[1993] OLRB REP. SEPTEMBER 844
1240-93-M; 1241-93-M Association des Employs d' Ottawa-Carleton (Employés de bureau, de secretariat et employés techniques), Applicant v. La Section catholique du Conseil scolaire de langue française d'Ottawa-Carleton, Responding Party; Association des Employés d'Ottawa-Carleton (Préposés à l'entretien et à la conciergerie), Applicant v. Le Conseil plénier du conseil scolaire de langue française d' Ottawa-Carleton, Responding Party
BEFORE: S. Liang, Vice-Chair, and Board Members D. A. MacDonald and A. R. Foucault.
APPEARANCES: James G. Cameron and Gerard Poirier for the applicant; Graham Clarke, Alum Fortin and Robert Lefebvre for the responding parties.
DECISION OF S. LIANG, VICE-CHAIR AND BOARD MEMBER D. A. MACDONALD:
September 22, 1993.
These are related applications for interim relief made under section 92.1 of the Labour Relations Act. The Board held a hearing on July 16, 1993 for the purpose of hearing the representations of the parties with respect to the matters raised by the applications. After reviewing the materials filed and hearing the representations of the parties, the majority of the panel, Mr. Foucault dissenting, denied the orders sought by endorsement dated July 20, 1993. We now provide our reasons for that ruling.
For ease of exposition, the applicant will be referred to herein as "the Association The responding parties will be referred to as "the Catholic Section" and "the Full Board".
These two applications are related to two other applications made pursuant to the provisions of section 91 of the Labour Relations Act. In the applications under section 91, the applicant alleges that the responding parties have violated section 81 of the Act by implementing certain measures regarding the taking of vacations by the employees in the bargaining units represented by the Association. As well, the Association asserts that the imposition of a week of vacation on certain employees of the Catholic Section constitutes an unlawful lock-out.
The two bargaining units which are the subject of this application are a group of office, clerical and technical employees (employed by the Catholic Section) and maintenance and custodial employees (employed by the Full Board). The last collective agreements applying to these groups were effective from January 1, 1991 to December 31, 1992. Notice to bargain was sent to the responding parties on December 10, 1992 and the parties are currently in negotiations with respect to new collective agreements for the two groups.
Many of the provisions of the two collective agreements are the same or very similar.
With respect to annual leave, the agreements state:
3.3.5 Utilisation des Congés annuels
a) Les employés prennent normalement leurs congés annuels durant les mois de juillet et août. Dans les cas o à les écoles ou les services sont fermés pendant les vacances de Noël et les vancances d'hiver, les absences d'employés survenant au cours des périodes susmentionnées pendant les jours qui ne sont pas des jours fériés désignés sont portées au débit du compte des congés annuels ou autres congés payés des employés.
b) Sous réserve des exigences du Service ou du lieu de travail et en autant que la Section n'ait pas à embaucher du personnel ou à défrayer des coûts supplémentaires en raison de l'absence de l'employé, ce dernier peut prendre ses vacances durant l'anndée scolaire.
c) Aucune déduction de crédits de congés annuels n'est appliquée lors d'un cong 2i férié. [office, clerical and technical]
3.3.5 Utilisation des congés annuels
a) Les employés prennent normalement leurs congés annuels durant les mois de juillet et août.
b)i) Sous réserve des exigences du Service ou du lieu de travail et en autant que la Section n'ait pas à embaucher du personnel ou à défrayer des coûts supplémentaires en raison de l'absence de l'employé, ce dernier peut prendre ses vacances à une autre période que celle de juillet et août.
ii) Une telle demande doit étre présentée au Conseil:
au moms une semaine à l'avance lorsqu'il s'agit d'une demande de cong 2i de trois (3) jours ou moins;
au moins un (1) mois à l'avance lorsqu'il s'agit d'une demande de cong 2i de plus de trois (3) jours.
c) Aucune deduction de crédits de congés annuels n'est appiiquée lors d'un cong 2i férié. [maintenance and custodial]
On April 26, 1993, the Association was advised with respect to the office, clerical and technical bargaining unit that the Catholic Section intended to direct employees to use the first week of August as part of their annual leave, as part of a general shutdown. The Association took the position that this measure was contrary to the collective agreement. On May 11, the Catholic Section sent a general memo to its employees indicating that all personnel would be considered on vacation during the first week of August (August 3,4,5 and 6). The Association met with the Catholic Section on May 19 and, among other things, took the position that such a measure constituted a violation of section 81 of the Labour Relations Act.
