[1981] OLRB Rep. March 261
1278-80-U Canadian Union of Public Employees, Complainant, v. Corporation of the Town of Petrolia, Respondent.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members C. G. Bourne and H. Simon.
APPEARANCES: M. G. Pennesi for the complainant; D. W. Brady, H. G. Kerby and G. Krammer for the respondent.
DECISION OF VICE-CHAIRMAN N. B. SATTERFIELD AND BOARD MEMBER C. G. BOURNE; March 26, 1981
- This complaint filed under section 79 of The Labour Relations Act alleges that the Corporation of the Town of Petrolia ("the employer") has violated section 70(1) of the Act which provides that:
"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 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.
The complainant trade union ("the union") has alleged that the employer has contracted out certain work resulting in the indefinite lay off of the three grievors Sidney Ringwood, Roland Hopwood and Don Freer. The union contends that this act and its result is an alteration of working conditions contrary to the statutory prohibition contained in section 70(1) of the Act. The employer admits that the three grievors were laid off indefinitely as a result of its contracting out of work. It contends, however, that the employer was exercising a management right which existed prior to the onset of the statutory prohibition and it is a right that is protected by that prohibition.
- The principal facts in this matter are not in dispute. The union filed an application for certification on April 22, 1980 and the employer received on April 28, 1980 notice of the application which was dated April 24, 1980. Interim certification was issued to the union May 26, 1980 and the formal certificate issued July 3, 1980. The work performed by the grievors was within the bargaining unit described in the interim certification. The union served notice to bargain with the employer, on June 3, 1980 pursuant to section 13 of the Act. The proposals contained the following provision, which has been a standard proposal used by the applicant for the past nine years in its negotiations with employers, as protection against lay offs arising from the contracting out of work.
"No employee shall be laid off on account of the Employer contracting out any of its present services."
Bargaining commenced on June 19, 1980 and on August 18, 1980 the union requested the appointment of a conciliation officer. The employer notified the grievors in writing on September 11, 1980 that they were to be laid off on September 15, 1980 for an indefinite period. They were laid off essentially as notified and received pay in lieu of the statutory notice required under The Employment Standards Act, 1974.
The work which the employer has contracted out is the collection of garbage within the Town of Petrolia and the operation of the town's landfill site. This work has been done by employees of the employer since the Public Works Department was established in 1968. Prior to that it was done by contractors. The employer's Commissioner of Public Works, Mr. Gabriel Krammer, was given the responsibility of maintaining a watching brief on the cost of the in-house operation compared with a contracted service. During the last half of 1978, Krammer was approached by a private contractor concerning the operation of the employer's landfill site. By the end of the year the contractor made a specific proposal for taking over the landfill operation only but Krammer was not interested in any arrangement that did not include the garbage collection. From April 1979, being aware that a nearby township and the city of Sarnia had committed their garbage collection to this same contractor, Krammer was occupied during the ensuing four months with reviewing operating costs and budgets with Council and chairmen of key committees. During this same period he was also studying the efficiency of the garbage collection and landfill operations. In September he was approached again by the contractor who informed him that another nearby township was going to let a contract to the contractor for its garbage collection, a situation that would make it economically attractive to the contractor to be able to amalgamate the employer's garbage collection with that of the other three municipalities. The contract with the other township became a reality by November 1979. That event gave rise to a steady progression of discussions and meetings which resulted in the employer's Committee of the Whole deciding on April 22, 1980 that a detailed proposal for the work to be contracted out should be referred to individual members of Town Council in order for a decision to be made by Council at its next regular meeting on April 28, 1980.
The day on which the Committee of the Whole made its decision is the same day when the union filed its application for certification, the union representative and the employees having met the day before to prepare the application. The employer received the Board's notice of that application on the day for which the meeting of council had been set, April 28th. Council, having had advice of legal counsel, decided to postpone a decision on contracting out the garbage and landfill operations. At its May 26th meeting council authorized the employer's clerk-administrator to obtain proposals for the operations in question and, as a result, requests for proposals were advertised in the local paper on or about June 11, 1980. Council voted on July 14th to accept one of the tenders subject to an acceptable final contract. On September 8th it passed the by-laws authorizing execution of a contract for the collection of garbage and operation of the landfill. At the same meeting, council approved the reduction of its work force by three employees and this resulted in the lay off of the three grievors.
