Gregory Barrett v. Blue Line Taxi Ltd.
[1987] OLRB Rep. April 470
2617-86-U; 2618-86-U Gregory Barrett, Complainant v. Blue Line Taxi Ltd., Respondent v. The Corporation of the City of Ottawa, Intervener
BEFORE: J. Harold Brown, Q.C., Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
APPEARANCES: Gregory Barrett for the complainant; E. Rovet, W. French, R. Viau and J. Gitze for the respondent; Frank C. Askwith, Q.C., for the intervener.
DECISION OF THE BOARD; April 27, 1987
These are complaints made pursuant to section 89 of the Labour Relations Act alleging a breach of section 79 of the Act.
Section 79 of the Act reads in part as follows:
(1) Where notice has been given under section 14 or section 53 and no collective agreement is in operation, no 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 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 (1) applies; or
(b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.
At the outset of the hearing, counsel for the complainant sought to have the complaints the complainant dismissed on the basis that the complainant lacks the legal standing to bring a complaint alleging a breach of the "statutory freeze" under section 79 of the Act.
No advance notice of the above jurisdictional issue was given prior to the hearing. The complainant advised the Board that he was taken by surprise and wished an adjournment to seek advice concerning his position.
In light of the above representations by the complainant, the Board granted the adjournment sought by him in both complaints. Counsel for the respondent was directed to submit his argument in writing in support of his challenge to the status of the complainant by no later than April 6,1987. The complainant was to be provided with said argument and would have until no later than April 16, 1987 to reply thereto.
The argument of counsel for the respondent was received by the Board on April 2, 1987 and the reply of the complainant was received on April 15, 1987.
The material facts relevant to the complaints are as follows. There are two groups of taxi drivers in Ottawa. One group is known as single owner operators or single plate lessees. These drivers own their own plate or lease their plate from another person. The other group of taxi drivers are known as rental drivers. These drivers rent a vehicle and a taxi licence from a company like the respondent. The complainant falls into this category. On March 19, 1984, the Retail, Wholesale and Department Store Union applied to be certified for both groups of drivers of the respondent (and also two other companies which are not relevant for purposes of this proceeding). With respect to the rental drivers, a certificate was issued by the Board in the Spring of 1986. The Corporation of the City of Ottawa made an increase in the meter rates which applied among others to the respondent, effective December 1, 1985. The respondent, in turn, on or about the same date, Increased the taxi rentals. It is this and other changes allegedly made by the respondent which are the subject matter of the instant complaints. All of these events took place prior to the Board issuing the certificate. Counsel for the Corporation of the City of Ottawa who appeared as an intervener at the hearing affirmed that the City had the authority to take the action which it did. We would note that the applicant claimed no remedy against the Corporation. No one appeared for the Retail, Wholesale and Department Store Union, nor did it file an intervention in these proceedings.
The Board has considered the submissions of counsel for the respondent and those of the applicant on the motion of the former that the complainant does not have jurisdiction to make the instant complaints alleging a breach of the "statutory freeze" by purportedly altering conditions of employment prohibited by the provisions of section 79 of the Act. Based on the language of section 79, we are satisfied that it is the sole right of the trade union and not the individual employees whom the trade union represents that can make a complaint under section 79. Stated another way, it is the rights of the trade union and not those of the individual employees per se that are protected by section 79 of the Act. The trade union may, for any number of reasons, give consent or withhold consent to changes in working conditions or deal with the matters in collective bargaining. It is clear from the language of the section, moreover, that the employer owes no duty to the employees, except as the duty is owed vicariously through the trade union. However, the scheme of section 79 of the Act does not lend itself to the concept that an employee can complain about changes in terms and conditions of work or, conversely, that an employer is required to obtain the approval of its employees before making changes in terms and conditions of employees. By analogy, our conclusion is supported by the decision of the Board in Fanshawe College of Applied Arts and Technology, [1980] OLRB Rep. Apr. 433, which held that an individual has no standing to bring a complaint under the "freeze" provisions of the Colleges Collective Bargaining Act.
In the result,