[1982] OLRB Rep. September 1366
0326-82-U; 0325-82-U Steinberg Inc. (Miracle Food Mart Division), Complainant, v. Teamsters Local Union No. 419, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent.
BEFORE: Pamela C. Picher, Vice-Chairman and Board Members C. G. Bourne and C. A. Ballentine.
APPEARANCES: Brian O'Bryne and Jack Burke for the complainant; Douglas Wray, M. Church and Sean Floyd for the respondent.
DECISION OF VICE-CHAIRMAN, PAMELA C. PICHER AND BOARD MEMBER C. A. BALLENTINE; September 9, 1982
11. The employer has filed a complaint under section 89 of the Labour Relations Act alleging that the respondent trade union has violated the provisions of sections 74 and 76 of the Act (file no. 0325-82-U). Sections 74 and 76 are set out below:
Section 74
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.
Section 76
(1) No person shall do any act if he knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike or an unlawful lock-out.
(2) Subsection (1) does not apply to any act done in connection with a lawful strike or lawful lock-out.
It is common ground that there is a collective agreement in effect between the parties which expires on November 1, 1982. Section 72(1) of the Act prohibits strikes when a collective agreement is in operation. It reads as follows:
72-(l) 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 such an employee. R.S.O. 1970, c.232, s. 63(1).
22. The employer has filed a further complaint alleging that the union has violated section 89(7) of the Act by failing to comply with the terms of a settlement agreement entered into by the parties in March of 1982 (file no. 0326-82-U). The relevant portions of the settlement are set out below:
AGREEMENT BETWEEN:
STEINBERG INC. (MIRACLE FOOD MART DIVISION)
the "Company"
- and -
Teamsters Union Local 419
the "Union"
WHEREAS the Company and the Union are parties to a collective agreement;
AND WHEREAS the Company has instituted certain proceedings against the Union and the employees represented by the Union
AND WHEREAS the parties wish to resolve certain matters.
NOW, THEREFOR, the parties hereto agree as follows:
- The Union agrees to inform the employees that they are to cease and desist from refusing to work overtime in concert and from engaging in any illegal strike activity where such conduct is in violation of the Ontario Labour Relations Act. The word "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 slow-down or other concerted activity on the part of employees designed to restrict or limit output. Nothing herein requires an employee to work an overtime beyond the legal limit prescribed by the Employment Standards Act.
The union further agrees that should any illegal strike activity occur subsequent to the date hereof and during the term of the current collective agreement up until the time the Union is in a legal strike position or the Company is in a legal lockout position it will use its best efforts to bring such illegal strike activity to an end.
The Company shall withdraw the proceedings instituted by the Company in Ontario Labour Relations Board Files 2532-81-U and 2538-81-U, and no further proceedings of any nature whatsoever shall be instituted by the Company with respect to the matters complained of in the aforesaid Board files or with respect to any complaints of illegal strike activity which the company claims occurred up to the date hereof. This is without prejudice to the right of the company to raise events which occurred up to the date hereof, in any future proceedings which may be brought by the Company with respect to any illegal strike activity occurring subsequent to the date hereof.
The terms of this Agreement are without prejudice to the Company taking whatever actions or proceeding in respect of actions or omissions on the part of The employees and/or the Union occurring subsequent to the date hereof.
This Agreement shall not be deemed to be any admission of any wrongful conduct by the Union or the employees.
[emphasis added]
33. Both complaints arise out of the same circumstances and have therefore been consolidated. The employer maintains that on May 5, 1982 Mr. Sean Floyd, the secretary-treasurer, business agent and negotiator for the Teamsters Union Local 419, called or authorized an unlawful strike of 15 minutes duration by instructing some 48 employees who were in the cafeteria on their coffee break to remain where they were until he had resolved the problem at hand with management. Counsel for the employer argues that by remaining in the cafeteria for approximately 15 minutes beyond the duration of their coffee break, the employees, on Mr. Floyd's instructions, engaged in a cessation of work in combination or in concert or in accordance with a common understanding within the meaning of the definition of a strike in section 1(1) (o) of the Act. That section reads as follows:
l.-(l) In this Act,
(o) "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.
44. The employer further maintains that on the same day Mr. Floyd threatened future illegal strikes. It is alleged that Mr. Floyd while speaking to Mr. Jack Burke, the transportation manager, stated that he wouldn't hesitate in the future to again tell the employees to stay in the cafeteria.
55. Counsel for the employer argues that Mr. Floyd's actions on May 5, 1982 not only violate sections 74 and 76 of the Act but also violate the settlement, presumably either that portion where the union agrees that should an illegal strike occur subsequent to the date of the settlement the union will use its best efforts to bring such illegal strike activity to an end or where the union agrees to inform the employees that they are to cease and desist from engaging in any illegal strike activity. There is no specific section of the settlement where the union agrees not to call or authorize an illegal strike.
66. By way of remedy counsel for the employer requests that the Board find and declare both that the union breached sections 74 and 76 of the Act and that the union failed to comply with the terms of the settlement. Counsel further requests that the Board require the union to post a notice stating that it has violated both the Act and the settlement and undertaking to adhere to both in the future. Finally, having particular regard to the alleged breach of the settlement, counsel requests that the Board make an order of costs against the union.
