B.C.L. Canada Inc. v. Amalgamated Clothing and Textile Workers' Union, Local 1332, 1981 CanLII 822

0760-81-U B.C.L. Canada Inc. Applicant V. Amalgamated Clothing and Textile Workers' Union, Local 1332 and those persons named in "Schedule A" Respondents

BEFORE: R. O. MacDowell, Vice-Chairman.

APPEARANCES: W. I. McNaughton, L. M. Fourney for the applicant; M. A. Church, K. Smith and Roy Collins for respondents.

DECISION OF THE BOARD; July 28, 1981

1. This is a complaint under section 82 of The Labour Relations Act. The complainant ("the Company") contends that a number of its employees have engaged in an unlawful strike by refusing to work overtime in concert, or in accordance with a common understanding. The sections. of The Labour Relations Act relevant to this matter are as follows:

Section 63(1)

"Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out an employee."

Section 1(1)(in) — Definition of a Strike

"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 82

"Where, on the complaint of a trade union, council of trade unions, employer or employers' organization, the Board is satisfied that a trade union or council of trade unions called or authorized or threatened to call or authorize an unlawful strike or that an officer, official or agent of a trade union or council of trade unions counselled or procured or supported or encouraged an unlawful strike or threatened to engage in an unlawful strike or that employees engaged in or threatened to engage in an unlawful strike, the Board may so declare and, in addition, in its discretion, it may direct what action if any a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike."

2. At the opening of the hearing, the company withdrew its allegations against the union. The company is satisfied that the union officials have not authorized or encouraged the employees to refuse to work overtime. On the contrary, it is acknowledged that the union has made every reasonable effort to discourage them from doing so.

3. It is agreed that the parties were bound by a collective agreement which began to operate on July 1, 1979 and was terminated, in accordance with its terms, on June 30, 1981. The terms of that agreement remain in full force and effect by virtue of section 70 of The Labour Relations Act. The parties have not yet completed the conciliation process. Accord­ingly, if the employees' refusal to work overtime constitutes a strike, it is an unlawful one.

4. The company produces a transparent cellulose film which is used as a packaging material. The production process is continuous. Rolls of film are produced on one of four casting machines, then each roll goes to the coating department, where it is dipped in a chemical bath, and dried by conveying it on rollers over a high tower, then down again to a point where it is rewound. There are three such towers. Each tower takes one roll at a time, but because the towers operate faster than the coating machines, there is ordinarily no significant backlog. The process operates continuously twenty-four (24) hours per day, seven (7) days a week.

5. The employees with whom we are concerned are all employed in the coating department. There are four (4) shifts, three (3) of which will be working sequentially in any twenty-four (24) hour period. When an employee is going to be absent from work, the normal procedure is to fill his position by calling in another employee on overtime. There is a well-established method for doing this, which is intended to ensure an equitable distribution of overtime opportunities. The mechanics of that system are not relevant to the issues before us. It suffices to say, that the foreman solicits volunteers beginning with the first individual on the "off shift" who has not recently worked overtime, and continuing, if necessary, through the various shifts until all members of the department have been canvassed. Overtime is voluntary. Article 2.09 of the collective agreement reads as follows:

"The union agrees that it will facilitate the working of overtime and double shifts, both overtime and occasional double shifts being necessary for the efficient operation of the Company's plant. The Company agrees that the working of overtime and double shifts are voluntary matters, the decision resting with the individual employee. When the normal overtime procedure does not cover for a temporary vacancy in a Department, the Company may obtain overtime, on a voluntary basis, from any qualified persons.~~

If, after canvassing all of the members of the department the foreman is unable to obtain a replacement employee, one of the "towers" is shut down for the shift in question. This, of course, creates a temporary production bottle neck, but until recently that has not been a serious problem.

6. Prior to April 13, 1981 there was no difficulty obtaining overtime coverage when­ever it was required. After April 13, 1981, everything changed. From that date onwards, no one was willing to work overtime except to replace an individual absent on union business.

