Ontario Liquor Boards Employees' Union v. Fort Erie Duty Free Shoppe Inc., 1993 CanLII 7864

[1993] OLRB Rep. December 1307

2987-93-M Ontario Liquor Boards Employees' Union, Applicant v. Fort Erie Duty Free Shoppe Inc., Responding Party

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. A. Correll and B. L. Armstrong.

APPEARANCES: Elizabeth Mitchell and Heino Neilsen for the applicant; Frank A. Angeletti and

James Pearce for the responding party.

DECISION OF THE BOARD; December 7, 1993

1. This is an application under section 92.1 of the Labour Relations Act ("the Act") for an interim order relating to Board File No. 2818-93-U. This latter file involves a complaint under sec­tion 91 of the Act alleging that certain conduct by the responding party Fort Erie Duty Free Shoppe Inc. ("the employer") is contrary to sections 65, 67, 71 and 82 of the Act.

2. In its application for interim relief the applicant Ontario Liquor Boards Employees' Union ("the union") requests the Board to make an order:

"that the responding party restore the hours of work for the employees classified as fragrance associates to the schedule which had been posted prior to November 10, 1993, pending the result of the unfair labour practice complaint in OLRB File No. 2818-93-U"

and further requests the Board to make an order

"that the responding party post a notice to employees advising them of the protections of sec­tion 82 of the Labour Relations Act and advising the employees that the responding party will not commit any of the acts of interference or discrimination described in that section and recog­nizes their right to participate in the lawful activities of the applicant, including grievance arbi­trations, without fear of reprisal".

3. The trade union and the employer each filed extensive materials with the Board. As part of their filings, and in accordance with Rules 86 and 89 of the Board's Rules of Procedure both parties submitted declarations regarding their respective evidence and written representations in support of their positions. In addition, on November 30, 1993 the Board heard the oral repre­sentations of the parties at a hearing scheduled for that purpose. At that hearing, and in the mate­rial filed before us, we were referred to the following decisions of the Board each of which deals with applications for interim relief; Loeb Highland, [1993] OLRB Rep. Mar. 197, Morrison Meat Packers Ltd., [1993] OLRB Rep. Apr. 358, Reynolds-Leinmerz Industries, [1993] OLRB Rep. Mar. 242, Metropolitan Toronto Apartment Builders Association, [1993] OLRB Rep. Mar. 219, La Section catholique du Conseil scolaire de langue francaise d'Ottawa-Carleton, [1993] OLRB Rep. Sept. 844, Price Club Canada Inc., [1993] OLRB Rep. July 635. We have considered these deci­sions and the principles set out therein. Although not referred to by counsel we have also consid­ered the most recent decision of the Board with respect to interim relief in Board File No. 3438-92-M Tate Andale Canada Inc. decision dated October 13, 1993 [now reported at [1993] OLRB Rep. Oct. 1019].

4. Both counsel agreed that the facts and circumstances which give rise to this application for interim relief are unique and unlike the interim relief cases with which the Board has previously dealt. In this case the primary focus of the trade union's request for interim relief as stated by its counsel is the "protection of witnesses' rights".

5. The undisputed facts contained in the declarations which we find relevant to our deter­mination of this matter may be summarized as follows.

6. The union and the employer have had a contractual bargaining relationship since Febru­ary 1988. Since that time they have been subject to three separate collective agreements covering periods from February 11, 1988 to February 16, 1990, June 4,1990 to February 17, 1992 and the current collective agreement which covers the period from May 7,1992 to February 17, 1994. The current collective agreement contains the following provisions:

ARTICLE 3 MANAGEMENT RIGHTS

3.01 The Union recognizes and acknowledges that the management of the store and direc­tion of the working forces are fixed exclusively in the Employer and without limited the generality of the foregoing the Union acknowledges that this is the exclusive func­tion of the employer to:

(b) select, hire, transfer, assign to shifts, promote, demote, classify, lay off, recall, or retire employees, and select employees for positions excluded

from the bargaining unit;

(c) determine the location of operations, and their expansion or their curtail­ment, the direction of working forces, the schedules of operations, the number of shifts, the methods, processes and means of production, job content, qualify and quantify standards, the establishment of work or job assignments, the qualifications of an employee to perform any particular job; use improved methods, machinery and equipment; decide on the num­ber of employees needed by the Employer at any time, the number of hours to be worked, starting and quitting times; determine when overtime shall be worked and the right to require employees to work overtime; the determination of financial policies, including general accounting procedures and customer relations.

