[1981] OLRB Rep. December 1849
1577-81-U Westeel Rosco Limited, Applicant, V. United Steelworkers of America and its Local 6448, John Fitzpatrick and Richard Vaughan, Respondents
BEFORE: E.N. Davis, Vice-Chairman.
DECISION OF THE BOARD; December 16, 1981
1This is an application made under section 92 of the Act alleging that the respondents did on October 19, 1981, call or authorize an unlawful strike by the employees of the applicant employed in Metropolitan Toronto.
2At the hearing into the matter on October 26, 1981, the Board issued an oral decision declaring that the respondents, United Steelworkers of America and its Local 6448 did call or authorize an unlawful strike within the meaning of section 92 of the Act and issued a cease and desist order. The Board undertook to provide written reasons for its decision and such are provided herein.
3The applicant operates four plants in the Rexdale area of Metropolitan Toronto and one plant in Burlington, Ontario, all of which are covered by the same collective agreement between United Steelworkers of America and the applicant and which agreement continues in effect until June 13, 1982. There is no dispute that Local 6448 of the United Steelworkers of America is comprised solely of employees of the applicant.
4As a result of rumours heard in the morning of October 26, to the effect that the Local intended to refuse overtime assignments, Mr. Robert Mitchell, Senior Plant Manager for the five plants, asked Mr. Vaughan, President of the Local and an employee of the applicant, at the close of a previously arranged meeting that afternoon about the matter. Vaughan informed Mitchell that the official position of the Union was that a membership meeting of the previous night had voted not to participate in any overtime in Rexdale until the Stran Steel situation was settled. It should be noted that Stran Steel is a sister corporation of the applicant whose employees are represented by the United Steelworkers of America. Those employees are currently engaged in a lawful strike, and it was Mitchell's understanding that a Mr. Fitzpatrick, an International Representative was participating in the Stran Steel negotiations and, according to Vaughan, attended the Local 6448 meeting of the previous night.
5Mr. Dante Cavassi, Plant Manager at the Westeel Plant No. 72, testified that on October 15, 1981, he prepared a handwritten list of bargaining unit and non-bargaining unit employees who had volunteered for overtime work on Saturday, October 24 to complete an annual inventory. Cavassi was informed by Mitchell on October 20 that rumours of overtime refusal appeared to be accurate and, was requested by Mitchell to again solicit the employees on his list to work on October 24. Cavassi recanvassed all the previous volunteers who then refused the assignment. Cavassi then canvassed the remaining bargaining unit employees and met with similar refusals. No reason was given for the refusal by any individual employee and no reason was sought by Cavassi, which is in accord with Cavassi's normal practice. No bargaining unit employees did work on October 24 and the inventory was completed by employees from outside the unit. Cavassi stated that overtime demands were erratic dependent on customer demands and, to some extent seasonal, and that over the past two years he had no difficulty in securing employees to fill requirements.
6Mr. Edward Sherman is Plant Manager of Plant 26 at which location the annual inventory was scheduled to be completed on Friday, October 23. On October 22, Sherman was holding an employee meeting to renew inventory methods and procedures when he was interrupted by his supervisor and informed that it had been determined that a job shipped the previous week had been poorly designed and that it would be necessary to produce re-designed units. While there were a total of sixty units involved, it was said that ten were required for the following day. It was estimated that the job would take two men some three-hours to do. Sherman was asked to get two key people to stay on overtime to produce the ten new units. Sherman approached two employees who were classified as Culvert Machine Operators to do this work and they both refused, without reason given or asked. Sherman stated that the work was not done that night and couldn't be done on the succeeding day because of inventory. Sherman acknowledged that there was then a Culvert Machine Operator on lay-off and that he did not call on that employee as it was not a usual practice, and that it was not usual for production to be carried on concurrent with inventory-taking.
7The applicant employer was possessed of a permit issued by the Director of Employment Standards pursuant to section 20 of that statute permitting work in excess of the statutory daily and weekly maximum hours. It was not disputed that the hours scheduled for October 24 were within the statutory weekly maximum.
8No witnesses were called to give evidence on behalf of the respondents.
