[1985] OLRB Rep. February 337
0891-84-U United Food and Commercial Workers International Union, Local 1000A, Complainant, v. Sunnybrook Foods Limited, Respondent
BEFORE: S. A. Tacon, Vice-Chairman, and Board Members J. A. Ronson and B. L. Armstrong.
APPEARANCES: Elizabeth J. Lennon, Sheila Mcintyre and Pearl McKay for the applicant; S.C. Bernardo and Julie Goodbaum for the respondent.
DECISION OF THE BOARD;
The complainant union filed a complaint under section 89 of the Labour Relations Act alleging several violations of sections 64, 66, 71 and 79 of the Act. All but two allegations were resolved by the parties prior to the date scheduled for hearing; that settlement was not filed with the Board.
The two remaining allegations both deal with the statutory freeze provision, section 79. That is, the complainant alleges that the respondent violated section 79 by failing to pay to its part-time employees a minimum wage increase in October, 1984 and a Christmas bonus in December, 1984.
The hearing proceeded on the basis of the following agreed statement of facts:
B E T W E E N:
UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, LOCAL 1000A
— and — SUNNYBROOK FOODS LIMITED
AGREED STATEMENT OF FACTS
On September 14, 1981, Sunnybrook Foods Limited ("Sunnybrook") and the National Council of Canadian Labour, Local 206 ("N.C.C.L.") entered into a collective agreement effective December 11, 1981, to June 30, 1984 covering all part-time employees of Sunnybrook in Ontario.
There are five Sunnybrook stores in Ontario at the following locations:
26 Kennedy Road North Brampton, Ontario
221 Wilmington Avenue Downsview, Ontario
1050 Simcoe Street North Oshawa, Ontario
81 George Street Market Plaza Peterborough, Ontario
10341 Yonge Street Richmond Hill, Ontario
On June 14, 1984 the United Food and Commercial Workers International Union, Local 1000A ("the Union") applied for certification of all part-time employees of Sunnybrook in Ontario.
On June 21, 1984, Form 7 Notices were posted at all five Sunnybrook locations.
On June 30, 1984 the N.C.C.L. collective agreement expired. The N.C.C.L. had given the Company Notice to Bargain pursuant to Article 23.01 of the aforementioned collective agreement and bargaining had commenced prior to the Application for Certification being filed.
By order of the Labour Relations Board a pre-hearing representation vote was held at all five stores on July 14, 1984. The Complainant union won the representation vote.
On August 15, 1984 their parties met with Labour Relations Officer D. Dunn and agreed to clarify the description of the bargaining unit to read as follows:
All employees of Sunnybrook Foods Limited in its stores in Ontario regularly employed for not more than twenty-eight (28) hours per week and students employed during the Easter vacation, the Christmas vacation or the period May 14th to September 17th, inclusive, save and except department managers, porters, and head office and warehouse staff.
On August 29, 1984 the Labour Relations Board issued a certificate certifying the United Food and Commercial Workers Local 1000A as the trade union representing part-time employees as defined in paragraph seven above for all Ontario Sunnybrook stores.
On August 30, 1984 the Union served notice to bargain on Mr. M. Goodbaum then President of Sunnybrook.
Prior and subsequent to the pre-hearing representation vote on July 14, 1984, the Union filed several unfair labour practice complaints with the Labour Relations Board. By agreement of the parties all but two complaints were settled on January 8, 1985. The two outstanding complaints are the subject of the current proceedings before the Board. Both complaints are allegations that Sunnybrook has violated Section 79(1) of the Labour Relations Act by failing to pay to part-time employees wages or benefits referred to in Article 19 and Article 16.03 in the N.C.C.L. collective agreement.
Article 19 of the N.C.C.L. agreement states:
If the Ontario minimum wage increases during the term of this agreement, all employees with one or more years of service shall receive an increase equal to the increase in the minimum wage.
On October 1, 1984, the Ontario minimum wage increased by fifteen (15) cents per hour. Although Sunnybrook increased by fifteen cents the wages of all employees earning minimum wages on or before October 1, 1984, it did not increase the wages of part-time employees entitled thereto pursuant to the terms of Article 19 of the N.C.C.L. agreement.
- Article 16.03 of the N.C.C.L. agreement reads as follows:
A Christmas bonus of $15.00 will be paid each year to employees who have completed 12 months consecutive service as of December 1st of that year, $20.00 after 36 months of consecutive service and $25.00 after 60 months of consecutive service.
No such bonus was paid to eligible part-time employees in December, 1984.
- The parties also filed the collective agreement between the respondent and the National Council of Canadian Labour, Local 206 (N.C.C.L.), referred to in item 1 of the agreed statement of facts. Articles 16.03 and 19 have already been reproduced above (items 11 and 12). It is also useful to set out Article 23.01 of the collective agreement at this point:
ARTICLE 23 — DURATION OF AGREEMENT
23.01 This Agreement shall remain in effect to June 30/84, and, unless either party gives to the other party written notice of termination or of its desire to amend the Agreement, then it shall continue in effect from year to year without change.
