[1992] OLRB Rep. November 1222
0856-92-U Ontario Public Service Employees Union, Complainant v. Royal Ottawa Health Care Groups/Services De Sante Royal Ottawa, Respondent
BEFORE: Robert D. Howe, Vice-Chair, and Board Members D. A. MacDonald and C. McDonald.
APPEARANCES: Christopher Dassios and Ed Ogibowski for the complainant; Carole Piette, Ingo Ritums and Karen Iddon for the respondent.
DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER, D. A. MACDONALD; November 27, 1992
This is a complaint under section 91 of the Labour Relations Act in which the complainant (also referred to in this decision as the "Union") alleges that the respondent contravened section 81 of the Act by freezing employees' "anniversary increments".
The respondent operates the Royal Ottawa Hospital, a rehabilitation centre, and certain satellite operations in the Regional Municipality of Ottawa-Carleton. On February 14, 1992, the Union filed an application for certification (File No. 3662-91-R) in which it sought bargaining rights for all paramedical and technical employees of the respondent at the Royal Ottawa Hospital, save and except certain specified exclusions.
The respondent received notice of that application from the Board during the last week
of February. In its reply dated February 28, 1992, the respondent proposed a substantially larger bargaining unit, including more than twice as many employees as the unit proposed by the Union.
The parties met with a Board Officer on March 12, 1992 in respect of the certification application. That meeting continued on May 26 and 27, 1992. The parties' dispute concerning the scope of the bargaining unit remained unresolved as of October 14, 1992, when the instant complaint came on for hearing before this panel of the Board.
The respondent's wage scales for its non-unionized employees specify minimum and maximum wage rates for various classifications, as well as the rates applicable at each of the steps along the scales. The rates specified on those scales are generally revised on an annual basis to reflect the cost of living increase granted by the respondent to its non-unionized employees. Some of the scales have also occasionally been compressed (to reduce the number of steps) or expanded (to increase the number of steps). All of the respondent's non-unionized employees who meet minimum performance criteria are generally advanced one step on the applicable wage scale each year on the anniversary of their respective dates of hire, until they attain the maximum rate for their classification. These wage scale advancements were referred to in the evidence (and are referred to in this decision) as "anniversary increments".
It is clear from the totality of the evidence that it has been the respondent's practice to treat all non-unionized employees alike in terms of cost of living allowance ("COLA") adjustments and anniversary increments (as described above) for at least the last eleven years. All such wage adjustments are, of course, dependent upon the respondent's ability to pay, as determined by
the cash flow adjustments which it receives from the various provincial ministries that provide the bulk its funding.
In preparing its budget policies and then its budget for the 1992/93 fiscal year, the respondent, through its Director of Finance and Human Resources, Ingo Ritums, and through its committee structure, took into account various public statements by the Premier and the Provincial Treasurer which led officials of the respondent to conclude that no further cash flow adjustments would be made available to hospitals for wage settlements. It also took into account the adverse effect which the Quebec Government's repatriation of non-resident hospital beds was having on its revenue base. Those considerations led the respondent to conclude that its existing restraint practices (which consisted of "slow hiring" and selected hiring freezes) would need to be revised.
After the 1992/93 budget policies were approved on October 31, 1991 by the respondent's Board of Trustees, those policies were used as a guide in developing its 1992/93 budget. By February 5,1992, the need for fiscal restraint had prompted the respondent's Corporate Services Committee to formulate a budgetary recommendation that 1½ to 2% be allocated for 1992/93 COLA for non-unionized employees, that their movement through the salary scales be frozen for that year, and that a discretionary amount be set aside for adjustments and one-time payments in recognition of exceptional middle management performance. Since somo recent union awards had compressed the salary differentials between certain unionized employees and their non-unionized supervisors, those adjustments were necessary to maintain the respondent's policy of paying supervisors at least five per cent more than the employees they supervise.
By the time of the February 19, 1992 meeting of the Corporate Services Committee, the aforementioned recommendation had come to be described more specifically in the following terms: "that the anniversary increase for non-union be frozen, effective April 1/92 and that a package of 2.5%, with .75% for adjustments be adopted." After that recommendation had been considered by the respondent's Administrative Committee and had thereby become a recommendation of that committee, it was approved by the respondent's Board of Trustees on May 28, 1992. The evidence indicates that the percentage set aside for salary compression adjustments, and for one-time payments to individuals in middle management for exceptional performance as determined on a case by case basis, was the same as in previous years.
