Canadian Union of Public Employees, Local 3419 v. Harrowood Seniors' Community, 1992 CanLII 6751

[1992] OLRB Rep. February 177

2152-91-U Canadian Union of Public Employees, Local 3419, Complainant v. Harrowood Seniors' Community, Respondent

BEFORE: S. Liang, Vice-Chair, and Board Members J. A. Ronson and K. Davies.

APPEARANCES: Nancy Rosenberg, David Saunders, Betty-Ann Grondin and Donna Brimner for the applicant; no one appearing on behalf of the respondent.

DECISION OF S. LIANG, VICE-CHAIR AND BOARD MEMBER K. DAVIES; February 4, 1992

1. This is a complaint made pursuant to the provisions of section 91 (formerly section 89)

of the Labour Relations Act ("the Act") in which the complainant (also referred to as "the union")

alleges that the respondent has violated section 81 (formerly section 79) by failing to grant wage

increases to the employees in the bargaining unit for the years 1990 and 1991.

2. On the day prior to the hearing, the Board received a letter from counsel for the respondent (also referred to as "Harrowood") setting out its client's position with respect to the complaint and concluding that "[n]otwithstanding the above, we have been instructed by our client not to attend before the Board at the hearing scheduled for January 14, 1992." On January 14, nei­ther the respondent nor its counsel appeared, and the hearing accordingly proceeded in their absence.

3. At the outset of the hearing, counsel for the complainant sought to amend the com­plaint and relief sought to add allegations that the respondent had also failed to pay wage increases in 1989. These allegations had not been particularized in the complaint or any written correspon­dence. In view of this, the Board indicated that it would only grant the amendment if the complain­ant agreed to adjourn the hearing to give notice to the respondent of the amended complaint. After a brief recess, counsel for the complainant informed the Board that the complainant wished to proceed with the complaint, without the amendment.

4. The complainant called three witnesses in support of its complaint, Donna Brimner, Betty-Ann Grondin, and David Saunders. The testimony of these witnesses is referred to only where relevant to our decision and has been consolidated in our summary of the facts.

5. The complainant made application for certification with respect to a group of employees of the respondent on May 9, 1989. On June 19, 1989, the Board granted the complainant a certifi­cate with respect to an all-employee bargaining unit. The union served notice to bargain on the respondent on June 29, 1989. During the course of negotiations, the union requested a determina­tion from the Minister of Labour as to whether the respondent constitutes a "hospital" for the pur­poses of the Hospital Labour Disputes Arbitration Act (HLDAA). On February 19, 1991, a no-board report was issued with respect to the negotiations, and sometime after that the parties received the decision of the Minister that the respondent was covered by the provisions of HLDAA. The respondent has apparently applied for judicial review of this decision, but the hear­ing of this application has not yet occurred. The parties have also scheduled an interest arbitration hearing under the provisions of HLDAA, contingent on the results of this judicial review applica­tion.

6. The Board heard evidence that up to 1989, employees at Harrowood received two types of increases during their employment. Increases were awarded to employees for service, based on the number of hours worked ("seniority increases"). For example, in 1988, the wage schedule showed automatic increases for certain classifications after employees completed probation, then at 1875 hours of service, and then at 3750 hours of service. As well, the respondent granted auto­matic increases at intervals during each year ("interval increases"). The evidence was that each January, May and September wages were increased. These increases were not the product of nego­tiations, but were given to employees in the form of wage schedules for each classification showing the proposed increases for the next year. New employees were told that wages would be automati­cally increased at intervals during the year.

7. Prior to 1989, the respondent distributed a wage schedule for its employees showing a schedule of increases for 1989. According to this schedule, employees were to receive interval increases on January 16, May 29, and September 25. By September 25, the starting wage for regis­tered nursing assistants would be $9.05 per hour, for resident attendants and activity aides, $6.60 per hour, for housekeeping, laundry and dietary aides $6.60 per hour, and for dietary helpers, $5.45 per hour. When the respondent failed to pay the scheduled increase of May 29, 1989, some of the employees complained. These employees were informed by the respondent that all wages were frozen due to the certification by the union.

8. The evidence was that the union itself believed that the respondent was not obligated to pay the interval increases during the certification process, and throughout negotiations. After the union was certified in 1989, David Saunders, the representative of the union assigned to the Wind­sor area, received complaints regarding the failure by the respondent to pay any increases. It was his understanding at that time that the employer was obligated to pay the seniority increases, but not the interval increases. He accordingly raised the issue of the seniority increases with the respondent's counsel, and the respondent agreed to continue seniority increases during negotia­tions.

9. However, the issue of interval increases was not raised with the respondent until 1991. The evidence was that Mr. Saunders was advised by the union's counsel about July, 1991 that he ought to pursue the matter. Discussions with the respondent's counsel failed to resolve it, and this complaint was filed with the Board on September 26, 1991. Since January of 1989, the only increases which have been received by employees are seniority increases, and increases required by changes to the minimum wage laws.

10. The union's counsel submitted that the circumstances demonstrate a clear-cut violation of section 79 by this employer. There is a pattern of increases from 1987 on, which was followed by the employer until the time that the union made application for certification. Employees were aware of the schedule of increases and had a reasonable expectation that the schedule would con­tinue. Counsel referred us to the following cases: George St. L. Mc Call Chronic Care Wing of the Queensway General Hospital, [1991] OLRB Rep. May 619; Homewood Sanitarium of Guelph, Ontario Ltd., [1982] OLRB Rep. Feb. 230; The Corporation of the Town of Meaford, [1981] OLRB Rep. Sept. 1202; St. Mary's Hospital, London, Ontario, [1979] OLRB Rep. Aug. 795; Public Service Alliance of Canada, [1978] OLRB Rep. Sept. 854; Lennox and Addington County General Hospital, [1978] OLRB Rep. Sept. 843; Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859.