ARTICLES UNION ACTIVITY AND REPRESENTATION

5.08 there shall be no discrimination, favouritism or harassment by the employer or union or its members against an employee because of membership or non-membership in any lawful Union, or because of the employee's race, ancestry, place of origin, col­our, ethnic origin, citizenship, creed, age, record of offences (subject to the employ­ee's ability to be bonded), marital status, family status, handicap or because the employee has exercised any right specifically provided under this agreement."

ARTICLE 9 HOURS OF WORK

9.01 (a) The parties acknowledge and agree the employees covered by this Agreement shall be employed on a shift schedule comprised as follows:

(ii) Customer Clearance Associates and Fragrance Associates shall be employed on a shift schedule comprised of eight (8) hours per day or forty (40) hours per week.

(b) Employees working day and afternoon shifts shall be scheduled to work their shifts on a rotational basis.

9.04 Hours of work shall be posted at least four (4) weeks in advance. The Employer shall not change the scheduled hours within two (2) weeks of the shift in question.

9.06 (a) An employee who is requiring to commence work after 9:00 p.m. and before 5:00 am, will receive an hourly premium of fifty cents ($0.50) per hour.

(b) An employee who is required to commence work after 2:00 p.m. and before 9:00 p.m. will receive an hourly premium of twenty cents ($0.20) per hour.

9.07 The Employer does not guarantee to provide work for any employee nor to maintain the work week or hours of work at any time in effect.

9.08 Fragrance Associates shall be scheduled every second weekend off provided that there are two (2) or less employees in the classification. Otherwise, each Fragrance Associate shall be scheduled every third weekend off.

7. In April 1993 a grievance was filed by the union. This grievance proceeded to arbitra­tion. There have been several days of hearing namely June 29, October 7 and November 8 and 9. The arbitration hearing is scheduled to continue in January and March 1994. As part of its case the union called one of the fragrance advisors to give evidence. It is not disputed by the employer that this fragrance advisor attended, and was seen to attend, the arbitration hearing on all of the hear­ing dates. This fragrance advisor was called to give evidence on November 9, 1993. Her evidence was not completed on that day and her cross-examination is scheduled to continue in January, 1994.

8. On November 10, 1993 the employer posted changes to the schedules of work of employees, and in particular changes to the scheduled hours of work of the fragrance advisors. These changes became effective November 28, 1993. In its application under section 91 the trade

union asserts that the changes to the schedules of work were made as a reprisal for the fragrance advisors participation in, and support of, the grievance.

9. Generally speaking prior to the changes to the schedule the fragrance advisors worked the majority of their shifts between the hours of 8:00 a.m. and 8:00 p.m. (by working such shifts as 8:00 a.m. to 4:00 p.m., 11:00 a.m. to 7:00 p.m., 10:00 a.m. to 6:00 p.m. or 12:00 p.m. to 8:00 p.m.). In any particular week there was only one shift for one fragrance advisor that went beyond 8:00 p.m. (the 1:00 p.m. to 9:00 p.m. Friday evening shift). Each of the three fragrance advisors employed by the employer worked that shift once every three weeks. In addition each of the fra­grance advisors was required to work only one out of every three Sundays.

10. It is not disputed that the vast majority of the other employees in the bargaining unit work a standard 7:00 a.m. to 3:00 p.m., 3:00 p.m. to 11:00 p.m. and 11:00 p.m. to 7:00 a.m. shift schedule. With the changes to the schedule of work, the fragrance advisors will now also work shifts which will run either from 7:00 a.m. to 3:00 p.m. or 3:00 p.m. to 11:00 p.m. The individual results flowing from these changes to the schedule indicate that the fragrance advisors will now work a greater number of "evening" shifts than before, will regularly work beyond 8:00 p.m. and up to 11:00 p.m., and are now also scheduled to work two out of every three Sundays.

11. We note that pursuant to the terms of the collective agreement the fragrance advisors are paid an hourly rate and earn a commission on their sales. Certain other sales associates also earn a commission on their sales.