Employees were informed of that 1992/93 salary program by means of the following memorandum:
PLEASE POST OR CIRCULATE
MEMORANDUM
TO: Discipline/Service Directors Supervisors
FROM: Ingo Ritums
Director, Finance and Human Resources
DATE: June 8, 1992
SUBJECT: 1992/93 Salary Program
On May 28, 1992 the Board of Trustees approved the proposed 1992/93 salary program for nonunion staff, non-management and management levels.
Effective April 1, 1992 a cost of living increase of 1.5% which will result in an adjustment of 1.5% to existing salary scales.
Effective June 1, 1992, for a one year inclusive period, a freeze on anniversary increments.
Human Resources and Finance will be working closely to put the 1992/93 salary program into place.
COLA adjustments will be reflected on your July 17, 1992 payroll deposit.
Retro adjustments will be added to the July 31, 1992 payroll deposit.
Please communicate the above information to your respective staff members.
Yours truly,
"I. Ritums"
Ingo Ritums
Director, Finance and Human Resources
The respondent neither requested nor obtained the Union's consent in respect of that freeze on anniversary increments.
It is the complainant's position that the respondent contravened section 81(2) of the Act by imposing the aforementioned anniversary increments freeze on the employees for whom it seeks bargaining rights, without its consent. The respondent submits that by freezing the anniversary increments of the employees potentially affected by the Union's application for certification, it was maintaining its long-standing practice of granting similar COLA increases and anniversary increments (based upon progression through the applicable wage scales) to all its non-unionized employees. Thus, respondent's counsel submits that it would have been a contravention of section 81(2) for her client to have granted anniversary increments to the employees potentially affected by the Union's certification application when it did not grant such increments to its other non-unionized employees. Alternatively, respondent's counsel contends that if freezing anniversary increments does involve an alteration of the previous pattern, it is an alteration that falls within the reasonable expectations of the employees in the context of the financial constraints under which the respondent has to operate during its 1992/93 fiscal year.
Section 81(2) of the Act provides:
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.
In describing the purpose of the "freeze" period imposed by section 81(2), and of the subsequent freeze imposed by section 81(1), the Board wrote as follows in Carleton University, [1978] OLRB Rep. Feb. 184:
... Through the combined operation of section 70(1) [now section 81(1)] and section 70(2) [now section 81(2)] of the Act, the Act imposes a continuous freeze on working conditions from the time the employer receives notice of an application for certification through the giving of notice under section 13 [now section 14] or section 45 [now section 54] and until either certain specified events occur after the Minister's appointment of a conciliation officer or mediator under the Act or until the right of a trade union to represent the employees has been terminated. With respect to the freeze imposed by section 70(1) following the giving of notice to bargain under either section 13 or section 45 of the Act, the Board has consistently stated that the purpose of the freeze period at this time is to maintain the status quo of the wages and other terms and conditions of employment so that the union is given an opportunity to enter negotiations and bargain for a collective agreement from a fixed point of departure and in an atmosphere of industrial relations security that is undisturbed by alterations in conditions of employment (see the Board's decisions in Canron Ltd., Eastern Structural Division, [1976] OLRB Rep. Aug. 436, industrial Wire & Cable Company, [1977] OLRB Rep. June 385, and Kodak Company Limited, [1977] OLRB Rep. Feb. 49). In a similar vein the Board has stated that the purpose of the freeze in section 70(2) following the application for certification is to provide a period of some stabilization and tranquillity during which the union may seek to obtain bargaining rights on behalf of the employees in the absence of disturbances emanating from alterations in conditions of employment between the employees and the employer (see Kodak Canada Limited, supra, Beaver Electronics Limited, [1974] OLRB Rep. Mar. 120, and Molson Brewery, [1977] OLRB Rep. Aug. 526).
