[1981] OLRB Rep. January 1
1170-80-U; 1172-80-U The Amalgamated Transit Union, Local 1573, Complainant, v. The Corporation of the City of Brampton (Brampton Transit), Respondent, The Amalgamated Transit Union, Local 1573, Applicant, v. The Corporation of the City of Brampton, C. H. Prentice and R. Gourley, Respondents.
BEFORE: Ian C. A. Springate, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: L. C. Arnold and A. Monette for the complainant/applicant; R. .I. Taylor, C. H. Prentice and R. Gourley for the respondents.
DECISION OF THE BOARD; January 27, 1981
File No. 1170-80-U is a complaint under section 79 of The Labour Relations Act in which it is alleged that the Corporation of the City of Brampton ("the City") has violated certain provisions of the Act. File No. 1172-80-U is an application for consent to institute a prosecution of the City and two officials in its transit department.
The Amalgamated Transit Union, Local 1573, ("the Union") is the bargaining agent for all employees in the City's transit department, with certain exceptions not here relevant. The City and the Union were parties to a collective agreement which expired on June 30, 1980. Following unsuccessful negotiations for a new collective agreement, as of August 2, 1980 the employees represented by the Union were in a legal position to strike and the City in a legal position to lock them out.
On August 10, 1980, the membership of the Union met and voted to impose a ban on certain overtime work. The City has traditionally scheduled overtime for transit drivers in two different ways. One is by building overtime work into a driver's regular schedule. The Union's ban did not cover this type of overtime. The second type of overtime is referred to as "voluntary overtime" and is work performed in addition to a driver's regular schedule. Drivers have traditionally had the right to either accept or reject this type of overtime. It was this type of overtime which was encompassed by the Union's ban.
A concerted withholding of overtime work by employees designed to limit an employer's output (as opposed to an individual employee deciding for reasons of his own not to work overtime) has been held to be a strike within the definition of that term contained in section 1(1)(m) of the Act, which states:
"'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;" (emphasis added)
Where employees not in a legal position to strike have engaged, or threatened to engage, in a concerted refusal to work overtime designed to restrict or limit output, the Board has directed that they cease from doing so. See: C & C Yachts Manufacturing Limited, [1977] OLRB Rep. July 433, and the cases cited therein. Interestingly enough, some two years ago the employees in the City's transit department decided to impose a ban on voluntary overtime work at a time when they were not in a legal strike position. In response to their action, officials of the Union called a meeting of the employees and convinced them to put an end to the ban on the basis that it amounted to engaging in strike activity at a time when a strike was unlawful.
We are satisfied that the ban on voluntary overtime work was aimed at restricting or limiting the City's transit operations as a means of bringing pressure to bear on the City in the negotiation process and that as such it amounted to strike activity on the part of employees at a time when they were in a legal position to strike. At the hearing it was contended by the City that it was not aware that the ban on overtime was done in connection with any strike activity and in this regard reference was made to the lack of any written communication from the Union to the City to this effect, as well as to certain statements in the press attributed to Mr. Monette, the President of the Union, concerning how the Union was trying to avoid a strike. Although there was no written communication to the City with respect to the overtime ban, the evidence establishes that Mr. Monette, the President of the Union, orally advised Mr. Gourley, the City's transit maintenance supervisor and acting transit operations supervisor, that a ban on overtime was being imposed so as to speed up negotiations. Although Mr. Monette in his dealings with the press did indicate that the Union was trying to avoid a strike, it is clear from both his testimony and the newspaper articles themselves that in his comments to the press he used the term "strike" in the sense most understood by the public, namely as a total withdrawal of services. The City was unlikely to have been misled by Mr. Monette's comments to the press since the Brampton press also reported the fact that the Union had banned overtime work as a way of backing its negotiating demands. It should also be noted that at a negotiation meeting held on September 3, 1980, Mr. D. Black, a management consultant who was conducting negotiations on behalf of the City, characterized the Union's ban on overtime as a strike. In all of these circumstances, we are satisfied that not only were the employees engaging in strike action by refusing to perform voluntary overtime work, but that the City was aware that this was the case.
