[1994] OLRB Rep. September 1179
2123-94-M United Steelworkers of America, Applicant v. Bannerman Enterprises Inc., Responding Party
BEFORE: K. G. O'Neil, Vice-Chair.
APPEARANCES: Brian Shell and George Ross for the applicant; W. J. Hayter and Arthur Tarasuk for the responding party.
DECISION OF THE BOARD September 23, 1994
This is an application for interim relief under section 92.1 of the Labour Relations Act. It is related both to an interim order made on July 28, 1994 in the certification matter between these two parties in Board File No. 0262-94-R and to two pending matters, an application alleging a violation of sections 67(a), 71, 81(2) and 82(1) and a related consent to prosecute which bear the Board File Nos. 1884-94-U and 1885-94-U. The union is asking its chief inside organizer Carolyn Rutetzki to be reinstated to her position in the office and for a posting to employees.
A brief background is necessary to understand the current application. The union applied for certification on April 25, 1994. There were many issues in dispute between the parties which necessitated a long hearing. A final order of the Board issued on August 19, 1994 certifying the union. The Board also found that Ms. Rutetzki, the key inside organizer of the applicant, was an employee for the purposes of the Act, as she did not exercise managerial duties and was not employed in a position confidential as to labour relations.
During the course of the hearing that led to the August 19, 1994 decision, an accommodation was made between the parties to the effect that Ms. Rutetzki would be scheduled as a cashier during the hearing, rather than her normal duties as at the date of application which were primarily office duties. When the hearing became protracted, other issues arose as to the assignment of Ms. Rutetzki and the Board was asked to make directions as to her assignment. The Board did so on July 28, at which time it endorsed the record to the effect that the employer would be entitled to assign Ms. Rutetzki as a cashier with a cashier's schedule, until the Board's decision was released, with certain conditions. One of those was as follows:
As of the date of my decision (which may be given with reasons to follow at a later date), Ms. Rutetzki will be reinstated to her duties in the office as they existed prior to the application date, unless otherwise directed by the Board or agreed between the employer and the union.
When the August 19 decision was released, the Board found that Ms. Rutetzki was in the bargaining unit and did not order any variation to the July 28 order as to the assignment of Ms. Rutetzki. Counsel for the union Paula Turtle then faxed letters to counsel for the responding party on the certification matter, Arthur Tarasuk, asking for Ms. Rutetzki's immediate reassignment to the office. Counsel for the employer did not respond directly to those letters, but rather spoke to a staff representative of the union, Ms. Turtle's client. What exactly took place between Mr. Tarasuk and Mr. Ross is the matter of factual dispute and may be required to be determined in the main matters that are still pending. It is not appropriate for determination in the context of an application for interim relief. However, there are certain aspects that are not in dispute. It is common ground that Mr. Tarasuk and Mr. Ross had a conversation on Saturday, August 27, 1994, during which they came to an agreement to postpone further discussion about Ms. Rutetzki's situation until after Mr. Tarasuk returned from vacation after the Labour Day weekend. Mr. Tarasuk's declaration is to the effect that that agreement contained both an agreement to extend the assignment of Ms. Rutetzki as a cashier and an undertaking to further discuss the matter after Labour Day. By contrast, Mr. Ross declares that all he was agreeing to was to put a hold on further discussions until after Labour Day, and that he did not agree to anything contradictory to the Board's order.
On August 29, 1994, Mr. Tarasuk wrote a letter to Mr. George Ross with a copy to counsel for the union which states its purpose as follows:
"to confirm our agreement to extend the arrangement that had been established before the Labour Relations Board that Ms. Carolyn Rutetzki would continue to operate in the capacity as a cashier until I return to our respective offices following Labour Day. This is also to confirm that upon our respective returns, we will discuss and consider extending the arrangement with respect to Ms. Rutetzki until negotiations, and that we could possibly arrive at some more permanent solution in the course of negotiations".
