Justice Delayed Is Justice Denied – Examining The Richtree Decision

2013-11-07 17.58.05By Jason Edwards

The Ontario Labour Relations Board recently found in favour of workers of Richtree Restaurant and their union, UNITE HERE Local 75.  The company was found to have violated the Labour Relations Act when it closed its store, then re-opened at the other end of the Eaton Centre food court, using the move as a ruse to cease recognizing its employees’ union.

Looking at the facts of this case as they are laid out in the Board’s decision, the time it took to give a decision, nearly 12 months, was startling.  The facts were so stunningly simple, the employer’s position was so absurd, and the ramifications for the employees were so severe, it is unconscionable that this decision took more than an afternoon. Such a reprehensible timeline is symptomatic of the state’s inability (or lack of desire) to confront the economic advantage capital wields against labour in its effort to save money on the backs of workers.

The timeline

The restaurant was closed and employees were permanently dismissed on January 28, 2013.  The Board’s decision was released January 7, 2014.  That is, it took almost a year to come to a decision on the facts.

The gravity of the decision

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.

RankandFile.ca interviewed Nazrul Islam, a Richtree employee of twenty-five who lost his job in the closure.  As he says in the interview, he was a loyal employee who worked very hard.  A single-income household, Islam’s family experienced serious financial distress when he lost his job, having difficulty affording rent, food, medicine, and amenities for the children. Despite his loyalty and hard work, the corporation callously cast him aside in an effort to cut costs.

Islam’s story is not atypical of precarious workers, who are increasingly struggling to meet their families’ needs and have their basic employment rights respected. In cases like this, justice delayed is justice denied. A large corporation like Richtree can hold out for a long legal battle, but low wage workers need their incomes in order to survive.

The question decided

The question that was put to the Board was whether or not Richtree was obligated to recognize its employees’ union. That is, did the move across the foodcourt constitute a closure-opening or was it simply a relocation of the same restaurant?

(There was caselaw submitted by the employer, but it was “of limited assistance” to the Board. In fact, it played no role but to provide instances of bargaining units that were limited by their location, an entirely undisputed aspect of the proceedings. This decision was made on factual evidence, not on a legal question.)

The employer’s position

Richtree made the argument that the workers’ collective bargaining rights do not exist at the current location.  The collective agreement states that the union exists at the “Eaton Centre, 220 Yonge Street” while the new location, because it now has a door to the mall’s exterior, is at “14 Queen Street West” (still in the Eaton Centre, on the same floor).  This distinction was made in the 2006 collective agreement, which was presumably (the Board is unclear on this question) drafted in such a way so as to distinguish between the Eaton Centre and Yorkville locations (this was the first agreement shared by employees/management at both locations).

The facts decided on

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 facts, as found in evidence presented to the Board, are as follows (emphasis added in Board quotes):

  • The new location was “approximately 50 metres from the location of the former restaurant,” on the same floor of the food court, under the same name and rendering the same services.
  • The collective agreement covered the following scope: “all employees of the restaurant located at Eaton Centre, Toronto”. In the 2006 negotiations, when the address of the restaurant was written into the collective agreement, “the issue of scope of the recognition clause did not come up…”  Rather, it was assumed by both parties that the subject of the collective agreement was the Richtree restaurant in the Eaton Centre, wherever the Eaton Centre’s address may be.
  • Even after the move, the General Manager of the restaurant had business cards stating that the address was “Eaton Centre, 220 Yonge Street”.
  • [220 Yonge Street] is the public representation of the location of the Eaton Centre (or even its contact address) as listed on the Eaton Centre’s own website (not only currently but even the website at the time, in April 2006)…”  Further, “what we are talking about here is what people would understand a reference to the Eaton Centre to mean – and whether a reference to ‘220 Yonge Street’ means such a specific and confined portion of it so as not to include a portion of the Eaton Centre a mere 50 metres away across the corridor or common laneway of the mall.”  Most other businesses in the Eaton Centre foodcourt also list 220 Yonge Street as part of their addresses.
  • In the words of the Board, “Richtree conceded that the change would not be of such a substantial nature as to extinguish the Union’s bargaining rights if this, for example, were an application under section 69(5) of the Act (and it is not)”.  That is, despite trying to argue that the new restaurant was a different type of operation with different employee positions, the employer conceded that the changes were not substantial enough so as to meet the requirements of a new type of business, thus making the union’s bargaining rights null 
  • While Richtree argued that the location change was made in order that the restaurant would have street access, “there is presently no entrance, no street access to the new restaurant, and no restaurant signage at 14 Queen Street West.  Other than on paper (a Liquor Sales Licence and some municipal permits), 14 Queen Street West has no visible or real existence.”
  •  Concerning the company’s argument that new employees were not interested in remaining union members (despite losing the pay raises, health and dental benefits, and formal protections that were ensconced in the collective agreement), the Board found, “that is an argument that, if relevant, should be raised by the employees themselves (and not lie in the mouth of an employer) and no such employees have sought to participate (or participated) in these proceedings, in this case that argument rings hollow and is somewhat circular.”

These evidentiary findings support, in whole, the position of the employees and their union. It could not be more clear which side held the moral and legal high ground.

The decision

The Board’s decision is summed up in the following statement: “I conclude that 220 Yonge Street is added as merely a description of the Eaton Centre – not a limiting qualification or restriction to only part of the Eaton Centre.” This means that the company has to revert to recognizing the union.

The decision does not guarantee that the wrongfully-fired workers will be re-instated or compensated for the income they lost over the past year.  The two sides will now negotiate outlying issues. (These problems are better articulated here.)

Conclusion

Both the lack of expediency and the absence of an order for appropriate compensation in this decision are symptomatic of larger problems with systems of labour relations in Canada. The deep asymmetry of power between precarious workers and the wealthy corporations who employ them means that disputes greatly favour one side over the other. During this dispute, and continuing today, Richtree has hired replacement workers and carries on business at the “new” location. While the company has been able to continue profiting, the wrongfully-fired workers have had no incomes. The workers even faced the unsavoury decision between finding new jobs (without the benefits provided by their union contract) and keeping up the public fight to have their union recognized.

Waiting for a conclusion to a dispute like Richtree carries serious consequences for workers, but almost no disincentives for employers to work toward a resolution. Surely Richtree management was aware of this when it decided to draw-out lengthy proceedings despite being wholly in the wrong.  The systems of labour relations in Ontario and across Canada make it possible for employers to exploit the economic advantages they have over workers, wielding their power as a weapon against labour in their effort to lower the wages and worsen the working conditions of precarious workers.

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