[1981] OLRB Rep. June 742
0136-81-U London and District Service Workers' Union, Local 220, S.E.I.U., A.F.L., C.I.O., C.L.C., Complainant, v. Merrymount Children's Home, Respondent.
BEFORE: Norris E. Davis, Vice-Chairman, and Board Members B. Armstrong and J.A. Ronson.
APPEARANCES: Ted Wohl, Randy Levinson and Lyn Whittaker for the complainant; D. J. McNamara and J. Lubell for the respondent.
DECISION OF VICE-CHAIRMAN E. NORRIS DAVIS, AND BOARD MEMBER B. ARMSTRONG; June 25, 1981
This is a complaint under section 79 of The Labour Relations Act alleging a contravention of section 70(1) of the Act by the respondent changing the shift assignments of the grievors and in their case of two of the grievors, additionally reducing regular weekly hours of work.
There is no dispute that section 70 was in effect at the time of the respondent's actions, and that the consent of the trade union to such changes was not obtained. It is the respondent's position that such changes were made for valid business reasons and in accordance with continuity to conduct "business as usual".
The respondent has a very long history of providing residential care for children, not in need of Child Welfare Act protection but rather children of families who are undergoing some particular problem expected to be transitory. The children are, therefore, residents of the Home for relatively short periods. The respondent's services were exclusively for providing such residential care up to May 1979, when funding was received for establishing a nonresidential program. This latter program of providing day-care services required an additional counselling pro gram and also introduced regular parent participation in the over-all program. In November, 1979, the decision was taken to conduct an internal review of the programs. The review was conducted by the respondent's concept co-ordinator (responsible for the nonresidential program), several members of the respondent's board and a representative of the Ministry of Health.
As a result of that review, the respondent in February, 1980 made several changes which included:
(a) scheduling employees on basic Monday to Friday work weeks and eliminating the previous practice of having two teams of 32 hours per week rotating every two weeks. It was explained that with a shift of emphasis of the respondent's services to day care, the major concentration of services was in the period of Monday to Friday; and that it was deemed inappropriate, in the view of the injection of the parent contacts factor, to have as many as three teams of employees dealing with parents in a single week. As a result, the team rotation schedule was discontinued and staffing done by assigning to fixed shifts of three persons 7:00 a.m. — 3:00 p.m.; 2 persons 9:00 a.m. — 5:00 p.m.; and 2 persons 9:00 a.m — 11:00 a.m. Thus resulted in elimination of two full-time child care positions. Night shift assignments were retained.
(b) The drop of residential care also resulted in a decreased need for meal service, laundry service, supervisory services and secretarial services. Consequently, cooking staff was reduced from 2 persons to 1, a laundry position was eliminated, 1-1/2 supervisory positions eliminated, secretarial hours reduced and a new position of pre-school director added.
On November 27, 1980, the complainant was certified as bargaining agent for all full-time employees, and notice to bargain was served on December 4, 1980, and negotiations between the parties are continuing.
In January, 1981 it was decided that there should be a further review conducted in the same format as the 1979/80 review and adding in participation of senior staff. Recommendations arising out of this review were approved by the respondent's board in February. One of the recommendations which was approved was to eliminate a van which, it was determined, was no longer necessary. This elimination would reduce staff on each of the 7:00 — 3:00 p.m., and 3:00 p.m. — 11:00 p.m. shifts from three persons to two on each shift and adding one person to cover the supper hour from 5:00 p.m. — 8:00 p.m. In addition, there had been some expressed desire by the night shift staff for a more regular schedule, and it was recommended to create two — 40 hour per week positions with regular days of work (and no rotation), and two — 16 hour per week positions for the weekend.
The van was sold in late February, but staff changes were planned to be made effective April 1, 1981. The respondent advised the union by phone on March 6th of impending lay-offs and a meeting was held on March 10th at which the respondent detailed the proposed changes. The union did not agree to the changes and asked that the matter be reconsidered. As a result of the respondent's reconsideration, it was decided to leave the night staff hours unchanged, and to add a further part-time employee form 9:00 a.m — 12:00 noon.