Counsel for the respondent agrees that there was a statutory freeze in effect at the relevant times. However, counsel pointed to the expiration of the collective agreement on June 30, 1984 coupled with the operation of section 56 which, as of August 29, 1984, terminated the N.C.C.L.'s bargaining rights as critical factors preventing the two challenged payments from being "caught" by the freeze. Counsel argued that the words in section 56(1), "..... and the agreement ceases to operate in so far as it affects such employees" meant that, after August 29th, the freeze covered only the terms of the employees' individual contracts of employment, not the terms of the collective agreement itself. The terms of those individual contracts of employment, it was argued, were to be determined by examining the employer's practice as of August 29th. Rights, such as vacation entitlement, which accrued throughout the year would be incorporated into the individual contracts of employment whereas rights occurring sporadically under the previous collective agreement (i.e., Christmas bonus, wage increase corresponding to a rise in the minimum wage) would not be so incorporated. Moreover, counsel stressed that this argument was even stronger with respect to the wage increase in view of the expressly limiting words in Article 19 of the collective agreement, namely, "..... during the term of this agreement.. .". Thus, counsel for the respondent submitted that the payments were not covered by the statutory freeze. Counsel did not refer the Board to any jurisprudence although the cases cited by the applicant's counsel were distinguished. Those comments are set out infra, at paragraph 7.
Counsel for the complainant submitted that, in view of the notice to bargain by the N.C.C.L., the certification application and subsequent certification by the complainant and the notice to bargain by the complainant, there was no "gap" in the freeze period to date to nullify the terms and conditions of the N.C.C. L. collective agreement. It was argued that, where there was no previous collective agreement, the content of the statutory freeze was determined by employer practice and employee expectations. However, where there was a collective agreement in existence at the point the freeze commenced, the content of the freeze should be assessed by reference to that document. Counsel referred to Kodak Canada Ltd., [1977] OLRB Rep. Feb. 49 in support of its position, particularly that the phrase "during the term of the collective agreement" did not preclude the substance of a clause containing that limitation from being "frozen". Counsel also cited Re Haldimand-Norfolk Regional Health Unit and Ontario Nurses' Association et al., Re Perth District Health Unit and Ontario Nurses' Association et al., (1981), 1981 CanLII 71 (ON CA), 120 D.L.R. (3d) 101 (Ont. C.A.) and Spar Aerospace Products Limited, [1978]OLRB Rep. Sept. 859. In summary, counsel contended that the two disputed payments were terms and conditions of employment caught by the freeze and, with reference to the effect of section 56, that the legislature would not have intended that section to operate so as to derogate from what would otherwise have been frozen because the employees had exercised their statutory right to select a different bargaining agent. In remedy, counsel sought the payment of the bonus and wage increase. The complainant also requested a posting to ensure compliance with the Board order and to publicly and formally restore the status quo, especially the employees' perception of the events subsequent to the complainant's certification application.
Counsel for the respondent distinguished Kodak, supra in that Kodak dealt with a right or privilege of a trade union in the context of employer past practice and should not be read broadly to apply to terms and conditions of employment where there was no such "estoppel" aspect, there was a "new” union and the operation of section 56 of the Act. The impact of section 56 was cited as distinguishing Spar Aerospace, supra, and Haldimand, supra; in the latter case, it was asserted an estoppel element was also present and a factor differentiating that case from the circumstances here. Counsel, in opposing the posting request, argued that there were no compelling policy reasons warranting such a remedy. If the Board found for the complainant, the Board could simply remain seized to ensure compliance with any order.
Section 79 of the Act reads, in part:
79.-(l) Where notice has been given under section 14 or section 53 and no collective agreement is in operation, no employee 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 (I) applies; or
(b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.
The first question is whether the Christmas bonus and the entitlement to a wage increase are "terms or conditions of employment" despite the fact that the former is a "sporadic" event and the latter is triggered by the occurrence of an event outside the control of the parties to the collective agreement, namely, an increase in the minimum wage. Matters so intimately related to wages cannot but be regarded as terms and conditions of employment. The fact that a bonus occurs only once in a twelve-month period does not change the nature of the payment. (The Board notes that, despite the use of the term "bonus", the wording of Article 16 makes it clear that payment is an obligation, not a gratuitous act, of the employer.) Further, an obligation to increase wage rates triggered by an external event (and. COLA payments are common examples) is no less part of the wage structure because of this external trigger. Thus, both items are caught by the freeze triggered on June 14, 1984 by the complainant's certification application.
Moreover, the Board affirms the reasoning in Kodak, supra, that the qualification "during the term of the collective agreement" cannot serve to thwart the legislative intent in section 79 to preserve the totality of the framework of employer-employee relations during the period of the freeze. The extreme example, where parties use that phrase in every clause of the collective agreement, would result in nothing being "frozen" if the analysis in Kodak, supra, is rejected. Because the Board regards both Articles 16 and 17 as frozen as of June 14, 1984, it is not necessary to deal specifically with Spar Aerospace, supra, with respect to a future promise to increase wages at a time which fell within the freeze. That is, both Articles 16 and 19 continue in full force and effect throughout the duration of the freeze.
