Angelo Mallozzi v. Dominion Bridge Company, Limited, 1980 CanLII 989

[1980] OLRB Rep. July 967

0102-79-U Angelo Mallozzi, Complainant, v. Dominion Bridge Company, Limited, Respondent.

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members J. A. Ronson and S. Lewis.

APPEARANCES: George Schnall for the applicant; John P. Sanderson, Q. C. and Joe Keyes for the respondent.

DECISION OF KEVIN M. BURKETT, ALTERNATE CHAIRMAN, AND BOARD MEMBER S. LEWIS; July 9, 1980

1. The name "Dominion Bridge Co. Ltd." appearing in the style of cause of this com­plaint as the name of the respondent is amended to read: "Dominion Bridge Company, Limited."

2. This is a complaint filed under section 79 of The Labour Relations Act in which it is alleged that the complainant, Mr. Angelo Mallozzi, has been dealt with by the respondent contrary to the provisions of section 58(a) of the Act. The complainant alleges that on or about April 4, 1979 he was terminated from his employment as a foreman with the respondent com­pany "because of his vigorous union activities when he was president of the union before being requested by the respondent to assume the foreman's position."

3. Mr. Mallozzi commenced employment as a bargaining unit employee of the re­spondent in March, 1972. He joined the trade union representing the employees of the respon­dent, participated in its activities, and eventually, was elected president of the union. It is not disputed that he actively and aggressively participated in trade union activity during his tenure as union president. Mr. Mallozzi was promoted out of the bargaining unit in January, 1978 and acted as a foreman from that time until April 4, 1979 when his employment was termi­nated. It is admitted that while occupying a foreman's position, Mr. Mallozzi was in charge of the day shift, was not covered by the collective agreement between the company and trade union and exercised managerial authority within the meaning of section l(3)(b) of the Act. When he was told that his employment was being terminated, Mr. Mallozzi asked to be re­turned to the plant as a bargaining unit employee. His request was denied. The relief sought by Mr. Mallozzi is reinstatement as a bargaining unit employee in the plant.

4. The status of Mr. Mallozzi as an employee exercising managerial authority within the meaning of section l(3)(b) of the Act at the time of his termination raises an issue as to whether or not Mr. Mallozzi is covered by the protections afforded under section 58(a) of the Act. The parties were agreed that the Board should entertain submissions with respect to this preliminary issue and decide the preliminary matter before proceeding to hear the merits.

5. The respondent takes the position that the Board has no jurisdiction to hear the complaint since the complainant is not an "employee" for purposes of The Labour Relations Act. The respondent cites the decision of the Supreme Court in Barbara Jarvis v. Associated Medical Services, 1964 CanLII 12 (SCC), [1964] S.C.R. 497, 44 D.L.R. (2d) 407 (the Board proceedings are reported in (1961), 61 CLLC 1116,218), the George Scarpellin case, [1970] OLRB Rep. Jan. 1238, Ottawa General Hospital case [1974] OLRB Rep. March 193 and Oct. 714 and The National Protective Service Co. case, [1975] OLRB Rep. April 394 in support of its position that the complainant in this matter is not covered by the provisions of section 58 of the Act and is without standing to press a complaint brought under section 79 of the Act alleging violation of section 58(a). The respondent takes the position that the decision to terminate and the decision not to allow Mr. Mallozzi to return to the plant as a bargaining unit employee were made simultaneously and cannot be separated. The respondent argues that it had to decide whether to terminate Mr. Mallozzi as an employee or reassign him to the bargaining unit. It took the former decision and because of Mr. Mallozzi's managerial status the company maintains that the Board had no jurisdiction to entertain the complaint. The respondent argues that the Board addressed this very question in the second Ottawa General case, supra, and decided that under The Labour Relations Act a managerial person could not compel the continuation of his employment.