The three employees were laid off pursuant to provisions in a document entitled Employees Manual ("the Manual"). This document contains terms and conditions dealing with grievances, discharge cases, seniority (including provisions for reducing the work force), job posting, transfers, overtime conditions, a wage schedule, vacations, statutory holidays and most of the conditions normally found in a collective agreement. While the Board's record in respect of the proceedings resulting in certification of the union contain no reference to an incumbent trade union, the union's evidence in the case at hand was that an association (the union's term) had carried on some form of collective bargaining relationship with the employer over a number of years. It was also the union's evidence that its own bargaining proposals for a first collective agreement were constructed either as amendments to the Manual or to incorporate parts of it into a collective agreement. Counsel for the employer did not assert that the Manual was a collective agreement and, despite the similarity of form, the Board concludes that the Manual is not a collective agreement within the meaning of section 1(1)(e) of the Act. The Board is satisfied, however, that the Manual is a written statement of the employer's policy in respect of the terms of employment contained therein for hourly-rated employees of the employer's Public Works Department. While it may not set out the full extent of the legal incidents of the employment relationship between the employer and its hourly-rated employees, the Board has no other evidence as to these legal incidents. At least, however, the Manual represents a substantial codification of the individual contracts of employment between the employer and its hourly-rated employees.
The provisions in the Manual for reducing the work force require the employer to lay off the most junior employees first, subject to certain skill, competence and efficiency requirements and to give 48 hours prior notice of the lay off. It is the uncontradicted evidence of the employer that it complied with these conditions when the three employees were laid off. The Manual also contains provision that "The … [employer], at all times, maintains its exclusive right to manage its operations and exercise all of the prerogatives of Management.". It contains neither an express right to nor an express prohibition against contracting out work performed by hourly-rated employees.
The evidence leaves no doubt that the employer's decision to contract out the operations in question was made for sound business reasons and for substantial economic savings. There is no evidence whatsoever from which it might be inferred that the employer was acting out of anti-union sentiment or responding to its employees having exercised their rights under the Act. The question before the Board, however, is not one of whether the decision was justifiable, but whether the employer, by contracting out its garbage collection and landfill operations and causing the lay off of the grievors, has violated the freeze imposed by section 70 of the Act.
While it is sub-section 1 of section 70 that this complaint alleges has been violated, since the circumstances of this case include the fact that the employer received notice from the Board of the union's application for certification, sub-section 2 of section 70 was also brought into effect. It prohibits alteration by the employer of the same conditions, rights, privileges or duties of the employer and the employees as does section 70(1) until either the union gives notice of its desire to bargain pursuant to section 13 of the Act or the application for certification is withdrawn or the Board dismisses or terminates it. Once section 13 notice is given, sub-section 1 of section 70 is brought into play and both the employer and union are prohibited from altering, without the consent of the other, "... the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employees, the trade union or the employer, ...". Sub-sections 1 and 2 work together, therefore, to impose a freeze which continues from the receipt by the employer of the notice of application for certification until after one of the two specified events in items (a)(i) or (a)(ii) of section 70(1) has occurred after the Minister has appointed a conciliation officer or mediator or until the union loses its bargaining rights. The purpose of the statutory freeze, which in general terms is to provide a period of stability during which either a union may seek to gain bargaining rights or the parties to collective bargaining can enter into negotiations without the disturbance of unilateral change, has been discussed extensively by the Board in its many decisions dealing with section 70. For explanation of the purpose of the section 70(1) freeze see the Board's decisions in AES Data Limited [1979] OLRB Rep. May 368; Industrial Wire and Cable Company, [1977] OLRB Rep. June 385; and Kodak Canada Limited, [1977] OLRB Rep. Feb. 19. An explanation of the purpose of the section 70(1) freeze is contained in the Board's decisions in Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859; Molson's Brewery (Ontario) Limited, [1977] OLRB Rep. Aug. 526; and Kodak Canada Limited, supra.