9The Board found that the action of the respondent Union on October 19 constituted a calling or authorizing of an unlawful strike. Counsel for the Union argued that the Employment Standards Act, in authorizing hours in excess of those stipulated in section 17 of that Act conferred a right on the employee or his agent to refuse an assignment beyond his regular hours of work and that it was immaterial whether the right was exercised individually or in concert. It was argued that the right under the Employment Standards Act shall be viewed as taking the complained of activity out of the general prohibition of the Labour Relations Act. Whatever force should be given to that argument in respect to employer demands for work in excess of eight hours in a day, it is clear that in respect to the scheduling of hours within permitted statutory maximums such as on Saturday, October 24, 1981, the argument has no application. The defence argued by the Union must, at its highest, be limited to those hours in excess of permitted hours under section 17 of the Employment Standards Act and is no defence to calling or authorizing a concerted refusal to work hours within the statutory maximum. The Union in calling for a general refusal of overtime did not differentiate between overtime hours which required the issuance of a permit by the Director of Employment Standards and those hours which did not and, the call was obviously intended to catch both as in fact it did. By so doing, the Union was acting in contravention of section 74 of the Labour Relations Act, at least insofar as the refusal of work on October 24 was concerned, and the employees refusing such assignment in concert were engaged in an unlawful strike.
10The relevant sections of the Labour Relations Act to be considered are sections l(1)(o) and 74.
Section l(l)(o) of the Act defines "strike" as:
"l(l) In this Act,...
"strike" includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output."
Section 74 of the Act reads:
"No trade union or council of trade unions shall call or authorize or threaten to call or authorize an unlawful strike and no officer, official or agent of a trade union or council of trade unions shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike."
11The question posed by the Union's argument insofar as refusal of overtime assignments involving hours in excess of the statutory maximums is whether, by virtue of sections 17 and 20 of the Employment Standards Act, the Union has the right, as the statutory agent of employees, to direct or encourage concerted action to refuse overtime work which is in excess of the statutory maximum and covered by permit issued by the Director of Employment Standards, in disregard of the prohibition of such concerted activity by the Labour Relations Act. It is my conclusion that, in the circumstances of this case, no such right exists. In arriving at that conclusion, regard must be had for the provisions of both relevant statutes and of the collective agreement.
12It is clear that the permissive discretion accorded to the Director of Employment Standards by the section 20 of that statute is not an employment standard such as is a "requirement in favour of an employee". This matter is well dealt with by the Board in its decision in the case of C & C Yachts Manufacturing Limited, [1977] OLRB Rep. July 433, at paragraph 28, thereof in which it was said:
"The exception that allows for a permit or approval of the Director of Employment Standards for work in excess of the maximum standard is not a "requirement in favour of an employee" as that phrase is understood in the Act. Employees are fully protected by the section 17 prohibition of work in excess of eight hours in a day and forty-eight in a week. The approval or permit operates in favour of employers by allowing them to assign work in excess of the statutory maximum with the consent of their employees or their agent. The approval or permit is a saving provision to allow exceptions to the basis statutory standards where certain public policy factors outlined in the Act are found to apply. In other words, the requirement of the approval or permit is not an employment standard as defined in the Act and section 4(2) has no application to it."
13A basic thrust of the Labour Relations Act is that industrial peace will not be disrupted during the currency of a collective agreement. To that end, section 42 of the Act requires that every collective agreement shall contain, or be deemed to contain, a provision that there shall be "no strikes or lockouts and section 72 of the Act contains a prohibition against strikes or lockouts except under specified circumstances. Additionally, sections 74 and 75 of the Act set forth in clear language prohibitions on the calling or authorizing, or threatening to call or authorize, or counselling, procuring, supporting or encouraging of an unlawful strike or lockout. Having regard to the comprehensive and detailed manner in which the Legislature has directed its attention to the importance of precluding the disruption of industrial peace through strikes or lockouts, it would, in my view, require the most explicit language in some other statute to negate or over-ride that legislative intent, and I do not find such language in section 20(3) of the Employment Standards Act. That section reads:
"The issuance of a permit under this section does not require an employee to work any hours in excess of those prescribed by section 17 or approved under section 18 without the consent or agreement of the employee or his agent....
In my view, the purpose of the section is to ensure against the permit in itself being used as a basis on which to found mandatory or compulsory acceptance of overtime assignments, and leaves the determination of the right of the employer to demand acceptance of overtime assignments and the right of the employee to refuse overtime assignments subject to the terms and conditions of employment and other relevant statutes. The section cannot be interpreted as conferring a right on an employee or his agent to engage in activities which are otherwise specifically proscribed by the Labour Relations Act.
14It is clear that insofar as the Union motion of October 19, was calling for a general refusal of overtime assignments, including those in excess of eight hours in a day, it was calling on employees to engage in concerted activity designed to restrict or limit output within the meaning of section l(l)(o) of the Act and in contravention of section 74 of the Act.
15For all of the foregoing reasons, the Board found that in the circumstances of this case, sections 17 and 23 of the Employment Standards Act did not provide a defence to the Union for a disregard of section 74 of the Act, and that it was not a case in which the Board should refuse to exercise its discretion to issue a declaration.