[1985] OLRB Rep. January 98
0965-84-U(D); 0965-84-U(E) Ontario Public Service Employees Union, Applicant, v. Oshawa General Hospital, York-Finch General Hospital, Respondents.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and B. Armstrong.
APPEARANCES: Paul Cavalluzzo, George Mitchell, Pat Rout and Anne Marie Hesper for the applicant; Allan Shakes and R. E. Duchemin for Oshawa General Hospital; Allan Shakes and Margaret E. McClelland for York-Finch General Hospital.
DECISION OF THE BOARD; January 25,1985
- This is a complaint under section 89 of the Labour Relations Act, alleging that the respondent hospitals violated section 13 of the Hospital Labour Disputes Arbitration Act when they raised their fees for employee parking during the statutory "freeze" period. Section 1 3 provides:
Notwithstanding subsection 79(1) of the Labour Relations Act, where notice has been given under section 14 or 53 of that Act by or to a trade union that is the bargaining agent for a bargaining unit of hospital employees to which this Act applies to or by the employer of such employees and no collective agreement is in operation, no such 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 such 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, until the right of the trade union to represent the employees has been terminated.
Both of these hospitals are participants in "joint bargaining" now underway for the renewal of their respective collective agreements, which expired December 31, 1983. The outstanding issues are on their way to arbitration, and included in those issues is a union demand for free parking for all employees. During the course of 1984, a number of hospitals either introduced parking fees for their employees for the first time or announced increases to existing rates, and unfair labour practice complaints similar to the present were filed by the union (in the case of the instant two hospitals, over the express written objection of the Local Presidents). Some of these complaints have been withdrawn, some have been settled, and some have resulted in decisions by the Board. Only the complaints against Oshawa General Hospital and York-Finch General Hospital, the instant respondents, remain outstanding.
Section 13 of the Hospital Labour Disputes Arbitration Act is in much the same language as section 79 of the Labour Relations Act. The Board in Spar Aerospace Products, [1978] OLRB Rep. Sept. 859, made some observations on its approach to interpreting the "freeze" language of section 79, and those comments, articulating a standard of "business as before", have served as a guide to applying the section ever since. At paragraph 23, the Board wrote:
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 in 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.
- In Scarborough Centenary Hospital, [1978] OLRB Rep. July 679, the employer hospital had for a period of ten years granted to its employees the privilege of free parking, and then served notice of its intent to commence charging a fee after the onset of a "statutory freeze" period. The Board, in finding that the employer's action violated the Act, wrote:
In other words, the Board has found that in order to protect the purpose of section 70, a party who wishes to revoke a privilege which may reasonably be expected to continue or re-assert a right which has been consistently waived must do so or communicate its intention to do so prior to the commencement of the freeze period so that minimal disruptions to the employment relationship will arise to interfere with the ongoing negotiations.
In the instant case the privilege of free parking which the employer had extended to the employees for more than a decade and which the employees had every reason to anticipate would continue in the future was unilaterally revoked during the freeze period without the consent of the trade union.
- In the case of Humber Memorial Hospital, [1979] OLRB Rep. Aug. 764, the Board found that employees had historically been permitted to use the hospital's parking lots on the basis that they paid the same per diem rate charged to the public. When the charge to the public had increased over the years, a corresponding change in the rate for employees (who received weekly or monthly passes) was made as well. Assuming that this parking arrangement over the years amounted to a "privilege", the Board went on to a note, at paragraphs 7 and 8 that:
... there is the further question of "What is the privilege?". It is a privilege of using available parking space at the daily rate of 50 which was in effect when the freeze period started, as the complainant submits? Or is the privilege (although the respondent denies there is in fact a privilege) one of using parking space under terms and conditions which apply equally to employees and the public as the respondent submits?
On the evidence, the Board finds that the terms and conditions under which the employees who may be affected by this complaint have use of the respondent's parking facilities include use of the available space at the same rate as is charged to the public; i.e., a "going rate" and not at a per diem rate of 50.
