[1981] OLRB Rep. February 158
0268-80-U Great Lakes Forest Products Limited, Complainant, v. International Brotherhood of Electrical Workers, Local 1565, Respondent.
BEFORE: Ian C. A. Springate, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: F. J. W. Bickford and W. J. Murray for the complainant; J. D. Mclnnis, L. Oryniair, J. Fiorito and N. Gava for the respondent.
DECISION OF THE BOARD; February 20, 1981
This is a complaint under section 79 of The Labour Relations Act in which the complainant employer ("the company") alleges that the respondent trade union ("Local 1565") has violated section 38(2) of the Act.
At the hearing, the parties agreed to certain facts and also agreed that the Board could rely on the facts set out in the Board's decision in File No. 1885-78-U dated July 5, 1979. The parties further agreed that the Board should refrain from making any actual determination as to whether or not Local 1565 had violated section 38(2) as alleged, but that instead the Board should set out for the benefit of the parties, the law applicable to the following fact situation.
Local 1565 represents electricians and electricians' apprentices employed by the company in Thunder Bay. The company has collective agreements with a number of other trade unions covering employees at the same location.
On September 20, 1978, employees represented by Local 1656 commenced a legal strike against the company. The strike ended seven days later when the union and the company reached agreement on the terms of a new collective agreement. During the strike, large numbers of the company's employees represented by the Canadian Paperworkers Union, Local 39, who were not in a legal strike position, passed through Local 1565's picket line. Included among these employees were Patrick Gain and David Smith.
In August of 1978, both Mr. Gain and Mr. Smith had applied to be transferred to the company's electrical department as apprentices. In October of 1978 the company advised them that their applications had been accepted and that they were to commence their new duties on October 16, 1978. In their new positions, both Mr. Gain and Mr. Smith would come within the bargaining unit represented by Local 1565.
Mr. Smith and Mr. Gain worked in the electrical department without any incident from October 16 until November 22, 1978, although partway through this period it was indicated to them that they might not be taken into membership in Local 1565 because they had crossed the Local's picket line during the strike. The Collective Agreement between the company and Local 1565 provides that employees under the agreement "shall become members of the union within six (6) months after entering the company's employ."
On November 22, 1978, Messrs. Smith and Gain applied for membership in Local 1565. On November 28, they were advised that their applications had been rejected. From that day onward members of the Local, including the President of the Local, refused to work with either Mr. Smith or Mr. Gain. On December 7, 1978, both Smith and Gain decided they could no longer work in such an environment and accordingly, they requested that the company transfer them back to their old jobs, which request, was granted.
Mr. Gain and Mr. Smith subsequently filed a complaint with the Board (File No. 1885-78-U) alleging that Local 1565 had breached sections 38(2) and 60 of the Act because of the way they had been treated while employed as a electrician' apprentices. The Board issued a decision in the matter on July 5, 1979 (see, Great Lakes Forest Products Limited, [1979] OLRB Rep. July 651.)
With respect to the alleged violation of section 38(2), the Board had the following to say:
"28. The issue before us is whether the circumstances constitute a contravention of section 38(2) which prohibits a trade union from requiring the employer to discharge an employee for non-compliance with a requirement of union membership as a condition of employment, where such non-compliance arises out of the union s removal or refusal of such membership for those reasons enumerated in sections 38(2)(c), (d). (e), (0 and (g).
The collective agreement between Great Lakes and Local 1565 in Article 5 requires all permanent employees to become members of the union within six months after entering the company's employ, and to maintain membership in good standing. Smith and Gain entered the electrical department on October 16, 1978, and under the terms of this Article, could be required to join the union and maintain membership from April 16, 1979, onwards. Prior to April 16, 1979 no membership conditions attached. If the Board were to conclude that the conduct of the union, here, in refusing membership fell within the reasons enumerated in sections 38(2)(c) to (g), there would remain the question as to whether the trade union required the employer to discharge the complainants because of such lack of membership.
The relevant provisions of section 38 read as follows:
38.-(l) Notwithstanding anything in this Act, but subject to subsection 4, the parties to a collective agreement may include in it provisions,
(a) for requiring, as a condition of employment, membership in the trade union that is a party to or is bound by the agreement or granting a preference of employment to members of the trade union, or requiring the payment of dues or contributions to the trade unions;
(b) for permitting an employee who represents the trade union that is a party to or is bound by the agreement to attend to the business of the trade union during working hours without deduction of the time so occupied in the computation of the time worked for the employer and without deduction of wages in respect of the time so occupied;
(c) for permitting the trade union that is a party to or is bound by the agreement to use the employer's premises for the purposes of the trade union without payment therefor.
