Carleton Roman Catholic Separate School Board Employees' Association v. Carleton Roman Catholic Separate School Board, 1984 CanLII 1063

Carleton Roman Catholic Separate School Board Employees' Association v. Carleton Roman Catholic Separate School Board

[1984] OLRB Rep. February 205

0745-83-U; 0991-83-U Carleton Roman Catholic Separate School Board Employees' Association, Complainant, v. Carleton Roman Catholic Separate School Board, Respondent

BEFORE: Ian C. Springate, Vice-Chairman, and Board Members J. Wilson and F. S. Cooke.

APPEARANCES: Philip W Augustine, Carol Rutledge, Marcel Laframboise and Gilles Lacasse for the complainant; John Read, Steve Richardson, Phil Roussy and Don Pajot for the respondent.

DECISION OF THE BOARD; February 22, 1984

1These proceedings arise out of two related complaints to the Board under section 89 of the Labour Relations Act. The complaints allege that the respondent school board violated sections 64, 66, 70 and 79(2) of the Act.

2The complaints break down into two general categories. One relates to the allegation that the respondent violated sections 64, 66 and 70 of the Act. As will be set out in more detail later, these sections prohibit an employer from interfering in the formation, selection or administration of a trade union, discriminating against trade union members, or seeking by intimidation or coercion to compel any employee from becoming or continuing to be a member of a trade union. The second aspect of the case relates to section 79(2) of the Act. This section provides that once an employer has received notice that a trade union has applied to be certified to represent its employees~ existing conditions of employment as well as any rights, privileges or duties of both the affected employer and employees are "frozen" until the certification application has been disposed of.

3Prior to the formation of the complainant Association, most of the school board's non-teaching staff dealt with the school board through an informal staff-liaison committee. The school board, however, formally bargained with two teacher organizations, namely, the Ontario English Catholic Teachers Association and the L'association des enseignants franco-ontariens, as well as with the Canadian Union of Public Employees with respect to its school secretaries. In November of 1982, a number of bus drivers in the employ of the school board raised certain complaints concerning their working conditions, including an allegation that one of their supervisors had been threatening and insulting employees. It was also contended that two drivers had been discharged without just cause. In December of 1982 members of the staff-liason committee began to discuss the desirability of forming an organization which could be certified under the Labour Relations Act to represent non-teaching staff, including drivers, janitors and office and clerical staff. At least one of the motivating factors behind this move appears to have been the unresolved complaints of the bus drivers. On or about February 23, 1983 a meeting was held to take the first steps towards forming the complainant Association. A second meeting of employees was held on or about March 26, 1983 at which the formation of the Association was completed.

4During the period when the formation of the Association was still in the discussion stage, the school board began consideration of its 1983 budget. On November 30, 1982 Mr. F. N. Roussy, the school board's superintendent of finance and administration, set out a proposed time schedule for preparing and receiving final approval for the budget. Mr. Roussy's staff prepared a first budgetary estimate on January 31, 1983. This estimate, with certain alterations, was presented to the trustees of the school board on February 15, 1983. The revenue side of the estimate was based upon both a projected increase in grants from the provincial government as well as a nine per cent increase in the local tax rate. One of the major costs of operation on the projected expenditure side related to transportation costs. As at February 15, 1983, the estimated transportation costs stood at $6,021,638.

5Approximately 13,000 students are transported daily to the various schools operated by the respondent school board. Approximately eighty per cent of these students are transported by private transportation firms operating under contract with the school board. The remaining twenty per cent are transported on buses owned and operated by the school board. The school board employs both full and part-time drivers for this purpose, although in recent years whenever a full-time driver has left the school board's employ, he or she has been replaced by a part-time driver. In the 1982-83 school year the school board employed eleven full-time and forty-two part-time drivers. Most of the part-time drivers were paid for six hours per day eleven months per year. All of the full-time drivers were paid for eight hours per day twelve months per year. In 1981 the school board had considered reducing the complement of full-time drivers to six, but had decided against it.

