[1987] OLRB Rep. January 1
1318-86-U United Food and Commercial Workers International Union, Local 000A, Complainant, v. 659402 Ontario Limited c.o.b. as Anderson's City Farm Valu-Mart, Respondent
BEFORE: Judge R. S. Abella, Chairman, and Board Members J. A. Rundle and J. Sarra.
APPEARANCES: Brain Herlich and William Cox for the complainant; J. Paul Wearing and Roy Anderson for the respondent.
DECISION OF JUDGE R. S. ABELLA, CHAIRMAN AND BOARD MEMBER J. SARRA; January 26, 1987
1. This is a complaint pursuant to section 89 of the Labour Relations Act alleging a violation of section 79 of the Act. The union called no viva voce evidence. On the consent of both parties, the following Agreed Statement of Facts was introduced as forming the basis of the complainant's case:
AGREED STATEMENT OF FACT
1. The Complainant Union was certified to represent employees of the predecessor employer on August 2, 1985. Two certificates were issued, one in respect of full-time employees the other in respect of part-time employees.
2. On or about August 14, 1985 the Complainant Union served the predecessor employer with notice to bargain. Negotiations followed.
3. Several items were agreed to between those parties including, inter alia, a six day work week:
Monday to Saturday inclusive.
4. In or about March or April of 1986 the predecessor employer sold its business to the Respondent Employer.
5. The Union was informed of the change or proposed change of ownership in March and arrangements were made to continue negotiations for a collective agreement as evidenced in a letter from William Cox to J. Paul Wearing dated March 19, 1986 and attached hereto as Exhibit #1.
6. On April 11, 1986 the Union provided the employer with "formal notification" of desire to bargain (Attached hereto as Exhibit #2).
7. On April 14, 1986 the Employer, through counsel, acknowledged its status as a successor employer (Attached hereto as Exhibit #3).
8. The parties met in negotiations on April 9, 1986. At that meeting the employer indicated that it was not in agreement with the six day work week agreed to between the Union and the predecessor employer.
9. In or about the end of June the Employer requested that the union consent to the Employer opening its store to the public on Sundays. The Union declined to consent.
10. On July 7, 1986 the Employer indicated its intention to commence Sunday operations effective July 13. 1986 (Attached hereto as Exhibit #4).
11. On July 13,1986 the Employer opened its store to the public. The store has continued to be open on Sundays since that date.
12. When the store is open on Sundays, the total area used for serving the public or for selling or displaying to the public is in excess of 2400 square feet.
13. When the store is open on Sundays the number of persons engaged in the service of the public exceeds three.
14. Charges have been laid against the Employer for alleged violation of the Retail Business Holidays Act.
15. The parties have had several meetings with a conciliation officer between June 23, 1986 and September 16, 1986.
16. A "no board" report was issued on or about September 29, 1986.
17. Prior to concilication [sic] and prior to the implementation of Sunday hours the parties had agreed to a "just cause" clause to ultimately be included in a collective agreement. This clause is in the following form:
The Union acknowledges that it is the exclusive function of the Employer to:
(b) hire, classify, direct, assign, promote or demote and lay-off employees or otherwise discipline or discharge employees for just and sufficient cause.
18. The parties agree that the implementation of Sunday Hours occurred during the freeze period contemplated by Section 79(1) of the Labour Relations Act.
19. The store, whether under the operation of the Respondent Employer or predecessor Employer(s) has never, prior to July 13, 1985, been open to the public on Sundays.
2. The employer introduced Sunday openings in response to business pressure brought on by the opening on Sundays of several neighbouring competitors, most recently in April. In the absence of union consent, the employer posted a notice advising employees of its intention to remain open Sundays commencing July 13, 1986. The notice stated in part:
ā¦.Any employees wishing to volunteer for working Sundays - Please contact your Dept. Mgr. by Wed. July 9/86".
As a result of the posting, several employees volunteered and thereafter the voluntary process continued to operate. Roy Anderson, on behalf of the employer, gave uncontradicted evidence that the process of selection was entirely voluntary throughout.
3. The employment practice in the respondent's store had traditionally been a 5 day, 8 hours-per-day work week for full-time employees. This did not change with the introduction of Sunday openings. No employee lost time or wages and none was required to work Sundays if he or she chose not to.
4. The union contends and the employer does not deny, that the store had never before been open Sundays. The union therefore alleges that employees had, prior to the "freeze", the privilege of not working Sundays. In the absence of the union s consent, the introduction of Sunday openings violated the freeze by interfering with this privilege. The union argued further that Sunday openings prima facie offended the provisions of the Retail Business Holidays Act and that employees would not reasonably expect store openings on a day declared by this latter Act to be a legal holiday.
5. It is not clear whether this particular respondent's business falls within the class of retail business required by the Retail Business Holidays Act to be closed on Sundays nor are we called upon to make that assessment. Neither are we in this case called upon either to condone or condemn the propriety of Sunday openings. The issue before us is a narrow one: Is the respondent's introduction of Sunday openings in the absence of the union's consent, a violation of the freeze provisions of the Labour Relations Act.