12. Each of the fragrance advisors filed a declaration in which they declare that the sched­ule changes will inhibit them in their ability to properly perform their job, will adversely affect their commission earnings because they will be regularly scheduled to work at times during which there is less business (the fragrance advisors anticipate their commission earnings will be reduced by approximately one hundred dollars per week), and will seriously and negatively impact upon their personal lives because of circumstances personal to each of them.

13. Mr. Heino Neilson the Business Agent of the union also filed a declaration which states:

14. I believe that the unexpected change to the schedules of the Fragrance Associates is an attempt by the Responding Party to retaliate against them for participating in the Applicant's grievance proceeding and shall have the effect of intimidating or coercing employees from par­ticipating in the Applicant's future activities. In fact, on November 23rd, 1993, one of the Fra­grance Associates, Carolyn Lown, said to me that she was afraid that, if she testified too, the Fragrance Associates may well end up working the overnight shift, another shift they have never been required to work while the other salespeople do.

15. While the Applicant has filed the unfair labour practice complaint, I believe that the interests of the Applicant, as well as the Fragrance Associates, will be harmed if the schedule is not restored immediately to the schedule which existed prior to November 10th, 1993. In particular, since, at the moment, the changes to the schedule are effective only from November 29th, to December 25th, 1993, it is likely that the merits of the complaint will not be decided by the time the changed schedule has run its course. Accordingly, it will be difficult to fashion appropriate remedies if our complaint is successful on its merits.

16. It is important to the ability of the Applicant to represent the members of this bargaining unit in a meaningful and effective way that the Applicant be able to obtain an effective remedy if its members are discriminated against for their participation in our activities, including grievance proceedings. I doubt that declaratory relief obtained after the employees have endured the discrimination intended by management will be sufficient to restore the confidence of the members that the Applicant can effectively protect them.

8... .The hourly wage rate for the fragrance Associates is lower than for other salespeople; one factor in negotiating that rate is the fact that the Fragrance Associates are in a position to earn substantially more commissions than other salse [sic] staff. By reducing the opportunities for those commissions, the Responding Party is undermining the integrity of the wage scales in the collective agreement; neither the perceived loss of status nor the challenge to the integrity of the wage scales will be remedied by declaratory relief obtained some weeks or months after the event.

9. In addition, with respect to the timing of this discriminatory conduct, the parties are about to enter into negotiations toward a new collective agreement and expect to be in bargaining before the merits of the underlying complaint can be determined. Therefore, it is important to the Applicant to have interim relief which maintains the status quo as it existed prior to November 10th, 1993.

In her declaration Ms. Lown does not speak of the fear referred to in paragraph 5 of Mr. Neilson's declaration.

14. The declaration of James Pearce filed on behalf of the employer denies that the sched­ule changes were motivated for any reason other than the "good and valid business reasons and business efficiency" detailed therein. These business reasons include an attempt by the employer to maximize sales by extending the availability of coverage and by reducing the overlap of the schedules of the fragrance advisors which had previously existed. An ancillary benefit of this is that coverage by the other sales associates for other areas of the sales floor is also maximized. Through the schedule the employer also seeks to enhance coverage by fragrance associates on Sunday "which has recently become [the employer's] busiest day". The declaration also states:

(d) The amended schedule is only for the month of December1993 which is our year end, and was implemented in an attempt by Fort Erie to maximize its total sales for the year in all fragrance lines. Only by accomplishing this, will Fort Erie be in a better position to negotiate with its Suppliers and Manufacturers for favourable terms and conditions for 1994 purchases. The degree of success in negotiating these favourable terms and conditions has a serious impact on present and future operating results;

15. In his declaration Mr. Pearce disputes that the fragrance associates' ability to earn com­mission will be adversely impacted and declares "in fact it is anticipated that such commissions will be increased". The employer also disputes that the changes to the schedule will affect the fragrance advisors' ability to perform their job and notes that in any event the changes represent only a mini­mal change to the schedule of the fragrance advisors.