As indicated by the Board in St. Mary's Hospital, [1979] OLRB Rep. Aug. 795, at para.. graph 9, section 81(2) "manifests a legislative intent to matntain the prior pattern of the employment relationship in its entirety". This "business as before" approach was articulated and applied in Spar Aerospace Products Limited, [1978] OLRB Rep. Sept. 859, in which the Board wrote, in part, as follows:
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 the 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.
See also Homewood Sanitarium of Guelph, [1982] OLRB Rep. Feb. 230; Ottawa General Hospital, [1981] OLRB Rep. Oct. 1461; and Public Service Alliance of Canada, [1978] OLRB Rep. Sept. 854.
The Board has also developed a "reasonable expectations" test in respect of the freeze provisions. Although similar language had appeared in earlier decisions, the first complete articulation of that test is found in Simpsons Limited, [1985] OLRB Rep. Apr. 594:
That section 79 [now section 81] is intended to maintain the status quo, to provide a period of stability while the parties are establishing their collective bargaining relationship or renewing that relationship by negotiating another collective agreement, is a sentiment often affirmed by the Board. The classic exposition of the parameters imposed on employer conduct during the freeze is the business as before formula in Spar Aerospace, supra. That formula has been referred to in virtually every case which since has considered section 79. The cases also confirm that section 79 is a strict liability provision in that anti-union animus is not a relevant factor.
The interpretation of section 79 in the context of particular fact situations, however, has seldom proven simple or straightforward. The Board in Simpsons, supra, referred to a passage in Sunnycrest Nursing Home Limited, [1982] OLRB Rep. Feb. 261 which it is appropriate to repeat here:
The freeze provisions give rise to difficult problems of interpretation for if treated as a total prohibition on any employer actions taken in the ordinary course of business which impinged upon the employment relationship, the freeze would effectively paralyze the employer's operations during the bargaining process; while, if the pre-existing but now frozen entrepreneurial rights are given too broad an interpretation, they would render the section meaningless.
The Board could have interpreted section 79 so as to freeze the precise conditions extant at the time the statutory provision was triggered. The Board, though, has consistently rejected that approach as an unreasonable interpretation of the legislation. In the Board's view, such an interpretation would effectively paralyze an employer's operations for the duration of the statutory freeze, a period which could be quite lengthy. In effect, the business as before formulation in Spar Aerospace, supra, was the Board's response to too expansive a view of employee privileges. To paraphrase Spar Aerospace, the employer's right to manage its operation was maintained subject to the condition that the operation conform to the pattern established when the freeze was triggered.
Business as before is a slippery concept to apply to specific fact situations. The focus of the test is the pattern of operations, the employer's practice. Certainly, where the practice is accurately embodied in an employer's policy manual, the application of business as before has been relatively straightforward: J. M. Schneider Inc., [1984] OLRB Rep. Apr. 609. There have been other instances where a practice has been so well entrenched as to be beyond dispute: Spar Aerospace, supra, with respect to annual merit and annual cost of living increases. On the other hand, the increased parking fee cases illustrate the difficulty in looking for a pattern: see Oshawa General Hospital, [1985] OLRB Rep. Jan. 98, and the cases cited therein, including Humber Memorial Hospital, [1979] OLRB Rep. Aug. 764 and Ottawa General Hospital, September 1984, unreported, File No. 0965-84-U(B). Does business as before require annual adjustments to parking fees, equal increases in fees, regular adjustments, any charge to employees for parking, or, is what is frozen the actual rate in place at the time of the freeze? The cases generally reject the actual rate at the time for the freeze and uphold adjustments to rates. However, the cases reveal the difficulty of looking at a pattern or business as before to measure employees' privileges.
The freeze provisions catch two categories of events. There are those changes which can be measured against a pattern (however difficult to define) and the specific history of that employer's operation is relevant to assess the impact of the freeze. There are also first time events and it is with respect to that category that the business as before formulation is not always helpful in measuring the scope of employees' privileges. Some first time events have been readily rejected by the Board, where, for example, the employer has instituted parking fees for the first time during the freeze: see Scarborough Centenary Hospital, [1978] OLRB Rep. July 679; St. Joseph's Hospital, September 1984, unreported, File No. 0965-84-U(A). On the other hand, the Board has upheld an employer's right to lay-off employees during the freeze (assuming there is no anti-union animus in the decision): Simpsons, supra; Burlington Carpet Mills, supra; The Winchester Press, supra; Grey Owen Sound, supra; Deacon Brothers, supra; Airline (Malton) Credit Union, supra. This right has been confirmed even where the first instance of layoff occurred during the freeze (see Grey Owen Sound, supra; The Winchester Press, supra; and where the layoffs had occurred elsewhere in the employer's operation but not at the specific location in question (see Simpsons, supra).
