Food and Service Workers of Canada v. Windsor Arms Hotel Limited, 1985 CanLII 1036

[1985] OLRB Rep. August 1336

0431-85-U Food and Service Workers of Canada, Complainant, v. Windsor Arms Hotel Limited, Respondent

BEFORE: Lita-Rose Betcherman, Vice-Chairman, and Board Members D. M. Blair and B. L. Armstrong.

APPEARANCES: Ron Lebi and Cherie Campbell for the complainant; I. T. Bern and J. Bern for the respondent.

DECISION OF THE BOARD; August 21, 1985

This is a complaint under section 89 of the Labour Relations Act alleging that the respondent (1) altered terms and conditions of work during the freeze period in violation of section 79, and (2) discharged an employee for participating in a proceeding under this Act in violation of section 80. At the commencement of the hearing, the complainant union withdrew allegations of anti-union animus pursuant to sections 64, 66 and 70.
On April 19, 1985, the complainant was certified as the bargaining agent for the respondent's part-time employees. For some years it had represented the respondent's full-time staff in two other units.
At the time of the application for certification, the hotel's switchboard was operated by two full-time and two part-time employees; the grievor was one of the latter. A full-time switchboard operator had given notice some time earlier and on April 24th a full-time vacancy was posted. The grievor was one of several applicants for the job.
Meanwhile, an arbitration concerning the discharge of an employee named Susan Price was in progress. The first day of hearing in the Price arbitration took place on April 19, the second day of hearing on May 1st. The present grievor attended both days while off duty. She testified that Ms. Price and the union vice-president, Ms. Iler, had asked her to attend. She acknowledged that her offer to testify at the arbitration hearings had not been accepted by the union. In her own words, her purpose in attending the hearings was to provide ''emotional support" for Susan Price. Another bargaining unit employee also attended without being called to testify.
The hotel's sole witness at the Price arbitration hearings was Mr. P. Jamani, Front Desk Manager and supervisor of both Ms. Price and the present grievor. During Mr. Jamani's testimony on May 1st, the present grievor, who was seated at the rear of the room, suddenly stood up and made various remarks the purport of which was that the witness was lying. She then left the room. On reporting for her next scheduled shift on May 3rd, she was called into Mr. Jamani's office and handed a letter of termination. Shortly thereafter the other part-time switchboard operator was let go and two full-time operators were hired, one working five days a week and the other four days. (A four-day week constitutes full-time employment under the relevant agreement.) Thus the switchboard is now operated by three full-time employees.
In his testimony before this Board, Mr. Jamani stated that the grievor's outburst at the arbitration hearing precipitated her dismissal, but that her job performance had been unsatisfactory for some time. A letter of warning from Mr. Jamani to the grievor, dated March 1, 1985, was entered in evidence. He also stated that he had never intended to give her the full-time switchboard position. With regard to the change-over to full-time switchboard operators exclusively, Mr. Jamani stated that he preferred such an arrangement and that it was merely a return to an established practice. Evidence was adduced to establish that prior to 1982 the switchboard was staffed by full-time employees, two employees working five days a week and another working four days. Mr. Jamani testified that he had turned to the use of part-time employees on the switchboard around 1982 because of the difficulty in finding someone who would work a 4-day week. He stated that it was as a result of the April 24th job posting that he found such a person. According to his testimony, a part-time employee on the front desk came forward with a request to work four days a week. He therefore had no further need for part-time personnel on the switchboard.
The complainant argued that the elimination of the grievor' s part-time position represented an alteration in the terms and conditions of work during the freeze period and therefore a violation of section 79 of the Act. It was contended that eliminating part-time employees on the switchboard was a new departure and one which the employees could not have reasonably expected. Secondly, the complainant submitted that the discharge of the grievor was motivated, at least in part, by her participation in the Price arbitration, and since arbitration was a proceeding under the Act the discharge was in violation of section 80 of the Act.
As well as the grievor's reinstatement with full compensation, the union seeks a declaration that the respondent has violated the Act, an order that the respondent cease and desist, and a Board posting in the usual form.
While acknowledging that arbitration is a proceeding under the Act, the respondent maintained that the grievor was not protected by section 79 because she attended the Price arbitration hearing as an observer rather than a participant. It was averred that she was discharged because she was a thoroughly unsatisfactory employee. In addition to the evidence of the warning letter and her outburst against her supervisor at the arbitration hearing, counsel for the respondent pointed to her admitted confrontations with numerous members of staff and management during her short employment with the hotel. It was further contended that eliminating part-time positions on the switchboard was not a new departure but business as usual. The hotel had previously used full-time staff only on the switchboard and, the opportunity having presented itself, it had reverted to its original kind of scheduling.