7. On or about April 13, all of the employees on the "B" and "D" shifts advised their foremen that they were no longer willing to work overtime. It was not unusual for an individual to advise his foreman that he did not wish to be called for overtime for a period of time, and in such circumstances, the foremen would make a note of his name and no calls would be directed to him. But such widespread and systematic refusal is unprecedented. The other employees on the other shifts did not specifically communicate their unwillingness to work overtime, but the fact of the matter is, that after April 13 they all invariably refused to do so.

8. There is no doubt that the employees' refusal to work overtime has had a significant lmpact on the company's production process. From March 2, 1981 until April 12, 1981 the company was able to obtain coverage for all of its overtime requirements; but from April 12 onwards none of its requirements could be met. The impact was immediate. There was a growing backlog of rolls, and if the film is not coated shortly after it leaves the casting machine, there is an increased likelihood of breakage as it goes through the "tower". This creates more waste material as well as "down time" when the film breaks and has to be joined together and fed back into the system. There were also ramifications for the departments preceding and following the coating department. These departments had to respond to the bottle neck in the coating department, and by June 27 the backlog was so great that the company had to shut down one of the casting machines, which produce the raw product. The company has been able to accommodate the bottle neck to some extent to reordering its production priorities, and producing certain types of film which do not have to be coated. But there are real limits to the company's ability to cope with the problem.

9. The importance of overtime in the company's production process is graphically illustrated by the following table which sets out its overtime requirements in the six weeks immediately preceding April 13 (i.e., immediately preceding the employees' refusal to work further overtime and the company's various actions to accommodate this problem and reduce its overtime needs):

Overtime Overtime Overtime Date Employees Date Employees Date Employees

March 2 2 March 17 1 April 1 2 3 2 18 0 2 2 4 2 19 0 3 5 3 20 2 4 2 6 3 21 2 5 2 7 3 22 2 6 2 8 2 23 2 7 2 9 2 24 4 8 1 10 4 25 3 9 1 11 2 26 3 10 1 12 1 27 3 11 1 13 1 28 3 12 0 14 1 29 1 15 1 30 2 16 0 31 2

It is apparent that in the weeks preceding April 13, overtime was not a sporadic, occasional or unusual occurrence for the twenty-four employees (four shifts of five employees each and four "mixers") who worked in the coating department. A perusal of the data provided by the company reveals that from March 2 to April 13 (forty-two days), overtime was required on thirty-eight days. Two employees were required on eighteen days, three employees were required on seven days, and on two days, four employees — virtually an entire shift — were required to work eight hours overtime. It is obvious that overtime was not being treated by the company as an exceptional circumstance, but rather as a general method of meeting its staffing requirements. Within this six week period, for example, employees Kyer and Losey worked five days overtime, H. Coreman worked six days, W. High worked seven days, and C. Conway worked nine days — this in addition to a regular seven day weekly shift! It would not be particularly surprising if such frequent resort to overtime met with some employee resistance — particularly where the agreement provides that overtime is voluntary.

10. But the employees' refusal to work overtime cannot be attributed solely to the frequency of the company's overtime requirements. The origins of the problem are more complicated than that. Only three employees from the coating department gave evidence. However, despite the hearsay quality of portions of that evidence (i.e., in respect of the views of the other employees) I am prepared to accept it as a fairly accurate portrayal of the problems which prompted the coating department employees to decline the overtime opportunities extended to them. The situation is best summarized by Maurice Labelle, who attributed the overtime ban to an "accumulation of frustrations".

11. Since at least the fall of 1980 the company has been experiencing financial difficulties requiring production cutbacks, and reorganization. One feature of this reorganization involved the reduction from six to five of the number of employees working on the "tower". This, in turn, increases the workload for the remaining individuals who have to climb the tower with greater frequency and more frequently exposed to the solvents involved in the process. The situation was exacerbated when the fourth casting machine went back into operation in February. As Ed Kyer, Art DiCola, and Maurice Labelle explained it, the employees "became fed up" with the five man operation and the demands it put upon them over a seven day shift. When Kyer (a union official) returned from his vacation, he was told by the employees that they were no longer working overtime. As he put it, the situation "just mushroomed". The employees had all decided that they were no longer prepared to work overtime under the new conditions. There seems little doubt that the employees' decision is in accordance with a common understanding and that the root of the problem is the manning of the tower. Yet no one has filed a grievance — even though the agreement provides a mechanism for resolving the "equity" of a change in workload, and an arbitrator is empowered to determine whether the workload is "excessive". Article 13 of the agreement reads as follows:

