[1981] OLRB Rep. June 734
2596-89-U Ontario Public Service Employees Union, Complainant, v. Madame Vanier Children's Services, Respondent.
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members B. Armstrong and E. C. Went.
APPEARANCES: Raj Anand and Pauline R. Seville for the complainant; D.J. McNamara and J. R. Dubois for the respondent.
DECISION OF THE BOARD; June 26, 1981
This is a complaint filed under section 79 of the Act alleging a violation of section 70 of the Act. It is alleged that the respondent employer changed its hiring procedure during the section 70 freeze thereby breaching the Act. There is no dispute that the alleged freeze period following the applicant's notice to the respondent of its desire to bargain for a first agreement.
Section 70(1) of the Act provides:
"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."
This complaint centers on the failure of the respondent to hire Marcia Robson, a Child Care Worker on contract with the respondent as a permanent Mental Health Worker in early February, 1981. Ms. Robson worked as a student with the respondent from September to December, 1976 and then, following attainment of her diploma, was employed by the respondent as a permanent Child Care Worker I in its residential program. She worked in this capacity from April, 1977 to May, 1979. Ms. Robson resigned her employment to supervise the construction of her home. She returned to work for the respondent on or about November 19, 1980 as a Residential Mental Health Worker I on a contract which was scheduled to terminate on March 31, 1981. Ms. Robson became aware of an anticipated vacancy for a permanent residential Mental Health Worker which was expected to come open in early February, 1981. She applied for the job. The decision of the respondent not to allow Ms. Robson to fill the vacancy has given rise to the instant complaint.
The respondent is a social agency providing treatment to troubled children. Its residential facilities are comprised of three on-premise cottages and a community home. Two of the cottages house 10 children and the third S children. A Residential Mental Health Worker IV, referred to as a unit head, is responsible for the administration of a cottage and the supervision of its staff on a day-to-day basis. The agency employs about 30 health care workers at all levels. The unit heads report to Mr. Ron Sawchuk, M.S.W., the Program Manager. Mr. Sawchuk reports to Ms. Janette Lewis, M.S.W. the Treatment Director. She in turn reports to Dr. J. Dubois, the Executive Director. Dr. Dubois is responsible to the agency's Board of Directors for the efficient and effective operation of the agency. Needless to say, much of his authority is delegated to the Treatment Director, the Program Manager and down to the unit heads.
The hiring of mental health care workers is a case in point. The unit head of the cottage in which a vacancy exists interviews the applicants for the job. Those who satisfy the basic requirements for the job are invited to meet with the mental health care worker in the cottage and are sometimes asked to work a few shifts with them. The unit head, in consultation with the mental health care workers in the cottage then decide who, in their view, is the most suitable candidate. The unit head informs the Program Manager of the name of the candidate chosen by the cottage. Mr. Sawchuk, the Program Manager, characterized the communication from the unit head as a recommendation. The unit heads who testified maintained that the cottage makes the selection decision. The evidence establishes that a cottage selection decision has never been overturned. The starting salary and date of commencement is determined by the Program Manager in consultation with the unit head.
Prior to January, 1980 the letter to hire was drafted and signed by the unit head for delivery to the successful candidate. In many cases, however, the successful candidate was told by the unit head of the cottage's decision before the drafting of the letter of hire. Both Barb Whitcroft and Errol Cochrane, the two unit heads who testified, gave evidence that, in their view, hiring was effective from the time the candidate was told that he had been selected. Indeed, a number of persons have commenced work prior to having received a letter of hire.
A memo dated January 24, 1980 from Janette Lewis, Treatment Director, to all treatment staff sets out a number of decisions and policies made in connection with "the new administrative reorganization of Madame Vanier". Paragraph S of this memo stipulates that:
"All hiring, promotion, reprimand and dismissal letters for treatment staff will be co-signed by the Treatment Director to ensure that all personnel requirements within the Agency and any legal requirements are met."
The evidence establishes that since the issuance of this memo all hiring letters have been cosigned by Ms. Lewis, the Treatment Director. Ms. Lewis testified that the purpose of having her sign the hiring letter is to ensure that the Agency is not committed to arrangements contrary to its policies. It is her understanding that the agency is committed to nothing until she co-signs the letter and it is delivered to the candidate. Notwithstanding the change in the hiring procedure, effective from January 24, 1980, the Treatment Director has never overruled the decision of a cottage with respect to selection until the instant case. She maintained, however, that all cottage decisions are subject to veto. The Executive Director, Dr. Dubois, who has been the Executive Director of the Agency for 15 years, had never personally involved himself in a hiring decision until the instant case. He also maintains that the cottage selection is subject to veto.