In coming to the above conclusion we have considered, but rejected, the contention of Mr. Prentice, the City's transit manager, that the City was not certain that a ban on voluntary overtime was in effect because some such overtime work continued to be performed. In fact, apart from two probationary employees, the only voluntary overtime worked after the ban went into effect involved overtime performed by drivers who had agreed to do the work prior to the overtime ban being decided on. With respect to the two probationary employees, the Union advised them not to refuse voluntary overtime assignments because of their probationary status. In cross-examination, Mr. Gourley admitted that because of the overtime ban, between August 10 and September 6, 1980 he asked only the two probationary employees to perform non-scheduled work and that on occasion the two probationers worked up to sixteen hours per day.
On or about September 3, 1980, the Union rejected a settlement offer put forward by the City, and the City in turn decided to take steps to ensure the efficient operation of its transit service. To this end, it began to assign supervisors to drive buses. In addition, Mr. Prentice directed Mr. Gourley to direct employees to perform what had heretofore been regarded as voluntary overtime, and also to advise them that if they refused to perform the work they would be disciplined and might face dismissal.
On Saturday, September 6, 1980, Mr. Gourley contacted three drivers who were on their day off and directed them to report for work. The first employee he contacted was Mrs. C. Buchanan. In response to Mr. Gourley, Mrs. Buchanan indicated that because of the position taken by the Union with respect to overtime, and because she had made plans to attend a barbecue, she did not want to come into work. Mr. Gourley then indicated to her that if she did not go into work she would face discipline, possibly discharge. Mrs. Buchanan then replied that if she had to go in she had to go in. Following this exchange, Mrs. Buchanan telephoned Mr. Monette, the President of the Union, and advised him of what had occurred. Shortly thereafter, Mr. Monette phoned Mrs. Buchanan back and advised her that she was within her rights to refuse to into work. Mrs. Buchanan then telephoned the City's dispatcher and indicated to her that she would not be in to work.
The next employee Mr. Gourley contacted was Mr. B. Taylor. When asked to report to work, Mr. Taylor flatly refused to do so, saying that he had made plans to go North. Mr. Taylor also made a comment to the effect that two years ago the employees could not ban overtime because they were not in a legal strike position, but that now they were in a legal strike position and could ban overtime. In giving his testimony, Mr. Taylor stated that his reason for not going into work was the ban on overtime and that his comment about going North was meant to indicate that he was free to do what he wanted. After his talk with Mr. Gourley, Mr. Taylor phoned Mr. Monette to advise him of what had happened, and then proceeded with his plans to go North.
The final person contacted by Mr. Gourley was Mr. Louis Almeida. When told to report to work, Mr. Almeida replied that he would not do so because he had other plans. Mr. Gourley then indicated that a refusal to work might lead to the imposition of discipline, possibly even dismissal, but Mr. Almeida still refused to go into work. Following his conversation with Mr. Gourley, Mr. Almeida telephoned Mr. Monette to advise him of what had happened. In testifying before the Board, Mr. Almeida stated that the real reason he refused to work overtime was because of the Union ban, although he did not tell this to Mr. Gourley.
Shortly after the phone calles to the employees referred to above, Mr. Monette, along with two other union officials, went to see Mr. Gourley. At the time, Mr. Monette indicated that the refusal of the three employees to come into work had been connected with the Union's ban on overtime and added that the Union would view any discipline of the three employees as a breach of The Labour Relations Act.
On September 8, 1980, the City issued each of the three employees with a letter of warning, stating that the employee had refused to perform a work assignment and adding that "your continued refusal to accept such lawful work assignment will result in more severe disciplinary action being taken against you which could include dismissal". Although this type of warning letter is perhaps the least severe form of discipline open to an employer, as part of an employee's employment record it might have a future prejudicial effect on the employee. At the hearing the Board was advised that subsequent to the events set out above the parties had entered into a memorandum of settlement with the expectation that it would result in the execution of a new collective agreement, but that the City had not removed the letters of warning issued to the three employees from its personnel files.
It is the contention of the Union that the issuance of the letters of discipline amounted to the disciplining of employees for engaging in a lawful strike, and as such was contrary to sections 3, 58 and 61 of the Act. For its part, the City maintains that its only intent was to maintain a proper level of service in its transit department, and that its actions were not motivated by any event to interfere with the employees' right to strike.