"Work Load and Method Change

When the Company institutes changes in work loading methods or work assignments, the following procedures shall apply:

(a) The Company shall first inform the union that a change is to be made and the approximate date thereof. If either party feels that a meeting is necessary, they shall arrange such a meeting twenty-one (21) days prior to the institution of such change and the Company will furnish all necessary information on the change.

(b) If there is any question as to the equity of the change, or if the Union feels that there should be an adjustment in wage rates applying to the area of the jobs so changed, it is agreed that a grievance can be instituted and taken to arbitration if it is felt necessary. The arbitrators' authority in such cases shall be limited to deciding whether or not a wage adjustment is justified, and/or the work load is excessive."

12. The union raised but did not press the application of the Employment Standards Act, which prohibits an employer from scheduling "overtime" work beyond eight (8) hours in the day or forty-eight (48) hours in the week (a "week" being defined as seven consecutive days), unless the employer has a permit from the Director of Employment Standards AND the consent of the employee or his agent. Hours of work averaging arrangements which may contravene an employment standard likewise appear to require the permission of the Director. (See sections 17-22 and the associated regulations.) Here, the company has neither an overtime permit, nor permission from the Director for its scheduling scheme; however, the union does not raise any absolute defence on this basis. Given the frequency of the company's overtime requests, the union is prepared to agree that some of them, at least, would have been within the limits established by the Act. Since most of the employees did not appear at the hearing, I have no evidence concerning their particular situations, and no way of knowing whether some of them might have advanced a defence on this ground. It might be noted, however, that in view of the employees' regular seven day shift, and the frequency of the company's overtime requirements it would be surprising if some of the employees did not have a valid defence on this basis. I do not think the strike prohibition was intended to apply in a situation where the work which is refused could not be legally required because it exceeds a statutory maximum, or where a statutory condition precedent has not been fulfilled. (See Cameron Packaging [1979] OLRB Rep. June 489.) In these circumstances, an employee can rightly say "I will not work"; a group of employees can rightly say "we will not work"; and I do not think it matters in the least that it can be said that the group are acting in accordance with their "common understanding" of the statutory protections afforded them, or are, as a group, exercising a right to which they are entitled by law. I raise this matter only to make it clear that nothing in this decision should be construed as depriving employees of rights which they have under the Employment Standards Act or as requiring them to work beyond the maximum hours therein prescribed.

13. In the union's submission a similar approach must be taken to a purported exercise of rights under a collective agreement, for, it argues, the legislature could not have intended that employees would be engaging in an illegal strike by refusing work which an employer has no right under the collective agreement to assign — either because work of that kind, or in those circumstances, is absolutely prohibited, or because the employer has failed to comply with a mandatory contractual condition precedent. [See John Inglis 53 CLLC 9117,049.] If the collective agreement clearly prohibited work on Sunday, for example, it could not be said that they were engaging in an unlawful strike if they refused to work on Sunday — even if they were doing so in accordance with a common understanding of what their obligations were under the collective agreement. "Work now — grieve later" may well have a place in the law of collective agreement arbitration, but it is quite another thing to say that employees who insist on rights which they clearly have under a collective agreement are, in so doing, breaking a public statute and exposing themselves to quasi-criminal liability. In assessing the employees' conduct i'n this case one must look at their obligations under the collective agreement — if not for. the determination of whether they are on strike, then certainly whether this Board should exercise its discretion to so declare and issue a cease and desist direction. If the Board did not do so, it might find itself in the anomalous position of effectively rewriting the parties' collective agreement by forbidding employees from exercising rights which they clearly have. Nor can the voluntary overtime provision in the collective agreement be viewed as illegal in itself or an attempt to authorize a strike during the term of the collective agreement.