- On August 30, 1994, Ms. Turtle wrote a letter to Mr. Tarasuk which reads as follows:
I acknowledge receipt, at 4:45 p.m. on August 29, 1994 of a copy of your letter which purports to reiterate the terms of an agreement with Mr. George Ross, National Representative of the United Steelworkers of America. Upon receipt of your letter I spoke to George Ross whom I understand you contacted on Saturday morning.
Your conduct in contacting my client directly when you had received three faxed letters from me dated August 23, 25 and 26, 1994 respecting the very matter you purported to discuss with my client violates Rule 14 of the Code of Professional Conduct, a copy of which I enclose for your reference. I draw your attention in particular to commentary 7.
I am advised by Mr. Ross that you mischaracterized to him the issues which you allege were discussed during your brief Saturday morning telephone conversation. You did not advise Mr. Ross that Ms. Rutetzki was a key union supporter and you did not advise Mr. Ross that Ms. Rutetzki was the subject of an outstanding Board order dated July 28, 1994 directing her reinstatement to her old job duties upon release of the Board's decision. You suggested to Mr. Ross that the issue of her "confidential" status was still outstanding, although the Board had issued a decision dated August 19, 1994 finding that she was not employed in a confidential capacity in matters respecting labour relations. You also suggested to Mr. Ross that she would be given even more confidential duties in the future.
Mr. Ross understood that you were seeking an agreement to delay further discussions about what you characterized as the outstanding issue of Ms. Rutetzki's confidential status. Mr. Ross did not authorize or agree to delay the reinstatement of Ms. Rutetzki to her duties as they existed prior to the application for certification. Furthermore, Mr. Ross at no time agreed to "discuss and consider extending the arrangement with respect to Ms. Rutetzki until negotiations and that we could possibly arrive at some more permanent solution in the course of negotiations".
You have flagrantly disregarded the Rules of Professional Conduct and you have mischaracterized the facts and circumstances surrounding Ms. Rutetzki's status in the course of obtaining with my client directly the alleged "agreement" described in your letter dated August 29, 1994. I reiterate that no such agreement exists. The union demands that your client reinstates Ms.jH jMRutetzki to her formerly held position immediately in accordance with the Board's order dated July 28, 194.
Any future discussions regarding this matter should take place with counsel directly and not through Mr. Ross.
- Apparently a letter of September 1, 1994 passed between the parties (presumably from Mr. Tarasuk's office) which is not part of the record. That was responded to on September 6, 1994 by the following letter from Ms. Turtle to Mr. Tarasuk:
Please be advised that my letter dated August 30, 1994 was sent on Mr. Ross' instructions. The last sentence of that letter was clear in stating that all dealings regarding Ms. Rutetzki and the Board's directions should take place through counsel only. In response to the last sentence of Ms. Wilford's letter of September 1,1994 wherein you assert that you intend to deal with Mr. Ross unless instructed otherwise, please consider yourself "instructed otherwise" and govern yourself accordingly.
As of September 22, 1994, the date of the hearing of this application, Ms. Rutetzki had not been reinstated to any of her duties in the office. The pending allegations include the assertion that this fact was motivated by anti-union animus and a breach of the statutory freeze.
The material before the Board on this application included declarations from Carolyn Rutetzki, the employee in question, Wes Dowsett and George Ross, union staff members and from Mr. Tarasuk, as noted above, employer counsel on the certification application. The employer took the position that the matter should be decided without reference to Mr. Ross' declaration as the initial application for interim relief had not referred to any agreement, and had not sought to rely on Mr. Ross' declaration, which indeed did not exist on the date of the other declarations relied on in the application. However, counsel acknowledges that his client had the declaration prior to the drafting of Mr. Tarasuk's declaration as that declaration seeks to refute it. Subsequent correspondence made it clear that the applicant intended to rely on Mr. Ross' declaration. In the circumstances of the case, we are of the view it would be unduly technical to not consider all of the material before us, including the declaration of Mr. Ross.