With respect to the maintenance and custodial employees, the Full Board requested on May 17, 1993 that employees indicate their vacation preferences for the months of June, July and August. When the Full Board confirmed the vacation schedule, 13 out of 56 employees who had requested vacation during the last week of August were denied this week.
Both groups of employees were also told that they were expected to use all of their annual leave before the end of the calendar year.
In these requests for interim relief, the Association requests that the Board order the Catholic Section not to cease operations during any specific period during the months of July and August and order the Catholic Section and the Full Board to administer vacation leave entitlement pursuant to its understanding of the collective agreement, so as to permit employees to choose when they will take vacation during July and August.
The Association alleges that under both collective agreements, employees are entitled to take their annual holidays any time during the months of July and August. Under the terms of these agreements, employees have an unfettered right, during the months of July and August, to choose their vacation times. The decision to refuse some employees the right to take holidays during a specific week, and the decision to require employees to take their holidays during a specific week, violate article 3.3.5 of the collective agreements. As such, these measures constitute a violation of section 81 of the Act in that they change terms and conditions of employment during the period in which the terms and conditions of the expired collective agreement continue.
In addition, the Association alleges that the decision by the Catholic Section to cease certain operations during the first week of August and force employees to take this week as a vacation week constitutes a lock-out contrary to the provisions of section 74 of the Act.
In support of the request for interim relief, the declaration filed by the Association states that it is unlikely that the Board will adjudicate on the merits of these complaints before the time in which these measures will be implemented. Any effective remedy given after the fact will be both disruptive and expensive. In oral representations, counsel for the Association also referred to the direct, personal consequences of these measures on employees' vacations, and the disruptions to family holidays which will result from the responding parties' actions. He also submitted that, in reality, if the complaints are upheld, it will be impossible to place employees in the position they would have been in but for the violations of the Act.
Counsel for the Catholic Section and the Full Board disputes that the Association has made out even an arguable case on the materials filed. In his submission, there is nothing in the collective agreements which prohibit these employers from taking the disputed measures. There is nothing in the language of the agreements relied on by the Association which gives employees the absolute right to determine their vacation schedule during the months of July and August. Further, counsel states that with respect to the Full Board, the matter of vacation scheduling has always been subject to the final approval of the Full Board. The Association has never complained about this practice in previous years.
Further, counsel submits that the prejudice to the responding parties far outweighs the prejudice to the Association. An interim order would give the Association a total victory in the dispute. If the employers are vindicated by the finding on the merits, it will be too late, since they will already have been prevented from doing precisely what they sought to do.
The responding parties dispute that there has been a lock-out by the Catholic Section. Among other things, there is absolutely no evidence that there was a suspension of work motivated by an attempt to compel employees to refrain from exercising any rights or privileges under the Act or to agree to provisions or changes in provisions respecting terms or conditions of employment.
Further, counsel for the responding parties states that the delay by the Association ought to weigh against the relief sought. Although the Association has known of the matters in dispute since at least the beginning of May, it took until June 18 to file a complaint before the Board, and then until July 12 to file the request for interim relief. The lack of expedition suggests a lack of urgency. In addition, since the dispute between the parties essentially centres on a dispute over the interpretation of the collective agreements, the Association could have sought expedited arbitration of the issues and had them determined before this date.
On the issue of delay, the Association does not deny that it has known of these matters for several months before the applications for interim relief were filed. Counsel submits that since it asserts a breach of statutory rights, the Association is not compelled to take these matters to arbitration but has the right to bring them before the Board. As well, the allegation of an illegal lock-out is not a matter which an arbitrator could deal with. Further, even if the issues had been referred to arbitration, in the Association's experience, the parties would have been unlikely to receive a decision before these events.
