material to the merits of the dispute. Rather, the order, if issued, would simply restate the Employer's obligations under the collective agreement and applicable legislation. Counsel asserted, however, that the Union and its members would be prejudiced if the application is denied. In substance, she claimed that Union members might be hesitant to exercise their contractual rights given the "chilling effect" of this case. In this regard, reliance was placed on the Affidavits of the Grievor and Mr. Steve Saysell, both dated May 28, 2003.

Paragraph eight (8) of the Grievor's Affidavit reads:

"As a result of the events described in the paragraphs above, I am now concerned that if I attempt to exercise my rights under the collective agreement, or if a [sic] continue to exercise my rights under the collective agreement, I will be punished, or will continue to be punished by my Employer. I am now concerned that I have effectively lost the right to complain through the grievance procedure."

Mr. Saysell is a Grievance Officer with the Ontario Liquor Boards Employees' Union. His duties and responsibilities include servicing the Union's members in the Western Region of the Province, including those employed in Store #133 and Store #202.Mr. Saysell has represented the Grievor with respect to this matter. Paragraphs six (6) and seven (7) of Mr. Saysell's Affidavit read:

"6. It has come to my attention that other members of the OLBEU whom I represent in the Western region, and in the district supervised by the District Manager Mr. Bob Poulin, are aware of the circumstances concerning Mr. McIlwain's transfer, including the circumstances of his complaint and grievance, and also the alleged threats made by the Employer to transfer him, and his subsequent transfer by the Employer.

7. As a Grievance Officer on staff at the OLBEU, I am concerned that the actions and statements, or alleged actions and statements of the Employer with respect to Mr. McIlwain's complaints and grievance, has had and will continue to have a chilling effect on the members of the bargaining unit whom I represent, including but not limited to Mr. McIlwain, with respect to exercising their rights under the collective agreement. In particular I am concerned that OLBEU members whom I represent will fear punishment and feel intimidated and not file a grievance which they would otherwise file, in the district of Ontario for which Mr. Bob Poulin is the District Manager (known as District 4). I am further concerned, based in part upon the time limits provisions in the collective agreement, that OLBEU members whom I represent will thereby permanently lose their rights to complain or grieve, or otherwise exercise their rights under the collective agreement, and any applicable legislation."

Counsel for the Union argued that if the grievor and/or other Union members failed to pursue contractual or legal rights because of fear of punishment or reprisal, such rights would be forever lost and could not be exercised retroactively given that time limits exist in respect of same. She suggested that the chilling effect of this type of Employer action is difficult, if not impossible, to trace and is "insidious in nature". Ultimately, counsel submitted that such effect could not be adequately remedied by a decision on the merits of this dispute.

In response to an inquiry from this Vice-Chair, counsel agreed that it is somewhat unusual to ask for an order restating existing legislation. She argued, however, that in the context of a potentially long case, something should be done to demonstrate the rights provided for in the legislation will be enforced. Counsel reiterated that the order sought would not decide a central issue in the dispute but, instead, would simply require the Employer not to interfere with bargaining unit rights. From her perspective, the issuance of such an order would not determine if the interference alleged by the grievor actually occurred in fact.

The Union relied on the following authorities in support of its position: Ministry of Labour and OPSEU (Nield) 1471/96, (Roberts); Management Board Secretariat and OPSEU (Union) 0001/03, (Stewart); Ontario (Ministry of Labour) v. Ontario (Grievance Settlement Board), (1997) O.J. No. 427 (Ont. Div. Ct.); Ontario Human Rights Commission and OPSEU (Fox et al.) 0507/01 et al., (Stewart); Ministry of Correctional Services and OPSEU (Sammy et al.) 0224/01, (Harris); Ministry of Health and OPSEU (Belanger et al.) 976/93, (Kaufman); Management Board Secretariat and OPSEU (Union) 0610/02, (Petryshen); Ministry of Community and Social Services and OPSEU (Union) 2779/96 (Kaplan).

The Employer opposes the Union's application for interim relief. Counsel for the Employer argued that interim relief is an exceptional remedy and that the discretion to grant same should be exercised with care and restraint. She submitted that the request, in this instance, relates to a central issue in the case and is substantive, rather than procedural, in nature. From her perspective, the Union's application would require me to prejudge the threshold issue as to whether persons acting on behalf of the Employer interfered with the Grievor's rights as a bargaining unit member. Counsel stressed that the Employer emphatically denies it acted in this fashion. She suggested that a predetermination of the merits could not be avoided given the evidence would have to be carefully scrutinized to determine which party is correct. Counsel further observed that the Union has not alleged that the Employer or persons acting on behalf of the Employer threatened, intimidated, or otherwise interfered with, the grievor or other bargaining unit members following the contested transfer. She asserted that the Employer, to the contrary, has participated in the grievance process in good faith. I was asked to find that there is insufficient evidence to support the existence of a chilling effect, as alleged by the Union.

It was the further position of the Employer that the grant of interim relief is unnecessary in this instance as there is no indication that the Employer is unwilling to follow the law. Counsel stressed that the Employer is not permitted under the collective agreement or legislation to interfere with the legal rights of the Union or its members and that remedies are provided in the event of a breach. In her words, the order sought would merely "restate the law of the land". Additionally, she suggested that such an order would inappropriately presuppose that this Employer is inclined to disregard its obligations. In this regard, counsel argued that there could be real harm if the order is granted but the Union is ultimately unsuccessful on the merits. She referenced the potential harm to the reputations of the individuals involved and to the devastating impact such an order could have on labour relations. In her view, such harm would be significant, lasting and not easily undone. Counsel contrasted this with the situation in which the order is denied but the Union is ultimately successful on the merits. On her assessment, in that event, any harm occasioned to the grievor or other bargaining unit members could effectively be remedied by order of the Grievance Settlement Board or the Labour Relations Board.