The parties were agreed that, in order to grant interim relief pursuant to section 92.1 of the Act, the Board must determine that there exists an arguable case of a breach of the Act and that the balance of harm from a labour relations standpoint favours the granting of interim relief. See, among others, Loeb Highland, [1993] OLRB Rep. March 197, Reynolds Lemmerz Industries, [1993] OLRB Rep. March 242, Morrison Meat Packers, [1993] OLRB Rep. April 358, Tate Andale Inc., [1993] OLRB Rep. Mar. 254.
The employer disputed the existence of an arguable case only to the extent it asserted that it was based on erroneous facts. We are of the view that an arguable case for the relief sought has been set out in the main matters, assuming the facts to be true and provable which is the appropriate standard on an application for interim relief.
We are also of the view that the balance of harm from a labour relations standpoint favours the granting of interim relief. The reasons for this conclusion follow.
The responding party argued that we should not disturb the status quo, either as a matter of compliance with the Board's order or as an exercise of the Board's powers to grant interim relief in that there had been an agreement which had picked up on the wording in the Board's July 28 order "unless otherwise agreed between the employer and the union". It is asserted that it would do considerable labour relations damage to allow the union to resile from that agreement.
The union on the other hand strenuously objects to the characterization of the facts as showing any agreement as to the subject matter of the Board's order at any time, but in particular after September 6, 1994.
We have reviewed the material before us on this application, and based only on the facts that are not in dispute between the parties, the Board is of the view that as of the date of September 6, 1994, the result is that the Board's order was not being complied with, and there was no agreement to the contrary between the parties, nor had there been a Board direction to the contrary. The facts relied by the employer, at their highest, speak only to a purported agreement to extend the arrangement to September 6. Since the undisputed facts disclose no agreement to assign Ms. Rutetzki outside the office after September 6, 1994, the argument about allowing the union to resile is not a persuasive argument on the facts of this case.
The labour relations harm of leaving a Board order in a state of non-compliance is considerable, as both parties need to know that orders of the Board, the statutory tribunal which is their recourse in cases of dispute over some of the most basic issues in collective bargaining, will be complied with. This is so regardless of what the intention of the employer was in not reinstating Ms. Rutetzki to the office, which is something that remains to be determined, if necessary, as part of the pending matters. There is nothing in the material which suggests any harm to the employer if Ms. Rutetzki is returned to the office which would, in our view, outweigh the labour relations damage of leaving Board orders in a state of non-compliance.
The employer also argued that the agreement was "we are going to talk about what the employer sees as a problem", and that the union is clearly in breach of that agreement because it has said they will not talk to the employer about Ms. Rutetzki's duties. The Board is urged to decline to give the union the order it requested and instead order the union to discuss the issue. Counsel for the union confirmed at the hearing of this application for interim relief that they were willing to discuss any and all matters germane to labour relations. For reasons outlined below, however, the Board is of the view that the situation as of the application date is the appropriate starting point for such discussions.
The employer argued that the status quo was that Ms. Rutetzki was a cashier, and that that is the point of departure from which the Board's response should be measured. With respect the Board cannot agree. The accommodation made to allow the employer to assign Ms. Rutetzki as a cashier during the ongoing hearings was an exceptional one. Normally, a certification hearing would not have involved the key organizer having any change in her regular duties, and she would merely have been given leave on an intermittent basis to come to the hearings. Thus the period of the accommodation of the employer's wishes which involved the change in Ms. Rutetzki's duties to cashier must be seen as the departure and the normal situation to be that she was working in the office.
