Labourers' International Union of North America, Local 183 v. Burlington Carpet Mills Canada Ltd., 1980 CanLII 771

Ontario Labour Relations Board

[1980] OLRB Rep. October 1361

0596-80-U Labourers' International Union of North America, Local 183, Complainant, v. Burlington Carpet Mills Canada Ltd., Leonard Roberts and Jim Garrot, Respondents.

BEFORE: M. Picher, Vice-Chairman, and Board Members J. A. Ronson and H. Simon.

APPEARANCES: L. Richmond, M. O'Brien, B. Yandell and P. Amaral for the complainant; Joseph Carrier and Jim Garrett for the respondent.

DECISION OF THE BOARD; October 14, 1980

1This is a complaint under section 79 of The Labour Relations Act. The union alleges that the respondent unlawfully discharged employee Gurdip Mushiana, contrary to the provisions of section 70(1) of The Labour Relations Act and that it discharged employee Paul Amaral contrary to the provisions of The Occupational Health and Safety Act, 1978.

2The respondent raised a preliminary objection in respect of the allegation that it unlawfully discharged Mushiana. Its counsel submitted that the complaint does not, on its face, disclose a prima facie allegation of a breach of section 70(1) of the Act. For the purposes of the preliminary objection the parties were agreed as to the facts.

3The complainant union was certified as bargaining agent for the employees of the respondent on December 10, 1979. It gave notice to bargain under section 13 of The Labour Relations Act on February 15, 1980. The parties proceeded through conciliation and a "No Board Report" issued on June 5, 1980. The section 70 prohibition against the employer altering terms or conditions of employment or the rights, privileges or duties of the employees continued in effect until June 19, 1980. Eventually the parties concluded a collective agreement.

4During the freeze period, on June 11, 1980, Gurdip Mushiana was discharged by the employer. It is common ground that the discharge was not motivated by any anti-union sentiment, and it is agreed by the union that Mushiana's discharge did not interfere with any rights other than such rights as she or the union might have under section 70 of the Act. It was admitted that Mushiana's discharge was entirely motivated by normal business considerations. While the complaint initially alleged that the discharge was conducted in a manner contrary to the respondent company's established practice, that position was withdrawn at the hearing by the union. It rested the complaint on the footing that in Mushiana's discharge there had in fact been no change in the respondent's method of dealing with its employees. It nevertheless maintained that the discharge was without just cause and submitted that the merits of the discharge should be subject to the review of this Board pursuant to section 70 of the Act. The union acknowledges that it plainly is requesting a more far reaching interpretation of section 70 of the Act than the Board has yet rendered.

5The union urges the Board to interpret section 70 more broadly in order to rectify what it perceives as an imbalance in the operation of the section. The section provides as follows:

"(1) Where notice has been given under section 13 or section 45 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees,

(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,

(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator,

or

(ii) fourteen days have elapsed after the Minister has released to the parties a notice that he does not consider it ad­visable to appoint a conciliation board,

as the case may be; or

(b) until the right of the trade union to represent the employees has been terminated,

whichever occurs first.

(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer or the employees until,

(a) the trade union has given notice under section 13, in which case subsection I applies; or

(b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.

(3) Where notice has been given under section 45 and no collective agreement is in operation, any difference between the parties as to whether or not subsection 1 of this section was complied with may be referred to arbitration by either of the parties as if the collective agreement was still in operation and section 37 applies mutatis mutandis thereto."

6The complainant argues that the section operates unevenly in a first agreement situation. When a union is negotiating the renewal of a collective agreement and it is alleged that during the freeze period an employee has been discharged contrary to the rights that he would have enjoyed under the prior collective agreement, the effect of subsection(3) of section 70 is to provide the employee access to arbitration as if the collective agreement was still in operation. In other words, if a collective agreement provides that an employee cannot be discharged except for just cause an employee discharged during the freeze period, who alleges that he was discharged without just cause is by the same token alleging a breach of his "frozen" rights and can have his discharge arbitrated under section 70(3) of the Act.