6In 1982 the school board spent a total of $5,201,252 in transportation costs. In calculating its 1982 grants to the school board, the provincial government had allocated $4,760,320 for transportation expenses. Accordingly, $440,932 of the 1982 transportation costs had to be made up from local tax revenues. As already indicated the preliminary estimates for 1983 indicated a transportation cost of $6,021,638. It was anticipated that the provincial government would cover $5,407,939 of this expense, leaving a shortfall of $613,699, which was close to $173,000 more than the equivalent amount in 1982. This initial projection caused Mr. Roussy to look for some means of reducing transportation costs.

7At Mr. Roussy's direction, the staff of the school board used daily logs kept by the drivers to prepare a schedule of the times actually spent by the drivers transporting children on their buses. The resulting schedule did not include either driving time to and from pick-up and drop-off points or the time required for other duties such as safety checks on the buses.

The schedule indicated that although the drivers were getting paid for either six or eight hours of work per day, many were actually transporting children for less than three hours per day, with the maximum time being just under four hours. In light of these results, Mr. Roussy concluded that substantial sums could be saved by paying drivers for the hours that they actually worked.

8On April 21, 1983 the provincial government advised the school board as to the amount of grants it would be receiving. Although the amount with respect to transportation costs was about as projected, the overall amount was considerably less than the board had budgeted for. In response, the finance committee of the school board decided to raise the increase in local taxes by eleven per cent instead of the planned nine per cent. This, however, still left the school board with a projected deficit of some 1.9 million dollars. Accordingly, the finance committee of the school board directed that the preliminary expenditure estimates be revised to achieve a reduction of this amount.

9On April 28, 1983 Mr. Roussy forwarded to the school board's Director of Education a summary of various proposed reductions. These reductions were spread throughout the budget, with the largest item being a reduction in excess of one million dollars in the "education sectors" which takes in items such as desks, books and school supplies. One of the proposed reductions involved a cut of some $216,650 from the transportation department budget, a cut which would leave the amount of transportation costs not covered by the provincial government transportation grant at about the same level as the previous year. Part of the projected savings in the transportation department was based on the premise of only paying the drivers for the hours that they actually worked. Since this change was only slated to commence at the start of the 1983-84 school year, the resulting cost savings would not be fully recognized until the 1984 fiscal year. A note to the April 28, 1983 document described the proposed changes as follows:

"Reduction of full-time drivers i.e. 12 months — 8 hours per day to maximum 5 hours per day, 10 months per year effective September 1, 1983. Part-time drivers to be also on a 10-month year from the current 11 months with a maximum of 5 hours per day from 6 hours per day. (Estimated annual saving $100,000)."

10At a May 3, 1983 meeting of the school board trustees, the chairman of the board's finance committee presented a budget proposal which included the cuts proposed by Mr. Roussy. The cuts involved some reduction in janitorial services. In their discussion of the budget proposals, the trustees voted to add $150,000 to the amount budgeted for janitorial services, with the extra money to come from increased tax revenues. The evidence indicates that this addition arose out of a concern among certain of the trustees that without it the janitorial services in the schools might suffer. Janitorial staff are included among the members of the complainant Association. The proposed budget, with the additional $150,000 for janitorial services, was adopted by the trustees with no further changes.

11On May 3, 1983, the same day that the budget was adopted by the school board, the Association filed an application for certification with this Board. The school board received formal notice of the application from the Board on May 5, 1983. Because of certain difficulties with its membership evidence, the Association decided to withdraw its application and have employees sign new membership documents. The application was withdrawn on or about May13, 1983.

12On May 16, 1983 Mr. Roussy and certain of his staff met with the bus drivers. At this meeting Mr. Roussy announced that as of September 1, 1983 all drivers would be paid on a ten month a year, five hours per day basis. This five hours was based on the assumption that drivers' runs in the morning and afternoon would take one and one half hours and the noon runs two hours. Mr. Roussy indicated that he would subsequently put these changes in writing.

13On June 7, 1983 the Association filed a second application for certification. On the same day a meeting was held of the school board trustees. At the meeting, Mr. Roussy advised the trustees as to the reaction of the drivers to the announcement of the changes affecting them, and also discussed with them the manner in which the changes were to be implemented. There then followed a discussion among the trustees as to whether the matter need be voted upon again, with the consensus being that it should be. A vote was then held in which the trustees by a nine to five margin approved the following resolution with respect to the changes:

"That the staff reorganization be approved as presented verbally at the committee of the whole meeting of June 7, 1983."