It is a basic principle of the labour relations scheme in Ontario that the collective bargaining relationship should commence on a footing which preserves the status quo, to the extent possible, as at the application date. This is to protect both the interest of the employer in stability during a time of change in the relationship with its employees, and the interest of both parties in having a recognizable starting point for negotiations. The scheme of the Act and the Board's jurisprudence also include the considerations to which Mr. Shell made reference in argument, that any change in the treatment of an employee at work who has been visible in the organizing drive may lead to perceptions on the part of other employees that that organizer is being singled out. This can cause the further labour relations harm of undermining the legitimate authority and employee support of the union. It is important to underline that this is not to be taken as a comment on the motivation of the employer as there are issues to be determined in the main matters related to that.
Rather, it is to highlight that underlying the Board's July 28 order and the decision not to vary it in its August 19 decision, was the idea that the status quo as of the date of application was the appropriate framework for the parties' relationship while the issues surrounding and flowing from the certification process are dealt with.
We have carefully considered the other considerations which were contained in Mr. Tarasuk's declaration and counsel's submissions and do not find that they indicate the relief requested should not be granted.
The employer argued that it would only be a short time before the main matters were determined, giving all the more reason to leave things as they were. However, the fact of the matter is that the length of the litigation between these parties on the pending matters is a matter of considerable uncertainty and cannot be presumed to be something that will be finished in the short term, even though it is scheduled to start on October 20, 1994.
The employer also argued that, since the Board's August 19 final decision recognized that Ms. Rutetzki exercised some supervisory duties and was exposed to financial information that might be confidential, it was recognizing that she was in a conflict of interest position. Counsel argued she should therefore be kept out of the office until the parties can negotiate further about her situation. The Board's decision of August 19 finds that it is appropriate that she be in the bargaining unit, i.e. evidence of her duties and responsibilities in the office did not disclose any conflict of interest which would require her to be excluded from the bargaining unit. Absent agreement, which there clearly was not by the time of the hearing on September 22, there is no sufficient reason in the material before the Board to keep Ms. Rutetzki out of the office.
As a matter of accommodation of the employer, the union said during the hearing of this application for interim relief that it would be content if Ms. Rutetzki were to return to the office with her duties as at the date of application with the exception that neither she nor any other bargaining unit employee would work on accounts payable and accounts receivable until such time as the main matters are disposed of. In answer to a question from the Board, the employer took the position that, although it did not think Mr. Rutetzki should be reinstated to the office, if the Board were inclined to reinstate her, it would prefer to have it with that condition than without it. Given that exchange of positions, the Board is willing to modify its order of July 28 to the extent that Ms. Rutetzki is to be returned to the office with her duties as they were as of the date of application with the exception that the employer will be entitled to decline to assign her duties with respect to accounts payable and accounts receivable. If it does not assign them to Ms. Rutetzki, they are not to be assigned to someone else in the bargaining unit. It should be made clear that reassignment to the office should include Ms. Rutetzki's normal office schedule.
This application for interim relief has the unusual feature of involving a previous Board order which had its genesis, not in the pending matters, but completed matters. In these circumstances, it does not seem appropriate to specify an "end date" for the Board's order. However, any Board decision in the main matters or resolution by the parties may effect a change to the status quo after the Board's order.
It was suggested by employer counsel that any order reinstating Mr. Rutetzki to the office should be stayed until the return of his clients, Mr. and Mrs. Bannerman, from a convention in Winnipeg on or about September 28, 1994. It is not appropriate to defer the implementation of the Board's order and arrangements should be made to comply whether or not the Bannermans are in Kirkland Lake.
For all the reasons above, the Board orders
a) Ms. Rutetzki is to be reinstated forthwith to her duties in the office as they existed prior to the application date with the understanding that the employer will be entitled to decline to assign her duties with respect to accounts payable and accounts receivable, but that if it does not assign them to Ms. Rutetzki they will not be assigned to someone else in the bargaining unit.
b) the Board notice as set out in Appendix A is to be posted in conspicuous places in the workplace and remain there for sixty (60) days or until the disposition or resolution of Board files 1884-94-U and 1885-94-U.
- The Board remains seized of this matter to deal with any issues that may arise out of its implementation.