Decision

[1993] OLRB REP. SEPTEMBER 880

1665-93-M Retail, Wholesale Canada Canadian Service Sector Division of the United Steelworkers of America, Local 414, Applicant v. New Dominion Stores, a division of the Great Atlantic and Pacific Company of Canada, Limited and Retail Wholesale and Department Store Union, AFL-CIO-CLC, Responding Parties

BEFORE: Robert Herman, Vice-Chair, and Board Members R. W. Pirrie and J. Redshaw.

APPEARANCES: James Hayes, Brian Shell, Blame Donais, T. E. Collins and Leo Gerrard, for the applicant; Derek L. Rogers, John Peardon and Christine MacDonald for A & P; Chris G. Paliare, Nick Coleman, John Monger and Robin McArthur, for RWDSU.

DECISION OF THE BOARD; September 2, 1993

1. The applicant has filed a section 91 complaint (Board File No. 1664-93-U) and a related instant application for interim relief. A hearing was held on August 26, 1993. An oral decision issued at its conclusion, which we set out and expand upon here.

2. In order to understand the issues, some awareness of the context is necessary.

3. These same parties have already been engaged in litigation over which trade union now represents employees working at a number of New Dominion/A & P stores in Southern Ontario. On July 23 and 27, 1993, hearings were held before the Board (referred to as the "MacDowell" panel) to consider whether an interim order should be granted, until the Board could determine which union did hold bargaining rights. During the hearings A & P took a neutral position as between the competing unions, and expressed its serious concern that it be allowed to continue to manage labour relations at the stores in question, and that the employees affected in the stores not have their rights adversely affected.

4. The MacDowell panel issued a decision on July 29, 1993, in which it made two direc­tions:

(1) Until the Board determines which trade union has bargaining rights for and is entitled to represent the employees of New Dominion A & P stores in its Southern Ontario stores, and unless the Board otherwise directs, the employees at each store will con­tinue to be represented in their dealings with their employer by the individual union representative(s) who customarily dealt with their employment problems prior to July

10, 1993.

(2) Until the Board determines which union has bargaining rights and is entitled to repre­sent the employees of New Dominion/A & P stores in its Southern Ontario stores, the employer's local store managers and other managerial personnel may continue to deal with the individual union representative(s) with whom they have customarily dealt in respect of employer-employee matters prior to July 10, 1993.

5. The decision also specifically referred to A & P's position:

6. The employer and the various unions all submit that it is important that the employ­ees' right to representation not be prejudiced while this case is being considered by the Board.

7. The employer stresses the importance of its being able to carry on business as usual, so that this dispute between trade unions does not interfere with the interests of the employer or the employees.

8. The panel also directed that copies of its interim decision be provided to all of the com­pany's store managers and that the decision be posted, immediately, in each store, where it would most likely come to the attention of the employees. Reasons for this interim decision issued August 12, 1993, [now reported at [1993] OLRB Rep. Aug. 783].

9. On August 9, 1993, shortly after this interim decision issued, the Board began to hear the merits of the dispute; that is, the Board began to hear the dispute over which union held bar­gaining rights for employees at the A & P stores in question. That hearing has concluded. The Board has not yet issued its decision with respect to which union holds the bargaining rights. A decision is anticipated within a few weeks.

10. This then was the situation: the Board had already issued an interim decision, in order to maintain the status quo with respect to representation at the store level until the Board finally determined which union holds bargaining rights, and the parties have already litigated that ques­tion and were awaiting a decision of the Board.

11. But the status quo was not maintained.

12. A & P took the position that the Board's prior decision (the MacDowell decision of July 29, 1993) meant that the employees would continue to be dealt with by the individual union repre­sentatives who had customarily dealt with them, but only for the limited purposes of the grievance procedure, and only if A & P chose to deal with those representatives for those purposes. For its part, the responding union (hereinafter referred to as Retail, Wholesale and Department Store Union, or RWDSU International) advised all of its unit chairpersons across the Province, includ­ing those responsible for the A & P stores in question in Southern Ontario, that henceforth its peo­ple were responsible for addressing "all contractual or labour related matters which may arise". The people so designated by RWDSU International had not previously represented employees at the local store level.

13. It also appears on the materials before us, that A & P has now abandoned its neutral position.

14. A & P had earlier granted leaves of absence to four individuals, who were working on behalf of the applicant, with some of these leaves of absence granted as recently as July 11, 1993. On July 27, 1993, the last hearing day before the MacDowell panel, RWDSU International requested of A & P that the leaves of absence previously granted to supporters of the applicant be cancelled. Notwithstanding that request, A & P at the time declined to do so, a position consistent with the submissions and position it had taken before the MacDowell panel. A & P did however grant additional leaves of absences to supporters of RWDSU International.

15. Thus, from at least the end of July and through the first half of August, 1993, A & P has granted leaves of absence to supporters of both the applicant and RWDSU International; and there can be no doubt, both on the basis of the materials filed and submissions made to the Board by all parties, that both groups of union supporters were using the leaves of absence, at least in substantial part, for political or lobbying purposes. Then, on August 17, 1993, acceding to the ear­lier request from RWDSU International, A & P cancelled the leaves of absence which it had previ­ously granted to the supporters of the applicant, while leaving outstanding the leaves of absence granted to the RWDSU International supporters.