Instead of concentrating on business as before, the Board considers it appropriate to assess the privileges of employees which are frozen under the statute and thereby, delimit the otherwise unrestricted rights of the employer, by focusing on the reasonable expectations of employees. The reasonable expectations approach, in the Board's opinion, responds to both categories of events caught by the freeze, integrates the Board's jurisprudence and provides the appropriate balance between employer's rights and employees' privileges in the context of the legislative provisions.
Reasonable expectations language has appeared in a number of decisions dealing with the freeze section. See, for example, Corporation of the Town of Petrolia, supra: Scarborough Centenary Hospital, supra; Oshawa General Hospital, York-Finch Hospital, supra; St. Mary's Hospital, [1979] OLRB Rep. Aug. 795 (Decision omitted from [1979] OLRB Rep. March); AES Data Limited, [1979] OLRB Rep. May 368. In the latter case, for example, the Board found that the employer was entitled to re-assign job functions since the employees could not reasonably expect to continue performing their jobs in exactly the same way despite changes in the mode of production and market conditions. Thus, in the Board's view, the reasonable expectations of employees as the appropriate measure of the employees' privileges which are protected by the freeze is a common thread running through the earlier decisions. In the instant case, the Board is expressly articulating the test.
The reasonable expectations approach clearly incorporates the practice of the employer in managing the operation. The standard is an objective one: what would a reasonable employee expect to constitute his or her privileges (or, benefits, to use a term often found in the jurisprudence) in the specific circumstances of that employer. The reasonable expectations test, though, must not be unduly narrow or mechanical given that some types of management decision (e.g., contracting out, workforce reorganization) would not be expected to occur everyday. Thus, where a pattern of contracting out is found, it is sensible to infer that an employee would reasonably expect such an occurrence during the freeze. The Board in Simpsons, supra, although the cleaning was contracted out before the company itself took over that operation, did not conclude there was such a pattern.
The reasonable expectations approach also integrates those cases which affirm the right of the employer to implement programmes during the freeze where such programs have been adopted prior to the freeze and communicated (expressly or implicitly) to the employees prior to the onset of the freeze....
Finally, the lay-off cases are consonant with the reasonable expectations approach. Very few, if any, work forces are entirely static; fluctuations in the size of the staff complement and its composition are the norm. Employers are generally expected to respond to changing economic conditions through the hiring, termination and attrition of employees. It is in this sense that it is reasonable for employees to expect an employer to respond to a significant downturn in the business with layoffs (or terminations) even where such layoffs are resorted to for the first time during the freeze....
In describing the effect of the freeze provisions contained in section 81 of the Labour Relations Act and section 13 of the Hospital Labour Disputes Arbitration Act, the Board wrote as follows in the recent case of George St. L. McCall Chronic Care Wing of the Queensway General Hospital, [1991] OLRB Rep. May 619:
12.... section 13 of the HLDAA and 79 of the LRA operate together to prohibit an employer to which the HLDAA applies ... from altering working conditions (which include all terms and conditions of employment, including wages) in the circumstances set out therein. These are what are commonly known as "freeze" provisions. The purpose of these provisions is to provide a fixed and stable point of departure for collective bargaining, and to thereby facilitate the collective bargaining process, by maintaining the terms and conditions of employment for bargaining unit employees in the pattern which existed at the time the freeze provisions came into effect. This ensures a fixed basis for negotiations and precludes any unilateral alteration to the status quo which might give one party an unfair advantage in bargaining or for propaganda purposes.
