The Ontario Labour Relations Board (OLRB) has handed down another decision concerning Richtree Markets and its workers’ union, UNITE HERE Local 75. Delivered on March 25, the latest decision concerns continuing delays by the employer and an order to provide the union with information it needs to move forward with the bargaining process.
Examining this latest decision within the context of the larger dispute makes it clear that the company is continuing to use its economic advantage over its workers, stalling progress in an effort to escape the obligations it owes employees in its collective agreement.
In January, the ORLB found that Richtree Markets Inc. had violated the province’s Labour Relations Act when it fired its entire union staff, refused to recognize their collective agreement, and hired replacement workers. As I have noted previously, “decisions like Richtree carry important human consequences. The closure put about fifty employees out of work. These are people getting by on barely more than minimum wage. They cannot afford to wait a year to hear a board decision.”
The dispute between the company and its employees highlights the mantra, “justice delayed is justice denied.”
Following that decision, the employer filed for Judicial Review. This is exactly what its name implies: a court will review the Board decision and decide whether it was appropriate. At the time of writing, there is no hearing date scheduled, and it is not unreasonable to assume that the matter will not be heard for several months.
This development strongly underscores my original argument that the company is trying to leverage its economic power against its employees’ union. It seems unlikely that the court will find in favour of the company – the facts are simply overwhelming. As I wrote before, “Any thoughtful person would be able to digest these facts, identify their absurdity in the face of the Labour Relations Act, and find in favour of the employees within the course of an afternoon.”
The company’s weakness in this claim is compounded by the high threshold required for a court to alter a labour board decision. A court will overturn the decision of a labour board “only if it [the board] acts in a patently unreasonable manner.” This high threshold was articulated in Canada v PSAC, where the Supreme Court went on to write that “the board’s decisions should be final and conclusive and that courts should not have the power to interfere with them at will.” Thus, having had a very reasonable decision made against it, Richtree has a steep hill to climb.
The chronological aspect of Richtree’s application for judicial review strongly supports the notion that the company is intentionally delaying the process. Surely the company is aware that it is on a weak legal footing. In such a position there is little to be gained by spending more money on a legal battle except to exploit its superior economic position to out-wait the low-wage workers.
Richtree’s delaying of negotiations is made even clearer in the newer, March 25 board decision. This decision derived from a complaint made by UNITE HERE that Richtree had withheld information that is necessary in any collective bargaining, including the names and contact information of bargaining unit members, as well as job classifications and newly-implemented pay structures.
The Board’s decision is summarized as follows:
22. In the present situation, UNITE HERE’s bargaining rights concerning the Richtree employees located at the Toronto Eaton Centre were acknowledged by the Board in its decision of January 7, 2014. Richtree has not sought a stay of that decision. Further, Richtree has not yet perfected its Judicial Review nor does there yet seem to be a Court date set for the hearing of the Judicial Review application. Having regard to the time involved and to the possible prejudice to the Union of any further delay, as well as the reasonableness and relevancy of the information requested by the Union, in the context of collective bargaining, I am of the view that, in the particular circumstances of this case, the responding party should be directed to forthwith provide the requested information.
The larger timeline alluded to in the above excerpt exposes just how unhurriedly the board operates. The union’s bargaining rights were affirmed by a board decision handed down months ago, on Jan. 7. After requesting the necessary information and being stonewalled, UNITE filed the more recent complaint on Jan. 28, receiving a decision on March 25. That means that, after having bargaining rights affirmed, Richtree was able to delay almost three more months before even being asked by the board to submit documentation to the union (let alone begin to bargain in good faith!).
While the costs to the union of this extended timeline are substantial, the delay carries no real consequences for the employer. Union members, who were largely dependent on their low-wage service jobs, are forced to move on to other work and give up the struggle. The employer, however, continues to operate its business, consequence-free.
Richtree is plainly benefitting from the board’s lack of expedience, delaying negotiating with the union and ultimately undermining the union’s bargaining power. The company is doubling-down on its economic advantage over it low-wage workers. By continuing to delay the process and tie the union up in a legal struggle, it is effectively leveraging its power over workers, despite being wholly in the wrong.
When forces are so unequal, justice delayed is justice denied.