6. The jurisprudence pursuant to section 79 of the Act makes clear that the purpose of this freeze provision is to preserve a defined and understood status quo during this period with the overall objective of facilitating a stable environment within which parties can concentrate on meaningful collective bargaining. Although it is not easy in every case to identify what this defined and understood status quo entails, particularly where there has been no prior collective agreement or where the contentious event is a first occurrence, recourse can always be had to the language of section 79 with this purposive interpretation in aid. The development by the Board of flexible interpretive tools such as the "reasonable expectations" and "business as usual" tests are evolutionary illustrations of a long-standing practice of construing the section in a way which acknowledges the sanctity of its purpose, recognizes the limits of its ability to be categorical, and authorizes a singular determination in every case based on existing jurisprudence but dependent on the factual variables before the panel. In other words, the integrity of the status quo will not be permitted to be violated, but respect will be paid to the possibility that it is not every change which violates this integrity.
7. If one views the section as intending to freeze a status quo, then one must assess the impact of the change on the range of expectations expected to be frozen during this period. From the union's point of view, does the change interfere with its reasonably expected representation rights and duties or with its ability to execute them? From the employees' point of view, does the change interfere with terms, conditions, rights, duties or privileges of employment previously enjoyed and reasonably expected to continue. And from the employer's point of view, does the change interfere with any of his or her rights, privileges or duties reasonably arising out of a preexisting pattern of management in the particular business?
8. In the case before the Board, the employer, in responding to market exigencies, decided to keep the store open Sundays despite the fact that it had never before been open on Sundays. The union withheld its consent, arguing that its agreement could potentially attract liability to individual employees who are, along with an employer, subject to potential conviction and a $10,000 fine if found to contravene the Retail Business Holidays Act. Does the Sunday opening violate the freeze provision in the absence of union consent or is it, by virtue of its impact on the union or employees, outside the grasp of the section's purpose?
9. The employer maintained the 8 hour day, 5 day per week schedule and offered, instead, alternative hours to employees in which to work. The union does not suggest that the employer's pre-existing pattern of management excludes the right or duty to arrange shifts based on the need for services, but argues that opening on Sundays is not "business as usual". We agree. Although section 79 freezes and protects the employer's ability to manage an operation, including the ability to respond to market pressures in the arrangement of hours or the range of services or operations, it must do so in a manner reasonably predictable based on its former practices. The fact that this may involve an extension or expansion which has staffing or scheduling implications does not necessarily mean that the employer is precluded from doing so without the union s consent. But by opening on Sundays, the respondent employer was adding a day uniquely protected by its legal and social history as a non-working day. By virtue of this uniqueness, and without passing judgment on the morality or legality of Sunday openings, we find that a change has unilaterally occurred which is technically beyond the ambit of the respondent's protected scheduling rights.
10. In all the circumstances of this case, and for all the foregoing reasons we find that by opening on Sundays, the employer has not conducted its business as usual, and there has therefore been a breach of section 79 of the Labour Relations Act. In our view, however, this is not an appropriate case in which to grant remedial relief.
DECISION OF BOARD MEMBER I. A. RUNDLE;
1. I dissent from the decision of the majority.
2. The majority finds, and the union conceded, that section 79 protects the employer's ability to manage its operation including its ability to respond to market pressures in the arrangement of hours in the range of operations. I agree with the majority on this point.
3. It is also beyond doubt that this protected right of the employer includes the right to respond to a market pressure it faces for the first time. Thus in Grey Owen Sound Joint Homes for the Aged, [1983] OLRB Rep. Apr. 522 at para. 28, the Board stated "It surely cannot be the intent of the legislation and the cases to tie the hands of the employer by prohibiting the employer facing the problem for the first time to determine a way in which to respond..." In this case, the employer for the first time faced the problem of its competitors opening on Sundays and it was entitled to respond to that market pressure.
4. From the employees' point of view, as the majority decision states, Sunday work was allocated on a voluntary basis only and no employee lost time or wages as a result of Sunday openings. Those employees who wished to work could do so, those who didn't wish to work were not required to. To that extent in my view there was no alteration of any right or privilege of employees within the meaning of section 79.
5. While the majority accepts the employer's right to respond to the market pressures it finds that the respondent employer's response, ie. Sunday openings, was a violation of the freeze. This finding is based on the majority's view that Sunday is "a day uniquely protected by its legal and social history as a non-working day". With respect I disagree.
6. It is implied in the decision of the majority (paragraph 5) that there is no blanket prohibition against Sunday openings in the Retail Business Holidays Act. Indeed health care facilities, certain businesses in the entertainment sector and retail businesses in tourist areas are all open Sundays. The Board heard no evidence on whether or not that Act applied to the respondent employer's business. Nor is the Board called upon to decide on the propriety of Sunday openings. In the circumstances, in my view the legality issue and the impact of the Retail Business Holidays Act is irrelevant to the issue before the Board. When no weight is attached to the special legal status of Sunday the conclusion is inevitable that the employer's conduct in this case was protected under section 79 as a business decision in response to a new market pressure.
7. I would have so found and dismissed this complaint.