Ontario Taxi Association 1688, Canadian Labour Congress v. Windsor Airline Limousine Services Limited

[1980] OLRB Rep. July 1147

1936-79-U Ontario Taxi Association 1688, Canadian Labour Congress, Complainant, v. Windsor Airline Limousine Services Limited carrying on business as Veteran Cab Company, Respondent.

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members B. Armstrong and F. W. Murray.

APPEARANCES: Jeffrey Egner, David Reynolds and Jack McDowell for the applicant; Charles F. Clark and William Oag for the respondent.

DECISION OF KEVIN M. BURKETT, ALTERNATE CHAIRMAN AND BOARD MEMBER B. ARMSTRONG; June 23, 1980

1. The name "Windsor Airline Limousine Services Ltd. Veteran Taxi Co. (Subsidiary)" appearing in the style of cause of this complaint as the name of the respondent is amended to read: "Windsor Airline Limousine Services Limited, carrying on business as Veteran Cab Company".

2. This is a complaint filed under section 79 of the Act alleging violations of sections 70, 56 and 58 of the Act. The complainant alleges that Pauline Miliucci and Linda Brown, telephone operators with the respondent company, were discharged from their employment contrary to The Labour Relations Act; specifically the complainant alleges that the decision to eliminate the grievors' positions as telephone operators in January, 1980 was motivated by anti-union animus and constituted a violation of the section 70(2) freeze on terms and conditions of employment. In addition, the complainant also alleges that a change in the work hours of dispatchers put into effect at the same time constitutes a violation of the section 70 freeze.

3. The complainant commenced to organize the respondent's employees in later August, 1979. Three separate certification applications were filed in September, 1979. In addition, three unfair labour practice complaints were filed with the Board. The respondent in turn challenged the Board's constitutional jurisdiction to regulate the labour relations between itself and its employees. The respondent argued that its labour relations are properly governed by federal law. However, in an oral decision made November 16, 1979, and later confirmed in writing, (see Windsor Airline Limousine Services Ltd., [1980] OLRB Rep. Feb. 272), the Board rejected the respondent's submissions in this regard and assumed jurisdiction. Thereupon, the respondent withdrew from the earlier proceedings and the Board proceeded in its absence. In each of the unfair labour practice complaints before it, the Board adopted as proven the chronology and particulars of misconduct as filed by the complainant. The Board found, therefore, that the respondent company had engaged in a number of violations of the Act. The Board went on to certify the complainant trade union under the provisions of section 7a of the Act as bargaining agent for a unit of dispatchers. The issue of the employee status of those in a proposed unit of owner! operators and in a proposed unit of drivers is presently before the panel of the Board subject with the application for certification and has yet to be decided.

4. There is presently an application for judicial review pending in the courts. Following its application for judicial review, the respondent also sought a stay of the Board determinations referred to above. The motion for a stay was denied. The respondent, therefore, while continuing to challenge the constitutional authority of the Board, appeared at the hearing in this matter, led evidence, cross-examined the complainant's witnesses and made submissions on the issues raised by the complaint.

5. In March of 1979, a fire destroyed the respondent's taxi cab dispatching facilities in Windsor. As a temporary measure, the dispatching function was moved to a trailer. While the permanent facilities were being repaired, the respondent investigated the possibility of switching to a new system using telephone operators in place of dispatchers to receive incoming orders. The advantage to the company of such a system is the lower rate paid to the telephone operators. William Oag, executive assistant to the president of the respondent, visited taxi cab operations in London to determine the feasibility of substituting telephone operators for full-time dispatchers in the handling of incoming calls. Dispatchers with extensive cab experience would continue to operate the radio equipment by which contact is maintained with the fleet and orders given to individual drivers. In July, 1979 the respondent decided to employ telephone operators and interviewed eleven applicants for two positions. The grievors were interviewed by Mr. William Oag and Nelson Vincent head supervisor. The grievors were informed that their duties would consist of answering the telephone and dis­tributing orders to dispatchers. The grievors were told that the system was new and novel but that the company hoped it would be permanent. Nelson Vincent informed the grievors that the respondent gould attempt to use telephone operators during the summer time (the slow season) and that the respondent might have to reassess in the fall. Mr. Vincent found the grievors to be alert and, in his opinion, the most suitable applicants for the job. Pauline Miliucci commenced employment in July, 1979, and Linda Brown started work shortly there­after. Initially, both grievors worked in the trailer for a time, and were transferred to the rebuilt permanent facilities by September, 1979.

