Ontario Labour Relations Board

[1994] OLRB Rep. July 885

1190-94-M Office and Professional Employees' International Union, Local 343, Applicant v. Ombudsman Ontario, Responding Party

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. H. Wightman and B. L. Arm­strong.

APPEARANCES: M. I. Rotman, C. Dupuis and L. Boucher for the applicant; Walter Thornton, Lee Anderson and Lavergne Monette for the responding party.

DECISION OF THE BOARD; July 27, 1994

1. This is an application for interim relief under section 92.1(1) of the Labour Relations Act which provides that:

92.l-(1) On application in a pending or intended proceeding, the Board may grant such interim orders, including interim relief, as it considers appropriate on such terms as the Board considers appropriate.

2. In this application, the applicant trade union seeks the following interim relief:

"That Mr. Dean Morra be reinstated to his position as Administrative Secretary to the Manager of Communications; An Interim Order requiring the Responding Party to cease and desist reor­ganizing the purchasing department and demoting Wolf Schulz.

In the main application (Board File No. 1191-94-U), the applicant alleges that the responding employer has violated sections 81.2, 73.1(5), 41(15), 65, 67, 82.1 and 71 of the Labour Relations Act, and seeks relief as follows:

An interim Order reinstating dismissed employee Dean Morra; A final Order reinstating the employee, Dean Morra, without loss of seniority or benefits, and recompensing him for any losses; An Order requiring the employer to cease and desist in its pattern of anti-union activi­ties; An Order requiring the employer to cease breaching the freeze provisions of the Labour Relations Act; A Declaration that the employer has breached the freeze provisions of the Labour Relations Act; A Declaration that the employer has breached Section 73 of the Labour Relations Act; Such further and other Order as this Honourable Tribunal may deem just.

3. By decision dated February 5, 1993 (reported at [1993] OLRB Rep. February 147), the applicant was certified as the bargaining agent for:

all employees of Ombudsman Ontario in the Province of Ontario, save and except managers or assistant directors, persons above the rank of manager or assistant director, administrative assis­tants, administrative secretaries to directors, legislative liaison, students involved in co-opera­tive training programs with a high school, college or university and students employed during the school vacation period.

4. Now, some one and a half years later, the parties are still without a first collective agreement. Although none of the materials filed specifically address the point, it appears that the parties have been through conciliation, and that a lawful strike which took place from May 2nd to 13th, 1994 was brought to an end by an application by the employer for first contract arbitration. The Board was advised that the parties have selected a board of arbitration in that respect but that no date has yet been set for the arbitration itself.

5. In support of its request for interim relief, the applicant argues that it is in a "delicate" situation because the employees which it has represented for approximately a year and a half "have nothing to show for it" and are in a labour relations "limbo". The applicant submits that it and the employees are concerned about this situation and perceive a pattern of conduct by the employer designed to erode their "positions". The applicant says that the employees feel vulnera­ble in their employment, and that it feels that its position as bargaining agent is being threatened. The applicant argues that the interim relief it seeks is necessary in order to restore employee morale and confidence in it as bargaining agent, and to preserve the collective bargaining status quo. The applicant referred to and relied upon the decisions in Loeb Highland, [1993] OLRB Rep. Mar. 197; Morrison Meat Packers Ltd.. [1993] OLRB Rep. Apr. 358; Reynolds-Lemmerz Industries, [1993] OLRB Rep. Mar. 242; Tate Andale Canada Inc., Board File No. 3438-92-M, October 13, 1993, unreported [now reported at [1993] OLRB Rep. Oct. 1019]; Midas Canada Inc., 1993 CanLII 16699 (ON LA), 36 L.A.C. (4th) 349 (Briggs); Beef Improvement Ontario Incorporated, [1994] OLRB Rep. April 341, (Application for Reconsideration dismissed June 3, 1994, unreported).

6. The employer argues that the materials filed by the applicant do not provide a sufficient basis for any interim order, and do not demonstrate any need for interim relief. The employer sub­mits that the applicant has failed to pass the "balance of harm" test developed in the Board's juris­prudence. The employer relies upon the decisions in Metropolitan Toronto Apartment Builders Association, [1993] OLRB Rep. Mar. 219 and Royal guard Vinyl Co., A Division of Royplast Limited, Board File No. 0940-94-M, June 30, 1994, as yet unreported [now reported at [1994] OLRB Rep. June 775].