16. Both in the declaration of James Pearce and in the submissions of counsel at the hearing the employer asserted that the primary thrust of the position of the fragrance advisors is that they don't like the new schedules, that it will cause them personal inconvenience, and that as a result of their past schedule they feel that they have enjoyed a special status or privilege which should be continued. In response to this the employer takes the position that the fragrance advisors do not currently have, and should not be given any special status or scheduling privileges not available to other bargaining unit members. In this regard James Pearce's declaration states:

17. The issue of scheduling of hours for Fragrance Associates has been the subject of previous discussions between the parties and it may well be that this is an issue that the union may wish to deal with at the upcoming negotiations for renewal of the Collective Agreement. However, this issue should be dealt with at negotiations and not under the guise of a complaint under Section 91 or an Interim Order pursuant to Section 92.1. The Applicant is seeking to achieve the result of a guarantee of a certain schedule of hours for Fragrance Associates indirectly through this process when no such right or guarantee presently exists under the Collective Agreement. In short, the Applicant is seeking directly to achieve a result that it could directly achieve under the Collective Agreement and in effect attempting to amend, alter or modify the provisions of the Collective Agreement.

18. Finally, the declaration filed in support of the employer's position disputes Mr. Neil-son's assertions of harm which will flow to the union if the interim order is not granted as "bald allegations" for which "there exists no factual basis". The declaration goes on to list the harm which will flow to the employer if the interim order is granted. It states that the employer will be unable to realize the benefits which it anticipates and expects to achieve from the amended sched­ule if the interim order is granted and also states:

19. As previously noted, the amended schedule was implemented only to cover a period of approximately one month from November 28, 1993 through to December 25, 1993, which would bring Fort Erie to its year end. The purpose for its implementation was in an attempt by Fort Erie to maximize its total sales for the year in all fragrance lines so as to achieve its sales fore­casts for 1993 which in turn would allow Fort Erie to be in a better position to negotiate favour­able terms and conditions with suppliers and manufacturers with respect to 1994 purchases. Without the extended coverage provided under the amended schedule, Fort Erie will not be able to meet its sales targets thereby impacting upon its present operating results. Moreover, and equally as important, without meeting its sales objectives, Fort Erie will not be in a position to negotiate favourable terms and conditions with its suppliers and manufacturers for its 1994 purchases. This would result in serious and irreparable harm which cannot be quantified in mon­etary terms and as such Fort Erie could never be compensated in damages of the Interim Order was granted.

20. Depending on its business needs and the level of customers in January, 1994, it may well be that Fort Erie will be required to further alter or change its schedules at that time. It is unlikely that the merits of this complaint will be decided by the time Fort Erie may be required to make further changes in January, 1994. The interim relief being sought by the Applicant would restrict Fort Erie from implementing changes to schedules as may be required in January, 1994 and for all intents and purposes, would restrict Fort Erie from being able to operate and manage its business appropriately.

21. To the extent that the complaints are directed to the specific issue of the amended schedule that was to be implemented and carried out up to December 25, 1993 and to the extent that any interim relief requested by the Applicant would prohibit any changes to the schedule save and except as existed prior to November 28, 1993, such prohibitions on these measures in effect decides the issue in favour of the Applicant. If the interim relief is granted and the Applicant's [sic] subsequently loses on the merits of the complaint, no remedy could be directed by the Board or instituted which could duplicate the position Fort Erie would have found itself but for the granting of the interim relief. In short, the interim relief requested by the Applicant would essentially decide the matter in favour of the Applicant for all time.

22. If the interim relief is granted, Fort Erie will have lost an essential component of the Collec­tive Agreement which is bargained for during the renewal, with respect to its right and ability to establish and alter schedules of work. A Board Order staying the effect of one of the provisions of the Collective Agreement would result in an intervention into the bargain made between the Applicant and Fort Erie.

23. The cases referred to in paragraph 3 herein have enunciated two elements which the Board will consider in making its determination under section 92.1. The first element requires the Board to assess, in a preliminary way whether the main application to which the request for interim relief relates reflects an "arguable case". The second element requires the Board to bal­ance the relative harm which may result from a decision to grant or not grant interim relief. In this regard when considering the section 92.1 application the Board balances the harm to each party to determine what harm may occur if the interim order is not granted and what harm may occur if it is.

24. Counsel for the employer asserted that the Board's enunciation of the "arguable case" element established an artificially low threshold or test for applicants to meet in cases such as this which do not involve allegations of an unfair labour practice during an organizing drive, or which do not cast upon the employer a reverse onus. Counsel urged this panel to impose a higher thresh­old and suggested in the circumstances of this case, at a minimum the threshold should be whether the trade union has established a strong prima facie case.