11. Although the respondent did not appear at the hearing, counsel for the respondent stated in his letter of January 13, 1992 that it is the position of Harrowood that it "has not breached the Labour Relations Act as alleged or at all". He states that prior to the certification of the union, the employer and representatives of the employees were unable to agree to the amount of a wage increase and shortly thereafter, the union made its application for certification. He fur­ther states:

We note that during these negotiations both the Union and our client tabled proposals on wages. During these negotiations, the Union never took the position that the employees were entitled to a wage increase under Section 79 [now 81] of the Act nor did it allege a breach of Sec­tion 89 [now 91] in this regard until shortly before filing the within Complaint.

Finally, we note that the Union has consistently maintained that our client's facility is subject to the provisions of the Hospital Labour Disputes Arbitration Act and a Board of Arbitration under that Act has been empaneled [sic] and will hold an arbitration hearing in April, 1992, sub­ject only to the February 27, 1992 hearing of the employer's Application for Judicial Review of the Minister of Labour's decision finding our client's facility to be a hospital under the terms of the Hospital Labour Disputes Arbitration Act.

Decision of the Board

12. Section 81 of the Act states:

81.-(1) Where notice has been given under section 14 or section 54 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 or she 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.

13. Section 13 of HLDAA provides that for employers covered by HLDAA, notwithstand­ing section 81 of the Act, the statutory freeze in section 81 continues until the trade union is declared to no longer be the bargaining agent for the unit of employees.

14. On the evidence presented, we are satisfied that the complainant has established a vio­lation of section 81 of the Act. In George St. L. McCall Chronic Care Wing of the Queensway Gen­eral Hospital, supra, the Board stated:

15. ... The Board has consistently found that the failure of an employer to pay a wage increase or otherwise continue with or institute an improved working condition during the statutory freeze, in accordance with a pre-existing pattern or a promise to do so, constitutes a breach of the freeze provisions. Collective bargaining does not occur in a vacuum. In our view, it is both contemplated by the legislation and appropriate that the basis for collective bargaining be the pattern of the employment relationship, and the resulting reasonable expectations of employ­ees, including any pattern or expectation of wage increases.

16. We find that the evidence establishes a pattern of automatic increases payable at inter­vals during the calendar year. Employees were told of these increases at the time of hire, and were given schedules each year showing the intended increases. There is little doubt that in view of this pattern, the employees had a reasonable expectation of such increases continuing in 1990 and 1991. Although the amounts of these interval increases do not appear to be consistent from year to year or interval to interval, the practice of giving an increase at established intervals was.

17. We have some concern over the length of time which it took the union to make this complaint known to the employer, and then bring the matter before the Board. It is certainly unfortunate that the parties are having to deal with events which date back as far as May of 1989. As the union candidly acknowledged and as was stated in the letter from respondent's counsel of January 13, the union did not raise these issues with the respondent until shortly before filing this complaint. However, in this letter, counsel for the respondent does not urge that any particular result to flow from this and was not present at the hearing to elaborate on its position. Also, in any event, if the violation commenced in 1989, it is also true that it continued until 1991.

18. In the result, the Board finds that the respondent has violated section 81 of the Act and orders the respondent to implement the wage increases for 1990 and 1991 according to its estab­lished practice, forthwith. The Board remains seized of this matter to deal with any disagreement which may arise out of the implementation of this order.

DECISION OF BOARD MEMBER JAMES A. RONSON; February 4, 1992

1. This complaint was filed on September 27th, 1991. It was scheduled for a hearing on January 14th, 1992. On January 2nd, 1992 the respondent employer, by its counsel, requested that the hearing take place in Windsor which is but a short distance from the location of the employer's facility at Harrow. The applicant union consented to the change of venue, provided that the hear­ing take place on January 14th. Unfortunately, by reason of scheduling difficulties, the Board was unable to move the venue of the hearing to Windsor. On January 13th, counsel for the employer advised the Board that the employer would not be attending the hearing the next day. No request was made for an adjournment so that the matter could be heard in Windsor.

2. So we heard evidence only from the union's witnesses. That evidence is concisely set out in the decision of my colleagues. The presentation of the evidence by the union witnesses was also concise and very frank. There was no hesitation in disclosing the nature of the problem that arose between the parties.

3. Both the union and the employer were of the belief that the "freeze" period preceding the negotiation of the first collective agreement between the parties prevented the employer from giving its employees incremental or "interval wage increases". Then, in May 1991, along came the decision of the Board in the Queensway Hospital case. There is no evidence that the union ever gave its consent to such increases being paid by the employer until August, 1991.

4. It was the unilateral practice of the employer to prepare a sheet showing the various classifications of employees and the incremental increases that each class would receive during the next year. The last such sheet was prepared for 1989. The union chose not to claim such increases for 1989 for the reasons set out in the decision of the majority. The claim before us only concerns the years 1990 and 1991. That raises another problem for there is no evidence that, absent the union, the employer would have paid such incremental increases in those years. Quite to the con­trary, when the union demanded such increases in August, 1991, the employer refused to make any.

5. We were told that the parties settled the language of their collective agreement fairly quickly. Their impasse came over monetary issues. Albeit by "mistake" they mutually proceeded with a course of conduct. Now the union seeks to reverse its position and have the employer found guilty of an unfair labour practice. I think the union has delayed much too long in seeking the pay­ment of some nebulous amount for the years in question.

6. For these reasons I would dismiss the claim.