The net impact of this final decision was that two full-time positions would be eliminated, and two part-time positions would be created (one to be from 9:00 a.m. — 12:00 noon, the other to be from 5:00 p.m. — 8:00 p.m.). On March 16th, Janice Graham and Laura Dibbs, who had the least seniority on the 7:00 a.m. — 3:00 p.m. shift and 3:00 p.m. — 11:00 p.m. shift, were advised they would be laid off on March 31st.
On March 25th, Dibbs was advised she would be scheduled for a 23 hour work week (consisting of a rotating schedule of days of 9:00 p.m. — 12:00 noon, and of 5:00 p.m. — 8:00 p.m., and one weekend night shift of 8 hours. On March 31st, Dibbs was advised that her schedule would not include the weekend night shift and starting April 1st she was therefore assigned to a 15 hour week. On April 13th, Dibbs was advised that commencing April20 she would be scheduled for a 30 hour week consisting of 6 hours per day (9:00 a.m. — 12:00 noon and 5:00 p.m. — 8:00 p.m.). It was noted that this last scheduling followed Graham's voluntary quitting of the 15 hour shift to which she had been assigned.
Graham was advised on March 16th that she would be laid off as of April 1,1981 and on March 25th was advised she would be scheduled for a 23 hour week, similar to that for Dibbs; and on March 31st was advised of, and assigned to, a 15 hour week, again similar to Dibbs. Graham secured other employment and terminated her employment with the respondent on April 10, 1981. It was a result of this that Dibbs was subsequently scheduled for a 30 hour week. Also on March 16th, Helen Hagen, who had previously driven the van on the 7:00 — 3:00 p.m. shift, was advised she would be assigned as of April 1st to a 9:00 a.m. — 5:00 p.m. shift. On tie same day, Angie Glover, who had been assigned to the 3:00 p.m. — 11:00 p.m. shift, was advised that as of April 1st she would be assigned to the 7:00 a.m. — 3:00 p.m. shift. It is noted that at an earlier time Glover had worked the 9:00 a.m. — 5:00 p.m. shift and had been transferred to the 3:00 p.m. — 11:00 p.m. shift at her own request.
The complainant contended that the reasons motivating the lay-off in 1980, and initiated by the respondent were different reasons to those motivating the actions in 1981, and that therefore it cannot be said that in the 1981 lay-offs the respondent was "conducting business as before". The complainant contended that even if the Board were to conclude that the lay-offs were proper under the Act, the device of reducing work weeks in order to balance staff against requirements is not one which has ever been previously utilized by the respondent and was not opt n to the respondent in 1981. The complainant also contended that the changes in shift times for Glover and Hagen were clearly in contravention of section 70(1) of the Act.
The respondent argued that the changes were effected based on business decisions made in good faith and that the quality of the business decision is of no concern to the Board. It was the respondent's position that it is free to conduct its business as before in the best manner it see fits to accomplish the overall objective of "the best program with the best resources available". The respondent also argued that the lay-off of 1980 was based on multi-reasons and not on a single reason, and the same reasons were at work in 1981, and that, in any event, it cannot be said that the respondent is restricted by section 70(1) to only making layoffs of employees solely for the reason on which a previous lay-off had been based.
As the Board stated in Windsor Airline Limousine Services Limited, [1980] OLRB Rep. July 1147 at p. 1152,
"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."
and in Burlington Carpet Mills of Canada Ltd., [1980] OLRB Rep. Oct. 1361, at p. 1364,
"Under section 70 of the Act notice to bargain does not extinguish an employer's right to manage business. Section 70 stabilizes the status quo, part of which is the employer's right to conduct its business as before and part of which is the set of rights and privileges which have accrued to employees by established practice. Section 70 of The Labour Relations Act therefore, preserves both employee benefits and entrenched employer rights. It does not grant any new rights to employees or to a union save the right to be protected from any change in the status quo for the duration of the freeze."