25. We need not determine whether the circumstances of this case cast upon the employer a reverse onus or whether the appropriate element for assessing the merits of the main application is one which focuses upon an "arguable" or "prima facie" case. In our view the unfair labour practice complaint filed by the union makes out either an arguable or prima facie case. At this point we need not determine the strength of the applicant's case. We are satisfied that it is plausible or pos­sible that a panel hearing the merits of the complaint may find that the Act has been violated and order an appropriate remedy. The complaint is not one which is frivolous, vexatious or which has no possibility of success.

26. We turn then to look at an assessment of the relative harm which may result from a decision to grant or not grant interim relief. In this regard we find it necessary to draw a distinction between the two types of interim relief orders which the union has requested.

27. We have determined to dismiss that part of the interim order application in which the trade union seeks an order that the employer restore the hours of work for the employees classified as fragrance advisors to the schedule posted prior to November 10th, 1993. We have also deter­mined to grant that part of the interim order in which the trade union seeks a notice to employees advising employees of the protections of section 82 of the Labour Relations Act.

28. In balancing the relative harm to each party it is significant to recognize that the Board has extensive experience in fashioning remedial orders within a labour relations context. The Board has broad remedial powers and although it may at times be difficult to assess and compen­sate for different types of "damages", that difficulty in and of itself cannot propel the Board or be the determinative factor in ordering interim relief. In Reynolds-Lemmerz, supra, the Board dealt with the request for interim relief in another context but stated:

. . .the goal of this panel's ruling is the preservation of the right of the union to a meaningful rem­edy, should the complaint be upheld, while at the same time intruding as little as possible on the employer's interests.

We find that comment to be equally applicable to the situation before us.

24. Similarly, it is significant to recognize that the balancing of "harm" is balancing of rela­tive labour relations harm and not purely financial harm. Thus in Morrison Meat Packers, supra, the Board noted:

. . .We are satisfied that perhaps the most significant factor the Board must weigh will be the rel­ative labour relations harm which could result from granting or not granting the interim orders sought. There must be some danger of possible significant harm to the applicant before the Board will grant the relief sought. Furthermore that harm must be more significant than the pos­sible harm which may result to the responding party of the order sought is granted.

We are not persuaded that the Board ought to intervene and use its powers to grant interim orders to avoid or limit harm which is purely financial.

See also Price Club Canada Inc., supra, at paragraph 16.

25. In this case, there is no serious or significant labour relations harm to the individual fra­grance advisors if the interim order restoring the schedule of work that existed prior to November 10th, 1993 is not granted. The individual harm is predominately financial. In our view any potential loss of commission or other financial losses which may arise from the schedule changes can be remedied through the Board's broad remedial powers including an order of compensation for dam­ages if the merits panel which hears the unfair labour practice complaint finds in favour of the union.

26. In balancing the relative labour relations harm between the trade union and the employer we note that the collective bargaining relationship between these parties is not at an early or fragile stage. There is no suggestion in the material that the very existence of the trade union's bargaining rights are being threatened as is the case with alleged unfair labour practices which occur during an organizing campaign, or those which occur in that more fragile and sensitive period of time shortly after the trade union is certified but before the parties have reached their first collective agreement. We find that the trade union's ability to represent its members in the bargaining unit in a meaningful and effective way is not affected by the mere implementation of the schedule changes. In this regard the trade union's reference that changes to the schedule will undermine the integrity of the wage scales or will impair the confidence of the members that the trade union can protect them is not compelling when there is nothing to suggest, and there is cer­tainly no assertion or allegation, that the changes violate the terms of the collective agreement which exists between the parties.

27. Balanced against this is the obvious but not easily calculable or quantifiable harm which results from an interference by the Board in the employer's management of its operations, as well as the more specific harm referred to in Mr. Pearce's declaration.

28. We must also keep in mind that the current collective agreement between these parties will soon expire. The employer's scheduling practices, and any decision of the Board which deals with those practices may have some impact upon the collective bargaining process and negotiations upon which these parties will soon embark. In Morrison Meat Packers Ltd., supra, the Board noted that:

An interim order represents, in part, an evaluation by the Board, in the face of a conflict and in response to a request by one of the parties, as to the preferred labour relations circumstances to be preserved or created during the course of the litigation of the main application.

In this instance the preferred labour relations circumstance to be preserved or created is one which maintains the integrity of the agreement which the parties have negotiated and which they will now seek to re-negotiate. In this case the preferred labour relations circumstance does not include inter­vention or intrusion by the Board into the collective agreement made by the employer and the trade union or a potential interference upon their impending negotiations through the imposition of a work schedule dictated by the Board.