6. The company utilizes about 100 telephone lines. The two telephone operators were responsible for accepting the incoming calls and distributing orders for "trips" to either the east or west iispatcher depending on the customer's location in the City of Windsor. Ms. Miliucci testified that her training consisted of watching another dispatcher perform the function for a bout half an hour after which she performed the duties on her own. Both grievors were of the view that after a couple of months they were sufficiently familiar with the streets to carry out their duties efficiently. Ms. Brown received pay raises during the relevant period. Ms. Milliucci lives in the eastern part of Windsor while Ms. Brown has lived in Windsor all her life.

7. Mr. Oag testified that complaints about the telephone operators began immediately after the institution of the new system. For the most part, complaints were of two types: dispatchers complained that telephone operators were unable to relieve them on breaks and occasionally, customers complained that orders were wrong. Mr. Oag at no time mentioned such complaints to the telephone operators. Mr. Vincent mentioned to Ms. Muliucci, at one point, that she ought to repeat the address to the customer in order to ensure that it is correct. Ms. Brown was told on a couple of occasions that she had forwarded wrong addresses. The respondent did not keep a log of such complainants and no evidence was given in respect of specific complaints. At no time prior to discharge did the respondent indicate to the grievors that the system was not working. Mr. Oag testified that by the end of October, 1979 it became obvious that the system of utilizing telephone operators in place of dispatchers was not working. General reference was made to the mistakes made by the telephone operators in taking information down over the phone and relaying that information to the dispatchers and to the inability of the telephone operators to provide relief to the dispatchers during their breaks. Mr. Vincent testified that the company came to the conclusion that the telephone operators could not do the job as well as retrained cab drivers.

8. In September, 1979, both grievors applied for membership in the complainant union. It has been found by this Board that on September 25, 1979, Pauline Miliucci was informed by Stu Caverhill, supervisor, that management would not think very highly of her if she failed to sign an anti-union petition circulated in the dispatch office. Ms. Miliucci was also approached by Stan Heeney, supervisor, to sign the petition. She refused. She was later removed from day shift and assigned to night shift exclusively. On November 14, 1979, the Ontario Labour Relations Board ruled such action to be in contravention of the Act, and ordered Ms. Miliucci to be reinstated to days. Nevertheless, the respondent employer kept Ms. Miliucci on night shift until her dismissal.

9. After joining the union, Linda Brown attended a public meeting of its members. It is her uncontradicted evidence that Stu Caverhill, supervisor, informed her that it was known that she was involved in union activities and that the respondent employer wanted to get rid of her. The respondent employer failed to call Stu Caverhill as a witness in these proceedings.

10. In January, 1980, the respondent eliminated the position of telephone operator entirely, discharged the grievors and at the same time rescheduled the hours of work of its dispatchers. It is not clear on the evidence whether there exists a direct cause and effect rela­tionship between the two decisions. However, the timing of the two decisions was coincidental. There was no prior discussion with the union concerning either the discon­tinuance of the use of telephone operators or the change in hours of the dispatchers. The Board heard evidence that the dispatchers wanted the change to four 10-hour days and that the change was made after a vote of the dispatchers. The respondent reverted to the previous schedule of hours two weeks before the hearing in this matter. Neither of the grievors was told at the time of discharge that their work had not been performed in a satisfactory manner. Mr. Oag explained that the delay from October, when it became evident that the system was not working, to January, when the respondent acted to end the system, was the result of a reluctance on his part to admit to a business mistake.

11. Subject to its submission that this Board lacks constitutional jurisdiction, the respondent accepts that under section 79(4a) of the Act, the onus is upon it to satisfy the Board that neither Ms. Brown nor Ms. Miliucci was discharged for trade union activity. The respondent argues that the evidence discloses that the use of telephone operators was an experiment, that the grievors were told at the outset that the system might not be permanent and that efforts were being made to improve the system as early as October, 1979. The respondent maintains that legitimate business considerations caused it to conclude that the dispatching of taxi service in the City of Windsor is better facilitated if persons with previous experience driving a cab are used to accept the incoming calls and to dispatch the individual cab. It is the respondent's position that because neither Ms. Miliucci nor Ms. Brown has a taxi cab licence or has ever driven a cab, they had to be let go when the respondent decided to revert back to the previous practice of using dispatchers only. The respondent argues that a new, novel and experimental approach tied to the use of telephone answerers in connection with dispatching did not work out; not because the telephone operators joined the complainant trade union, but because the nature of the job required cab driving experience and because telephone answerers without cab driving experience were unable to provide dispatchers with adequate relief. The respondent asks the Board to find that subsequent to the decision to discontinue telephone answering, but in the same time frame, a request was made by the dispatchers for the institution of ten-hour shifts. It is the contention of the respondent that these shifts were properly instituted by the respondent in order to permit the proper scheduling of dispatching services and relief time for dispatchers after the dispatchers had voted unanimously in favour of the change.