Much of what these cases say is succinctly summarized in the following statement contained in the Board's decision in AES Data, supra, including a reference therein to Spar Aerospace, supra:
The purpose of section 70 is to maintain the prior pattern of the employment relationship, in its entirety, while the parties are negotiating for a collective agreement. This ensures that they will have a fixed basis from which to begin negotiations, and prevents unilateral alterations in the status quo which might give one party an unfair advantage either from the point of view of the bargaining or of propaganda. The status quo includes not only the existing terms and conditions of employment but also any other established benefits which the employees are accustomed to receive, and which can therefore be considered to be "privileges." It is clear that express promises, or a consistent pattern of employer conduct, can give rise to such privileges and that they are caught by the statutory freeze. It should be noted, however, that section 70 also freezes the "rights and privileges" of the employer. The section requires both parties to maintain the existing pattern of their relationship; that is, to conduct their business as before. In Spar Aerospace Products Limited, [1978] OLRB Rep. Oct. 859, the Board discussed the effect of section 70 in the following way:
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. (emphasis added)
In the instant case the section 70(1) freeze began on April 28th when the employer received the Board's notice of the union s application for certification. Section 70(2) in turn gave way to section 70(1) on June 3, 1980 when the union served notice, pursuant to section 13 of the Act, of its desire to bargain. The section 70 freeze was still in effect on September 8th when Council decided to contract out the work and on September 15th when the grievors were laid off.
In order for the Board to find that the employer has violated the section 70(1) freeze, it must be able to find that the employer by its action of contracting out the work in question and laying off the three employees without the consent of the union, has altered "...the rates of wages or [some] other term or condition of employment or [a] right, privilege or duty, …" of the employer, the union or the three employees. Since an alteration of rates of wages is clearly not involved, the contracting out and the lay off must be found to constitute an alteration of some other term or condition of employment of the three employees or an alteration of a right, privilege or duty of the employer, the union or the three employees. Since there was no pre-existing contractual relationship between the employer and the union, there are no pre-existing rights, privileges or duties of the union to be protected from unilateral employer alteration. Therefore it becomes a matter of determining what right, privilege or duty of the employer or the employees or what other term or condition of employment have been captured by the freeze and altered by the employer's unilateral action. Or, to put it another way, the Board must determine which, if any, legal incidents of the employment relationship, including privileges, which were in existence on the day before the freeze began, were altered on September 8th when Council decided to contract out its garbage collection and landfill operations and/or on September 15th when the three employees were laid off.
The union argues simply that the employer must exercise its rights to manage its operations in a way which does not violate the section 70 freeze and that, by contracting out the work in question and eliminating the jobs of the three employees, the employer has violated the freeze by interfering with the employees' right to work. In the absence of any explanation of when and how the right to work was established, the Board is left to assume that either the union considers there to have been a right to work prior to the freeze or that the right was created by the onset of the freeze.
Counsel for the employer, on the other hand, argues that the employees do not have a right of ownership over their jobs to be captured by the freeze. Nor, counsel asserts, does the freeze require the employer to maintain a static work force since it does not prohibit the laying off or termination for cause of employees. In short counsel contends that the employer's actions have not altered any "... term or condition of employment or any right, privilege or duty, ..." of the three employees. He points out that they were laid off wholly in accordance with the provisions in the Manual for the reduction of the working force and that these provisions were terms or conditions of employment (or privileges) captured by the freeze.
There clearly is no evidence that, the day before the freeze started, the employees had a proprietory right either to the jobs which they held or to employment with the employer which the next day was captured by the freeze. Nor did they have a right not to be laid off. In fact, the contrary situation is indicated by the provisions in the Manual governing the reduction of the work force. Their employment was subject to lay off, but they were protected to the extent of their seniority and were entitled to prior notice of the lay off. The corollary of their right to those conditions is the implicit right of the employer to reduce the work force as long as he proceeds by the rules of the Manual. These rights of the employees and the employer were captured by the freeze. Can it be argued, nonetheless, that the existing jobs or employment of the employees were "frozen" by the triggering of section 70 or that the freeze required the employer to maintain its work force at the level existing at the start of the freeze, results suggested by the unions argument? The Board thinks not. To hold so would prevent the employer from responding appropriately to the exigencies of its "business" and would contradict the Board's "business as before" approach to the application of section 70. In fact, the Board has recognized the right of an employer to lay off employees for lack of work where it was an implicit term of their individual contracts of employment that they could be laid off for that reason. See Canadian General Electric, [1965] OLRB Rep. Dec. 649. Therefore, on the evidence that the employer has laid off the three employees pursuant to the terms of the Manual, terms which were frozen by section 70, the Board finds that the lay off, per se is not a violation of the section 70 freeze.