29. The effect of a Board Order, even an interim one, which requires the employer to restore schedules as they existed prior to November 10th, would be to stay one of the provisions of the negotiated collective agreement which currently governs the relationship between the parties. It would stay that part of the management's right clause which the parties have negotiated which permits the employer to determine the schedules of operations, the number of shifts, the number of hours to be worked and starting and quitting times. The effect of an Order directing the employer to restore the hours of work for the employees classified as fragrance associates to the schedule which had been posted prior to November 10th, 1993 would also suspend the operation of Article 9.07 of the collective agreement which specifies that the employer does not guarantee to maintain "hours of work at any time in effect". Such an interim order would in effect "guarantee" the hours work until the unfair labour practice complaint has been litigated and decided.

30. We find that the comments of the Board in La Section catholique du Conseil scolaire de langue francaise d'Ottawa-Carleton, supra, apply to the situation at hand. In that instance the Board stated:

"On the other hand, it is hard to deny that granting the orders sought would indeed to 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."

(emphasis added)

Similarly an interim order directing the employer to change the work schedules of the fragrance advisors to those which existed prior to November 10, would essentially decide the matter in favour of the union. It is unlikely that the employer could institute duplicate measures once its year end has passed and thereby attain the results it seeks to achieve through the schedule changes.

31. As granting an Order requiring the employer to restore the hours of work for the employees to that which existed prior to November 10th, 1993 would change the essential bargain between the union and the employer, would constitute a serious intrusion upon their established collective bargaining relationship, and would essentially decide the matter in favour of one party on the basis of contradictory and disputed declarations by declarants who have not been subject to cross-examination, and in the absence of serious labour relations harm to the union to justify the granting of such an order, we have determined that the union's request as it relates to the revoca­tion of the work schedule posted on November 10, 1993 should not be granted.

32. Different considerations apply however when balancing the relative harm to the parties with respect to the trade union's request for a posting. The allegation of the trade union in the complaint raises important public policy and broader labour relations considerations which go beyond mere scheduling by an employer. If proven, the allegations in the complaint raise the spec­ter that the employer engaged in discriminatory conduct and imposed pecuniary penalties as a reprisal, or in retaliation for employees having exercised rights under the Act including the right to file and participate in grievance proceedings and to testify at arbitration hearings. In that respect the balancing of labour relations harm must take into account the adequacy of any remedy avail­able to the trade union if the union is ultimately successful in its complaint. Thus, if the union suc­ceeds in its complaint it may be impossible for the Board to fashion a remedy which places the union back in the position that it would have been but for the breach of the Act. For example, by the time the complaint is adjudicated and a decision has been issued there may be no way in which the union can return to that point in the arbitration hearing in which it required the willing co-op­eration and participation of employee witnesses.

33. To some extent an expeditious interim remedial response from the Board which advises employees of these proceedings and of their rights under the collective agreement may serve to prevent possible harm without causing a harmful labour relations effect to the employer. Save for the expense associated with the distribution to employees of any notice from the Board, there is no apparent harm to the employer if the Board grants that portion of the trade union's request. This is particularly so when the collective agreement between the employer and the trade union contains a provision specifying that there shall be no discrimination because an employee has exercised rights under the collective agreement, and the employer's own pleadings state that the employer "...be­lieves in and supports the fundamental right of employees or the union to exercise their rights under the collective agreement and Labour Relations Act."

34. The employer is therefore directed to provide a copy of the notice attached as Appen­dix "A" to all employees in the bargaining unit.

Appendix

The Labour Relations Act

By Order of the Ontario Labour Relations Board

WE HAVE DELIVERED THIS NOTICE IN COMPLIANCE WITH A DIRECTION OF THE BOARD ISSUED AFTER A HEARING IN WHICH BOTH THE COMPANY THE UNION HAD THE OPPORTUNITY TO MAKE SUSMIBBIONS.

THE UNION HAS FILED A COMPLAINT WITH THE ONTARIO LABOUR RELATIONS ABOUT THE CHANGES TO THE WORK SCHEDULES OF THE FRAGRANCE ADVISORS WHICH BECAME EFFECTIVE ON NOVEMBER 25TH. 1565.

