[1994] OLRB Rep. August 1116
1565-94-M Service Employees Union Local 268, affiliated with the S.E.I.U., A.F. of L., C.I.O. and C.L.C., Applicant v. The Brick Warehouse Corporation, Responding Party
BEFORE: M. A. Nairn, Vice-Chair.
APPEARANCES: Glen Oram for the applicant; Michael G. Sherrard and Kevin Fahey for the responding party.
DECISION OF THE BOARD; August 18, 1994
This is an application under section 92.1 of the Labour Relations Act (the "Act") seeking interim relief. By decision dated August 8, 1994, that application was denied. I now provide brief reasons for that determination.
The responding party (the "employer" or the "company") operates retail furniture outlets. It has some forty-two stores across Canada. Three stores in Ontario are represented by the Retail, Wholesale, and Department Store Workers' Union. The applicant (the "trade union") was certified to represent the approximately twenty employees in the bargaining unit in the Thunder Bay store in September, 1993. Notice to bargain was forwarded to the employer in September. At the time this application was filed on July 29, 1994, the parties were continuing in their attempts to negotiate a first collective agreement. On that same day a section 91 compliant was filed with respect to the same matters.
By way of interim relief the trade union sought an order that the employer reinstate the employee benefit plan on the same terms and conditions that existed on the date that the union gave notice to bargain, until such time as the Board disposes of the main complaint under section 91. That complaint alleges that the responding party, in addition to acting in a manner that was improperly motivated, has violated the "freeze" provisions of the Act. Secondly, the trade union sought an order that the employer reinstate a method of payment of wages to the "swamper" classification and an order to compensate for any loss arising as a result of the employer's action with respect to that and certain other classifications.
I note that the trade union sought further relief in its interim application. That relief was in the nature of information and/or production of documents. That information is arguably relevant either in the parties' negotiations or for the efficient hearing of the main application. Counsel for the employer undertook to seek instructions in order to provide that information where possible. Some of the information had been provided to the applicant in anticipation of this matter.
In support of its application the trade union filed three declarations and a number of documents and correspondence. Similarly, the responding party filed four declarations and some records and correspondence. I heard the parties' representations based on that material. There was no real dispute as to the test to be applied in determining the application. That test was formulated in Loeb Highland, [1993] OLRB Rep. Mar. 197 and has been applied in various cases since then. It contemplates a two-fold analysis; first, assuming the applicant's assertions to be true and provable, is there an arguable violation of the Labour Relations Act. Second, if so, does the balance of harm favour the granting of interim relief.
The first aspect of the union's application was with respect to an alleged change in wage rate for the "swamper" classification at the store. It is asserted by the union in the main application that the employer changed the wage rates to the benefit of the employees in November 1993, and that the union consented to that change. The union further asserted that at some point in December 1993 the employer reverted to paying the earlier rates. There was further discussion in April, 1994 concerning other changes to wage rates for truck drivers and delivery staff.
The second aspect to the union's application sought the reinstatement of the employee benefit package in place as of September 1993. On March 31, 1994, the employer gave notice to its employees across Canada that it intended to implement changes to the benefit package effective June 1, 1994. That notice was provided to the employees in the Thunder Bay store although not directly to the trade union. (I note that counsel for the employer has undertaken, to instruct his client to provide notice to the union directly of any such changes in these and future negotiations). In early April 1994 at the latest, the union learned of the proposed changes. On April 19, 1994 the union wrote to counsel for the employer indicating that the union did not consent to any alteration of the benefit package and requesting that the employer cease and desist from implementing any changes. There was some limited discussion of the changes during negotiations in late April 1994. The employer indicated that it would attempt to provide more information to the union with respect to the changes. On May 25, 1994 a letter from the union was forwarded to counsel for the employer indicating that further information had not been received as requested, and if not received soon, the union would be forced to file a complaint with the Board. The changes contemplated by the employer took effect on a national basis on June 1, 1994. On July 4, 1994 the employer informed the union that no other information was available. The union filed its request for interim relief and its main complaint on July 29, 1994. The union did not and has not requested that the main application be heard on an expedited basis.