7. As the Board observed in Loeb Highland, supra, section 92.1(1) of the Act gives the Board a new broad discretion to intervene in any proceeding, or intended proceeding, before the Board. It has been described as an addition to the Board's remedial arsenal (Tate Andale Canada Inc., supra). There is nothing in section 92.1(1) which limits its use or suggest that it only be used in extraordinary cases. On the other hand, neither does it suggest that interim relief is appropriate or should be granted in every case. While interim relief is not an extraordinary remedy within the context of the present legislation, neither is it there just for the asking. On the contrary, section 92.1(1) provides the Board with a labour relations tool which is to be wielded carefully, having regard to the circumstances of each case. It is to be used like a scalpel, not like a hammer or other blunt instrument, in cases in which the Board is satisfied that there are good labour relations rea­sons for intervening in a labour relations dispute pending the litigation of the merits of that dis­pute.

8. Because section 92.1(1) is labour relations legislation intended to be used as a labour relations device, a civil litigation approach may provide some guidance, but should not be rigidly applied by the Board (see Tate Andale Canada Inc., supra, at paragraph 39). Similarly, when viewed as a whole, the Labour Relations Act in this province is unlike labour relations legislation in any other North American jurisdiction. Accordingly, the experience in these other jurisdictions is of limited assistance.

9. The Board's approach to interim relief applications has been to avoid as much as possi­ble prejudicing the merits of the main application (which in the case of an "intended proceeding" may not even be formally before the Board). However, there will inevitably be some connection between the interim application and the main application such that some assessment of at least the apparent merits of the main application must inevitably be made.

10. In the result, a two-pronged "test" has emerged in the Board's interim relief jurispru­dence to date. First, assuming the applicant's assertions to be true, is there an arguable breach of the Labour Relations Act (or presumably any other legislation with respect to which the Board plays an adjudicative role) for which there is a remedy which the Board is arguably empowered to give? Second, if so, does the balance of labour relations harm favour the granting of interim relief?

11. In Tate Andale Canada Inc., supra, the Board observed, in paragraph 52, that:

“….where the employer bears the legal onus of establishing that it has not contravened the Act, it is hardly surprising that the union request that the "pre-discharged" status quo be maintained until the employer meets the statutory onus cast upon it. If the employer is obliged to establish that its removal of the employees from the workplace was not unlawful, there is nothing counter-intuitive about keeping them there until it does so….”

(emphasis added)

This comment must be read in the context of the situation before the Board in that case; namely, the discharge during an organizing campaign of employee organizers, and not as a suggestion that the onus in interim proceedings necessarily lies with the party which bears the onus in the main application - which may not even have been brought. There is nothing which absolutely prohibits discharges or layoffs prior to certification, before a first collective agreement, or between collective agreements. Nor is there anything which requires that a discharged or laid off employee must be reinstated on an interim basis in such circumstances.

12. The two-pronged test developed by the Board suggests that at least the initial onus is on an applicant for interim relief to satisfy the Board that interim intervention is appropriate. Conse­quently, an applicant must plead an arguable or prima facie case. This is not a particularly onerous hurdle since an applicant should be able to describe its allegations in a manner which suggests that it may have something to complain about. Further, an applicant must establish that interim relief is appropriate; namely, that it will suffer some substantial labour relations harm unless the Board intervenes pending the disposition of the application it has pleaded on its merits. This is not terribly onerous either, since it only requires an applicant to explain why it seeks interim relief and what labour relations harm will occur if it does not obtain the interim relief it seeks. In determining whether interim relief is appropriate, the Board also looks to the responding party's assertion of harm to see whether there is any countervailing labour relations harm which makes interim relief inappropriate. That is, the Board weighs the respective harms and assesses whether interim relief is appropriate.

13. Because of the wide variety of proceedings and circumstances in which interim relief may be sought, a flexible approach to the two-pronged test is indicated, so that the appropriate labour relations result may be achieved in each case.

14. The nature of interim relief proceedings is such that the Board will not normally hear evidence. Consequently, and because of the natures of the two-pronged test applied by the Board in such cases, it is crucial that the parties file complete pleadings and declarations, which declara­tions should as much as possible be first hand accounts of matters which are relevant to the Board's considerations. The declarations which the parties must file (pursuant to Rules 86 and 89) should not contain hyperbole, rhetoric or conclusions for which no factual basis is set out.

15. In this case, the applicant filed three declarations in support of its application for interim relief. In paragraph S of the application, the applicant pleads that:

The applicant makes the following representations as to why the specific interim order(s) should be made:

The Responding party's activities indicate a pattern of contravention of the Labour Relations Act. It is our submission that these contraventions have a demoralizing effect on the bargaining unit. If is further our submission that these activities undermine the confidence the bargaining unit has with its bargaining agent. As a result, the applicant fears with continual coercion of employees and undermining of the bargaining agent, decertification after the first contract is a danger.