In the instant case, the onset of the "freeze" commenced in November 1980 by virtue of section 70(2) and was continued without interregnum under section 70(1) by the serving of notice to bargain on December 4, 1980. At that time, the respondent operated four basic shifts involving ten full-time child care workers. There were three employees, including Helen Hagen and Janice Graham assigned to the 7:00 a.m. — 3:00 p.m. shift; there were two employees, including Laura Dibbs, assigned to the 9:00 a.m. — 5:00 p.m. shift; there were two employees including Angie Glover, assigned to the 3:00 p.m. — 11:00 p.m. shift; and three employees assigned to a shift 11:00 p.m. — 7:00 a.m. This latter night shift is not involved in our deliberations. The respondent's decision to lay off two employees resulted in the junior employees, Dibbs being removed from the 9:00 a.m. — 5:00 p.m. shift and Graham being removed from the 7:00 a.m. — 3:00 p.m. shift. The respondent viewed it necessary to replace Dibbs on the 9:00 a.m. — 5:00 p.m. shift and did so by transferring Helen Hagen from the 7:00 a.m. — 3:00 p.m. shift, and then transferred Angie Glover from the 3:00 p.m. — 11:00 p.m. shift to the 7:00 a.m. — 3:00 p.m. shift. When these moves were completed there were then two employees (compared to three previously) on the 7:00 a.m. — 3:00 p.m. shift; two employees (as previously) on the 9:00 a.m. — 5:00 p.m. shift; and one employee (compared to two previously) on the 3:00 p.m. — 11:00 p.m. shift. At the same time, the respondent created two part-time positions, each involving 15 hours per week to which the replaced Dibbs and Graham were assigned.
The lay-off decision of the respondent resulting from the recommendations of the Program Review Committee in 1980 was based on a very substantial decrease on the respondent's residential program and a substantial build up of the newly inaugurated nonresidential program, which understandably shifted the need for particular employee skills. The lay-off decision in 1981 was made in the face of a slight decrease in the residential program in the past twelve months and a steady increase in the non-residential program. It was the evidence of the executive director of the respondent that the recommendations of the Program Review Committee were related to somewhat lower residential occupancy rates and a close examination of the month to month fluctuations in non-residential care demand and total program needs and expected revenues as part of their annual planning. The respondent receives about sixty per cent of its funding from the Provincial Government and has been informed not to expect an increase in the forthcoming year in excess of eighty per cent. The respondent commenced work on its budget in January, 1981 and submitted it to the Provincial Government in March, and as of the date of hearing there had been no final negotiations of the budget. The expense budget submitted to the Government was based on the staffing assumptions which have now been implemented.
It is our conclusion that the elimination of the van by the respondent was done based on the evaluation that the respondent's operation had no need for it and undoubtedly because it represented an area of cost saving which the respondent saw necessary in the light of present and anticipated economic conditions. Inasmuch as the van elimination was a major factor contributing to a decreased need for full-time employee hours, the question with which we are faced with it whether section 70(1) precludes the respondent from making an adjustment in its labour force following the disposal of the van.
The evidence is that when the respondent was faced with a declining residential rate in 1976, it reduced its child care staff from nineteen to nine persons. The evidence also is that in 1980, when faced with a successful day care program and a continuing declining residential program, the respondent reduced redundant staff, including two full-time child care employees. We must conclude that at the onset of the "freeze", the employer had established that its past conduct in managing the operation was to lay off redundant staff. We do not accept the argument stated as broadly as it is by the respondent that once it is demonstrated that the decision was a valid business judgment it should not be interfered with by the Board. To accept that would be to totally ignore section 70: At the same time, we cannot conclude here that the exercise of this right to manage has interfered with any term or condition of employment or employee privilege existing at the time of the freeze. Despite the fact that the respondent may have only exercised its right to lay off redundant employees in the past where it has been related to a declining residential rate, it cannot be said that the right to lay off only existed to the extent that redundancy is created by this one circumstance. We, therefore, find that the lay off of employees by the respondent did not alter any term or condition of employment, or any right, privilege c r duty of the employees and is therefore not in contravention of section 70(1).
