Ontario Labour Relations Board
[1985] OLRB Rep. March 469
0999-84-U Retail, Wholesale & Department Store Union, AFL-CIO-CLC, Complainant, v. Simpsons Limited, Respondent
BEFORE: Ian C. Springate, Alternate Chairman, and Board Members F. W. Murray and B. L. Armstrong.
APPEARANCES: James Hayes and Patrick Macklem for the complainant; T. F. Stone and E. Bengert for the respondent.
DECISION OF IAN C. SPRINGATE, ALTERNATE CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; March 6, 1985
This is a complaint under section 89 of the Labour Relations Act alleging that the respondent has violated sections 64 and 79 of the Act.
On June 29, 1984 the complainant trade union applied to the Board to be certified as the bargaining agent for certain employees of the respondent at its store in Oakville. On or about July 11, 1984, the respondent announced the termination of a substantial number of employees at its stores in eastern Canada, including certain employees at its Oakville store. The complainant does not allege that the termination of employees at the Oakville store was motivated by anti-union considerations. The complainant does, however, contend that the respondent's actions were in breach of the "freeze" on terms and conditions of employment provided for in section 79(2) of the Act, and also involved an interference with the representation of employees by the trade union contrary to section 64.
In recent years the respondent has suffered heavy financial losses from its retail operations, prompting it to consider methods of reducing its operating costs. In the Fall of 1983 a management committee was established to develop a plan by which savings in operating costs could be achieved. This committee developed a proposed formula which provided for both an absolute allowable wage dollar ratio to sales in each store, and also set a target ratio of what proportion of sales staff should be "full-time" employees and what proportion "contingent" employees. In the respondent's terminology, "full-time" employees are those regularly scheduled to work the normal full-time hours, whereas "contingent" employees are offered work in accordance with the company's needs, and are free to either accept or reject the hours of work offered to them. With the exception of the company's main downtown Toronto store, the target set by the committee was to have "contingent" employees comprise 60 per cent of sales staff in each store and "full-time" employees the remaining 40 per cent.
The proposal to set an absolute allowable wage dollar ratio to sales in each store, and to implement a set contingent/full-time staff ratio, was quickly approved by the company s senior executives. Also approved were certain proposals to reduce the number of non-sales staff employed in the stores. As early as April 1984, certain preliminary determinations were made concerning how the proposals would be implemented. A final implementation plan was decided upon in June, 1 984. The staff at all the stores, including the Oakville store, were advised of the various changes, including the termination of a number of employees, on July 11, 1984. The complainant trade union was not given any advance notice of the changes. It will be recalled that the union had filed its application for certification on June 29, 1984.
In its application for certification the trade union asked that it be certified to represent all employees of the respondent at Oakville, save and except managerial staff, office and clerical employees, and persons regularly employed for not more than 24 hours per week. As of the application date, there were 64 employees in the bargaining unit. These employees were mainly classified by the respondent as "full-time", although there were also eight "contingent" employees who, based on the Board's "7-week test", were regularly employed in excess of 24 hours per week and hence came within the bargaining unit.
The contingent sales staff appear not to have been directly affected by changes at the Oakville store, which is to say that they will continue to be offered work in accordance with the needs of the store, and will be able to accept or reject the hours offered. There was, however, a major impact on the full-time personnel. On July 11, 1984, eighteen employees in the bargaining unit were advised by the respondent that they would not be continued past November