In her declaration, Carol Dupuis, the applicant's staff representative assigned to the bargaining unit herein, states that:

Throughout the entire certification and first contract negotiation process, the Employer has resorted to less than scrupulous activities in an attempt to thwart the trust and confidence our members hold in us, their Union.

Nowhere are any particulars provided of the alleged "pattern of contravention" or "less than scru­pulous activities" which the Board is asked to conclude, as the applicant has, have had "a demoral­izing effect on the bargaining unit".

16. Ms. Dupuis identifies the grievor Mr. Morra as a known supporter of and vocal advo­cate for the applicant and suggests that the employer discharged him, effective June 28, 1994, in order to undermine the applicant and encourage "decertification" applications. Mr. Morra's decla­ration deals primarily with the merits of his discharge, although he does offer his conclusion in paragraph iS (the last paragraph) that he was discharged "... in order to further undermine the morale in the bargaining unit, and that the dismissal was without good faith." Lorraine Boucher's declaration also deals with the merits of Mr. Morra's discharge, and asserts that it was intended to and has had serious, but unspecified, repercussions on morale in the workplace and employee sup­port for the applicant.

17. The Board is satisfied that the materials filed for the applicant do disclose an arguable or prima facie case. That is, if the allegations made or implicit in them are properly pleaded and

are proved, or are not disproved by the employer, there has been an arguable breach by the employer of the Labour Relations Act, for which one of the remedies may be reinstatement.

18. Moving to the balance of harm, the essence of the applicant's assertion is that Mr. Morra's discharge has seriously affected its support and, concomitantly, its ability to represent the bargaining unit.

19. We recognize, as the Board did in Morrison Meat Packers Ltd., sup ra, that a collective bargaining relationship can be particularly sensitive or fragile in its early stages, and particularly during negotiations for a first collective agreement. However, and as the Board in Morrison Meat Packers Ltd. also pointed out, this does not mean that interim relief, including reinstatement of a discharged trade union supporter, will necessarily be appropriate in every first collective agree­ment situation.

20. In this case, nearly a year and a half has passed since the applicant was certified and there is still no collective agreement between the parties. Nor is one in sight. Other than a bald allegation in the applicant's materials from which it might be inferred that this is all the employer's fault, there is nothing in the materials before the Board which suggests why this is so. There is no indication of when notice to bargain was given, how many bargaining sessions have been held, when the parties met, what problems if any the parties encountered in negotiations, who applied for conciliation and why, what led to the strike, or who applied for first contract arbitration or how that process is proceeding. At the hearing, the Board was advised that the employer applied for first contract arbitration and that an arbitration board has been selected but no hearing date set. In the absence of some other indication, we must assume that both parties share the responsibility for this. Certainly, the first collective agreement arbitration process is not proceeding in the expedi­tious manner contemplated by the legislation, and there is no indication that either party is pushing it.

21. There is little doubt that the discharge of a trade union supporter is likely to have some impact on the trade union and other employees. It is also likely in this case that Mr. Morra's dis­charge has caused some discomfiture in the workplace. However, it appears from the applicant's materials, and the representation of counsel that the applicant find itself in the delicate situation because the employees have nothing to show for their support for the trade union, that a signifi­cant reason for the erosion in support which the applicant senses is its continuing inability to deliver a collective agreement. ft is not apparent from the materials that Mr. Morra's discharge is a significant factor in that respect. Further, the collective bargaining between the parties has been removed from the traditional bargaining table context and has been moved to the interest arbitra­tion table, which is a somewhat less sensitive situation for a trade union, and which also prevents any termination proceedings until the open period of the two year collective agreement which the first collective agreement to arbitration process produces. In the result, having regard to the stage of the collective bargaining relationship, the Board is not satisfied, on the basis of the materials before the Board, that the applicant will suffer a substantial labour relations harm if Mr. Morra is not reinstated to his employment on an interim basis pending the adjudication of his discharge on its merits. On the other hand, the interim relief sought in this case would, if granted, interfere with the responding employer's management of the workplace. An employer continues to have the right to manage the workplace, and the Board will not interfere in that respect on an interim basis unless it is satisfied that there are good labour relations reasons to do so. The Board is not so satisfied in this case.

22. That part of this application is therefore dismissed.

23. We now turn to the application relating to the alleged breach of section 41(15) of the Labour Relations Act. It provides that:

(15) If first agreement arbitration is initiated, the rates of wages and all other terms and condi­tions of employment and all rights, privileges and duties of the employer, the employees and the trade union in effect at the time notice was given under section 14 shall continue in effect or, if altered before first agreement arbitration was initiated, be restored and continued in effect until the first collective agreement is settled unless the parties otherwise agree.