Although the "freeze" label has stuck, it is a bit of a misnomer. Sections 13 and 79 of the HLDAA and the LRA respectively do not necessarily contemplate a static situation. As the Board's jurisprudence demonstrates, it is the pattern that existed prior to the onset of the freeze and the reasonable expectations of employees which are preserved, not merely the terms and conditions of employment in effect at the point in time that the freeze provisions come into effect. As such, section 13 of the HLDAA and section 79 of the LRA are strict liability provisions in the sense that an employer's actions need not be necessarily improperly motivated for it to be in breach of them (see Beaver Electronics Ltd. [1974] OLRB Rep. Mar. 120, The Wellesley Hospital [1976] OLRB Rep. July 364, Kodak Canada Ltd. [1977] OLRB Rep. Aug. 517).
The Board has interpreted the freeze provisions in a manner which recognizes an employer's right to continue to manage its operations in accordance with a pattern which has been established prior to the freeze being triggered. This "business as before" approach was articulated and applied in Spar Aerospace Products Limited [1978] OLRB Rep. Sept. 859. As subsequent cases demonstrate, it is not always easy to apply this test. Nor does applying it always lead to an obvious result. In that respect, for example, the Board has found that the freeze provisions do not prohibit first time events (see Grey Owen Sound Joint Homes for the Aged [1983] OLRB Rep. Apr. 522 where lay-offs occurred for the first time during the freeze; Corporation of the Town of Petrolia [1981] OLRB Rep. Mar. 261 where work was contracted out for the first time during the freeze). To clarify the business as before approach, and to accommodate first time events, the Board developed the "reasonable expectations" test....
(See also Harrowood Seniors' Community, [1992] OLRB Rep. Feb. 177.)
In the instant case, the pattern frozen by section 81(2) is the respondent's long-standing practice of treating all its non-unionized employees alike in terms of COLA and anniversary increments. Thus, the respondent would have contravened section 81(2) if it had denied anniversary increments to the employees potentially affected by the Union's certification application while granting such increments to its other non-unionized employees. It would also have contravened section 81(2) if it had adopted the converse approach by granting anniversary increments to the employees potentially affected by the certification application while denying them to its other non-unionized employees. However, in responding to the aforementioned economic constraints by granting all of its non-unionized employees a COLA increase and freezing their anniversary increments for a one-year period, it was maintaining its established pattern of treating all its non-unionized employees alike in respect of COLA increases and anniversary increments. We are also satisfied on the totality of the evidence that the respondent was carrying on "business as before" in setting aside the aforementioned percentage for salary compression adjustments, and for one-time payments to individuals in middle management for exceptional performance as determined on a case by case basis. In this regard, we respectfully disagree with our dissenting colleague's view that the latter payments are "anniversary increments" (as described in paragraph 5 of this decision). Moreover, just as it is reasonable for employees to expect an employer to respond to significant reductions in funding by laying off employees, so too is it reasonable for employees to expect an employer to react to the non-availability of funding increases by declining to grant some or all forms of wage increases, including anniversary increments. Thus, whether viewed from the perspective of maintaining the existing pattern in accordance with the "business as before" approach, or from the perspective of what reasonable employees would expect to constitute their privileges or benefits in the specific circumstances of their employer, the respondent's freezing of anniversary increments was not violative of section 81(2) in the circumstances of this case.
For the foregoing reasons, the complaint is hereby dismissed.
DECISION OF BOARD MEMBER C. MCDONALD; November 27, 1992
I have read the majority decision and with the greatest respect I believe that they are wrong and I dissent from that majority decision.
The Minutes of the January 22, 1992 meeting of the Corporate Services Committee state:
3.4 Non Union Salary Admin. Policies 92/93 - Approach: ... noted I. Ritums "that we will go with the steps, but anything else will have to await the pay equity ruling".
In evidence Mr. Ritums could not recall what he meant by "go with the steps".
The Minutes of the February 5,1992 Meeting of the Corporate Services Committee state:
3.4 Salary Admin. Policy 92/93 ... it was agreed that there is a need for some COLA, which could be 1½% or 2%; that the movement through the salary scales will be frozen for the current year; that we look at a discretionary amount to be set aside for adjustments and for one-time payments in recognition of exceptional performance, as judged by senior management in their review of middle management performance, and that the pay equity issue would be a separate issue
- The Minutes of the February 19, 1992 Meeting of the Corporate Services Committee state:
2.5 Salary Admin. Policy 92/93 ... I. Ritums reported that the last meeting of Corporate Services had recommended that the anniversary increase for non-union be frozen, effective April 1, i992 and that a total package of 2.5%, with, .75% for adjustments be adopted. $180,000 has been put in the budget for this purpose.
