Service Employees Union, Local 204 v. Trailer Master Freight Carriers Limited, 1984 CanLII 909

[1984] OLRB Rep. April 561

2800-83-U Service Employees Union, Local 204, Complainant, v. Trailer Master Freight Carriers Limited c .o. b. as Atripco Delivery Service, Respondent.

BEFORE: Richard M. Brown, Vice-Chairman, and Board Members J. A. Ronson and F. S. Cooke.

APPEARANCES: Stephen Krashinsky and Aller Ferens for the complainant; Brian Burkett, Greg Service and Lloyd Service for the respondent.

MAJORITY DECISION OF BOARD MEMBERS F. S. COOKE AND J. A. RONSON;

April 18, 1984

Betty Hamilton uses her own car to make deliveries for the respondent employer ("Atripco"). Prior to February 1984 the car that she used was painted red. In February 1984 she purchased a new car and brought it to work on February 16th. She was told by Atripco that she would have to paint her new car black, according to company policy. She disputed that such a policy existed. Atripco sent her home and told her that it would provide work to her when she returned with a black car. As a result, the complainant union filed this complaint with the Board, alleging breaches of sections 64, 66, 70, 79 and 80 of the Labour Relations Act.
We are of the opinion that the complaint is valid because of what took place in certification proceedings between the union and Atripco before the Board. (Board File No. 0193‑83‑R). The parties agreed to the following facts before us:

(a) The Union applied for certification on April 27th, 1983. Various issues arose concerning the status of persons working for Atripco and in an effort to expedite matters the parties agreed to numerous stipulated facts before the Board panel hearing the certification;

(b) One of the stipulated facts was:

"While there was a policy that cars be painted black, this is not the case today (83/6/21) nor on the application date. At best, it is something that is encouraged";

(our emphasis)

"We are writing on behalf of Atripco Delivery Service (the "Respondent") to correct a misstatement of fact which was inadvertently submitted to the Board by the Respondent during the first day of hearings into the above-noted application.

It has recently come to our attention that the Respondent's policy has been, and remains, that each driver, when purchasing a new vehicle, is expected to purchase it in the colour black. Failing that, a driver is required to have the vehicle painted black at his own expense. This is contrary to our earlier submission to the Board wherein it was stated that each driver was encouraged to purchase a new vehicle in the colour black."

Counsel for Atripco advised us that evidence would be led to prove that since August, 1982 the employees have been divided into two groups, those hired before that month and those hired after. Those employees hired before August 1982 were encouraged to paint their cars black and if they purchased a new vehicle it had to be black. Those hired after had to have a black car from the start (although there was some leeway on compassionate grounds). Betty Hamilton was hired before August, 1982 and her replacement vehicle had to be black (as had been the case when 22 out of 64 drivers purchased replacement vehicles). When the parties agreed to the stipulated fact or car colour they were not directing their minds to the definition of terms and conditions of employment, rather it was simply one of a hundred facts that were stipulated in order to expedite the certification hearing. For the purposes of our decision, we are willing to accept these facts as being the best case of Atripco in defence of this complaint.
We believe that section 79(2) of the Act applies to the stipulated fact on car colour. That sections reads:

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, in which case subsection (1) applies; or

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

Atripco has attempted to withdraw its consent to the agreed condition of employment respecting car colour. That attempt was made after Betty Hamilton was sent home on February 16, 1984. Nothwithstanding the alleged mis-statement of fact we feel that, for the purposes of the Act, on that date there was no policy or condition of employment dealing with car colour that would apply to Betty Hamilton. We express no opinion as to whether on different facts it is open to the employer to withdraw its agreement to the stipulation on car colour.
Since Atripco has violated the "freeze" provisions of section 79(2), we direct that Betty Hamilton be returned to her position with full compensation together with interest. We note that at the hearing the union withdrew its other remedial requests. The Board remains seized should the parties not be able to agree on the amount owing to Ms. Hamilton.

DECISION OF RICHARD M. BROWN, VICE-CHAIRMAN;

In this complaint under section 89 of the Labour Relations Act, Local 204 of the Service Employees Union (the "union") contended the Trailer Master Freight Carriers Limited, carrying on business as Atripco Delivery Ser (the "employer") had contravened sections 64, 66, 70, 79 and 80 of the Labour Relations Act.
The grievor, Betty Hamilton is employed as a driver and is required to provide her own vehicle. Her car is painted red. On February 16, 1984, the grievor was told by the employer that she would have to paint her car black. As she has refused to comply with this direction, she has not worked since February 16th.
The union relies upon a statement of fact agreed to by the parties in a certification proceeding commenced on April 27, 1983. One of the issues in that proceeding was whether or not drivers were dependent contractors within the meaning of section l(1)(h) of the Act. On the 21st of June, 1983, the parties agreed to a long list of stipulated facts relating to this issue, including one relating to the colour of cars:

While there was a policy that cars be painted black, this is not the case today (83/6/21) nor on the application date. At best, it is something that is encouraged.

By letter dated February 20, 1984, the employer advised the Board that the statement of facts agreed to in the certification proceedings was inaccurate with respect to the colour of cars. The employer contended at the hearing before this panel that someone in the position of the grievor was required to have a black car by virtue of a policy which was introduced in August of 1982 and has remained unchanged since that date. According to the employer, persons employed prior to August, 1982 were not required to have the car that they drove on that date painted black — they were only encouraged to do so. However, the policy required that all replacement vehicles be black. (Of the twenty-three employees hired before August 1982 who have purchased new vehicles after that date, all but one acquired a black car. The single exception was an oversight on the part of management.) Persons employed after August, 1982 were required to have their cars painted black within 3 months of being hired. (There are approximately forty current employees in this category. The 3 months period was sometimes extended to accommodate an employee whose car would have to be replaced shortly after the normal deadline.) On the basis of this alleged policy, the employer contended the grievor was required to have a black vehicle. She was hired prior to August, 1982 and bought a replacement vehicle early in 1984.
The majority holds that the employer contravened section 79(2) of the Act:

(a) the trade union has given notice under section 14, in which case subsection (1) applies; or

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

In the view of the majority, whatever the policy about black cars on the date of the application for certification, the parties later agreed — in the stipulated list of facts — that employees were not required to have black cars. This agreement is treated by the majority as a term or condition of employment which cannot be altered until the section 79(2) freeze expires. Accordingly, they would find a violation even if the employer made an error in describing the terms and conditions of employment.
I cannot agree with the conclusion of my colleagues. I would not find an agreed term or condition of employment unless the employer either intended to create a new term or condition of employment or conducted itself so as to lead the union or employees to believe that a new term or condition had been established. In my view, neither of these conditions is satisfied in the case at hand. In the absence of evidence to the contrary, I assume that the employer's intention in the certification proceeding was to describe existing terms and conditions of employment, not to create new ones. Assuming the union's intention to be the same, I would not conclude that it was lead to believe that the existing policy about black cars had been altered. Nor would I conclude that employees were led to believe that the policy had been changed, as there is no evidence that any employees were aware of the statement of fact agreed to in a certification proceeding.
Accordingly, I would have to hear evidence relating to the true policy concerning black cars before turning to the other aspects of this complaint.