7There is no arbitration provision equivalent to section 70(3) in relation to the freeze period that applies to the negotiation of a first collective agreement. The union nevertheless submits that section 70(1) should be construed in such a way as to provide the equivalent right through access to this Board by way of a complaint under section 79 of the Act. Specifically it submits that the prohibition against any change in "a term or condition of employment or any right, privilege or duty of the… employees" forecloses, for the duration of the freeze period, an employer's right to discharge any employee without the consent of the union or, alternatively, without just cause, the merits of which are reviewable by this Board on a section 79 complaint.

8In support of this proposition counsel for the union cited two recent decisions of the Canada Labour Board, Bank of British Columbia 80 CLLC ¶16,032; Royal Bank of Canada 78 CLLC ¶16,132. In those cases the Canada Labour Relations Board expressed itself on the scope of the statutory freeze of an employer's right to alter terms and conditions of employment under the Canada Labour Code. Under that statute a freeze is imposed during the certification process by section 124(4) of the Code. A second, separate, freeze is imposed during bargaining by section 148(b) of the Code. Those sections provide as follows:

"124(4) Where an application by a trade union for certification as a bargaining agent for a unit is made in accordance with this section, no employer of employees in the unit shall, after notification that the application has been made, alter the rates of pay or any other term or condition of employment or any right or privilege of such employees until

(a) the application has been withdrawn by the trade union or dismissed by the Board, or

(b) thirty days have elapsed after the day on which the Board certifies the trade union as bargaining agent for the unit,

except pursuant to a collective agreement or with the consent of the Board.

143. Where notice to bargain collectively has been given under this Part,

(b) the employer shall not alter the rates of pay, any term or condition of employment or any right or privilege of the employees in the bargaining unit, or any right or privilege of the bargaining agent, until the requirements of paragraphs 180(1)(a) to (d) have been met, unless the bargaining agent consents to the alteration of such a term or condition, or such a right or privilege."

9Under the scheme of the federal statute the two freeze periods need not run together; there may be a hiatus in time between them. By contrast, section 70 of The Labour Relations Act provides for a single, continuous freeze on the employer's right to alter terms and conditions of employment, commencing with receipt by the employer of notice of an application for certification and continuing through bargaining to the time at which a union may lawfully strike or an employer may lawfully impose a lockout.

10The rights of an employer under the bargaining freeze of the Canada Labour Code and under section 70 of The Labour Relations Act are substantially different. An obvious difference is that the section 70 freeze stabilizes the rights and privileges of the employer as well as the rights and privileges of the employees. Section 148(b) of the Canada Labour Code, by comparison, does not expressly preserve any rights or prerogatives of the employer. That is how the section has been interpreted by the Canada Labour Relations Board, with the result that the operation of the freeze under the Canada Labour Code is remarkably different from the freeze provision that is applied by this Board.

11The reasoning of the Canada Board in the Royal Bank case, to some extent amplified in the Bank of British Columbia decision, is that once a union has been certified as the bargaining agent of a group of employees the regime of collective bargaining is imposed in the work place and, by the effect of section 148(b) of the Code, the set of prerogatives that an employer might have enjoyed under a system of individual contracts of employment disappears. As construed by the Canada Board at page 449 of the Royal Bank decision, the freeze under the Canada Labour Code "is not to be interpreted by reference to contracts of employment or customs in effect prior to notice to bargain". As a result, under that statute once notice to bargain is given after certification the union gains a status tantamount to full partnership in the business of the employer. As long as the freeze continues the employer cannot dismiss, lay off, transfer or discipline any employee without the union's consent. As the Canada Board emphasized in Bank of British Columbia at page 14,312:

The union is an equal partner until the rules of employment and, in fact, rights of management are established in a collective agreement… It is not and cannot be business as usual.

12Section 70 of The Labour Relations Act establishes and preserves a very different set of rights. It expressly preserves the rights and privileges of the employer. The employer's rights can only be referable to the rights it exercised before the freeze period began, except as those rights are expressly limited by section 70. Upon an application for certification the effect of section 70(2) of the Act is to expressly preserve those rights and privileges. That means that while the employer is prohibited from altering terms or conditions of employment and may not abrogate the existing rights and privileges of its employees without the consent of the union, it may nevertheless continue to operate its business with the right to dismiss, lay off, transfer or discipline employees as it did in the past, providing of course that it does so for motives that are not contrary to the Act.