14. I agree that in order to assess the propriety of the employees' conduct in this case, it is not enough to show that a group of them have refused to work overtime because they shared a common aversion to overtime work — or to put it as Mr. Labelle did, that they were "fed up" with working extended hours. Valid employee concerns of this kind can and do arise in a group setting, and when employees do share such concern a similar response may be natural. The evidence discloses that this has occurred from time to time in the past and when the employer has been unable to meet its manning requirements it has shut down one of the towers. That is a risk it takes when it permits voluntary overtime especially since the withdrawal of some employees from the poo1 of those available to work overtime puts added burdens on the rest, and would increase the likelihood that they too would soon get "fed up". It 15 not suggested that these past refusals constitute a strike nor do I think one could say that employees were engaged in concerted, (and therefore unlawful) activity simply because, in response to an employer's request, several of them refused to work citing their disenchantment with overtime. And in deciding whether their activity was "concerted" in the sense contemplated by the statute, one might well look at their motivation, whether they were merely exercising a right under the agreement, or whether there is some collateral collective bargaining purpose.

15. Here employees have been regularly working overtime for some considerable time, — some a little, some a lot — and it is a little hard to accept that all of them, to a man, would suddenly, on April 13, get "fed up" to the same degree, and refuse to work any overtime for weeks thereafter, except, to relieve a fellow employee on union business. The synonymous onset of debilitating fatigue in a group of employees whose overtime work varies considerably must be regarded as a medical miracle. Likewise, a sudden concern with family responsibil­ities. That is simply not what the evidence suggests. It is not just the overtime with which the employees are concerned, but also the employer's decision to reduce the number of men in the tower from six to five. Even if the production speedup and staffing changes raised the general level of fatigue, I still do not think it could explain so sudden a withdrawal of overtime work. The witnesses were quite candid on this matter, and I have no doubt that if the original crew were returned, overtime would begin again like magic. And what does the collective agreement say about this problem? In the first place, it specifically envisages that overtime decisions will be made on an individual basis. The clause is drafted in order to accommodate individual needs and problems. That is not what happened here, for as Mr. Kyer testified, he was advised at a meeting of the employees, that they had decided as a group to refuse any further overtime. And how does the agreement contemplate that work load problems will be resolved? Not by an overtime ban, but by a reference to arbitration. The agreement provides a specific mechanism whereby employees can question the fairness of a management decision to change their workload. Yet no grievance was filed; and what else could that clause have been directed to than the kind of situation present here? When read with the "no strike" clause, the clear implication is that workload disputes will be resolved by arbitration, not by a collective refusal to work. Thus, even if the Board accepts the union s view that I must look at the collective agreement, I do not think it supports an overtime ban. And even if one accepts that a group of employees might refuse overtime by reason of fatigue, family commitments, or even a wish to go to a football game and it might not be an unlawful strike, that is not the situation here. On the contrary, the situation is much closer to that described by the B. C. Labour Relations Board in Weyerhaeuser Canada. [1976] 2 Can LRBR 41:

"How does an overtime ban by a union appear within that analysis? This Union contended that the provisions of the collective agreement quoted earlier make overtime voluntary in certain situations (albeit compulsory in others). An employee is entitled to refuse an overtime assignment if he so chooses. If the employees collectively choose to exercise that contractual right, they cannot be said to be on strike in violation of the Labour Code. In the words of the statute, they are not refusing "work", because this kind of overtime is not the kind of work which as employees they are contractually bound to perform.

That analysis does fall prey to the fallacy we mentioned earlier of singling out one element of the statutory definition and considering it in isolation from the rest. When an employer agrees that overtime will be voluntary, ut gives the individual employee the choice about whether to accept a particular overtime assignment. The assumption is that some of the employees will want to work a lot of overtime, others very little; some employees will be interested in overtime at some times, others at different times. But the employer experience is that the availability of premium pay for overtime work will attract sufficient volunteers from the total work force that necessary overtime is performed without undue problem. (Indeed, most collective agreements have a provision requiring an equitable sharing of overtime among employees who may want more than is available.) That situation is qualitatively changed when an overtime ban is instituted by the union. Now all employees refuse all overtime work, out of conviction or by reason of union discipline. The employer, which previously had no problem in securing volunteers for needed overtime work as it occurred, now faces what is, in effect, a partial withdrawal of labour. Irregardless of the fact that the employer previously had no contractual right to order an individual employee to work overtime, the new collective situation places a significant economic pressure on the employer, especially after a period of time. If the union has organized the overtime ban to win certain employment concessions from the employer, this step will likely make the employer somewhat more malleable. But that action by the union amounts to a "strike" and uts legality will turn on the application of ss. 79 and 80 of the Code."