16. After hearing the parties' submissions at the hearing, and recognizing the need for a expeditious response in the circumstances, the Board at the hearing granted certain remedial relief.

17. We were satisfied that the responding parties had not been following the prior decision of the Board in all respects, whether through inadvertence, confusion or intention to subvert. In that regard (and notwithstanding some serious reservations about the Board intruding on what, at least in part, can be characterized as internal union matters), we were satisfied that it was appro­priate to make further interim directions in order to clarify or simplify the prior decision of the MacDowell panel and to ensure that the statutory rights of the participants were protected. Any confusion or possible misunderstanding by the parties can thereby be eliminated.

18. But quite apart from problems which continued to exist despite the decision of the Mac­Dowell panel, and as noted above, there have been other changes at the A & P stores in question, particularly with respect to the position and actions of A & P. These were not matters previously before the Board. There was no allegation before the MacDowell panel that the employer had departed from a position of strict neutrality. Indeed, A & P's position was that it wanted to remain neutral; and the MacDowell panel appears to have accepted that position and responded accord­ingly.

19. The Board was satisfied that these facts (largely undisputed we might add), justify fur­ther interim relief. The applicant has pleaded, at the very least, an arguable case that A & P has engaged in unlawful, discriminatory activity, in its cancellation of the leaves of absence to the applicant's supporters, while granting and maintaining leaves of absence for the supporters of RWDSU International.

20. This is not an internal union matter. Rather, this is a question of ensuring that the rights of employees and unions under the Labour Relations Act are protected. It is a question of ensuring that the employees have the ability to choose freely between potential bargaining agents, and that potential bargaining agents have not unfairly been discriminated against with respect to access to employees.

21. We recognize that the circumstances before us are somewhat unique, in that the Board's decision (which the parties are currently awaiting) will likely determine which of the unions before us will be entitled to continue to exclusively represent the employees in question. It may be that access to employees during the intervening period, while awaiting such decision, has no practical significance. However, at this stage, it is more likely that there may be some practical ramifications arising from access to employees, and the ability to politic and lobby at the workplace pending the the Board's final decision. In these circumstances, and given that the Board's decision is likely to issue in the near future, the Board considered it appropriate to ensure that during the intervening period the employer does not actively support either union at the expense of the other.

22. Accordingly, and as directed at the hearing on August 26, 1993, the Board granted the following relief:

23. The Board directs that those individual unions representatives who have customarily dealt with the day to day employment issues or problems in the workplace, prior to July 10, 1993, shall continue exclusively to be able to deal with them.

24. With respect to the four individuals whose leaves of absence were rescinded by A & P. those leaves are to be reinstated forthwith,on the terms and conditions under which the leaves were originally granted, as if the leaves of absence had never been rescinded.

25. All notices to any persons purporting to confer authority contrary to the Board's decision herein and the Board's directions of July 29, 1993 are to be withdrawn by the parties who issued them. In this respect, the parties might direct their attention to the material filed at Tabs 9, 11, 13, and 14 of the Exhibit Book filed by the applicant.

26. The company is directed to send copies of this decision to all of the company's store managers and this decision is to be posted immedi­ately in each store, where it will most likely come to the attention of the employees.

27. These orders are limited to the A & P stores where the applicant is involved.

28. These orders or directions are to apply until the decision on the mer­its issues and concludes otherwise, or until the Board otherwise directs.

29. The intent of these orders is to ensure that employment related problems arising at the store level continue to be dealt with by the union people who had customarily dealt with them prior to July 10, 1993. Our direction is not restricted to the grievance procedure, but is intended to maintain the general status quo with respect to employment problems and union representation at the local store level. This arrangement will ensure that employee representation rights do not suf­fer while awaiting the Board's decision on the merits. That decision will likely decide which union is entitled exclusively to represent the employees in question, in which case that decision will supersede in those respects our decision given herein. But until then, or until the Board otherwise declares, the customary people are entitled to service the bargaining unit employees as they did before, and A & P is required to deal with these people. Given the imposition of the trusteeship, there may as a practical matter arise problems which realistically require all the parties to agree to defer their resolution until the Board's final decision issues. However, that is a matter of agree­ment between the parties.

30. Again, as did the MacDowell panel, we wish to emphasize that the Board does not sup­port or prefer one union over another. Those sorts of decisions are not for us to make, nor should we be commenting in any respect on those decisions. What is our responsibility however, is to ensure that statutory rights set out in the Labour Relations Act are preserved pending a resolution of this dispute. Here, interim relief was necessary in order to fulfil that purpose.

31. We have issued these reasons quickly, in order to be able to quickly notify employees affected of the circumstances, and hopefully thereby to reduce the obvious confusion and uncer­tainty in the workplace, and to lessen the likelihood of further problems needing Board interven­tion. More complete reasons may follow at a later date.