24. The materials before the Board make it very clear that the responding employer has unilaterally decided to alter the terms and conditions of employment of Wolf Schulz, an employee in the bargaining unit, even though this has been the subject of bargaining between the parties.

25. Section 41(15) of the Act is a "freeze" provision, the intent and effect of which is sub­stantially the same as that of section 81(1) of the Act. In an interim relief application in Beef Improvement Ontario Incorporated, supra, the Board reviewed the purposes and effect of freeze provisions as follows:

26. Section 81 is a strict liability provision in that an employer or trade union need not be improperly motivated for its actions to be in breach of it (see Beaver Electronics Ltd., [1974] OLRB Rep. March 120, Kodak Canada Ltd., [1977] OLRB Rep. Aug. 517). Commonly referred to as a "freeze" provision, section 81(1) of the Labour Relations Act prohibits both an employer and the trade union which represents that employer's employees from altering any­thing which affects the employment of those employees after an appropriate notice to bargain has been given, unless its collective bargaining partner consents. The purpose of these provi­sions is to provide a stable point of departure for collective bargaining, thereby facilitating the collective bargaining process, by maintaining the working conditions and circumstances in place when the freeze is triggered. This serves to provide a fixed, though not necessarily static, basis for collective bargaining and operates to preclude the unilateral alteration of any bargainable aspect of the employment status quo which might give one party an advantage in negotiations.

27. Although the "freeze" label has stuck, it may be somewhat of a misnomer. The words of section 81(1) of the Act might be read to mean that there can be no change in anything which affects employment during the specified period. However, the Board has interpreted this provi­sion as operating to preserve the pattern of employment which exists when it comes into effect, rather than specific terms, conditions or other circumstances of employment. Consequently, both the employer and the trade union continue to be entitled to operate within the parameters of the established pattern of employment. (see, for example, Simpsons Limited, [1985] OLRB Rep. April 594, Mohawk Hospital Services Inc., [1993] OLRB Rep. Sept. 873).

28. The Board has taken a flexible, and purposive labour relations approach to the statutory freeze under the Labour Relations Act. Further, and as the language of section 81(t) itself sug­gests, there is nothing wrong or even unusual with an employer and trade union negotiating with respect to matters which are subject to the statutory freeze.

29. The other harm asserted by the applicant is a collective bargaining harm. In the Board's view, it is not accurate to say that the applicant is seeking to gain an advantage in collective bar­gaining through this interim proceeding. On the contrary, the applicant seeks to have the collec­tive bargaining positions of the parties restored to what they were at the time of the transfer from the Crown to OSI and BIO respectively. That is what section 81(1) is all about; namely, providing a period during which there is a fixed and stable point of departure for collective bar­gaining. The scheme of the Labour Relations Act recognizes that a change in the terms, condi­tions or other circumstances of employment by one party can cause harm to collective bargain­ing position of the other party to a collective bargaining relationship. This is a significant labour relations harm.

30. The responding parties OSI and BIO submitted that this sort of collective bargaining harm

need not be addressed in an interim proceeding and that collective bargaining can proceed, on other issues, pending the disposition of the main application. The Board does not agree. It is true that collective bargaining can take many routes, and that some items can often be bar­gained before and sometimes without reference to others. However, in the big picture, the start­ing point for bargaining can have a significant impact on what is given or taken in one area which can in turn affect what is given or taken in other areas. The statutory freeze is just that and it addresses situations which readily lend themselves to interim relief.

In addition, the Board has held that interim relief is appropriate in circumstances where it will serve to neutralize the potential impact of an alleged unfair labour practice or preserve the status quo in order to stabilize a labour relations situation pending the disposition of a dispute on its mer­its (J.C.V.R. Packaging Inc.,[1993] OLRB Rep. Nov. 1145 at paragraph 13).

26. That reasoning is equally applicable here, notwithstanding that the parties' collective bargaining differences will be dealt with at arbitration. Arbitration or not, the parties are engaged in the collective bargaining process, and the fixed and stable point of departure is also important at interest arbitration. An alteration of the sort complained of herein may well affect the arbitration process or result.

27. The harm to the applicant in that respect is manifest. On the other hand, the employer has alleged no harm that would result if it was required to either restore Mr. Schulz's terms and conditions of employment what they were when notice to bargain was given (or if it was required not to implement its decision to change those terms and conditions if it is not yet done so) on an interim basis. Nor is it apparent what harm the employer would suffer as a result of being required to continue with a situation which, on the materials, has existed since June, 1988, until the main application is disposed of on its merits.

28. Accordingly, this part of the application is allowed. The responding employer is directed to continue with or restore the terms and conditions of employment in effect for Mr. Schulz in effect at the time notice to bargain was given herein.