C2) No trade union that is a party to a collective agreement containing a provision mentioned in clause a of subsection 1 shall require the employer to discharge an employee because,
(a) he has been expelled or suspended from membership in the trade union; or
(b) membership in the trade union has been denied to or withheld from the employee,
for the reason that the employee,
(c) was or is a member of another trade union;
(d) had engaged in activity against the trade union or on behalf of another trade union;
(e) has engaged in reasonable dissent within the trade union;
(f) has been discriminated against by the trade union in the application of its membership rules; or
(g) has refused to pay initiation fees, dues or other assessments to the trade union which are unreasonable.
Relief pursuant to the section is predicated upon the existence of three elements. There must be a union security clause in force of the kind contemplated by section 38(l)(a), the trade union, relying on the clause, must have required the employer to discharge the employee and the trade union must have denied membership to the employee for one or more of the reasons proscribed by section 38(2)(c) to (g). The whole thrust of the section is to permit union security provisions but to preclude the trade union from requiring the employer to take action under such clause, thereby interfering with the employment security of an individual, if the reason for the individual's non-membership in the union falls within any of those reasons set out in section 38(2)(c), (d), (e), (f) or (g). The section falls short of interfering with the union's conduct of its internal affairs and at the same time limits the applicability of the results of such conduct within the collective bargaining agreement. It is not the denial of union membership, per se, which the section is directed against but rather that such denial shall not be used as the basis for requiring the employer to apply the union security provisions.
In the instant case, the application for relief alleging a violation of the section is premature. The section clearly contemplates a direct causal relationship between the requirement to discharge and the existence of a union security clause. The very use of the word "require' connotes a legal obligation on the employer to accede to the trade union s request. Absent the operation of a security clause, the trade union would be in no position to 'require' any action by the employer and the employer would be under no legal obligation to act upon any request made.
Here, the security arrangement did not impose a legal obligation upon either the employees to join the union or the employer to discharge employees failing to obtain membership until some six months following the commencement of work by the employees. During the period of time framed by this complaint, the trade union was without any legal foundation upon which it could compel the complainants' discharges. That time period had not run and the union was not therefore in a position, at all relevant times, to require the discharge of employees pursuant to the contract, and, in fact, the evidence does not establish that the union at any time did require of the employer that discharges be effected in compliance with that clause.
We are of the opinion for the reasons above discussed that we must find no contravention of section 38 has taken place."
Turning to the alleged violation of section 60, the Board concluded as follows:
"46. It is clear in this case that Gain and Smith had no action or non-action of the employer about which they would seek to complain and have corrected. Their complaint, if any, must be that they were precluded from performing the work assigned them by their employer by the actions of the respondent, and in the ultimate were forced by the circumstances created by the respondent to abandon their employment relationship. In our view the complainants had a right to expect that their employment interests would be protected by the respondent and would only be modified to the extent necessary to achieve a legitimate collective goal and then only in a manner which was not arbitrary, discriminatory or in bad faith. The evidence is that the respondent took a number of steps including resort to an unlawful strike to accomplish the demise of the complainants' employment relationship and this, surely, can only be characterized as the antithesis of protecting the complainants' employment interests.
It is many times necessary for a bargaining agent to forego advancing the interests of individual employees in the short or long-term interests of the collective whole. It seems to us that if the respondent was here acting for the achievement of any collective interests, such interests can only be identified as being strongly opposed to persons crossing its picket line, or alternatively, that the respondent was seeking the collective good by using the complainants' employment as a lever with the company to halt what the respondent viewed as job erosion within its unit.
In respect to the former objective which, in effect, is founded on an objection to the complainants' fulfillment of legal obligations to honour their own collective agreement, it is not in our view a permissible collective objective. In respect to alternative objective relating to job erosion, the respondent had both contract arbitration and a provision in the contract for the settlement of jurisdictional disputes which were available to them and which could have been pursued in place of destroying the complainants' employment interests.
In our view, collective objectives of the above type cannot be considered as valid or relevant factors in integrating the complainants' employment interests with the interests of those of the collective whole. Decisions which are based on irrelevant facts or principles are arbitrary within the meaning of section 60 and we therefore find that the respondent has contravened section 60 of the Act.