17. In the present case, I am satisfied that the employees have engaged, and are continuing to engage, in an unlawful strike. The question remaining is whether this Board should exercise its discretion to so declare; and issue a cease and desist order. The principles underlying the exercise of that discretion were discussed in Canadian Elevator Manufacturers [1975] OLRB Rep. Nov. 868 at 872:

"The Board's power under section 82, 83 and 123 are discretionary and ought to be exercised in accord with sound principles of industrial relations. While the Board has a public obligation to foster and maintain industrial peace, it cannot be said that this obligation can only be fulfilled by the reflex-like exercise of the Board's powers under these sections. Where, as in this case, an employer deliberately embarks upon a course of action that is unsupported by a,reasonably arguable interpretation of the collective agreement, thereby primarily, and we might say baldly, resting its claim on the principle that an employee is obligated "to perform first and grieve later", this Board would not be serving the public by buttressing such recklessness with the full force of the laws of this Province. We of course approve the aforementioned arbitral principle and the Board must be wary in interpreting collective agreements even on a very limited basis. But the application of the arbitral principle in discipline cases is a qualitatively different function than using it to specifically enforce the demands of an employer under the sections in question. To issue such powerful relief in the peculiar circumstances of this case could well undermine the integrity of the Board's orders and discourage the self-restraint required in a complex industrial society. Very similar sentiments, quite appropriate to this case, were expressed by the Board in Northdown Drywall and Construction Limited [1972] OLRB Mthly. Rep. June 666 where the majority of that panel evidenced its concern for self-government in the following way:

We recognize that this Board has an obligation to maintain industrial peace. We recognize that there is an obligation on the industry to assist in maintaining industrial peace by conducting its affairs in an orderly and careful manner so as to avoid the tensions and conflicts that are already rampant in the construction industry. There must be some form of self-help or policing by the industry. This Board is not to be viewed as a panacea for the ills of the con­struction industry. We do not sit as Solomon ever ready to divide the baby. We expect that the parties will exercise some self-restraint in their affairs and not expect this Board to be a forum which absolves them from excesses.

The facts obtaining in Board File 7425-74-U are distinguishable in that the provisions of the contract in that matter were reasonably in dispute; although even in that case the Board adopted a unique procedure to assure itself that industrial peace would be best served by the exercise of its remedial powers."

This case does not fall within those parameters. While there is some indication that the employer's reliance on overtime is excessive, on the basis of the evidence before it, the Board cannot concluded that the employer's conduct is so reckless or unreasonable that it should be denied a remedy under section 82. Most of the employees affected chose not to appear to give evidence with respect to this, or any other aspect of the case; and, as I have already noted both the voluntary overtime clause, and the workload clause in the parties' agreement provide a safety valve to avoid abuse. The Board is not unmindful of the manner in which frustrations can sometimes develop in the workplace but the whole scheme of our legislation is grounded on the principle that concerted economic pressure should not be resorted to during the currency of a collective agreement.

18. Having regard to the foregoing, the Board declares that by undertaking a concerted refusal to work overtime the employees on Schedule A have engaged, and are continuing to engage, in an unlawful strike. The Board directs:

(1) that all employees on Schedule A and anyone having knowledge of this Order shall forthwith cease and desist from engaging in an unlawful strike, and, in particular shall cease and desist from refusing to work overtime in concert, or in combination or in accordance with a common understanding. Nothing in this direction requires any employee to work any overtime beyond the legal limitation prescribed by the Employment Standards Act.