Marcia Robson applied for a permanent Mental Health Care Worker vacancy in late January, 1981. As noted, she was working for the agency as a contract employee at the time. The hiring process followed the procedure described above. Ms. Robson was the unanimous choice of the cottage and Mrs. Barb Whitcroft, the unit head, communicated the choice to Mr. Srwchuk. Mr. Sawchuk testified that he told Mrs. Whitcroft at the time that he had reservations about Ms. Robson which related to other than her child care skills. He was concerned about the fulfillment of her contract and more importantly, he was concerned about a rumour that Mrs. Robson, as an employee of the agency, had participated in a television broadcast in early 1979 in which she had been critical of the agency's treatment endeavours. The faces of the employees who participated in this broadcast were not seen and their voices disguised. Another treatment employee had lost his job over the incident. Mr. Sawchuk testified that he anticipated that a meeting would be arranged with Marcia Robson to discuss the incident and to obtain assurances that it would not happen again. Mrs. Whitcroft, who was upset with the response of Mr. Sawchuk to the cottage's choice, met with Ms. Robson alone and then informed Mr. Sawchuk that the matter had been resolved to her satisfaction. Mrs. Whitcroft testified, and Ms. Robson confirmed, that she agreed to abide by proper grievance channels if she became a permanent employee of the agency.
The matter did not rest with the assurances given by Mrs. Whitcroft on Ms. Robson's behalf. Mr. Sawchuk advised Mrs. Lewis of the situation. Indeed, under the hiring procedure implemented in January, 1980 she would have become aware of the name of the individual to be hired in any event. Mrs. Lewis testified that Ms. Robson could not be hired until she signed the hiring letter and that in view of the controversy surrounding Ms. Robson she decided to leave the decision to Dr. Dubois, the Executive Director. Dr. Dubois asked for a meeting with Ms. Robson. Ms. Robson attended in Dr. Dubois' office on February 2, 1981 in the company of Mrs. Whitcroft. Dr. Dubois asked her if she had been the one who publicly criticized the agency in 1979. Ms. Robson asked how her alleged involvement in a television broadcast which was aired two years before could possibly be relevant to her selection to fill a permanent vacancy in 1981. Dr. Dubois replied that if she had been involved she had engaged in a flagrant violation of personnel policy, had done more harm to the agency than anyone else in its 15 year history, and had cast doubt upon her personal integrity. Dr. Dubois testified that if she had been involved it was, in his view, a reason for not hiring her as a permanent employee. He asked her again if she had been the one. She refused to answer and in the words of Dr. Dubois he "drew conclusions from her failure to respond". He decided that she should not be given permanent employment. As we have noted this was the first time that Dr. Dubios had vetoed a selection decision made by the members of a cottage.
Mrs. Whitcroft asked if the decision could be appealed or grieved. Dr. Dubois replied that it was not a question of termination but of hire. Mrs. Whitcroft took the position that Ms. Robson had already been hired. She had told Ms. Robson the previous Friday that the job was hers. She produced a letter which she had signed with a space for Mr. Sawchuk's signature confirming the employment of Ms. Robson. The letter was not signed by Mr. Sawchuk and neither was it signed, nor did it have a space for the signature of Ms. Lewis. Dr. Dubois replied that Ms. Robson had not been hired as the letter of hire had not been signed by Ms. Lewis, the Treatment Director, in accord with the procedure adopted in January, 1980. The evidence establishes that the letter drafted by Mrs. Whitcroft in respect of the hiring of Ms. Robson was the first such letter she had drafted since January, 1980 which did not provide a space for the signature of the Treatment Director.
The respondent employer, citing Spar Aerospace [1978] OLRB Rep. Sept. 859, Windsor Airlines, [1980] OLRB Rep. July 1147, Hotel Canadiana, [1980] OLRB Rep. Aug. 1210 and Burlington Carpet, [1980] OLRB Rep. Oct. 1361, argues that section 70 of the Act does not create new rights but simply guarantees the status quo of the employment relationship for the duration of the freeze period. The respondent maintains that Marcia Robson was never employed as a full-time permanent employee in February, 1981. Notwithstanding the cottage's decision, it is the position of the respondent that employment is not effectuated until the hiring letter is signed by the designated authorities within the agency. In the absence of anti-union motive the respondent argues that section 70 does not create a right to be hired as no such right exists outside the freeze period. In anticipation of the union's argument, the respondent maintains that any claim that the selection of new employees by bargaining unit members (i.e. those working in a cottage) is a privilege abrogates the right of the Executive Director, Treatment Director and Program Manager, to run the organization. The respondent takes the position that these individuals have always had the right to intervene in hiring decisions and do not lose this right by virtue of the operation of section 70 of the Act.