If the lay off itself was not a violation of section 70, can the same be said for the employer's actions which caused the lay off; that is, the decision to contract out the garbage collection and landfill operations? Counsel for the employer correctly claims that the rights and privileges of the employer were frozen and thus protected by the effect of the section 70 freeze. The Board has previously found that employer's rights and privileges are protected by the section 70 freeze. See AES Data Limited, supra, at paragraph 10, including the reference quoted therein from the Board's decision in Spar Aerospace Products Limited, supra. The question remains, however, whether a right to contract out the work in question existed at the start of the freeze period.
Employer counsel maintains that the right to contract out work is contained in the employer's "... exclusive right to manage its operations and exercise all of the prerogatives of management," set out in the Manual and preserved by the section 70 freeze. He contends that this broad management right, as it might be applied to the contracting out of work, has not been diluted by any limit or prohibition in the Manual in respect of contracting out, or by any evidence that the employer has acted to limit the application of that right to the contracting out of work. Certainly the Board has recognized that an employer is not prohibited from exercising express management rights and that those rights are preserved by the freeze. In this respect see the Board's decision's in Molson's Brewery (Ontario) Limited, [1977] OLRB Rep. Aug. 526 and Scarborough Centenary Hospital Association, [1978] OLRB Rep. Oct. 949, which followed the first decision. In the former decision the Board found that the employer was acting properly under an express right frozen by section 70 to determine the schedules of shipping and distribution when, during the freeze period, it altered the shift schedule of some shipping employees. In the latter decision, the Board found that the employer had not acted contrary to section 70(1) of the Act when it responded to a change in part of its business by reclassifying an employee from full-time status to part-time, resulting in her exclusion from the bargaining unit in the expired collective agreement. The Board held that the employer was exercising an express right under the expired agreement, which had been preserved by the freeze, to determine the kind and location of machines and equipment, the number of employees required and their allocation.
Those two decisions deal with situations where the employers' actions are directly covered by an express management right to schedule hours of work or determine the allocation and number of employees required. In the instant case, the management rights statement does not express a right to contract out work, although it is stated broadly enough to encompass that right. While paragraph 10 of the Board's decision in Molson's Brewery, supra, which reads as follows seems to make a distinction in the kinds of management rights which are preserved by the section 70 freeze, it is still speaking to the need to identify a change in the terms or conditions of employment, or in rights, privileges and duties and must be read as saying nothing more.
"10. Before leaving this point we would stress that in the instant case we are dealing with an express right of management under the collective agreement. Our decision may well have been different had this express right not been included in the collective agreement and the respondent had instead relied only on the principle that management retains the right to initiate any changes in the work place which are not expressly restricted by the terms of a collective agreement. It appears to us that any such general entitlement on the part of management to initiate change may well be limited by the effect of section 70(1)." (emphasis added)
Just as the written expression of a right in a collective agreement does not assure its existence (see A.N. Shaw Restoration Ltd., [1978] OLRB Rep. June 479, referred to in Spar Aerospace, supra), neither does the failure of a collective agreement to deal expressly with a right establish that none exists. While, in the first instance the Board may find that even the express right has been waived by conduct, in the second instance (or where, as in a "first agreement" situation, there is no collective agreement at all), of necessity the Board will have to look more closely at the totality of the evidence to determine whether the employer has by custom eliminated or restricted what otherwise would have been a normal, residual right of management; that is, whether the employer's past course of conduct has created a privilege upon which employees reasonably had come to base their expectations.