IT IS THE UNION'S POSITION THAT THE SCHEDULE CHANGES WERE MADE TO PENALIZE EMPLOYEES BECAUSE THEY TESTIFIED OR MAY TESTIFY AT AN ONGOING ARBITRATION HEARING. THE UNION CLAIMS THE COMPANY IS DISCRIMINATING AGAINST THE FRAGRANCE ADVISORS BECAUSE THEY EXERCISED THEIR RIGHTS UNDER THE LABOUR RELATIONS ACT AND IN PARTICULAR BECAUSETHEY EXERCISED THEIR RIGHTS TO PARTICIPATE IN THE UNION'S LAWFUL ACTIVITIES.

IT IS THE POSITION OF THE COMPANY THAT THE CHANGES TO THE SCHEDULE OF THE FRAGRANCE ADVISORS WERE MADE FOR BUSINESS REASONS AND WERE MADE IN ACCORDANCE WITH THE RIGHTS OP MANAGEMENT AS SET OUT IN THE COLLECTIVE AGREEMENT BETWEEN THE COMPANY AND THE UNION. THE COMPANY CLAIMS THE SCHEDULE CHANGES HAD NOTHING TO DO WITH THE EXERCISE OF EMPLOYEE RIGHTS UNDER EITHER THE LABOUR RELATIONS ACT OR THE GRIEVANCE AND ARBITRATION RIGHTS SET OUT IN THE COLLECTIVE AGREEMENT.

A HEARING BEFORE THE BOARD WILL SOON TAKE PLACE TO DECIDE (AMONG OTHER THINGS) WHY THE CHANGES TO THE SCHEDULE WERE IMPLEMENTED. IF THE BOARD ULTIMATELY DETERMINES THAT THE CHANGES HAD NOTHING TO DO WITH THE EXERCISE OP RIGHTS BY THE UNION OR THE EMPLOYEES. THE CHANGES TO THE SCHEDULE HAY SE CONFIRMED. IF THE BOARD ULTIMATE DETERMINES THAT THE CHANGES TO THE SCHEDULES OCCURRED BECAUSE THE UNION AND THE EMPLOYEES EXERCISED THEIR RIGHTS UNDER THE LABOUR RELATIONS ACT AND THE COLLECTIVE AGREEMENT. THE BOARD MAY DIRECT THAT THE CHANGED SCHEDULES BE REVOKED AND THAT THE EMPLOYEES BE COMPENSATED FOR ALL EARNINGS AND BENEFITS LOST AS A RESULT OP THE CHANGES TO THEIR SCHEDULE.

EMPLOYEES IN ONTARIO HAVE THESE RIGHTS WHICH ARE PROTECTED BY LAW:

A. AN EMPLOYEE HAS THE RIGHT TO JOIN A TRADE UNION OF HIS OR HER OWN CHOICE AND TO PARTICIPATE IN ITS LAWFUL ACTIVITIES.

B. AN EMPLOYEE HAS THE RIGHT TO OPPOSE A TRADE UNION. OR SUBJECT TO THE UNION SECURITY CLAUSE IN THE COLLECTIVE AGREEMENT WITH HIS OR HER EMPLOYER. CAN REFUSE TO JOIN A TRADE UNION.

C. AN EMPLOYEE HAS THE RIGHT NOT TO BE DISCRIMINATED AGAINST OR PENALIZED BY AN EMPLOYER OR BY A TRADE UNION BECAUSE HE OR SHE IS EXERCISING RIGHTS UNDER THE LABOUR RELATIONS ACT,

D. AN EMPLOYEE HAS THE RIGHT NOT TO BE PENALIZED BECAUSE HE OR SHE PARTICIPATED IN A PROCEEDING UNDER THE LABOUR RELATIONS ACT.

IT IS UNLAWFUL FOR EMPLOYEES TO BE FIRED OR IN ANY WAY PENALIZED FOR THE EXERCISE OF THESE RIGHTS. IT IS UNLAWFUL FOR ANYONE TO INTIMIDATE OR COERCE OR IMPOSE A PECUNIARY OR OTHER PENALTY ON A PERSON BECAUSE A PERSON HAS PARTICIPATED OR IS ABOUT TO PARTICIPATE IN A PROCEEDING UNDER THE LABOUR RELATIONS ACT.

This Is an official notice of the Board.

DATED this 7th dsy of DECEMBER . 1993.