- The Minutes of the May 28, 1992 Meeting of the Board of Trustees state:
……it is now recommended that the Hospital proceed with the following salary policy for fiscal 1992-93:
a cost of living of 1.5% effective April 1, 1992;
180,000 set aside for performance payments on a case by case basis (as determined by administration) and for salary compressions;
a freeze on movement through the salary scale for a 12-month period effective June 1, 1992;
... salary compression relates to the differential between supervisors and the staff reporting to the supervisor
……the 180,000 includes not only the adjustments required for salary compression, but also a pay-for-performance plan for management staff that allows for a graduated payment for performance. This process includes an annual performance appraisal by the department head which results in a performance rating which is then reviewed by senior management. [my emphasis]
Employees were informed of the 1992/93 salary program by means of the memo reproduced at paragraph 10 of the majority decision. The memo did not advise the employees of the entire salary policy for fiscal 1992/93 as outlined above in paragraph 6.
At paragraph 17 of the majority decision it states:
"in the instant case, the pattern frozen by section 81(2) is the respondent's long-standing practice of treating all its non-unionized employees alike in terms of COLA and anniversary increments. Thus the respondent would have contravened section 81(2) if it had denied anniversary increments to the employees potentially affected by the union's certification application while granting such increments to other non-unionized employees... However, in responding to the aforementioned economic constraints by granting all of its non-unionized employees a COLA increase and freezing their anniversary increments for a one year period, it was maintaining its established pattern of treating all its non-unionized employees alike in respect of COLA increases and anniversary increments".
The respondent in its minutes of the Board of Trustees Meeting of May 28, 1992 approved the salary policy for 1992/93 granting annual performance appraisals and merit increases as it had in the past for some of its employees while denying annual increments to the employees the union is seeking to represent. Adopting the majority view would find that the respondent's freezing of some of the employees' anniversary increments to be violative of section 81(2).
Unlike the majority I do not believe that the pattern frozen by section 81(2) is the respondent's long standing practice of treating all its non-unionized employees alike in terms of COLA and anniversary increments.
The pattern that should be frozen by section 81(2) is the respondent's regular and consistent practice for the last 11 years of granting anniversary increments to each employee, each year effective on the anniversary date of employment.
Respondent's counsel contends that if freezing anniversary increments does involve an alteration of the previous pattern, it is an alteration that falls within the reasonable expectations of the employees in the context of the financial constraints under which the respondent has to operate during its 1992/93 fiscal year.
The reasonable expectations of the employees would be that after 11 years of receiving anniversary increments they could reasonably expect the practice to continue (as it had for the management employees).
The respondent did not advise or communicate its decision to freeze the wages of its employees until the memo of June 8, 1992.
The anniversary increase, in my view, is an established benefit for all employees that should be preserved by section 81(2). The evidence discloses that the proposed salary policy had changed during the months preceding the Board of Trustees final approval on May 28, 1992.
Although the total amount was set the respondent could have exercised its discretion to distribute those funds budgeted for salary increases in a manner that would have been consistent with its past practice.
The respondent's right to manage would have been maintained while at the same time preserving the pattern established before the circumstances giving rise to the freeze occurred.
The chilling effect that the withdrawal of the expected wage increase has upon the representation of employees by the trade union will be a difficult hurdle for the union to overcome.
The unfortunate message that reasonable employees will derive from the majority decision is that "if you join a union you will lose your anniversary increase and possibly any other future benefits, so don't join a union".
It is my view that this gives the respondent an unfair advantage in bargaining or for propaganda purposes.
The employees have been intimidated and will accept less out of fear of further reprisal.
- The majority decision at paragraph 17, states:
……"whether viewed from the perspective of maintaining the existing pattern in accordance with the 'business as before.' approach or from the perspective of what reasonable employees would expect to constitute their privileges or benefits in the specific circumstances of their employer……”.
However unlike the majority I would conclude the paragraph by stating the respondent's freezing of anniversary increments was violative of section 81(2) in the circumstances of this case.
1 would have granted the relief sought by the union.