[1985] OLRB Rep. March 372
2174-83-U Teamsters Local Union No. 879, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Complainant, v. Brytor International, Respondent
BEFORE: Paula Knopf, Vice-Chairman, and Board Members I. M. Stamp and S. O'Flynn.
APPEARANCES: D. Mcllravey and R. Albergheui for the complainant; D. Jane Forbes-Roberts, Bryan Atkinson and Ian Grant for the respondent.
DECISION OF THE BOARD; March 11, 1985
This is a complaint under section 89 of the Labour Relations Act alleging a violation of sections 64, 66 and 70. The complaint alleges that the employer has violated the freeze provisions of section 79 by denying work to employees in the bargaining unit and utilizing office and managerial personnel on work which was normally performed by bargaining unit employees after receiving a notice of the union's application for certification.
The respondent is an overseas moving company which, at all material times, operated in Hamilton, Ontario. In the fall of 1983, the company employed approximately 10 people. Four of these were drivers/packers who were covered by the application for certification filed by the union on October 27, 1983. On November 15, 1983 the union was certified as the bargaining agent for those four employees. The union processed this complaint on behalf of three of those employees, namely Messrs. Alberghetti, Martel and Fekete.
Preliminary Issue
- On December 15, 1983, the union filed this complaint. On January 16, 1984, the Board issued a decision which reads:
Having regard to the agreement of the parties, the Board hereby consents to adjourn this complaint sine die for a period not exceeding one year. Unless within that time, the parties request that the Board proceed with the matter, it will be terminated.
In mid April of 1984, the employees began a lawful strike which has continued to date. On January 4, 1985, the union requested that the case be returned for a hearing before the Board. At the outset of this hearing, counsel for the respondent requested that the Board decline to entertain the complaint because of the "delay" in reactivating the proceedings or in pursuing the issue with the respondent. In response to this preliminary submission, the union argued that it had hoped to resolve the issues in this complaint in the negotiations for the first contract, rather than face litigation during negotiations. It was explained that the union reactivated the complaint at this time to ensure that it was within the period covered by the Board's decision of January 16, 1984.
- On the preliminary issue, the Board rejected the respondent's request to decline to hear the case and ordered that the parties proceed with the hearing as scheduled. Because the parttes had agreed to adjourn the complaint for one year and because the request to reactivate was filed within the one-year period covered by the initial Board decision, the union has every right to proceed as it wishes now. Further, no prejudice resulting from the delay was alleged by the respondent. Finally, the Board recognizes and encourages parties to make every effort possible to resolve matters on their own. When efforts to reach a mutual settlement within or outside of negotiations take place and no prejudice results by the delay in pressing through to litigation, there is no reason for the Board to refuse to hear the case while it is still within the one-year period allowed by the adjournment on consent.
The Evidence
The Board heard one witness for each party. On behalf of the respondent, Mr. Brian Atkinson, the company president, testified. He described the nature of the business and said that their work was seasonal, requiring more employees in summer than in the winter months. Prior to the application for certification, he testified that the four packer/drivers whom he employed did most of the packing and driving work. But when they were busy, office or managerial staff "occasionally" assisted in the loading, unloading or packing at the warehouse or at the customers' residences. He claimed that there was no change in the manner of operations after the application for certification was received. He claimed that the men covered by the certificate were not denied work that they ordinarily would have done or that work was deflected to office personnel in any way that was unusual. It was admitted that others were hired to do some work. He claimed that the company suffered a "downturn" in business that necessitated that the employees would not be called in as often in the winter months following the application for certification. However, he claimed that this was no different than in previous years for the company. No documentary evidence was presented by the company.
Raoul Alberghetti testified on behalf of the complainant. He claimed that prior to the application for certification, he never suffered layoffs throughout the year and that the other employees were only not called in "on a very few days." However, in November of 1983 he claims that this situation changed. By mid November he testified that he only worked a couple of days per week, at the most. (He admits to being on holidays in December of 1983.) He provided pay slips which substantiated the fact that he worked very little from January to March of 1984. He says this was completely different than the years before during the same time period. He did not give the Board clear evidence as to how much, if any, the other two employees who were the subject of this complaint worked before or after the application for certification.
Mr. Alberghetti also testified that he drove past the company's warehouse daily to drop his wife off to work around the corner. On occasion, he stopped and observed the area for one to one and a half hours. At these times, he saw office and managerial staff loading and unloading containers and also saw other people doing this work. Some of these men were unknown to him and some were former part-time employees. Mr. Alberghetti also observed containers being delivered and loaded at the rail yards. All this occurred when none of the four employees covered by the application for certification were working. Finally, Mr. Alberghetti said that when he was called in for work, he noticed that containers had been moved in and out in his absence.
It should be noted that the complainant tried to adduce evidence that threats were made to the union and that changes in working conditions other than a denial of work opportunities took place after the application for certification. The complaint itself simply reads: "[The respondent] has denied work to employees of the bargaining unit at varying times and has utilized office and management personnel on work which was normally performed by bargaining unit employees." At the hearing, the Board advised the parties that it was not prepared to receive any evidence beyond the allegation that the respondent had denied work to employees of the bargaining unit. The Board advised the parties of its concern that the respondent is entitled to know the case that it is expected to meet prior to the hearing. The only allegation contained in the complaint was regarding an allegation of change of working conditions by denial of work opportunities. The Board requires some degree of specificity in making allegations and complaints to enable the respondents to prepare their defences. Thus, we ruled that it would be unfair to allow the complainant to go beyond the scope of its original complaint at this time. However, we were prepared to hear any and all evidence the union wished to adduce on the issue of denial of work opportunities following the application for certification.
Decision
- Section 79 of the Act requires employers to conduct their business as they have done in the past so that the certification process and any bargaining that may follow can take place in an atmosphere of stable terms and conditions of employment. As the Board has previously explained in Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859:
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 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.
- By virtue of section 89(5), the onus in a case such as this is, rests upon the respondent to satisfy the Board that it has not acted contrary to the Act. Section 89(5) casts an onus upon the respondent to demonstrate that its conduct was motivated by bonafide business considerations, and was not influenced, in whole or in part, by anti-union animus. See Aluminart Products Limited, [1983] OLRB Rep. March 309.
II. No explanation was given to this Board as to why the company did not produce documentary evidence to substantiate its claim that working conditions with regard to offering of work had remained the same after the application for certification was filed or that the company suffered a downturn in business coincidentally during that same period. The Board was put in a difficult position of having to resolve the issues in this case with evidence from the two opposing parties which was directly contradictory. The company records could have assisted in the resolution of this dilemma. The absence of such evidence on the very points of dispute in this case forces the Board to draw an adverse inference against the company.
Thus, the Board concludes that on the basis of the evidence presented, work that was normally available to members of the bargaining unit was denied after the application for certification was filed. It is clear to the Board that the company continued to operate after the application for certification was filed and the Board received no explanation why the company could not continue to offer the same amount of work to the men in the bargaining unit that they received in previous years. Further, the uncontradicted evidence is that managerial and office staff were utilized todo the work normally performed by members of the bargaining unit at times when those employees were not themselves working. This amounts to a change in the working conditions during the statutory freeze period and thus amounts to a violation of section 89 of the Act.
The three employees on whose behalf this complaint was conducted are entitled to receive compensation for any wages and benefits they lost from being denied work that was available to be done and which would have normally been made available to them from the time of the application for certification, being October 27, 1983, to the time of the strike, being April 23, 1984. In view of the time that has elapsed since the complaint was first filed, no other relief is appropriate at this time.
The Board shall remain seized with the complaint in the event that the parties require assistance with the implementation of the award.