Statutory Freeze Complaint

Section 79(1) and (2) of the Act states:

79.-(l) Where notice has been given under section 14 or section 53 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, whichever occurs first.

(2) 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.

Certification was granted on April 19, 1985. No notice to bargain having been served at the relevant period, the employment relationship is caught by the section 79(2) freeze.
In AES Data Limited, [1979] OLRB Rep. May 368, the Board described the rationale behind the statutory freeze thusly:

The purpose of section 70 [now 79] 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 bargaining or of propaganda.

In this light, the employer cannot reorganize work or restructure the work force for the duration of the freeze. While the workforce may be increased or decreased as conditions dictate, work cannot be contracted out or transferred out of the unit unless the employer communicated his intention of doing so prior to the freeze or the employer could establish an existing pattern or practice. See: Simpsons Limited, [1985] OLRB Rep. March 469. Furthermore, the Board recognizes that an employer may have to make appropriate adjustments if faced with a "first-time event" or new situation arising during the freeze.

In the instant case, the employer eliminated all part-time positions shortly after the union was certified as the bargaining agent for part-time employees. The consent of the union was neither sought nor given. The elimination of a bargaining unit classification must be regarded as a fundamental alteration in the employment relationship. There was no suggestion that the work had disappeared. It was simply transferred out of the bargaining unit. See Windsor Airline Limousine Services Limited, [1980] OLRB Rep. July 1147.
In the Board's view, there was no prior pattern to justify altering the employment relationship in this manner during the freeze. For over two years the employer had utilized part-time as well as full-time switchboard operators. The manager in charge of the switchboard testified that he preferred to use only full-time operators but there is no evidence that this preference was ever communicated to the employees. There was also no evidence that in the intervening two-year period the manager had tried to find someone who would work a 4-day week. As it happened, there was such a person already on staff. Nor were we told of any sudden change in this employee's circumstances enabling her to work a four-day weekly schedule. Consequently, the Board cannot accept the respondent's assertion that the elimination of the part-time switchboard operators and the changeover to full-time operators was in response to a new situation or "first-time" event. The Board finds that the respondent reorganized work and restructured the workforce during the freeze period in violation of section 79(2) of the Act.

Reprisals Complaint

Section 80 of the Act states:

80.-(l) No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,

(a) refuse to employ or continue to employ a person;

(b) threaten dismissal or otherwise threaten a person;

(d) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act.

(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,

(a) discriminate against a person in regard to employment or a term or condition of employment; or

(b) intimidate or coerce or impose a pecuniary or other penalty on a person,

The initial matter for determination is whether the grievor "participated" in the arbitration in question within the meaning of the section. It is clear on the evidence that she was not there to testify nor to advise the union party. The Board finds that she attended the hearings in the capacity of an observer. Nevertheless, the possibility must not be ruled out that attendance alone, signifying union support, could evoke management reprisals. Had the grievor done nothing more than observe, the Board might have drawn an adverse inference from the fact that she was discharged soon after the hearing. However, the grievor did much more than that. In the presence of the arbitrator, members of management and staff, she called out that her supervisor was lying on the stand. The Board is of the view that her behaviour was potentially prejudicial both to the respondent and to the witness. At the very least, it constituted serious interference with the arbitration process. Coupled with a not entirely satisfactory record, as attested to by a letter of warning, it is not surprising that she was terminated by the supervisor she had publicly maligned. The Board finds that the grievor was not discharged for participating in the arbitration. We are confirmed in this finding by the fact that another employee who attended the hearings was not discharged. On the bare facts of this case, the respondent has satisfied the Board that in discharging the grievor it did not contravene section 80 of the Act.
Insofar as the grievor is concerned, the complaint fails. Even if the respondent had not restructured the work force, the grievor would have been terminated. However, the complaint that the respondent contravened the statutory freeze by eliminating the position of part-time switchboard operator is upheld. The Board orders the respondent to return to the staffing pattern on the switchboard which obtained at the commencement of the freeze, i.e. the use of part-time as well as full-time operators, and to maintain this pattern for the duration of the freeze. Any further remedy will be left to the parties. The Board will remain seized of the matter in the event that they encounter difficulties.