In cross-examination, Mr. Gourley stated that he was aware that the real reason the employees did not go into work was the ban on overtime. Any doubts Mr. Gourley might have had in this regard would have been cleared up when Mr. Monette and other Union officials met with him later that day and indicated that the actions of the employees had been connected with the Union's ban on voluntary overtime. Accordingly, through Mr. Gourley, the City was aware that the action of the employees was part of a concerted refusal to work overtime which amounted to a strike under the Act at a time when such a strike was lawful.
The Supreme Court of Canada in Canadian Pacific Railways v. Zambri, 62 CLLC 9115, 407 determined that participation in a lawful strike is a right of employees under The Labour Relations Act. Cartwright, J. (with Kerwin, C.J.C. Taschereau and Fateaux, J.J. concurring) expressed this principle as follows at pp. 455-456:
"It is said that the Act does not in terms declare the right to strike, but I find myself in agreement with Mr. Lewis' argument that the right is conferred by s. 3 which reads:
- Every person is free to join a trade union of his own choice and to participate in its lawful activities.
It is clear on the findings of fact made by the learned Magistrate that the strike with which we are concerned was an activity of the union; I have already expressed my opinion that it was lawful; it follows that s. 3 confers upon the six employees, all of whom are members of the union, the right to participate in that lawful activity. I conclude therefore that the participation in the strike by the employees was the exercise of a right under the Act."
Judson, J. (with Abbot, Martland and Ritchie, J. J. concurring) reached a similar conclusion by reference to what was then section 54(2) of the Act, a section which is similar to the current section 63(2) in :hat it set out the conditions which must be met before employees would be in a legal position to strike, p. 456:
"The issue in the present appeal is a simple one. The collective agreement between the company and the union had expired. Every procedure required by the Act had been resorted to and every time limit had passed. The case is within s. 54(2)...
This subsection limits the right to strike until its requirements have been complied with. But once the statutory requirements have been complied with, the strike becomes lawful under the Act. The foundation of the right to strike is in the Act itself."
It follows from the reasoning in the Zambri case, supra, that by refusing in concert to work overtime, and thereby engaging in a lawful strike, the three employees were engaging in a right under The Labour Relations Act.
- Sections 58(a) and (c) of the Act provide as follows:
"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;
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act."
As already indicated, when the three employees refused to perform overtime work on Saturday, September 6, 1980, they were engaging in a lawful strike which was their right under The Labour Relations Act. The City, by issuing disciplinary letters against the employees, was in effect disciplining them for exercising a legal right. In our view, this amounted to a form of discrimination against the employees prohibited by section 58(a). Further, since the issuance of the disciplinary letters was clearly designed to deter the employees from similar conduct in the future, and keeping in mind that the letters warned that more severe disciplinary action, which could include dismissal, would be forthcoming if the employees again refused a work assignment, we are satisfied that the City's action involved both the imposition of penalty, and the use of a threat, to compel the employees to refrain from exercising a right under the Act contrary to section 58(c).
It perhaps bears repeating that our conclusion follows from the definition of the term "strike" set out in the Act. In most instances, the definition acts in management's interests in that employees cannot during the term of a collective agreement act in concert to refuse voluntary overtime as a means of restricting or limiting output. Indeed, as noted above, in the one previous instance where the City's transit drivers did impose a ban on overtime, it was the Union which stepped in and convinced the employees to cease their conduct as being unlawful. However, the other side to the definition is that it makes a concerted refusal to work overtime a right of employees when they are in a legal strike position. Such action may well result in disruptions to an employer's operations and a corresponding increase in the union's bargaining power, but that is the scheme envisaged by the Act. An employer, for its part, is free to take measures designed to limit the disruptive effect of this type of strike activity, such as the increased use of managerial personnel and non-striking employees. An employer is also free to take responsive action through its right to lock out employees. An employer is not, however, free to discipline or punish employees for engaging in a lawful strike.
Having regard to our conclusion set out above, the City is directed to remove from its personnel files the letters of warning issued on September 8, 1980 to Mrs. Buchanan, Mr. Taylor and Mr. Almeida.
In all the circumstances, we are of the view that no valid industrial relations purpose is likely to be served by prolonging this matter through the prosecution of either the City or its officials. Accordingly, the application for consent to institute a prosecution is denied.