12. The complainant, relying on the Barrie Examiner case, [1975] OLRB Rep. Oct. 746, argues that the respondent must establish on the balance of probabilities that the reason given for the termination of the two telephone operators is the only reason and that it is free of anti-union animus n order to establish that no violation of the Act has occurred. The complainant asks the Board not to accept the explanation put forward by the respondent as the real reason for the termination of the telephone operators. The complainant maintains that the drawbacks to the new system which have been relied upon were predictable from the beginning in that the employer knew that telephone operators would not be able to relieve dispatchers and were not as knowledgeable about the local geography as persons who had driven a cab. Notwithstanding these drawbacks, the employer went ahead with the new system and persevered with it through the busy fall and Christmas seasons. The complainant maintains that the reason advanced and the timing of the decision to discontinue the use of telephone operators, when considered in light of the evidence which establishes that both Ms. Brown and Ms. Miliucci were the objects of anti-union animus and the history of the employer's anti-union activity, must cause the Board to conclude that the grievors were discharged for their support of the complainant trade union. The complainant, relying on the Rest Haven Nursing Home case, [1979] OLRB Rep. June 554, argues that the elimination of a classification 3f bargaining unit employees constitutes a violation of the statutory freeze as does the change in the dispatchers' hours of work.

13. Section 58 of the Act makes it an offence to refuse to employ or to continue to employ a person because the person is or was a member of a trade union or was or is exercising any other rights under the Act. Section 79(4a) of the Act provides that on an inquiry by the Board into a complaint that a person has been refused employment, discharged, discrimi­nated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to his employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer. In this case, therefore, the legal burden is upon the respondent to establish that the termination of Ms. Miliucci and Ms. Brown was not in violation of the Act. The Board has consistently held, as in the Barrie Examiner case, supra that:

the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts. First, that the reasons given for the discharge are the only reasons and second, that these reasons are not tainted by any union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred."

(See also the Pop Shoppe case, [1976] OLRB Rep. June 299.)

14. The evidence adduced by the respondent employer as to the business purpose of his decision to discontinue the use of the telephone operators is problematic at best. The company knew when it went to telephone operators that its capacity to provide relief to the dispatchers would be reduced. Nevertheless, the company went ahead with its decision and continued to use telephone operators through the busy fall and Christmas season. The evidence does not establish incompetence or even serious operating deficiencies. The two telephone operators each admitted that on isolated occasions they had been spoken to about wrong addresses. The company did not keep any record of customer complaints or wrong addresses channeled through the telephone operators. Mr. Oag never spoke to either of the two women concerning inadequacies in their work and the evidence of Mr. Vincent and Mr. Heeney does not contradict the evidence of either Ms. Miliucci or Ms. Brown with respect to the number of times they had been spoken to by the company. It is not disputed that both women were capable of operating switchboard. The only other major component of the job was the correct identification of each trip as either east or west. We accept the grievors' evidence that after a few months they were reasonably competent in this regard. Indeed, it is not surprising that after a few months two "alert" employees who lived in the City of Windsor (one all her life) would be sufficiently knowledgeable of the local geography to correctly designate trips as either east or west. While the company may have made a decision to discontinue the telephone operators for legitimate subjective reasons, the evidence does not establish any compelling objective basis upon which the decision to discontinue was made.

15. In the absence of a compelling objective basis for the company's reconsideration of its decision to employ telephone operators, the Board is forced to look carefully at all of the circumstances surrounding the termination of the two grievors. The union commenced to organize in late August and filed applications for certification which were dealt with by the Board in November, 1979. The advent of the trade union, therefore, was an event of major significance which occurred during the period of reassessment. The Board has found in a prior decision that Ms. Miliucci was removed from day shift and assigned to night shift in con­travention of the Act. The respondent failed to comply with the order of the Board that she be reinstated to her day shift and kept her on the night shift until her dismissal. Ms. Brown gave uncontradicted evidence that Mr. S. Caverhill, supervisor, informed her that the company knew she was involved in union activities and that the company wanted to get rid of her. The company failed to call Mr. Caverhill and in the result Ms. Brown's evidence must stand. In the face of the company's knowledge of their support for the trade union and the admission against interest of Mr. Caverhill that the company wanted to get rid of Ms. Brown because of her trade union affiliation, and in the absence of a credible objective basis for the decision to do away with the use of telephone operators, the Board has not been satisfied on the balance of probabilities that the company's decision to discontinue its use of telephone operators and terminate the employment of Ms. Miliucci and Ms. Brown was free of anti-union considera­tions. Accordingly, we hereby find that the termination from employment of both Ms. Miliucci and Ms. Brown was in violation of section 58(a) of The Labour Relations Act.