Dealing with the first element of the test, I was satisfied that the applicant had made out an arguable case of a violation of the Act. In both aspects of the employer's conduct complained of, the employer allegedly implemented changes to terms and conditions of employment without the consent of the trade union. That is the essence of a violation of section 81 of the Act. Similarly, if it is found that the changes were driven, even in part, by an improper motive as alleged by the applicant, a violation of one or more of sections 67, 67 and 71 would be made out.
However, in dealing with the issue of assessing and balancing the harm, I was concerned about the union's delay in bringing its application for interim relief. With respect to the first aspect of the union's application, it is clear that whatever concerns the union may have had with respect to changes in wage rates either allegedly consented to or objected to, those concerns chrystalized by April, 1994. This application was not filed until July 29, 1994. That length of delay in bringing an interim application is simply too long. It reflects a lack of urgency and lack of need for an interim remedy.
With respect to the second aspect of the application, I agreed with the applicant that a party to negotiations ought not to seek assistance from the Board too quickly where matters of concern are also being dealt with in negotiations. However, in this case, I was persuaded that the delay in filing the request for interim relief was such that it would be inappropriate to grant the interim relief. The union was aware at least as of early April 1994 that the employer intended to effect the changes to the employee benefit plan on a national basis on June 1,1994. There was no indication from the employer that it intended to delay or defer that date even after having been advised by the union that it did not consent to those changes.
Had the union filed its interim application more expeditiously, there is every likelihood that a decision, at least on an interim basis, could have been provided to the parties prior to June 1, 1994, and prior to any change having taken effect. Similarly, given the time span between learning of the proposed change and the effective date of those changes, had the main application been filed with a request to expedite that hearing, there might well have been an opportunity to have had the merits of the complaint determined prior to June 1, 1994.
Moreover, there is no real explanation as to why the union delayed between the implementation of the changes effective June 1,1994 and the actual filing of the complaint some eight weeks later on July 29, 1994. The union argued that the employer ought not to be able to benefit from its delay in responding to the union's request for information. Further, the fact that the parties were involved in negotiations on these very issues during this period ought to be taken into account. There is little doubt that changing the benefit plan may alter the balance of the negotiations, and in that sense the employer's conduct may well reflect various underlying strategies or tactics in the negotiations even if found to be within its legal rights.
In that regard I agree with the comments of the Board in Beef Improvement Ontario Incorporated, [1994] OLRB April 341. I would not encourage parties in negotiations to seek the assistance of the Board on an interim basis at every turn, preferring as a general rule that they resolve those differences during the course of their negotiations. However where those negotiations are delayed or are not proceeding as quickly or as productively as one party might hope, and issues arise, it may be necessary to utilize other remedial avenues such as a request for interim relief, and to do so within an appropriate time frame. That time frame, of course, will depend on the circumstances of each case. In this case, in addition to the passage of time prior to bringing the interim application (both before and after the effective date of the change), the applicant has not sought an expeditious determination of the merits of the complaint to clarify the employer's obligations during the negotiations. The applicant thereby has indicated a willingness to rely on the negotiating process to resolve these matters, even while it advised the employer of the possibility of its proceeding before the Board.
I note that had the applicant's conduct indicated greater urgency and therefore greater concern over the potential collective bargaining harm to it, one harm asserted by the employer, that is, the cost of implementing a "stand-alone" benefit plan for the affected employees, might well have been seen as "self-inflicted" harm at best, and insufficient to outweigh the collective bargaining harm from failing to preserve a status quo on an interim basis.
I note as well that it may be appropriate for the Board, on an interim basis, to maintain an existing status quo pending a determination of an allegation of a violation of the freeze, simply to maintain whatever balance exists in the bargaining, regardless of an employer's assertion that it is not in violation of the freeze. That section already creates a form of interim remedy - essentially that a particular state of affairs be maintained during bargaining. Where the description of that state is put in question, not allowing any change from that which existed as of the notice to bargain seems the appropriate interim remedy if interim relief is otherwise appropriate. That merely reinforces the primary purpose of a "freeze" and has the minimum impact on the parties' relative bargaining positions in the negotiations. It also reinforces the legislative requirement that an employer seek and obtain the consent of the union prior to implementing changes.
For those reasons, the application for interim relief was denied.