6. The complainant argues that on the plain meaning of section 80 of the Act, a section enacted subsequent to the Barbara Jarvis judgment, any person, whether exercising mana­gerial authority or not, is entitled to a hearing on the merits and relief in respect of a successful complaint under section 79 of the Act alleging a violation of section 58 of the Act. The com­plainant argues in the alternative, that the protection afforded a union member under section 58 carries with him after he leaves the bargaining unit and, if it is subsequently alleged that he has been discharged because of his previous union activities, a complaint filed under section 79 alleging a violation of section 58 must be heard by the Board. The complainant also argues that once having promoted an employee out of the bargaining unit a company is estopped from arguing that the employee is without the protections of the Act. The complainant asks the Board to assert jurisdiction and hear the complaint on its merits.

7. The relevant sections of the Act are:

"1. (3) Subject to section 80, for the purposes of this Act, no person shall be deemed to be an employee,

(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

58. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discri­minate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act.

79. (4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted con­trary to this Act it shall determine what, if anything, the employer, em­ployers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto .

80. For the purposes of section 71 and any complaint made under section 79, 'person' includes any person otherwise excluded by subsection 3 of section 1."

81. The issue before the Board centers on the meaning of the word 'person' in section 58(a) of the Act. More specifically, the issue is whether a person who is not an employee for purposes of the Act and who is expressly excluded from the operation of the Act is entitled to the protections extended under section 58 and remedial relief under section 79. This is not the first time that this issue has come before the Board. In the Barbara Jarvis case, supra the Board found that the termination of Barbara Jarvis was in violation of section 50 of the Act (now section 58) and notwithstanding the fact that she exercised managerial authority within the meaning of the Act, ordered her reinstatement pursuant to its authority under section 65 (now section 79). On review the Supreme Court ruled that a construction of the Act giving the Board the power to compel the continuation of employment of persons exercising managerial functions is at variance with the purpose of the Act as a whole, and upheld an appeal from the Board's decision. The court ruled that persons not entitled to join a trade union and partici­pate in its lawful activities were not covered by the protections afforded under the then section 50 of the Act and were not entitled to remedial relief under the then section 65 of the Act.

82. Sect on 80 was enacted following the judgment of the court in Barbara Jarvis, supra. It was put to the Board in the Ottawa General Hosp ital case (No. 1), supra, that section 80 "reversed" the court's judgment in Barbara Jarvis, supra, and extended the meaning of the word 'person' .n both section 79 (formerly section 65) and section 58(formerly section 50) to include "any person otherwise excluded by subsection 3 of section 1" of the Act. The Board concluded in tie Ottawa General Hospital case (No. 1) supra, that if the Legislature had in­tended to change the meaning of the word 'person' in section 58 it would have expressed its in­tention in much clearer language than appears in section 80 and confirmed that a person exercising managerial authority cannot invoke section 79 of the Act to allege a violation of section 58. The Board went on to conclude that section 80 enabled a managerial person to invoke section 79 if covered by some substantive provision of the Act other than section 58 and left open for argument the question of whether section 61 of the Act applies to managerial persons.

83. In a subsequent application for reconsideration, the Board, in the Ottawa General Hospital case (No. 2), supra, addressed the question of the application of section6l of the Act to persons exercising managerial functions. The Board reasoned at para. 31 of its October re­consideration as follows:

"The fundamental premise of the complainant's argument is that a man­agerial person is free to join a trade union and to participate in its lawful activities (section 3 of the Act) and that that right is protected by section 61. Where, precisely, does that argument lead? Did the Legislature intend to confer upon a managerial person a protectable right to join an organi­zation which has no legally enforceable right to represent him in collec­tive bargaining? Does it follow, if the complainant's argument is ac­cepted, that a managerial person can hold elective office in the union, participate in bargaining on its behalf, vote in ratification and strike votes, and, where the law otherwise permits, join in strike action with other members of the union? We prefer a construction of the statute which avoids these questions."

The Board determined that a person exercising managerial authority is not protected by sec­tion 61 of the Act.