The Board orders and directs that the intervening employer reinstate the complainants in their employment as electrician apprentices upon application for such reinstatement by them. Such reinstatement shall be made effective as soon as the employer has need for the filling of job vacancies in the classification of electrician apprentices.
The Board further orders and directs the respondent union, upon reinstatement of the complainants to cease and desist from all conduct which affects the complainants' employment interests differently from that of other persons employed as electrician apprentices."
In consequence of the Board's direction set out above, on or about September 5, 1979, Mr. Smith was reinstated in his employment as an apprentice electrician. Presumably Mr. Gain did not desire to return to this position.
In March of 1980 Mr. Smith, for the second time, applied for membership in Local 1565 and was against rejected. This rejection appears to have been based on the fact that Mr. Smith had earlier passed through the Local's picket line.
The company alleges that subsequent to the rejection of Mr. Smith's second application for membership, the union advised the company of the rejection and also made it clear that the union would not allow Mr. Smith to continue working as an electricians' apprentice. The union, for its part, acknowledge that it advised the company that it had rejected Mr. Smith's membership application, but denies telling the company that Mr. Smith would not be allowed to continue to work, or that the union was seeking his dismissal from the bargaining unit.
Shortly after the union turned down Mr. Smith's application for membership, the company removed him from Local 1565's bargaining unit, and rehired him within the bargaining unit represented by Canadian Paperworkers Union, Local 39.
In its complaint as filed, the company contended that Local 1565's continuing refusal to take Mr. Smith into membership constitutes a violation of section 38(2) and requested that the Local be directed to now take Mr. Smith into membership. As the Board indicated at the hearing, we have grave concerns as to whether the Board can direct a union to take a particular individual into membership. The working of section 38(2) appears to fall short of interfering with a union's right to decide who to take into membership. What the section does do is protect employees from the application of union security provisions where membership in a union has been denied to them for improper reasons. The Board in its decision of July 5. 1979 stated the point as follows:
"It is not the denial of union membership, per se which the section is directed against but rather that such denial shall not be used as the basis for requiring the employer to apply the union security provisions."
Section 38(2) provides that no union that is a party to a collective agreement which requires union membership as a condition of employment shall require the employer to discharge an employee when the employee has been denied union membership for one of a variety of improper reasons. Arguably, a number of these reasons might apply to Mr. Smith's situation. However, on the material before us, at least one of these reasons clearly applies, namely, that Mr. Smith was denied union membership because Local 1565 felt that he had engaged in activity against the Local, namely, crossing its picket line notwithstanding the fact that at the time he was under a legal obligation to do so. section 38(3) provides that the protections of section 38(2) do not apply to an employee who has engaged in either unlawful activity against a trade union or activity against the trade union that was instigated or procured by his employer. Mr. Smith's conduct did not come within either of these categories. Accordingly, by force of section 38(2), Local 1565 is prohibited by law from requiring that the company discharge Mr. Smith from its bargaining unit on the basis of the fact that the Local refused to take him into membership.
Notwithstanding the company's allegation to the contrary, Local 1565 contends that although it advised the company that Mr. Smith's second application for membership had been denied, it did not ask for his dismissal. In essence, the union's position is that the company simply over-reacted to the notification that Mr. Smith's application had been rejected. Whatever the truth concerning what occurred prior to the time the company moved Mr. Smith out of Local 1565's bargaining unit, it is clear that the Local is not now taking the position that he cannot work in the bargaining unit as a result of his application for membership having been denied.
In consequence of the above we see no reason why the company cannot, if it has not done so already, now reinstate Mr. Smith into the bargaining unit represented by Local 1565. Even if the Local continues to refuse Mr. Smith membership, it cannot require the company to dismiss him from the bargaining unit if the refusal is for one of the reasons proscribed by section 38(2)(c) to (g). More particularly, it cannot require that he be discharged if membership in the Local is denied to him because he passed through the Local's picket line at a time when he was represented by another trade union. We also would note that pursuant to section 60 of the Act, the Local will be required to represent Mr. Smith in good faith, even though he is not a member of the union. Further, pursuant to the provisions of section 63(4a) of the Act (enacted as 1980, c. 34, s. 3) Mr. Smith, even though not a member of the Local, will be entitled to participate in any strike vote or vote to ratify a proposed collective agreement. It also may be that the Local will reconsider its position and take Mr. Smith into membership. Indeed, we would urge that it do so.
Having regard to the agreement of the parties referred to above concerning how the Board should deal with this complaint, these proceedings are hereby terminated.