The parties referred the panel to the following cases: Metropolitan Toronto Apartment Builders Association, [1993] OLRB Rep. March 219; Reynolds-Lemmerz Industries, [1993] OLRB Rep. March 242; Loeb Highland, [1993] OLRB Rep. March 197; Loeb IGA Highland, [1993] OLRB Rep. March 208; Morrison Meat Packers Ltd., [1993] OLRB Rep. Apr. 358; Grey Owen Sound Joint Homes for the Aged (Grey-Owen Lodge), [1983] OLRB Rep. Apr. 522; J. Lewis Humphreys, [1983] OLRB Rep. Apr. 530; Ottawa Civic Hospital, [1986] OLRB Rep. June 812; Trim Trends Canada Limited, [1987] OLRB Rep. Apr. 623 and Anderson's City Farm Valu-Mart, [1987] OLRB Rep. Jan. 1.
As indicated at the outset, after hearing the representations of the parties and reviewing the materials filed, the majority of this panel dismissed the requests for interim relief.
Over the course of the past number of months, the Board has heard a number of requests under section 92.1 and has developed certain principles which it finds useful to apply in assessing the merits of requests for interim relief. These principles have been elaborated in some of the cases cited above. The Board has stated that there are essentially two elements in its determinations under section 92.1. The first element requires the Board to assess, in a preliminary way and without making a determination on the merits, the apparent existence of an arguable case.
For the purposes of our determination, we are prepared to accept that the Association has established that it has an arguable case on at least some of the issues raised. We have serious doubts as to whether it has established an arguable case with respect to the lock-out allegations, given the complete absence of any indication that the imposition of a week's vacation was taken with a view to compel employees to "refrain from exercising any rights or privileges under this Act" or to "agree to provisions or changes in provisions respecting terms or conditions of employment", as set out in the definition of lockout under the Act.
Our decision to dismiss these requests turns on the second element of the Board's determination in this type of case, involving an assessment of the relative harm which may result from a decision to grant or not grant interim relief. In the case before us, the harm asserted by the Association in the event the Board refuses the relief relates purely to the remedial outcomes of these disputes, as they affect individual employees. It is said that if the Association succeeds on the merits, it will be difficult if not impossible to fully compensate the employees who have been denied their choice of vacation. It is suggested that it is more efficient and cost-effective to prohibit these measures at this point, than to find ways to compensate for them later.
We agree that full compensation is an ideal which is sometimes difficult to attain. In many cases, it is indeed a challenge to find a "make whole" remedy that is meaningful and complete. Sometimes, the difficulty arises where the Board must assess the amount of damages which would compensate for non-monetary loss, as might be the case here. Nevertheless, the Board has often indicated that the difficulty of assessing damages should not be a deterrent to the search for a "make whole" remedy. It has endorsed notions such as "loss of opportunity" as a means of remedying non-monetary loss.
Therefore, we cannot say that it would be an extraordinary or impracticable task to assess and award compensation in the event the Association is successful on the merits of the complaint. We do, however, agree that it might be difficult.
On the other hand, it is hard to deny that granting the orders sought would indeed be the "total victory" in these disputes. To the extent that the complaints are directed at two specific measures which will be carried out in the first and last weeks of August, the prohibition of these measures in effect decides the issues in favour of the Association. If these orders are granted and the Association subsequently loses on the merits of the complaints, it appears unlikely that the Catholic Section and the Full Board could institute duplicate measures once the school year has started. We do not intend to suggest that it will never be appropriate to grant interim relief even in these circumstances. However, unless the harm that might result from a refusal of the order is at least equally compelling, and is related to important public policy or labour relations considerations, we are reluctant to order interim relief where it essentially decides the matter in favour of one party.
In the case before us, the Association has not relied on any potential harm beyond the difficulty in remedy to the individual employees. It has not asserted that the actions by these employers have any effect, for instance, on the wider labour relations context between these parties who are at the present negotiating for the renewal of their collective agreements. In the absence of such broader labour relations considerations, we do not find the balance of harm in the case before us to favour the remedies sought.
For these reasons, the Board dismissed these applications. Given our findings, we need not deal with other arguments advanced by the parties.
DECISION OF BOARD MEMBER A. FOUCAULT: September 22, 1993.
I dissent.