14On June 8, 1983, Mr. Roussy forwarded a memorandum to the bus drivers. The most relevant parts of the memorandum stated as follows:

"This memorandum summarizes the verbal presentation made by the undersigned at a special meeting of bus drivers held at St. Bernard School on Monday, May 16th, 1983.

It was announced at the above-mentioned meeting that the Board, through the adoption of its 1983 Budget, had approved a major reorganization of school bus drivers' hours to take effect September 1st, 1983 for the school term 1983-84.

The changes adopted by the Board were as follows:

(A) All bus drivers to be on a 10-month year, September 1st to June 30th.

(B) Maximum number of daily hours is five (5) hours with the exception of routes which may require additional time

— hours of pay will be calculated on the following basis:

a.m. bus run 1.5 hrs

p.m. bus run 1.5 hrs

noon hour run 2 hrs

5 hrs

— the daily inspection of vehicles required by the Department of

Transport is included in the above five (5) hours daily;

— drivers with no noon hour run shall be paid three (3) hours daily;

— drivers will be paid to take buses in for maintenance as required by local supervisors.

In conclusion and as was mentioned at the meeting, it is my intention to meet the drivers in each area during the week of June 20th. 1983 to discuss fully the implementation of the above as well as other topics which may be of general interest. A schedule of these meetings will be sent out as soon as it is finalized. Should additional information be required, you are invited to contact Mr. LeBlanc, Manager of Transportation & Assessment.

15The school board received notice of the Association's second application for certification on June 10, 1983.

16At a meeting of trustees held on June 21, 1983, a motion was made that the changes affecting the bus drivers be reconsidered as having been adopted without sufficient review. Seven trustees supported the motion while six opposed it. Because of a rule that any motion to reconsider a previous motion must have the support of two-thirds of the trustees, the reconsideration motion did not succeed, and accordingly, the matter was not re-opened.

17On July 7, 1983 Mr. Roussy met with the drivers to again review the proposed changes. At the end of the meeting, Mr. Roussy advised the full-time drivers that if they so desired, they could work an additional three hours per day doing janitorial work. Together with five hours pay for their driving, any drivers selecting this option would continue to be paid for eight hours per day. Only a relatively small number of drivers opted to perform janitorial work. Some of the drivers apparently felt they were not suited for this type of work, while others concluded that it would result in an overly long workday. Mr. M. Laframboise, one of the drivers who did decide to perform janitorial work, testified that as of September 1983, he has been starting work at 6:45 a.m., returning home about 4.45 p.m., and then in the evening driving sixteen miles to work for three additional hours as a janitor.

18Although Mr. Roussy's June 8, 1983 memorandum indicated that drivers who were required to work more than five hours per day would be paid for the additional time, the school board has been paying all drivers on the basis of five hours per day. This is based on the assumption that the drivers can complete their work within five hours of actual working time. However, in these proceedings, one of the drivers, Mr. Laframboise, testified that because his route is very spread out, he spends in excess of six hours per day in connection with his driving, although he is only paid for five hours. It appears that during the period covered by the logs used to prepare the schedule of driving times, Mr. Laframboise had not been driving this particular route.

19As noted earlier, one aspect of the Association's complaint is based on the allegation that the school board violated sections 64, 66 and 70 of the Act. These sections provide as follows:

"64. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence."

"66. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act."

"70. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act."

20In support of its contention that the above provisions had been violated, the Association relies in part on the manner in which the school board dealt with its drivers in November of 1982, as well as what it characterizes as the summary discharge of two of the drivers. A difficulty with this contention, however, is that the events being complained of occurred prior to any steps being taken to form the Association. Indeed, it was the conduct in question which in part triggered the formation of the Association. Accordingly, it cannot be the case that the school board's conduct was based on anti-union considerations. The Association also relies on the change in the manner of paying the drivers, contending that it was motivated by anti-union considerations and was intended to disrupt the Association. The evidence taken as a whole, however, does not support this contention. It is noteworthy in this regard, that the trustees voted additional sums for janitorial services, even though the janitorial staff belong to the Association. Taking all of the evidence into account, it appears that the school board's motivation was one of seeking to cut expenses as a result of lower than anticipated provincial government grants, rather than a desire to interfere with the Association's formation, or its desire to represent employees. However one might view the wisdom of the school board's actions, we are satisfied they were not motivated by anti-union concerns and that they did not violate sections 64, 66 or 70 of the Act.