The Employer relied on the following awards in support of its position: Re Toronto Transit Commission And Amalgamated Transit Union, Local 113 (1994), 1991 CanLII 13339 (ON LA), 42 L.A.C. (4th) 61 (Kennedy); Re Brewers Retail Inc. and United Brewers' Warehousing Workers' Provincial Board (1998), 1998 CanLII 19045 (ON LA), 74 L.A.C. (4th) 113 (Carrier).

To be entitled to interim relief, the Union must establish that it has an arguable case upon the merits of the grievance and that the balance of harm or inconvenience is in its favour. Additionally, the order requested should be procedural, rather than substantive, in nature. In this regard, I am inclined to think that, generally, an order for interim relief should not predetermine a central issue in the case.

It is apparent that there will be a marked conflict in the evidence which will be presented by the parties. The Grievor will say that he was threatened with reprisals if he continued with his complaint and filed a grievance. It will likely be the thrust of his evidence that the transfer to Store #202 was, in effect, punishment for proceeding with a grievance concerning the Sunday schedule. In contrast, the Employer's witnesses will likely deny that they threatened, coerced or intimidated the grievor. They will assert, rather, that the transfer was bona fide and made for valid operational purposes. I note that there will be a further conflict as to the extent of Mr. Poulin's role in the contested transfer. At this juncture, it seems probable that resolution of the dispute may necessitate findings on credibility.

The Union here seeks an interim order that Mr. Poulin, Mr. Loupos, the Employer and other persons acting on behalf of the Employer cease and desist from interfering with the right of the Grievor, and other members of the bargaining unit, to file a grievance. It is clear that the Grievor filed his grievance and proceeded to arbitration notwithstanding the alleged threats, intimidation and coercion. On the information before me, albeit limited, it does not appear that he was deterred by the conduct complained of. In the circumstances, I find it somewhat difficult to understand the statement in the Grievor's Affidavit that he has "effectively lost the right to complain through the grievance procedure".

At this stage of the proceeding, there is no evidence, or indeed suggestion, that the Employer actually interfered with the right of other employees to file a grievance or that they were threatened with transfer to a less desirable location with reduced hours if they proceeded with a grievance. The Union, as mentioned, relies on what counsel refers to as the "chilling effect". On my reading, Mr. Saysell's Affidavit is speculative as to whether this effect has already occurred or will occur in future. The document does not provide any firm detail on this point. I also note, on this aspect of the case, that this dispute has come to the Grievance Settlement Board for adjudication by way of an individual, and not a Union, grievance.

Awarding the injunctive relief sought by the Union would imply that employees in District 4 require some protection because the Employer and its representatives have previously engaged in, or are in future inclined to engage in, inappropriate and unlawful conduct. Given the close nexus between this request and the merits of the dispute; the lack of sufficient evidence of Employer misconduct; and the potential harm to individual reputations and labour relations generally that could result, I am not prepared to exercise my statutory discretion to grant the interim relief claimed. This disposition is reinforced by the fact that remedies exist in the collective agreement and in legislation to combat the type of Employer conduct complained of here.

Article 2.1(a) of the collective agreement reads:

The Employer and the Union agree that there will be no intimidation, discrimination, interference, restraint or coercion exercised or practiced by either of them or their representatives or members because of an employee's membership or non-membership in the Union, or because of the exercise by an employee of a right under this Agreement or under the Crown Employees Collective Bargaining Act.

A breach of this provision may be addressed through resort to the Grievance Procedure, as described in article 27 of the collective agreement.

The relevant statutory provisions are as follows:

CROWN EMPLOYEES COLLECTIVE BARGAINING ACT, 1993

2.(1) Subject to subsection (2), the Labour Relations Act, 1995 shall be deemed to form part of this Act.

LABOUR RELATIONS ACT, 1995

70. 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.

71. 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.

87.(1) No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,

(a) refuse to employ or continue to employ a person;

(b) threaten dismissal or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condition of employment; or

(d) intimidate or coerce or impose a pecuniary or other penalty on a person, because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.

It is abundantly clear from a review of the above provisions that the Employer is prohibited from intimidating, coercing, threatening, or otherwise interfering with employees in an effort to deter them from exercising their rights under the collective agreement or statute. This would include the right to proceed with a complaint or grievance. Remedies and sanctions against an offending Employer may be pursued by the Union, or an affected employee, under both the collective agreement and the Labour Relations Act, 1995.

In my judgment, the Union's request for interim relief, in substance, asks that Mr. Poulin, Mr. Loupos, the Employer and other persons acting on behalf of the Employer comply with the collective agreement and, in particular, with existing legislation. I have not been persuaded that it is necessary to restate the above-cited legislative requirements in the form of an interim order. I am satisfied that the Employer is aware of these requirements and that it is subject to significant remedies and sanctions for breach of the prohibitions referenced therein.

In summary, I have not been convinced that discretion should be exercised to grant the interim relief claimed. More specifically, I conclude that the Union has not established that the balance of harm or inconvenience is in its favour. For purpose of this analysis, I assume the existence of an arguable case. The hearing will accordingly proceed on the merits on dates agreed to by the parties. Notice is to be given to the third party at Store #133 who will potentially be affected by a finding for the Union.

For all of these reasons, the application for interim relief is denied.

Dated at Toronto this 25th day of June, 2003.