The complainant trade union cites Spar Aerospace, supra, and St. Mary's Hospital, [1979] OLRB Rep. Aug. 795 in support of the contention that a long-standing practice is preserved under the section 70 freeze. It is the complainant's position that collegial hiring is a long-standing practice which was in effect at the time the freeze began and was preserved by it. The complainant relied heavily on Laurentian University, [1979] OLRB Rep. Aug. 767 in support of its position. In that case the Board found that the University had breached section 70 of the Act when it deviated from its established practice with respect to tenured professors and attempted to revoke the tenure of a professor. The union likens the attempt by the agency in this case to revoke the hiring of Ms. Robson to the attempt by the University in the Laurentian University case, supra, to revoke tenure. The union also argues that in this case all members of the bargaining unit were entitled to expect that the agency's hiring procedures would not change during the freeze period. The union asks the Board to find on the evidence that a practice of allowing bargaining unit members to make hiring decisions in conjunction with the unit head exists and is preserved as a privilege by the section 70 freeze. In the face of the Executive Director never having previously intervened in the hiring process, the union asks the Board to find that he was not entitled to do so during the freeze period.
The purpose and extent of the section 70 freeze has been succinctly described in the Laurentian University case, supra, as follows:
Section 70, read as a whole, manifests a legislative intent to maintain the prior pattern of the employment relationship in its entirety while the parties are formalising their collective bargaining relationship or negotiating a collective agreement. This ensures that there will be a fixed basis from which to begin negotiations and preserves the status quo during the bargaining process. The status quo includes not only the existing terms and conditions of employment but also other established benefits which the employees are accustomed to receive and which can, therefore, be considered to be 'privileges.' It is clear that expressed promises, or a consistent pattern of employer conduct, can give rise to such privileges and they will be caught by the statutory freeze. As the Board noted in St. Mary's Hospital, Board File No. 1795-78-U (released March 30th, 1979, unreported):
section 70(2) preserves not only the employees' terms and conditions of employment, but also privileges which, by reason of custom and practice, have become a part of the employment relationship. The term 'privilege' is extremely broad and extends to ill of those benefits which an employee is accustomed to receiving
but to which he is not legally entitled, and which cannot, therefore, be considered a 'right.' In order to determine whether a particular benefit, or aspect of the employment relationship, has become a privilege, it is necessary to examine the circumstances of each particular case, since privileges can arise from established custom, practice or policy. The question is an evidentiary one for, by definition, the Board's consideration must go beyond the strictly legal incidents of the relationship ('rights') and include those aspects of the relationship which give rise to 'privileges.'
In order to demonstrate the existence of a privilege, it is not necessary to establish a contractual right, a formal written policy, or an express promise. It is sufficient if there is an established, and well entrenched, course of conduct which gives rise to the reasonable expectation that a benefit, previously given, will be continued.
Section 70 is not a straight jacket which prevents an employer from responding to changing business conditions; it merely requires both parties to maintain the existing pattern of their relationship; that is, to conduct their relationship 'as before.' In Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 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.
In Spar the Board decided that the practice of granting annual merit evaluation and increases was sufficiently well entrenched as to become a benefit, which the employees reasonably expected to receive and was, therefore, a 'privilege' within the meaning of section 70 of the Act. In Scarborough Centenary Hospital Association, [1978] OLRB Rep. July 679, the Board found that section 70 prevented an employer from revoking the privileges of free parking during the currency of the freeze. On the other hand, in AES Data Limited, [1979] OLRB Rep. May 368, the Board found that the employer was entitled to re-assign job functions since, in that case, the subject employees could not reasonably expect to
continue performing their jobs in exactly the same way despite changes in the mode of production and market conditions. A similar conclusion was reached in Scarborough Centenary Hospital Association, [1969] OLRB Rep. Jan. 1049, where the Board reaffirmed an employer's right to make ordinary business and production decisions, i.e. to conduct its business as before. Finally, in A.N. Shaw Restorations Ltd., [1978] OLRB Rep. June 479, the Board held that a union which had waived certain rights under its collective agreement could not adopt a different posture during a statutory freeze and insist upon compliance. Section 70 requires the Board to determine the pre-existing rights, privileges and duties of the parties, and then consider whether the conduct complained of alters those rights, privileges or obligations.