21The second aspect of the case relates to the "freeze" which comes into force once a trade union has applied for certification. Section 79(2) of the Act provided as follows:

"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 14, (i.e. notice to bargain after being certified) in which case subsection (1) (i.e. another "freeze") applies; or

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

22The parties are at issue on several matters. One relates to the question of whether the changes affecting the bus drivers amounted to the type of alteration of terms or conditions of employment referred to in section 79(2). The parties also disagree on the point in time that any such alteration could be said to have occurred. Finally, the parties disagree as to the time period or periods that a freeze was in effect.

23The school board contends that its action did not involve the alteration of terms or conditions of employment of the drivers. The school board contends that it was merely carrying on "business as before", in that it always had the right to alter the manner in which it paid its drivers. In support of its position, the school board relies on the fact that in addition to dealing with matters affecting employees, section 79(2) also preserves ". . .any right, privilege or duty of the employer...". The school board contends that this preserved its right to alter the manner of paying the drivers.

24The purpose of section 79(2) is to maintain the prior pattern of an employment relationship while an application for certification is pending. A similar freeze period provided for in section 79(1) maintains that pattern while the parties are negotiating a collective agreement. These provisions ensure that there will be no unilateral alteration in the status quo which may give one party an unfair advantage either from the point of view of propaganda or collective bargaining. To this end, section 79(2) preserves existing terms and conditions of employment while also maintaining existing employer rights and privileges. At first glance, these appear to be somewhat contradictory, since the employer may have had the legal right to change certain conditions of employment. The board has resolved this apparent contradiction by interpreting section 79 to mean that an employer may continue to operate its business as it has done so in the past. The right of an employer to carry on its business subject only to the stabilizing effect of section 79 was elaborated upon the Board in Spar Aerospace Products Ltd. [1978] OLRB Rep. Sept. 859. Although this case primarily dealt with the freeze which comes into force after a union has served notice to bargain, the following comments are equally applicable to the freeze triggered by a certification application:

"23. The 'business as before' approach does not mean that an employer cannot continue to manage its operation. What it does mean is simply that an employer must continue to run the operation according to the pattern established before the circumstances giving rise to the freeze have occurred, providing a clearly identifiable point of departure for bargaining and eliminating the chilling effect that a withdrawal of expected benefits would have upon the representation of 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 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.

24. The Board recognizes that this approach differs from that taken by our federal counterpart in Royal Bank of Canada, supra. That Board appears to have interpreted the freeze as prohibiting an unilateral action by the employer during the period of the freeze. Such actions, in that Board's view would be "incompatible with the exclusive role of a bargaining agent and the collective bargaining regime of the Code". This reasoning overlooks the fact that a full collective bargaining regime is not created by the mere giving of notice to bargain. Rather, 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 79 as requiring the parties to simply conduct 'business as before'."

25Can it be said in this case that the school board was carrying on business as before? We believe not. There was a firm and established practice by which full-time drivers were paid for eight hours per day, twelve months per year, and part-time drivers five hours per day, eleven months per year. There did not exist a practice by which the school board altered its system of paying the drivers based upon changing circumstances or differences in hours actually worked. By changing the system of paying its drivers, the school board was not carrying on business as before, but rather was drastically altering its existing practices. The changes were substantial and in our view involved an alteration to the existing terms or conditions of employment of the drivers.

26Having regard to our reasoning set out above, we are satisfied that the changes implemented by the school board are the type of alterations governed by section 79(2), and that during a freeze period they could not have been instituted by the school board without the consent of the Association.