In the result, the complaint was dismissed.
As noted, the present complaint initially involved a number of hospitals who implemented changes to employee-parking arrangements after the onset of the statutory "freeze", and the complaint with respect to two of those hospitals has already been the subject matter of a Board decision. St. Joseph's Hospital, File No. 0965-84-U(A), released September 25, 1984, was a case similar to Scarborough Centenary Hospital, supra, where, at least with respect to the particular lot in question, no charge for employee use had ever before been levied, and once again the Board found a violation of the "freeze". On the other hand, Ottawa General Hospital, being File No. 0965-84-U(B), released the same day, involved an adjustment to an existing scheme of paid parking, and the Board found no violation of the Hospital Labour Disputes Arbitration Act to have occurred. In all of these cases under the "freeze" section, it should be noted, the presence of anti-union animus need not be shown. Nor, on the other hand, need the employer make out a case of justification for the position it has adopted: the proper forum for that issue is the board of interest-arbitration, whose task it is to determine the ultimate terms and conditions of the parties' collective agreement. Whatever those terms and conditions may ultimately be, the only question before this Board, under the provisions of section 13 of the Hospital Labour Disputes Arbitration Act, is whether the employer has effected a "change" in the "rates of wages or any other term or condition of employment, or any right, privilege or duty" of the employees while the parties continue to be in the process of re-negotiating their collective agreement. And in assessing that question, it should be noted as well that the "freeze" applies to all conditions of employment, privileges, et cetera. The fact that a particular condition with respect to which an employer has allegedly implemented a "change" is also the subject matter of ongoing negotiations neither causes the section to apply, nor prevents it from doing so, as the two cases decided previously under this complaint amply demonstrate.
With respect to the first case before us now, Oshawa General Hospital, the hospital has had two areas available for both staff and public parking, a lot and a garage, since 1973. The monthly rate for employees for the garage, at least, was $6.00 at that time. Increases in the rate charged to employees since then have been as follows:
1976
LOT 50 day $9.00 GARAGE $10.00
1980
LOT 75 day $13.00 month
GARAGE $15.00 month $180.00 year
1981
LOT $1.00 day $15.00 month
GARAGE $1.00 day $17.00 month
1984
LOT $1.00 day $18.00 month
GARAGE $1.00 day $18.00 month
The 1976 increase came as a result of a survey taken of parking rates being charged generally in the Oshawa area. In 1980 and 1981, additional increases were again put into effect on the basis of surveys done. Through these years increases to the maximum daily rate charged the public increased at the same time. Surveys in late 1982 as well as in 1983 again showed that an increase was justified, but at that time, construction on the garage plus a shortage of parking space had created considerable irritation for staff and the public alike, and the Hospital did not consider it appropriate to add to problem with the announcement of a further adjustment. The 1984 survey of area rates, filed with the Board, once again showed the Hospital's rates lagging well behind, and that, plus increases in the wages paid to attendants and the rental fee of the City for the lot, as well as the finance costs for expansion of the garage, led the Hospital to announce the additional rate increase shown above and to equalize the rate payable for both the garage and the lot. The daily rates for visitors were left as they were, as the percentage increase implemented for the staff would have rendered the making of change at the gate more difficult, but the length of the "grace" period was altered, and a deposit required for the evenings. All of these changes were announced in July, effective September 1, 1984. The complainant had, however, given notice to bargain on October 19, 1983, and has taken the position since word of the increases became public that the Hospital was in violation of the "freeze" provision of of the Hospital Labour Disputes Arbitration Act.