- This possibility of waiver of rights by custom or practice might explain the Board's obiter comment in Molson's Brewery, supra, underlined in the above quotation from paragraph 10 of the decision. It is conceivable that, had there been no express management right to determine shift schedules, the remaining evidence might support the conclusion that the shift arrangements which were in effect at the onset of the freeze had, by custom, become a privilege and were protected by section 70. The Board's decision in The Wellesley Hospital, [1976] OLRB Rep. July 364, deals with a situation quite analogous to that illustration and, in finding that the employer's practice of scheduling regular weekly overtime to be a privilege in respect of weekly hours of work, stated:
"We find then that the practice of scheduling overtime work in these circumstances constitutes a term of employment or privilege enjoyed by employees in the bargaining unit. It should be noted as well that the performance of overtime work by the employees constitutes a privilege of the employer. The employees would be in violation of subsection 1 if they refused to work overtime without the consent of the hospital."
The Board's decision went on to comment that "It is not permissible for the hospital in these circumstances to rely on a residual management power to alter the hours of work in face of section 70.".
In Wellesley Hospital, supra, it is obvious that the Board has looked at the evidence before it and found that the legal incidents of the employment relationship at the onset of the freeze included the "privilege" of being scheduled regularly for weekly overtime hours. In the Molson's Brewery decision, supra, it would be a reasonable inference that the Board, in making its obiter comments, was looking at the possibility that, were there no express management right to determine shift schedules, the schedules prevailing at the start of the freeze might have become a privilege and part of the legal incidents preserved by the freeze. The factual context of those two cases readily distinguishes them from this case.
The traditional rights of the employer herein have been modified by the terms and conditions defined in the Manual. Those modifications, however, do not express any limit or prohibition on the contracting out of work. Neither is there any evidence that the employer has by its actions created any limits on its right to contract out work. The issue simply has not arisen and the Board does not conclude from that circumstance that the employer, as a result, had waived what otherwise would have been its normal management right, or created a privilege for employees that their jobs never would be contracted out for bona fide business reasons. There can be no doubt from the employer's actions, begun in earnest by April 1979, of examining whether it should revert to contracting out its garbage collection and landfill operations, that it considered such action to be still within the purview of its management rights. While it cannot be said with equal certainty that the employees acknowledged that right, it is not unreasonable to infer that the application for certification was prompted by an apprehended threat to their jobs. Several factors allude to the possibility that the employees may have been aware of the employer's activities and the fact that there was nothing to prevent the employer from transferring the garbage collection and the landfill operations to a contractor. The sequence of events herein, the size of the Community, the public nature of the employer's "business" and its employment relationships and the fact that three other nearby municipalities recently had contracted out similar work all point to the likelihood that the employees suspected what the employer was considering and that they were without any countervailing right to the employer's right to contract out their work. The Board is satisfied, in these circumstances, that the employer had the right before the onset of the freeze to contract out work for bona fide business reasons and at least a year prior to the union's campaign, had embarked on the decision making process which led the employer to assert that right during the freeze period. The facts are that, by April 1979, Krammer was engaged actively in evaluating the cost and efficiency of the existing operation and comparing it with the contracting out alternative. His evaluation developed into a formal proposal to contract out the work when the Committee of the Whole decided on April 22nd, 1980, prior to the freeze, to recommend to Council that the work be contracted out. The proposal led, during the freeze period, to Council ultimately making the decision which is the crux of the matter before the Board. Thus at least a year prior to the union s organization campaign the employer had embarked on a process of asserting a then-existing right to contract out the garbage collection and landfill work, a process which continued uninterrupted until its logical conclusion was reached within the freeze period.
The facts in this case establish clearly that, prior to the start of the freeze period, the employer possessed the right to contract out work for bona fide business reasons and, in this instance, had progressed substantially towards exercising that right prior to the start of the freeze period. In these circumstances and in the absence of any evidence that the employer was motivated by any anti-union sentiment or by employees having exercised rights under the Act, the Board finds that the employer was exercising the right for bona fide business reasons when, during the freeze period, it contracted out its garbage collection and landfill operations and laid off the three grievors. Since employer's rights, like those of employees and unions, are captured by the freeze, (see AES Data, supra), the Board is satisfied that the employer's actions herein do not constitute a violation of section 70(1) of the Act.