11. The Board's decision in A.A.S. Telecommunications Ltd., [1976] OLRB Rep. Dec. 751 completes the framework for our analysis. In that case the Board had before it a complaint filed by a trade union alleging that the dismissal of three employees constituted a violation of the Act. It was argued that one of the persons who had been dismissed exercised managerial authority and was not entitled to the protections of the Act. Assuming the person to be man­agerial, the Board recognized the limiting effect of the court's judgment in Barbara Jarvis, supra, as confirmed in the Ottawa General Hospital case (No. I) supra and described the inter­action of section 80 upon both the substantive and remedial provisions of the act in the fol­lowing terms:

"Managerial employees, however, are not left completely unprotected by The Labour Relations Act. A limited protection has been extended to this group of persons by section 80. The Board had held that section 80 not only extends to the managerial employee remedial protection where there has been a violation of section 71, but remedial protection where there has been a violation of any other provision of the Act. (See Ottawa General Hospital (No. 1), supra.) This protection, however, is much more narrow than might appear from the face of this proposition. The important limitation is that there must be a violation of a substantive provision of the Act before any remedial relief is available to the man­agerial employee, raising the question of the extent to which the man­agerial employee falls within the substantive protections of the Act."

The Board concluded that the relative substantive sections of the Act did not extend to cover persons exercising managerial authority. However, the Board found that the dismissal of all three employees (including the one exercising managerial authority) constituted unlawful in­terference with the trade union, within the meaning of section 56 of the Act, and relied on sec­tion 79(4) (as enacted in 1975) which allows the Board to extend relief to both unions and employers as well as individual employees. In framing a remedy directed to the union (and not to the managerial employee who benefited incidentally) the Board ordered the managerial employee reinstated, not to her former employment, but into the bargaining unit.

12. Having reviewed the jurisprudence in light of the amendments to the Act which have been made since Barbara Jarvis, supra, we reject the submission of the complainant as to the effect of section 80 of the Act. While section 80 extends the remedial authority of the Board to encompass managerial employees, it does not broaden the meaning of the word 'person' in section 58 of the Act as limited by the judgment of the court in Barbara Jarvis, supra. The Board, applying essentially the same reasoning as the court in Barbara Jarvis, determined in the Ottawa General Hospital cases, supra that the substantive provisions of sections 58 and 61 do not extend to cover managerial employees. The expansion of the Board's remedial author­ity under section 80 of the Act, therefore, is circumscribed by the decision of the Legislature and to extend certain key substantive protections to managerial employees.

13. Mr. Mallozzi exercised managerial authority at the time he was terminated from employment and hence the protections under section 58 of the act do not apply to him in re­spect of termination from his managerial position. Indeed, so long as he continued as a man­agerial employee he had no rights under section 58 of the Act vis-a-vis the treatment afforded him by his employer. The Board, therefore, is without jurisdiction to deal with his complaint insofar as it pertains to his termination as a foreman. This is not a case in which the union complains that the action of the company in promoting and then terminating a former union president constitutes a violation of section 56 as would allow the Board to approach the ter­mination of Mr. Mallozzi from the same perspective as in A.A.S. Telecommunications, supra.

14. However, this is not the end of the matter. Depending upon the level of production, vacation schedules, an individual's supervisory abilities and a host of other related factors, employees regularly shift back and forth between the bargaining unit and first line supervisory positions. More often than not bargaining unit employees who are moved into first line super­visory positions are long-service employees with a proven record and attachment to the trade union. It is one thing to say that they are without the protections of sections 58 and 61 of the Act should they be terminated from a managerial position. It is quite another matter to say that they are without these protections should the employer refuse to return them to the bargaining unit or consider preferential status for re-employment into the bargaining unit. We do not accept that the removal of an employee with proven competence in the bargaining unit from a supervisory position and the refusal to return that employee to the bargaining unit, are part and parcel of an inseparable decision. In our view, an employer must put his mind to two separate questions. He must ask himself if he wants the employee to continue in his managerial position and having come to the conclusion that he does not, he must then decide if he is going to return the employee to the bargaining unit (assuming that a vacancy exists) or terminate his employment altogether.