Accepting that a form of collegial hiring may be an element of the employment relationship preserved by the section 70 freeze in the professional work setting, the Board must ascertain what rights and privileges surrounding the respondent's hiring procedures are preserved by the freeze. It is clear on the evidence that at the very least the members of the cottage enjoy the privilege of making a recommendation as to the person they wish as colleague. If during the freeze period the senior management of the agency had disregarded this long-standing privilege and hired an individual to work in a cottage without involving the cottage members the Board would be hard pressed not to find a violation of section 70. However, the members of the cottge have been involved and have made a selection of this case. The complaint arises not because the members of the cottage have been ignored, but because their choice has been disregarded. The underlying issue, therefore, is whether the privilege enjoyed by the members of the cottage encompasses the making of the hiring decision in place of management.
It is argued that the Board should infer from the fact that the cottage selection has always been accepted that the members of the cottage, in conjunction with the unit head, have decision-making authority. However, the acceptance of cottage choices in the past is as consistent with a finding that the members of the cottage have the authority to make an effective recommendation (in the sense that it is usually acted upon) as it is with finding that the members of the cottage have decision-making authority. While a persistent pattern of acquiescence in the cottage choice suggests the possible existence of a decision-making privilege, in our view, clear evidence establishing that the employer has relinquished its right to have the final say in an activity as fundamental to its mandate as hiring would also be required.
It is not disputed that the Executive Director is charged with responsibility for the running of the agency. Given the sensitive nature of the agency's work, the competency and suitability of its professional staff is a major area of managerial responsibility. The Executive Director , the Treatment Director and the Program Manager all gave evidence that the ultimate respon
ibility for the hiring of professional staff rests with the Executive Director or his designate h.s always had the authority to overrule the cottage. In the absence of any evidence to establish a formal delegation of hiring authority to the cottage and in the face of a written policy statement dated January 24, 1980, requiring the Treatment Director to sign all letters of hire, we are satisfied that ultimate decision-making authority rested with senior management pr: or to the section 70 freeze. Indeed, the requirement for the signature of the Treatment Director can have no other meaning. Senior management may have consistently accepted the cottage's choices, as Ms. Lewis did every time she signed a letter of hire. However, the fact that the right has been exercised in a certain way does not abrogate it. Without addressing the merits of Dr. Dubois' belief that Ms. Robson was not a suitable candidate for permanent employment, we find on the evidence that senior management did not relinquish its ultimate authority where, in its view, the suitability or competency of a candidate does not meet the standards of the agency.In this case, senior management was faced for the first time with what it considered to be an unacceptable recommendation. Dr. Dubois responded just as he could have prior to the freeze, when appraised by the Treatment Director (who refused to sign the letter of hire) of the name of the candidate whom he considered to be unsuitable for permanent employment with the agency. He overruled the recommendation of the cottage. However, in so doing he acted within the parameters of the established hiring procedure.
This case is distinguishable from the Laurentian University case, supra, relied upon by the complainant. In that case both the procedure for acquiring tenure and the quasi judicial procedure for appealing discharge for cause were contained in a faculty handbook. The union claimed in that case that the University breached the freeze period when, for the first time, it attempted to revoke the tenure of a faculty member who had refused to withdraw legal proceedings which he had instituted against a number of students who had openly criticized his teaching. The Board commented that "tenure" in the University context means the right to continued employment unless there is sufficient cause for discharge — that is redundancy, incompetence, seriously unprofessional behavior, or persistent neglect of duties. In upholding the complaint, the Board found that the grievor had been accorded tenure as per the stated procedure and the attempt by the University to revoke tenure constituted a departure from both the stated tenure procedure and the discharge for cause procedure.
We have found on the evidence in this case that the ultimate decision-making authority with respect to the hiring of professional staff rests with senior management. Pursuant to its authority in this regard, senior management made a decision not to hire Ms. Robson. Notwithstanding the verbal offer of employment conveyed by Ms. Whitcroft, we are satisfied that Ms. Robson, unlike the grievor in the Laurentian University case, supra, was never hired as would allow the union to claim that her employment was terminated. Whatever might be said of those who had commenced work in the past prior to receiving a letter or hire from the agency, there is no doubt in our mind that under the existing arrangements Ms. Robson was never confirmed as a permanent employee. She did not have a right to permanent employment which would have been preserved by the freeze. The members of the cottage were consulted as to their choice to fill the permanent vacancy in accord with the privilege of consultation preserved by the freeze. The decision of senior management to overrule the cottage's choice was within the rights of management which are also preserved by the freeze. We are satisfied that the procedure under which Ms. Robson was denied permanent employment was in accord with the matrix of rights and privileges preserved by the statutory freeze. Accordingly, this complaint is hereby dismissed.