- At York-Finch General, notice to bargain was also given on October 19, 1983, and the rate charged employees for parking was increased in May of 1984, from $7.50 to $8.00 a month. That, once again, was over the written objection of the Local President, who testified that she thought the rate charged employees for parking had been at $7.50 for approximately two years. In fact the evidence discloses that her recollection is inaccurate, and that the rate has increased annually in each of the past 3 years. The summary of rate increases since changes began shows:
1976 $5.00
1977 $5.00
1978 $5.50
1979 $5.50
1980 $6.00
1981 $6.00
1982 $7.00
1983 $7.50
1984 $8.00
The Hospital's Director of Personnel, while relatively new at the Hospital and not one of the individuals asked for input into the decision to implement an increase, testified that surveys of hospital parking rates in the region are conducted annually, and an increase implemented as soon as that is completed, unless the increase would be so small as to merit waiting for the next year's survey. Increases have also been made from time to time to the parking rates charged medical staff and visitors, although not necessarily in synchronization with the support staffs.
The applicant contends that the "privilege" frozen by the Act as of the date the collective agreement expired was the privilege to park at the rate in effect at each Hospital on that date. The respondent, on the other hand, contends that the privilege is that of being permitted to use the Hospital's lot at a rate which is subject to periodic review and adjustment. Similar positions were taken in the complaint filed against the Ottawa General, referred to above, and the Board wrote:
As in the Humber Memorial case we view it necessary to define the nature of the instant employee privilege in respect to use of parking facilities which existed at the time the freeze period set in. The complainant would define the privilege as that of the use of parking facilities at a rate of $9.69 per bi-weekly pay period: the respondent on the other hand would define the privilege as one to use parking facilities at such rate as may be determined by the Hospital from time to time and points to a long standing history of rate adjustments to demonstrate that it was conducting "business as before".
In Ottawa General, the Board found a well-established pattern of reviewing parking rates annually, and effecting adjustments if and when circumstances justified it. There was not, in that case, even the consecutive years of annual increases demonstrated from 1982 to 1984 at York-Finch. The Board nevertheless wrote, at paragraph 8:
On the evidence it must be concluded that employees were well aware that the parking privilege was not one at a fixed rate but one subject to adjustment. The rate was in fact adjusted as of April 1st, 1984. The most recent adjustment cites increased cost to the hospital of the cost of parking space, and the passing on of costs to employees was limited by the Hospital. We are satisfied that in increasing employee parking rates as of April 1st, 1984 the respondent was managing its operation after the onset of the freeze in the same pattern as it had done before such onset and, accordingly cannot be said to have acted in contravention of section 79 of the Act.
The periodic review of rates and adjustment where justified, in other words, was found to be "business as before". It appears to us that this practice also constitutes "business as before" at the two instant hospitals, and that employees at these two hospitals would have been equally aware that the rate they were charged for parking had been and would continue to be subject to periodic surveys and adjustment. At York-Finch, the increases had even been consecutive in the years 1982 and 1983, and at Oshawa General had taken place in both 1980 and 1981, before being left in abeyance during what was largely a period of disruption and expansion of the parking space. The prospect, or even likelihood, of continued escalation of parking fees, on these facts, could hardly be said to lie outside the reasonable contemplation of employees at either hospital. The demand for free parking at the central bargaining table is clearly aimed at the Hospitals' overall policy of charging employees for parking, whatever the rate.
In response to the Union's argument, the Board does find a difference, in terms of employee anticipation, between the sudden introduction of parking charges for the first time, and the implementation of one more in a series of adjustments, instituted from time to time, to an already existing practice of charging. The Board also declines on policy grounds to over-rule, as urged, the decisions of the Board in Humber Memorial and Ottawa General, supra. The question of what constitutes "business as usual" in these types of cases is not so patently clear as to make it a service to the community to have the Labour Board knowingly render contradictory decisions.
Finally, we agree with Mr. Cavalluzzo for the complainant that the first-hand knowledge of the management individual who testified for York-Finch was not what it might be. Having regard to the fact, however, that the amount of the 1984 increase falls clearly within the pattern established in prior years, the Board, in the circumstances, finds the evidence which she did provide concerning that year's increase sufficient to satisfy us that the employer was in fact on this occasion conducting "business as usual".
The complaint with respect to both Hospitals is accordingly dismissed.