What is frozen as of June 14, 1984 is not simply the terms and conditions of employment codified in the collective agreement (as yet unexpired) but the "rights" and "privileges" of the employees as well: Ontario Hydro, 11983] OLRB Rep. Sept. 1536; Scarborough Centenary Hospital, [1978] OLRB Rep. July 679; Manuel DaSilva Foods Ltd., [1984] OLRB Rep. June 834. Thus, where there is a collective agreement in force at the date of the freeze, that collective agreement is the starting point for determining the content of the freeze. The collective agreement, however, does not comprise the sole source, rights and privileges are frozen in addition.
Had the freeze solely been triggered under 79(1) by the N.C.C.L.'s notice to bargain (which the parties agreed was properly given before the expiry of the collective agreement), there would have been no doubt that Articles 16 and 19 would have been caught by the freeze and, unless the freeze had ended in accordance with the statutory provisions, the bonus and wage increase would be payable. Does the interposition of the certification application by the complainant change this outcome? We think not, for several reasons.
A certification application which involves the displacement of an incumbent bargaining agent by another nonetheless triggers section 79(2) in order to preserve the status quo pending the resolution of the bargaining rights sought by the applicant union: Manuel DaSilva, supra. The application may or may not be successful. Section 56(1) of the Act merely (but importantly) formalizes the displacement where the certification is granted. That is, without section 56(1) there would be two bargaining agents representing the employees in the same bargaining unit. Likewise, once the successful applicant concluded a collective agreement, there would be two such collective agreements operating in respect of the employees in the same bargaining unit. Section 56(1), then, avoids this chaotic situation by terminating the bargaining rights of the incumbent trade union that is or was a party to the agreement and rendering the agreement itself inoperative. The Board rejects the respondent's submission that the phrase "and the agreement ceases to operate insofar as it affects such employees" somehow changes the content of the freeze as of the date the applicant union is certified (i.e., August 29th). In the Board's view, this is tantamount to changing the content of the freeze in midstream. That is, what is frozen at the commencement of the freeze with respect to rights, privileges, terms and conditions of employment, continues unchanged throughout the entire period of the freeze. There is nothing in the language of section 79 which would suggest otherwise. [The Board notes that there is a change between 79(2) and 79(1) but that change serves to add to the freeze rights, privileges and duties of the newly certified trade union (and imposes corresponding obligations on the trade union).]
Moreover, the Board considers that there are no policy reasons relating to section 56 or to section 79 which would justify the result implicit in the respondent's argument. If a certification application succeeds but the result is to derogate from the freeze initially created under section 79(2) by the certification application, this would place the employees in a worse position for the remaining period of the freeze under section 79(1) for having exercised their statutory right to select another bargaining agent. The Board is not prepared to reach such a result absent express language in the statute.
Finally, the Board would refer to Ontario Hydro, supra. It is useful to briefly set out the chronology of relevant events in that case:
April 1, 1980 — March 31, 1982 — collective agreement (Hydro, OPEIU)
March 11, 1982 — termination application
June 21, 1982 — O.P.E.I.U. bargaining rights terminated
June 24, 1982 — CUPE Certification application
July 29, 1982 — interim certificate, notice to bargain
December 22, 1982 — employee discharged
The Board held that the "just cause" provision in the expired collective agreement continued throughout the period of the freeze and reinstated the employee, subject to a minor suspension. (It was not in dispute that the freeze period had not expired as of December 22, 1982). It was assumed in Ontario Hydro that the freeze under 79(2), triggered by CUPE's certification application on June 24, 1982, caught the "just cause" provision in the by-then expired collective agreement, notwithstanding a gap between the expiry of that agreement and the certification application of nearly three months or a gap (albeit brief) between the termination of OPEIU's bargaining rights and CUPE's certification application. In this case, there was no such gap — the complainant's certification application was filed before the expiry of the collective agreement. The termination of N.C.C.L.'s bargaining rights resulting from the certification of the complainant occurred during the freeze under section 79(2), one day prior to the notice to bargain being given by the complainant. That notice, of course, "converted" the freeze from one pursuant to section 79(2) to one in accordance with section 79(1). Thus, Ontario Hydro, supra, confirms this Board's view that the terms and conditions of employment set out in the collective agreement between the respondent and the N.C.C.L. did not cease to be part of the freeze as of August 29, 1984.
For the foregoing reasons, then, the Board finds that the respondent violated section 79(1) of the Act by failing to pay to eligible employees in the bargaining unit the Christmas bonus, in accordance with the provisions of Article 16.03 of the N.C.C.L.'s agreement. The Board further finds that the respondent violated section 79(1) of the Act by failing to pay to some employees in the bargaining unit the increase in wages pursuant to Article 19 of the N.C.C.L.'s agreement. The Board hereby directs the respondent to make such payments as calculated by the parties.
The Board, however, does not consider a posting as appropriate in the circumstances. The parties have themselves resolved all alleged violations of other sections of the Act. In respect of the allegations heard by this Board, the Board does not believe that the above declarations coupled with the compensation orders will not fully redress the violations of section 79(1) of the Act. In any event, however, the Board shall remain seized should a dispute arise over the calculation of the payments ordered or over the interpretation or implementation of this decision.