13Under section 70 of the Act notice to bargain does not extinguish an employer's right to manage its business. Section 70 stabilizes the status quo, part of which is the employer's right to conduct its business as it did before and part of which is the set of rights and privileges which have accrued to the employees by established practice. Section 70 of The Labour Relations Act, therefore, preserves both employee benefits and entrenched employer rights. It does not grant any new rights to employees or to a union save the right to be protected from any change in the status quo for the duration of the freeze.

14The employer's right to carry on its business as it has, subject only to the stabilizing effect of section 70, was elaborated upon by the Board in Spar Aerospace Products Ltd., [1978] OLRB Rep. Sept. 859; [1979] 1 Can LRBR 61 at pages 68-9:

"The 'business as before' approach does not mean that an employer cannot continue to manage its operation. What it does mean is simply that an employer must continue to run the operation according to the pattern established before the circumstances giving rise to the freeze have occurred, providing a clearly identifiable point of departure for bargaining and eliminating the chilling effect that a withdrawal of expected benefits would have upon the representation of the employees by a trade union. The right to manage is maintained, qualified only by the condition that the operation be managed as before. Such a condition, in our view, cannot be regarded as unduly onerous in light of the fact that it is management which is in the best position to know whether it is in fact carrying out business as before. This is an approach, moreover, that cuts both ways, in some cases preserving an entrenched employer right and in other cases preserving an established employee benefit.

The Board recognizes that this approach differs from that taken by our federal counterpart in Royal Bank of Canada, supra. That Board appears to have interpreted the freeze as prohibiting any unilateral action by the employer during the period of the freeze. Such actions, in that Board's view, would be 'incompatible with the exclusive role of a bargaining agent and the collective regime of the Code'. This reasoning overlooks the fact that a full collective bargaining regime is not created by the mere giving of notice to bargain. Rather, during the period of the freeze, an interim legal regime is imposed by operation of section 70 as the parties move from the regime of the individual contract of employment to one governed by the terms of a collective agreement. This interim legal regime, in our view, should not place an employer in a legal straitjacket yet it should not at the same time lead to employees perceiving themselves as being penalized for engaging in collective bargaining. These two ends, in this Board's view, are best achieved by interpreting section 70 as requiring the parties to simply conduct 'business as before'."

15Having regard both to the substantive difference between the freeze provisions of The Labour Relations Act and the Canada Labour Code and to the stabilizing collective bargaining policy expressed in Spar Aerospace, we see no reason to depart from this Board's established interpretation of section 70 of the Act. Given the express terms of section 70 of the Act it would, in our view, require an amendment of the section to produce the result argued for by the complainant. There is nothing in section 70 of The Labour Relations Act restricting the right of an employer to discharge an employee during the freeze period provided that the decision to discharge is not itself an unfair labour practice and is made and implemented in a manner consistent with the prior operation of the employer's business. Given the agreement of the parties that those were the conditions which obtained in the discharge of Gurdip Mushiana the Board must find that the complaint does not disclose any prima facie breach of The Labour Relations Act. This aspect of the complaint is, therefore, dismissed.

16We turn to consider the complaint in respect of Paul Amaral. The union alleges that he was discharged because he acted in compliance with The Occupational Health and Safety Act, 1978. Section 23 of that statute provides, in part, as follows:

"(3) A worker may refuse to work or do particular work where he has reason to believe that,

(a) any equipment, machine, device or thing he is to use or operate is likely to endanger himself or another worker;

(b) the physical condition of the work place or the part thereof in which he works or is to work is likely to endanger himself; or

(c) any equipment, machine, device or thing he is to use or operate or the physical condition of the work place or the part thereof in which he works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself or another worker.

