Ontario Labour Relations Board
[1981] OLRB Rep. June 630
0225-81-U International Beverage Dispensers and Bartenders Union, Local 280, Complainant, v. Cloverleaf Hotel, Division of MIB Holdings Ltd., Respondent.
BEFORE: Roy F. Egan, Vice-Chairman, and Board Members B. L. Armstrong and J. A.
Ronson.
APPEARANCES: Elizabeth McIntyre for the complainant; Lawrence S. Crackower, Q. C. and Tom Goisky for the respondent.
DECISION OF THE BOARD; June 30, 1981
This is a complaint under section 79 of The Labour Relations Act in which the complainant alleges that the respondent dealt with Susan Hargreaves in a manner contrary to the provisions of sections 58, 61 and 70 of the Act. The complainant seeks the reinstatement in employment of Hargreaves with compensation for earnings lost as the result of the termination of her employment with the respondent.
There was no evidence before the Board to support the allegation that the respondent company had violated the provisions of sections 58 or 61 of the Act and the complaint, insofar as it relates to these sections, is dismissed.
Section 70 of the Act provides as follows:
70.-(l) 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 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 evidence establishes that the complainant applied for certification on January 29, 1981, and was certified by the Board on February 23, 1981. Notice to bargain was given on March 22, 1981. No collective agreement has been made between the complainant and the respondent. The complainant alleges that the breach of section 70 arose on March 7, 1981 and there was no dispute that the matter complained of occurred during the "freeze period" contemplated by the section.
The specific charge of the complainant is that on March 7, 1981, the respondent altered a privilege hitherto enjoyed by Hargreaves without the consent of the complainant union.
The privilege claimed by Hargreaves is that since 1970, while employed as a waitress
at the premises known as Cloverleaf Hotel, she had been excused the requirement to work on Saturdays as 01 her employees did, and that she had continuously enjoyed that privilege even after a change of management, which occurred in or about October 1980 when the present respondent become owners. The custom of excusing Hargreaves from working on Saturdays, we find on the evidence, was continued by the respondent up until March 7, 1981.
- Hargreaves testified that when she was first scheduled to work on a couple of Saturdays she brought to the attention of management the fact that she did not work on Saturdays and that she was told the matter would be looked after. She did not work the Saturdays and apparently a substitute was found. However, on April 24th Hargreaves was given the following letter:
MIRIAM (SUE) HARGREAVES
It has been brought to my attention that on the past Saturdays, namely ApriI4, April11 and April 18, 1981 you were not at work although you were scheduled to do so. Your explanation was that "I don't work on Saturdays".
You have been scheduled to work this Saturday April 25th. Refusal to work this Saturday or any of your other future scheduled days with out full justification will leave us no choice but to terminate your employment with the Cloverleaf Hotel at once.
Yours truly,
CLOVERLEAF HOTEL
"M. Bergmann"
M.A. Bergmann
She did not work on April 25th, the Saturday following the receipt of the above letter. She gave as her reason the fact that she did not work on Saturdays. Hargreaves then received the following letter of termination dated April 29, 1981:
MIRIAM (SUE) HARGREAVES.
In regards to our letter of April 24th/81, we found that you again refused to work on your assigned shift, Saturday, April 25th/81, without any explanation. This negative attitude leaves us with no choice but to terminate your employment with the Cloverleaf Hotel at once as forewarned in our earlier letter.
Please find enclosed your Final Pay, Holiday Pay and Separation Slip.
Yours truly,
CLOVERLEAF HOTEL Div.
Div. M.I.B. HOLDINGS LTD.
M. Bergmann
General Manager
We find that since 1970, Hargreaves enjoyed a personal privilege absolving her from the normal requirement to work Saturday shifts. We further find that the enjoyment of this privilege continued after the change in ownership in or about October 1980 and that it constitutes a privilege within the meaning of section 70 of The Labour Relations Act.
We further find that the respondent, in altering Hargreaves' privilege without the consent of the trade union, and in discharging Hargreaves in furtherance of its illicit purpose, has violated section 70 of the Act, since its actions occurred within the period during which such conduct is prohibited by that section.
The Board therefore orders:
(1) that Hargreaves be reinstated by the respondent forthwith;
(2) that Hargreaves be fully compensated by the respondent for all lost earnings and benefits sustained as a result of the actions of the respondent;
(3) that the respondent pay interest on the compensation for the lost earnings, such interest to be calculated in the manner described in Hallo well House, [1980] OLRB Rep. Jan. 35;
(4) that the respondent restore the working conditions of Hargreaves to those existing prior to the certification of the complainant; and, further,
(5) that the respondent post copies of the attached notice marked "Appendix" after being duly signed by the respondent's representative, in conspicuous places on its premises where it is likely to come to the attention of the employees, and keep the notices posted for sixty consecutive working days. Reasonable steps shall be taken by the respondent to ensure that the said notices are not altered, defaced or covered by any other material. Reasonable physical access to the premises shall be given by the respondent to a representative of the complainant so that the complainant can satisfy itself that this posting requirement is being complied with.
Appendix
The Labour Relations Act
NOTICE TO EMPLOYEES
Posted by Order of the Ontario Labour Relations Board
WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE
ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH WE AND THE
COMPLAINANT PARTICIPATED THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE
VIOLATED THE LABOUR RELATIONS ACT BY DISCHARGING SUSAN HARGREAVES.
HE ACT GIVES ALL EMPLOYEES THESE RIGHTS:
0 ORGANIZE THEMSELVES;
To PORM~ JOIN AND PARTICIPATE IN THE LAWFUL
ACTIVITIES OF A TRADE UNION;
To ACT TOGETHER FOR COLLECTIVE EARGAINING~
To REFUSE TO DO ANY AND ALL OF THESE THINGS,
.E ASSURE ALL OF CUR EMPLOYEES THAT:
WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.
WE WLL OFFER TO REINSTATE SUSAN HARGREAVES,
WE WILL PAY SUSAN HAROREAVES FOR ANY EARNINGS THAT SHE LOST
AS A RESULT OF HER OISCHARGE~ PLUS INTEREST,
CLOVERLEAF HOTEL, DIVISION OF ~S. 1, 3. HOLDINGS LTD.
PER ____________________________________________________________
AUTHORIZED LEPRESENTATIVE
This is an official notice of the Board and must not be removed or defaced.
This notice must remain posted for 60 consecutive working days.
DATED this 30TH day of JUNE , 191
isgo R26,8C