27The next issue concerns the point in time at which the alteration in the conditions of employment of the drivers can be said to have occurred. The school board began its budgetary considerations in November of 1982, while the changes affecting the payment of bus drivers were not actually implemented until September of 1983 at the commencement of the 1983-84 school year. The parties take differing positions as to the point in time during this rather lengthy time span that it can be said that the alteration occurred. The school board points to several possible dates, but contends it was certainly no later than the adoption of the budget by the trustees on May 3, 1983. The Association, however, contends that the earliest possible date was June 21, 1983, the date the trustees last dealt with the matter.

28The Board has long recognized that the existing pattern of an employment relationship may contain a prospective element. In the Scarborough Centenary Hospital case [1969] OLRB Rep. Jan. 1049, the Board concluded that a section 79 freeze preserved not only the wages being paid to employees, but also any additional amounts promised prior to the freeze that were to be implemented during the freeze period. Similarly, in the Hostess Food Products Ltd. case [1975] OLRB Rep. Mar. 210, the Board found that an employer contravened section 79(2) by failing to implement a substantial wage increase announced prior to the employer receiving notice of an application for certification. The Board has, however, also concluded that for a freeze period to operate effectively it must be in relation to rights and privileges known to both the employer and employees. Accordingly, the Board has consistently required that a firm decision to change terms and conditions of employment or employee privileges must be actually communicated to the employees prior to the onset of the freeze period if it is not to be caught by the freeze. See Carleton University [1978] OLRB Rep. Feb. 184; Ottawa General Hospital [1978] OLRB Rep. Oct. 1461 and Le Patro d'Ottawa [1983] OLRB Rep. Feb. 244.

29In the instant case, on May 3, 1983, the trustees of the school board adopted a budget based upon the alterations in paying the drivers, and the alterations were orally communicated to the drivers on May 16, 1983. On June 7, 1983, however, the trustees discussed how the changes were to be implemented as well as staff reaction to the changes. After some discussion about whether another vote need be taken, the trustees voted to approve the reorganization. On June 8th the drivers were provided with written memorandum describing the changes in the method of payment. On June 21, 1983 a motion was made to reconsider the matter, but because the motion lacked the support of two-thirds of the trustees, the matter was not re-opened.

30On the evidence, we are satisfied that at the June 7, 1983 meeting the trustees of the school board made a firm decision to alter the conditions under which the drivers were paid, and that this decision was communicated to the drivers no later than June 8, 1983 by way of the written memorandum from Mr. Roussy. The fact that it was a firm decision is highlighted by the fact that at the June 21, 1983 meeting, a motion was made to reconsider the change, and because it was a reconsideration motion it failed as lacking the backing of two-thirds of the trustees. Doubtless the two-thirds rule is in place to ensure that decisions already made cannot easily be re-opened. In this case, the decision affecting the drivers was not re-opened, rather the decision already made was allowed to stand. In these circumstances, we are satisfied that the school board announced a firm plan to change its method of paying the drivers no later than June 8, 1983.

31The only remaining issue is whether June 8, 1983 was within a time period covered by a section 79(2) freeze. The Association contends that a freeze commenced on May 5, 1983, the date the school board received notice of the initial application for certification, and that it was still in effect at all relevant times. We are unable to agree. A freeze did come into force on May 5, 1983. However, on the basis of the clear language of section 79(2), we must conclude that this freeze came to an end when the application was withdrawn by the Association, that is, on or about May 13, 1983. The second application was filed on June 7, 1983. Section 79(2) provides that a freeze period commences when notice of an application is received by the employer from this Board, which was on June 10, 1983. June 10, 1983 was subsequent to both the adoption of the changes by the school board, and the communication of those changes to the drivers in writing. Accordingly, the changes were not caught by the freeze period which began on June 10, 1983.

32The legal issues in this case relate solely to the question of whether the changes implemented by the school board were the result of an anti-union animus, or whether they were made during a section 79(2) freeze. The issue is not whether we agree with the school board's decision, or the manner in which it was implemented. Further, although the evidence does indicate that at least one driver is required to perform certain work for which he is not paid, that is not a matter covered by the Labour Relations Act, and accordingly, this Board has no statutory authority to rectify the situation. We would n6te, however, that there are other legal remedies open to the driver in question.

33In that we are satisfied that the actions of the school board were not in violation of sections 64, 66, 70 or 79(2) of the Labour Relations Act, these complaints are hereby dismissed.