15. Sect on 58 of the Act makes it an offence to refuse to continue to employ a person (who is already an employee for purposes of this Act) and to refuse to employ a person who is seeking to become an employee for anti-union reasons. The reasoning of the Court of Appeal in the Barbara Jarvis case as adopted by the Supreme Court bears repeating. In reference to the meaning of the word 'person' in section 50 (now section 58) the Court held:

"To employ or continue to employ a person is for the purposes of the Act, to cause a person to become an employee or to continue a person as an employee. The section refers to two classes of individuals — a person who seeks employment, i.e. who seeks to become an employee and a person who already is an employee. This meaning of the word is quite in keeping with the general object and purpose of the Act; on the other hand it is neither logical or necessary to construe 'person' as it appears in the sec­tion as applying to anyone other than an individual seeking to become an employee or who already is an employee and we are told in plain terms by sec. l(3)(b) of the Act that someone working in a managerial capacity is not, for the purposes of the Act to be considered an employee."

A person exercising managerial authority within section l(3)(b) of the Act is without a sub­stantive right under section 58 to challenge his removal from a supervisory position. In our view, however, once the decision has been made to remove the employee from the managerial position he holds he is no longer employed in a managerial capacity within the meaning of sec­tion l(3)(b) of the Act. Can it be said, therefore, that when he requests a return to the bargain­ing unit (having been promoted from the bargaining unit) he is in a lesser position vis-a-vis the protections afforded under section 58 than a person who applies off the street? We think not.

16. It is clear on a reading of the judgment of the Supreme Court in Barbara Jarvis, supra, and the subsequent decisions of the Board that the restrictive interpretation given the word "person' in section 58 and section 61 is designed to preserve the integrity of the collective bargaining process as an exercise engaged in by employees represented by trade unions on one side and employers, in the person of those exercising managerial functions, on the other. A managerial employee has no right under the Act to compel his continuation in employment as a managerial employee. While the Supreme Court has made it clear that a managerial em­ployee can no~ compel his continuation in employment as a managerial employee, a reading of the court's decision in Barbara Jarvis, supra, makes it equally clear in our view that a person who no longer exercises managerial function is entitled to the protections of section 58 in re­spect of any attempt to secure employment within the bargaining unit following an employer's decision to remove him from his managerial position. The considerations upon which the restrictive interpretation relied upon by the respondent is based, do not prevail in respect of a person who has been removed from a managerial position and claims that a subsequent refusal of the company to return him to the bargaining unit is in violation of the Act. Regardless of the bona fides of the employer's original decision to promote the employee, the employer, having decided to remove the employee from his managerial position, cannot discriminate in respect of a refusal to return the employee to the bargaining unit. On a reading of section 58(a) of the statute as interpreted in Barbara Jarvis, supra, such a person is clearly a person seeking to become an employee within the meaning of the Act and is therefore covered by the protections extended by the section 58(a) prohibition against refusing to employ a person for anti-union reasons.

17. Having regard to all of the foregoing, it is our determination that the protections of section 58 of the Act do not extend to the removal of Mr. Mallozzi from his managerial posi­tion but that these protections do extend in respect of the company's refusal to return him to the bargaining unit. Accordingly, we are prepared to hear evidence and entertain submissions in respect of Mr. Mallozzi's complaint that "the respondent refused to allow him to return to the plant because it did not wish (him) to once again undertake union activities in his diligent and conscientious fashion."

DECISION OF BOARD MEMBER J. A. RONSON:

1. Mr. Angello Mallozzi was a foreman employed by the Respondent Company. On or about April 4, 1979 the Company terminated his employment for cause. It was agreed by the parties that, as a foreman, Mr. Mallozzi was not an "employee" within the meaning of that term as defined in the Act.

2. The present narrow issue before the Board is whether Mr. Mallozzi is entitled to ask the Board to order that he be reinstated as an employee by the Company. He has filed a com­plaint under section 79 of the Act alleging a breach of section 58(a). He alleges that the Company, for anti-union reasons, chose to terminate his employment rather than demote him back into the bargaining unit. There is no allegation that, within the terms of the collective agreement in effect, Mr. Mallozzi is entitled to preferential treatment in securing a job in the bargaining unit.