As to the shift re-assignments of Hagen and Glover, it is our view that transfer of employees between established shifts to meet required staffing is a valid exercise of the residual right to manage the business and does not interfere with any term or condition of employment or of any right, privilege or duty of the employees and is therefore not in contravention of section 70(1).
The assignment of Dibbs and Graham on April 1, 1981, to 15 hour work weeks must be viewed differently. It must be noted, as subsequent events demonstrated, that no imperative business needs ofthe respondent were met by the respondent resorting to a sharing of available work between Dibbs and Graham rather than implementing the alternative of laying off one of those two and assigning all available work to the remaining employee. The evidence did not establish that "work sharing" has been previously implemented as a vehicle to balance work hours required against available employees, and cannot therefore be viewed as an exercise of the employer's right to conduct its business as before. In our view, the instant case falls within the rationale in Beaver Electronics [1974] OLRB Rep. March 120, and in the absence of the consent of the trade union to the reduction in work weeks on April 1, 1981, of Dibbs and Graham, the respondent acted in contravention of section 70(1) of the Act.
The Board reserved its decision in respect to preliminary representations as to the applicability of section 79(4a) in respect to the legal onus in this case. Fanshawe College of Applied Arts and Technology [1980] OLRB Rep. April 433 in dealing with a matter under The Colleges Collective Bargaining Act determined that section 55(1) of that Act (which is similar to section 70(1) of The Labour Relations Act) was designed "to protect the bargaining rights of the trade union bargaining agent", and that individual complainants in that case had no status to bring a complaint. It would therefore seem that section 79(4a) is not operative to establish the legal onus in the instant case, although in the view we take of the instant case it is not necessary for us to make that decision.
The Board orders:
(i) that the respondent cease and desist from altering, except with the consent of the complainant trade union, any term or condition of employment of employees in the bargaining unit in making of work assignments and/or schedules, until the Minister has appointed a conciliation officer or a mediator under the Act and seven days have relapsed after the Minister has released to the parties the report of a conciliation board and mediator, or 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:
(ii) that Laura Dibbs and Janice Graham be fully compensated by the respondent for all lost wages and benefits sustained through the respondent's violation of the Act;
(iii) that the respondent pay interest on the compensation for lost wages ordered by the Board, such interest to be calculated in the manner described in Hallo well House Limited [1980] OLRB Rep. Jan. 35; and
(iv) 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 notice posted for sixty consecutive working days. Reasonable steps shall be taken by the respondent to insure 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.
- In the event that the parties are unable to agree on the compensation due to Laura Dibbs and Janice Graham, the Board remains seized of the matter.
DECISION OF BOARD MEMBER JAMES A. RONSON;
I agree that the respondent employer has contravened section 70 of the Act by deciding to share work between its employees, Laura Dibbs and Janice Graham. However, I dissent from the reasoning that would result in the posting of a notice as a necessary and effective remedy in this situation.
On the facts placed before us there was no intent by the employer to take any action which it knew or should have known would result in a breach of the Act. As part of an established practice of reviewing its operations, with a view to reducing costs and minimizing its budget, the employer decided that it no longer needed to own a passenger van to transport children to and from school. Not surprisingly, the elimination of the van meant that the employer no longer needed a driver for it. The resultant shuffling of employee work schedules left one employee redundant and required a second employee to work a total of 30 hours per week on a split shift arrangement. Rather than lay-off the most junior employee, the employer asked the two most junior employees if they were willing to share the time and work 15 hours each per week. The employees agreed. After a short interval one of these employees secured work elsewhere and the remaining person began working the full complement of 30 hours per week. By attempting to minimize the effect of its decision on one of its employees, the employer has contravened section 70 of the Act in a most technical manner. In keeping with its past practice it should have terminated the employment of its most junior employee immediately.
