Ontario Labour Relations Board
Parties
2216-99-U Elaine Vassallo Dianna Baert, Leigh-Ann Ulch, Sue Osborne, Bonnie Pinsonneault and thirty (30) other, Applicants v. Local 414, United Steelworkers of America, Responding Party v. The Great Atlantic & Pacific Company of Canada, Limited, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
APPEARANCES: Daniel Condon, Elaine Vassallo, Sue Osborne, Bonnie Pinsonneault and Ed Bosveld for the applicant; James Hayes, T Collins, J. Pound, G. Havell and Jeffrey Andrew for the responding party; Keith Billings and Lith Martell for the intervenor.
DECISION OF THE BOARD; June 23, 2000
Decision
1This is an application brought pursuant to Section 96 alleging that the responding party has breached section 74 of the Labour Relations Act, 1995 (the "Act")
2A consultation hearing was held on June 22, 2000.
3The facts of this situation are really not in dispute. The applicants were employed at the Nortown Loeb ("Loeb") grocery store in the Municipality of Chatham-Kent at 448 St. Clair Street. They were covered by a collective agreement, term being August 1, 1997 expiring July 31, 2000.
4On or about July 15, 1999 The Great Atlantic & Pacific Company of Canada, Limited (A&P) entered into an agreement to acquire certain properties from Provigo. Included was the Loeb store in Chatham.
5A&P notified the union representative that it would only consider operating a store at 448 St. Clair Street, Chatham if it became a Food Basics outlet covered by an existing agreement between A&P and the responding party. A&P agreed it would give preference in hiring to former members of the bargaining unit. The rates under the Basics Food collective agreement are less than those under the collective agreement with Loeb. In addition it was clear that seniority would not be transferred if a former Loeb employee applied to work at the Food Basics store. Hours for part-timers might also be affected. In a response for particulars dated February 18, 2000 A&P stated in part:
"former full time employees of Loeb who applied for employment prior to the opening of the store as a Food Basics store, would be offered a full time position by Food Basics and that there would be a maximum of four such full time positions available for that purpose at Food Basics rates in keeping with the employees former service with Loeb:
specific jobs would be assigned to full time hires as determined by Food Basics who would also determine who if any one would be assigned department head responsibilities".
6Faced with the closing of the Loeb store, officials of the responding party felt "the only reasonable option in the circumstances was to give its consent, and did so". The union felt this was the only way to retain the possibility of providing "the opportunity for future employment for members of the bargaining unit".
7Upon receiving this agreement the responding party, A&P decided to open the location at 448 St Clair Street, Chatham as a Food Basics operation. The operation opened sometime in November of 1999, and those former Loeb employees who applied were given positions.
8While one can readily understand the concerns of the applicants given the store closing and given the new terms and conditions of employment, the responding party was faced with a difficult decision.
9As the Board has stated in Dufferin Agreements [1982] OLRB Rep Jan 35 at page 39:
In this situation the union was faced with the difficult issue of a closure of a facility. Though understanding the disappointment of the applicant, the Board will not interfere or second guess a decision of a union unless it is convinced that the union had been arbitrary, discriminatory or acted in bad faith. As the Board has stated in Dufferin Aggregates [1982] OLRB Rep Jan 35 at page 39:
"The fact that a union may be required in bargaining to make hard decision that has serious economic impact on individuals, up to and including the loss of their jobs, cannot in and of itself make that decision unlawful".
10While the above decision is distinguishable on its facts, the same kind of reasoning applies to the issue faced by the responding party in this instance. Here the Board finds that the decision of the union to agree to the operation of a Food Basics store was reasonable, and a decision the Board will not interfere with.
11Given the above decision of the Board, and given the undertaking set out in paragraph 14, the Board sees no useful labour relations purpose in continuing with this application.
12The Board has a discretion under section 96 as to whether to consider an application and whether it proceeds to hearing. The Act specifically relieves the Board of the requirement to hold a hearing where it is alleged that section 74 of the Act has been breached.
13Accordingly, subject to the undertaking set out in paragraph 14, the Board exercises its discretion and dismisses this application.
14This application is dismissed on the undertaking of counsel for the responding party that the responding party will inquiry into the number and allocation of full-time positions at the Food Basics store in Chatham at 448 St. Clair Street, which concern of the applicants came to the responding party's attention on June 15, 2000. In the event an issue arises between the parties as a result of this undertaking, I remain seized to deal with such issue.
"Timothy W. Sargeant"
for the Board