(4) Upon refusing to work or do particular work, the worker shall promptly report the circumstances of this refusal to his employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, in the presence of one of,

(a) a committee member who represents workers, if any;

(b) a health and safety representive, if any; or

(c) a worker who because of his knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is selected by the workers to re­present them,

who shall be made available and who shall attend without delay.

(5) Until the investigation is completed, the worker shall remain in a safe place near his work station."

17Mr. Amaral worked for some two years as a counterman in the supply and receiving area of the respondent's plant. In June of 1980 he was assigned to the third shift, between 11:30 p.m. and 7:00 a.m. In addition to issuing parts to departments of the plant the duties assigned to him on the night of June 9, 1980 included unloading a trailer containing bales of fibre.

18On the morning of July 10th it was discovered that none of the bales has been unloaded. Being told of that, Mr. James Garrett, Mr. Amaral's supervisor, checked the computer documents to determine the extent of Mr. Amaral's activity the previous night at the parts counter. He then found that Amaral had been involved in only ten transactions at the counter during his shift. Since it generally takes in the order of three to four minutes to issue a part, Mr. Garrett concluded that the grievor had done very little work during the shift.

19Garrett summoned Amaral to his office, having previously noted that the grievor had two prior reprimands of his record during the same year. During that conversation Amaral agreed with Garrett that he had only made ten issues of stock during the shift in question. The Board accepts that when Mr. Garrett asked him what else he had done during the shift the grievor replied that he had done nothing. He offered no explanation for his failure to unload the trailer and specifically made no mention to Mr. Garrent of any failure or refusal to do the work but out of concern for his safety or anyone else's.

20Before the Board Mr. Amaral testified that in fact he had not unloaded the trailer because he would have been required to do so with a forklift. According to his evidence the only safe way to perform the work would have been with a clamp truck, a type of tow motor which grasps bales of materials around their ends rather than cradling them from beneath as a forklift does.

21Assuming, without finding, that the grievor did believe it was unsafe to work with a forklift, his right to refuse to work depends on there being reasonable grounds for his belief. His action must, in other words, be assessed by the objective standard of what would have been seen as unsafe by a reasonable employee with training and experience comparable to the grievor's. (Inco Metals Ltd., [1980] July OLRB Rep. 981). The evidence establishes that clamp trucks and forklifts are used almost interchangeably in the unloading of trailers in the respondent's plant. There is ample evidence before the Board from other employees of the respondent that they see no danger in using forklifts for the kind of work Mr. Amaral was called to perform on the night in question.

22Mr. Amaral's evidence, which is weak in many particulars, is especially weak in his explanation of his precise safety concerns. According to Mr. Amaral, the danger of using a forklift was not to himself but to others who might be injured as he attempted to stack the bales of material on the floor of the receiving area. The evidence establishes, however, that the area is virtually deserted at between 4:00 a.m. and 5:00 a.m., the approximate time at which the work would have been performed.

23The Board is satisfied, on the whole of the evidence, that Mr. Amaral did not have reasonable grounds to fear for the safety of any other employee as a result of the work which was assigned to him. That conclusion is enough to dispose of the grievance.

24For the sake of clarity, however, our conclusion in this regard would be no different even accepting that Mr. Amaral failed to do the work because of his personal preference for a clamp truck. The evidence leads the Board to conclude that even if that is true, Amaral did not in fact fail to do the work because of any concern for safety as contemplated by the Act. That an employee is more comfortable using one particular tool or device over another does not establish a right to refuse work under The Occupational Health and Safety Act. The fact that Mr. Amaral did not register any protest or refusal to perform the work with company supervisors who were on the premises during his shift, that he did not in fact call his own supervisor to protest in that regard and that he did not raise any issue of safety in his meeting with Mr. Garrett the following day leads overwhelmingly to an inference that Mr. Amaral's failure to perform the work was not in fact motivated by any personal apprehension for his own safety or the safety of others. By discharging Mr. Amaral in these circumstances the respondent did not dismiss him contrary to the provisions of The Occupational Health and Safety Act, 1978. The complaint in respect to Mr. Amaral is, therefore, dismissed.