16. We hereby order that forthwith Miss Miliucci and Ms. Brown be reinstated to their employment as telephone operators with the respondent company and that they be compensated for their lost earnings from the date of their termination to the date of their reinstatement. The Board will remain seized in the event the parties are unable to agree to the exact amount owing the two employees upon their reinstatement.

17. We now turn to the alleged breach of section 70 of the Act. Section 70(2) of the Act provides:

"Where a trade union has applied for certification and notice thereof froni 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 1 applies; or

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

The purpose of the "freeze period" established by section 70 of the Act is to facilitate the bargaining process by providing a fixed point of departure and a period of tranquility and stability in which to conduct negotiations for a collective agreement. (See re Canadian General Electric Company Limited, [1965] OLRB Rep. Dec. 649, Ottawa General Hospital, [1972] OLRB Rep. June 681, Canron Limited Eastern Structural Division, [1976] OLRB Rep. Aug. 436 and Cane ton University, [1978] OLRB Rep. Feb. 184.)

18. In this case the respondent employer has eliminated one bargaining unit classifi­cation and altered the hours of a second bargaining unit classification during the period when working conditions may not be altered. In applying section 70 of the Act the Board, while recognizing an employer's right to manage, has utilized a "business as before" point of reference. The: Board stated in Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859:

"23 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 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."

19. The telephone answerer classification had been in existence for over six months at the time it was eliminated. The company instituted it in July, well before the union applied to be certified, and maintained it throughout the fall and Christmas season. The evidence does not disclose any compelling business reason for eliminating the classification in January, 1980. The reasons cited were reasons which existed at the time the classification was established and which did not deter the company from instituting the classification or living with it for six months. In the circumstances of this case, therefore, we are not satisfied that the employer's right to manage overrides the prohibition against any alteration in the terms and conditions of employment covering the employees in the bargaining unit at the time of the commencement of the freeze. The period during which it might reasonably be said that a trial was in place had elapsed and the system was in place at the commencement of the freeze period. Accordingly, the "business as before" approach requires us to conclude that the elimination of the classi­fication constituted a breach of the section 70(2) freeze. We find support for our conclusion in the Rest Haven Nursing Home case, supra; a case in which the Board found that the elimination of one of the two categories of employees in the bargaining unit constituted a violation of section 10 of The Hospital Labour Disputes Arbitration Act, R.S.O. 1970, a section identical in all respects to section 70(2) of The Labour Relations Act. Having regard to all of the foregoing, we hereby find the respondent company's unilateral elimination of the telephone answerer classification in January, 1980 constitutes a violation of section 70(2) of the Act and we so declare.

20. The alteration of the hours of work of dispatchers is a less difficult matter to decide. The dispatchers were working 5 eight-hour days per week at the commencement of the freeze period and had been working these hours for a long period of time. Some two months into the freeze period the employer conducted a vote of the dispatchers in order to determine if there was widespread support among the dispatchers for a change to 4 ten-hour days per week. The holding of a vote prior to implementing a change of working conditions during the section 70 freeze period cannot affect the outcome of a section 70(2) complaint and may be viewed as an attempt to circumvent the certified bargaining agent whose consent is required for any change in terms or conditions of employment. In the Beaver Electronics Limited case, [1974] OLRB Rep. Mar. 120, the Board dealt with a situation where the employer obtained approval from the bargaining unit employees to change the hours of work during the freeze period. In finding a violation of the Act the Board commented:

should an employer seek employee approval of a rescheduling of working hours at a time prohibited by subsection 1, that employer may very well be in violation of subsection I of section 59 of the Act. In that case, employees who have waived privileges at the behest of an employer for purposes of subsection 1 of section 70, may have put the employer in a position where he is answerable to allegations of bargaining with employees at a time when 'a trade union continues to be entitled to represent employees in a bargaining unit. ...' In other words the Legislature in its wisdom has amply contemplated the position taken by counsel and thereby this Board must reject the argument submitted."

Similarly, in this case the respondent company cannot rely on the outcome of the vote to justify its decision to alter the dispatchers' hours of work. The respondent was prohibited by the operation of section 70(2) from altering the hours of work when it did. Accordingly, the Board hereby finds that the respondent company violated section 70(2) of the Act when it altered the hours of work of the dispatchers and hereby directs that the hours of work in existence at the commencement of the freeze be reinstituted and maintained for the duration of the freeze period.

DECISION OF BOARD MEMBER F. W. MURRAY:

The decision of Mr. Murray will follow.