The Board does not find this result to be incompatible with the underlying effect and purpose of section 70 of the Act. Its effect is to preserve the status quo and, as the Board stated in Burlington Carpet, supra:
"...part of ... [the status quo] is the employer's right to conduct its business as it did before ...".
The section's purpose, as stated in AES Data, supra,
... is to maintain the prior pattern of the employment relationship, in its entirety, while parties are negotiating for a collective agreement. This ensures that they will have a fixed basis from which to begin negotiations, and prevents unilateral alterations in the status quo...".
That "fixed basis", however, is not a basis free of any and all unilateral change. In its decision in Spar Aerospace, supra, the Board declined to interpret section 70 to prohibit any unilateral action at all and, having done so, commented as follows:
"… 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.".
That decision, joining as it does the Board's refusal to interpret section 70 as a prohibition of any unilateral action at all with its endorsement of the "business as before" view of the section evident in the earlier decisions reviewed in Spar, makes it clear that the section 70 freeze is not absolute protection against all change.
Any union, employee or employer seeking relief against changes which do not fall within the protection of section 70 must rely, therefore, on those other sections of the Act which are appropriate to deal with unfair labour practices. For example, had there been evidence in the instant case that the changes were motivated by anti-union sentiment on the part of the employer or were a response to the employees having exercised rights under the Act, these sections could have been brought to bear on the situation. In fact, there was neither any evidence nor any allegation in the complaint of such motive.
In conclusion, the Board finds that the contracting out of the garbage collection and landfill operations and the lay off of the grievors Sidney Ringwood, Roland Hapwood and Don Freer is not a violation of section 70(1) of The Labour Relations Act.
For all of these reasons, the complaint is dismissed.
DECISION OF BOARD MEMBER H. SIMON;
The purpose of section 70 is to maintain the status quo so that the parties may bargain from the same position that existed prior to the union's application for certification. In other words the employees' working conditions and wages are not to be altered by the employer, except with the consent of the trade union and the employer had the right to manage his business as before.
In Spar Aerospace Products Limited decision, supra, the Board stated:
"The 'business as before' approach does not mean that an employer cannot continue to manage its operation. What is does mean is, simply, that in employer must continue to run the operation according to the pattern established before the circumstances giving rise to the freeze have occurred, ... The right to manage is maintained, qualified only by the condition the operation is managed as before." [emphasis added]
- In the Molson's case, supra, the Board stated in its decision:
"The right of the employer to initiate any changes which it had not expressly given away may well be limited by the effect of section 70(1)."
To hold otherwise would be to allow an employer to rely on previously unexercised so called residual rights or broadly worded management rights clauses to circumvent the section 70 at will. A similar view was expressed by the Board in the Wellesley Hospital decision, supra.
The Board has held in a number of cases that unless the rights to make changes are specifically spelled out in a collective agreement or were practiced by the employer prior to the freeze coming into effect, the employer is prohibited from initiating such changes. Most of the cases dealt with changes in hours of work, working conditions, or lay offs. In the case before us the work is still available but has been contracted out by the employer and, as a result, is being done by the employees of another employer. Which in my view makes this a much more serious complaint and should be upheld by the Board.
There is no evidence that the application for certification was prompted when the employees found out that the collection of garbage would be contracted out. The evidence is that when Mr. Krammer first talked to the mayor in January 1979 about contracting out some of the work, the answer was negative. The matter was only revived and was placed on the council's agenda, after the union filed its application for certification. Their own lawyer advised them not to deal with the matter at that time.
Under the circumstances it is reasonable to conclude that when the employer found out the employees joined a trade union he resurrected the idea of contracting out the collection of garbage and land fill. The fact that the 3 employees laid-off indefinitely were only given three days notice, is a further indication of the discriminatory action by the employer.
This is a small bargaining unit. The lay off of these three employees for an indefinite period and the contracting out of the garbage collection and land fill by the municipality during the freeze period will definitely tip the scales in favour of the employer in bargaining for a first agreement. This in my view is contrary to the intent and spirit of section 70 of the Act.
For all of the above reasons I would allow the complaint to succeed and order the reinstatement of the three employees to their former positions with full compensation for lost time.