3. The Board is being asked to adjudicate on the disciplinary penalty meted out to a managerial employee. Rather ingeniously, counsel for the Applicant submits that the decision of the Company can be divided into two components:

(1) a decision to remove Mr. Mallozzi from his managerial position, and

(2) a decision to terminate his employment.

It was submitted that the Board has jurisdiction to entertain a complaint under section 5 8(a) of the Act with respect to the second component of the decision.

4. 1 would have thought the Supreme Court of Canada in the Barbara Jarvis case, supra. and subsequent decisions of the Board had laid the issue to rest. In Barbara Jarvis the majority decisions of the Court explicitly endorsed the reasoning of the Court of Appeal for Ontario. In the Court of Appeal decision (63 CLLC 631) (written by Aylesworth J.A) there is the following:

"Much was said during the argument as to whether or not under the Act, persons other than those deemed to be employees for the purpose of the Act, had "rights" conferred upon them. Interesting as this may be, no­thing in the present proceedings requires determination of the point. The board either had jurisdiction to adjudicate upon the complaint or it did not and if, as in my opinion is the case, it had no jurisdiction to deter­mine the complaint, then it cannot, of course, concern itself with whether or rot the discharge can be justified."

and:

"Once the Board determined, as it had the right to determine, that the complainant was a person deemed not to be an employee for the purposes of the Act it had, ipso facto, demonstrated its lack of jurisdiction to pro­ceed further with the complaint. The remedy, if any, of the complainant lies in another forum.

5. The Board again considered the problem in Ottawa General Hospital (No. 2), supra. and in its reasons stated:

"We are inclined to the view that counsel's reading of the majority deci­sion of the Supreme Court of Canada in Jarvis is too narrow in that it fail to give effect to the following passage in the judgment of Cartwright, J. (Taschereau C.J.C., Fauteux, Martland and Hall, J.J. concurring):

'It appears to me that the appeal can succeed only if we are able to construe the Act as giving the Board power, in appropriate cir­cumstances, to compel the continuation of the employment not only of all persons who are "employees" within the meaning of that term as defined in the Act but also of all persons exercising managerial functions.

In my opinion such a construction would be at variance with the purposes which appear from reading the Act as a whole, and would involve giving a forced meaning to the words which the legislature has employed.'

It is true that the court was considering the ambit of section 50 [now sec­tion 58] of the Act and not section 61. However, as appears from the pas­sage quoted, the court was construing the Act as a whole; no exceptions or qualifications are indicated. If, in its construction of the whole Act, the court had concluded that a managerial person could, under some cir­cumstances, compel the continuation of his employment, it surely would have said so. However, even if we are wrong in our understanding of the scope and effect of the court's decision in Jarvis, we cannot accept the in­terpretation of section 61 for which the complainant contends."

6. We are asked in this case to treat Mr. Mallozzi as if he wore two hats while he was being discharged:

(a) he was a managerial person until he was told he was being removed from the position of foreman, and

(b) immediately upon being so told he became a person deemed to be an employee under the Act and entitled to ask for an order compelling the continuation of his employment.

Implicit in this approach is the premise that when he was terminated as a manager, he was also terminated or refused employment as an "employee" under the Act.

7. The result of accepting such an argument is to say that in a section 58(a) complaint brought by an individual "in appropriate circumstances the Board has power to compel the continuation of employment not only of all persons who are 'employees' within the meaning of that term as defined in the Act but also of all persons exercising managerial functions". In the Barbara Jarvis case the Supreme Court of Canada has said that such a construction would be at variance with the purposes of the Act and would give a forced meaning to the words which the legislature has employed.

8. Mr. Mallozzi was dealt with in his capacity as a managerial person. The Board has no jurisdiction to entertain the merits of his complaints under section 58(a) of the Act.