The majority feel that a notice, signed by a representative of the employer, posted in the workplace, and admitting the contravention of section 70, is needed as a necessary remedy for the harm occasioned to the union. I am mindful of the reasoning of the Divisional Court in Re Tandy Eletronics Ltd. and United Steelworkers of America et al, 1980 CanLII 1738 (ON HCJ), [1980] 30 OR. 2d 29 (Radio Shack) when it considered the effect of a posting, and of the Board in its decision in Valdi Inc. [1980] OLRB Rep. Aug. 1254. And I certainly do not intend to re-hash my comments by way of dissent in the Valdi case. But the present situation is quite different from the Radio Shark and Valdi cases where the Board found anti-union animus and the intent to contravene the Act. Nor is the present case one resulting from the ignorance of the employer as to the existence of section 70. The employer took its proposed staffing changes to the union and, as a result of lengthy discussions, the employer withdrew some of its proposals. The union refused to consent to the changes (which consent was not needed), but the fact remains that the employer did not drop the bombshell by implementing the changes without first discussing them with the union.
We ~re dealing with a small group of employees. I hazard to predict that the Board's decision will be known by all of them within two days of its receipt by the parties. There remains the question of whether the employer's wrongful conduct has had a "chilling effect" on the union's ability to act as bargaining agent? To that question I respond with these: Would the effect be any different if the employer had terminated the employment of the one employee as it was entitled legally, rather than allowing her to share the work? Would not the effect of an immediate termination have been worse. There is no need for a posting in this case and there is no labour relations purpose for so ordering. Having acted with the best of intentions, the employer could reasonably feel that it is being forced to "eat crow". Such a result does not affect the intent and spirit of the Act, nor does it enhance the reputation of the Board within the employer community that it serves.
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 PELATIONS BOARD ISSUED AFTER A HEARING IN WHICH WE AND THE UNION PARTICIPATED, THE ONTARIO LABOUR RELATIONS BOARO FOUND THAT WE VIOLATED THE LABOUR PELATIONS ACT
BY THE WORK SCHEDULES EFFECTIVE APRIL 1, 1981 FOR LAURA DIBBS AND JANICE GRAHAM.
THE FACT PROVIDES THAT WHERE A TRADE UNION REPRESENTS ALL THE EMPLOYEES IN A BARGAINING UNIT AND HAS GIVEN WRITTEN NOTICE OF ITS DESIRE TO BARGAIN WITH A VIEW TO MAKING A COLLECTIVE AGREEMENT AND NO COLLECTIVE AGREEMENT IS IN OPERATION, THE EMPLOYER SHALL NOT, EXCEPT WITH THE CONSENT OF THE TRADE UNION ALTER THE RATES OF WAGES OR ANY OTHER TERM OP CONDITION OP EMPLOYMENT OR ANY RIGHT, PRIVILEGE OR DUTY OF THE EMPLOYER, UNTIL THE MINISTER OF LABOUR HAS APPOINTED A CONCILIATION OFFICER OR MEDIATOR UNDER THE LABOUR PELATIONS 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.
WE WILL NOT DO ANYTHING WHICH INTERFERES WITH THIS RIGHT OF THE TRADE UNION. WE WILL PAY LAURA DIBBS AND JANICE GRAHAM ANY EARNINGS LOST AS A RESULT OF THE WORK SCHEDULES WE ESTABLISHED AS OF APRIL 1, 1981 PLUS INTEREST.
MERRYMOUNT CHILDREN'S HOME
PER: (AUTHORIZED PEPRESENTATIVE)
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 25TH day of JUNE . 1981.