77. Mr. Sean Floyd is a business agent for approximately 15 of Local 419's bargaining units, containing a total of approximately 2,000 employees. He testified, largely without contradiction, to the events of May 5, 1982. Mr. Floyd stated that he returned from vacation on May 4th to find some forty calls on his recorders from employees and/or stewards at Steinbergs. These people were predominately perturbed about an alleged dispute between two members of management which was adversely affecting the employees. Although Mr. Floyd was not aware of it at the time because he had been away on vacation for some two or three weeks, a grievance had been filed by the union over the dissention between the two members of management. The matter had not been resolved by the time Mr. Floyd returned. On the evening of May 4th, Mr. Floyd called Mr. Vein McGuire, the union official who had been filling in for him as business agent, to discuss the various problems at Steinbergs. He was informed that the problem with the bosses was heated. He told Mr. McGuire to keep the lid on the situation and confirmed that he would attend at Steinbergs the next day. In order to do so, Mr. Floyd had to cancel an unrelated negotiation meeting previously scheduled for May 5th. Mr. Floyd testified that in the course of speaking to others on the night of May 4th about the Steinbergs situation he was told by an employee that if he didn't get down to Steinbergs and settle the problem with the bosses the employees would be on the street.
88. When Mr. Floyd arrived at the employer's premises on the morning of May 5th, he was met by Mr. Frank Nelson, the grocery warehouse manager. Mr. Floyd told Mr. Nelson that he wanted to speak to Mr. Burt Preshaw, the day shift steward, because the employees were up in arms about the situation involving a night shift boss. When Mr. Preshaw did not appear within a few minutes of being called by Mr. Nelson, Mr. Floyd, with Mr. Nelson's approval, went to the cafeteria to find him.
99. Mr. Floyd reached the cafeteria at approximately 9:00 a.m. but Mr. Preshaw was not there. Approximately 48 employees, though, were there on their coffee break. Mr. Floyd testified that when he encountered employees hollering and yelling about their problems with the company, he immediately left the cafeteria to speak to management. He testified that as he left he said to the employees, "We're going to straighten this ... mess out once and for all and you guys hang tight until I get this ... mess straightened out." Mr. Floyd acknowledged that by "hang tight" he meant for the employees to stay in the cafeteria until he got back. He further stated that he did not expect to be more than 5 minutes.
1010. On his way back to the management offices, Mr. Floyd encountered Mr. John DeSousa, the perishable warehouse manager. It is common to the testimony of both Mr. Floyd and Mr. DeSousa that Mr. Floyd said, "I told the people to hang tight [or "stay in"] there [in the cafeteria] until I go up front and get this mess straightened around."
1111. Mr. Floyd then met Mr. Preshaw going towards the cafeteria and they both went to the main office to see Mr. Jack Burke, the transportation manager. On the day in question Mr. Burke was in charge of the distribution centre because the vice-president, Mr. Earle Coe, was absent.
1212. The Board concludes from the largely consistent evidence of all the witnesses that the following took place at the office area: Mr. Floyd said to Mr. Burke, "Those guys are in the cafeteria and they are not going back until you settle this ... issue.... [H]ow ... do you expect them not to be upset given what has transpired here during the last little while". The problem concerning the employees was clearly identified to Mr. Burke as the problem between the two bosses. Mr. Burke left Mr. Floyd and went into a private office for between 5 and 8 minutes where the other managers were waiting for information on the situation. Mr. Burke explained what had happened and that the company would not talk to the union until the employees had gone back to work. All agreed.
1313. Mr. Burke returned to Mr. Floyd and told him that the company would not discuss the problems until the employees returned to their work stations. Mr. Floyd explained to Mr. Burke that the employees wouldn't go back to work unless he agreed to a meeting with him. Mr. Burke replied that he would meet anytime but that the employees would have to go back to work. Mr. Floyd agreed and left directly for the cafeteria to tell the employees to go back to work. He further explained to the employees that he, Mr. Burke and others were going to discuss the issues forthwith and if the company was wrong the employees would be compensated. The employees immediately left the cafeteria and were back at their work stations at approximately 9:30, fifteen minutes past the expiration of their coffee break.
1414. Mr. Burke testified that while he couldn't specifically recall it, he couldn't deny Mr. Floyd's testimony that he subsequently thanked Mr. Floyd for getting the employees back to work.
1515. At approximately 10:00 a.m. the same day, representatives of management met with representatives of the union to arrange an agenda for a meeting to be scheduled the following day to discuss the merits of the problems raised by the union.
1616. While there is some confusion in the evidence as to the time Mr. Floyd allegedly threatened future strikes (that is, whether it was at the joint union-management meeting on May 5th or earlier while the employees were still in the cafeteria), the Board concludes from all the evidence that the alleged threat was made in the following context in the course of the May 5th meeting following the employees' return to work. Mr. Burke stated at the meeting that he considered what had happened a violation of the collective agreement, commenting further that it was serious and he wouldn't let the issue die. Mr. Floyd then said, "Go ahead and file a grievance. I told them to stay in the cafeteria and I wouldn't hesitate to do it again." The Board does not accept the further allegation that Mr. Floyd commented that this was going to be his tactic in the future.
1717. Mr. Floyd testified that while he would not have directly threatened a strike, he might have said something like, "If this is the kind of action it takes to get things straightened out in the vice-president's absence then this is what I would do."
1818. The Board concludes from the evidence that Mr. Floyd indicated that if the identical set of circumstances arose in the future he would not hesitate to follow his actions of May 5th and tell employees to remain in the cafeteria while he straightened out a critical problem.
1919. At the scheduled meeting on May 6th, the grievance involving the two bosses was fully resolved. Mr. Burke acknowledged that Mr. Floyd commented that the company should straighten out its internal problems so that the union would not be adversely affected by rivalries between members of management.
2020. Subsequent to these events the employees involved received warning letters and a 12 minute reduction in their pay. No grievances were filed challenging the employer's imposition of discipline. The employer further filed the instant complaints with the Board.
2121. Mr. Burke acknowledged that over the years Mr. Floyd has met with employees in the cafeteria on numerous occasions. He further acknowledged that there have been occasions when he or other company officials have requested him to come and speak to the employees to resolve one problem or another. He agreed with the suggestion of counsel for the union that from time to time Mr. Floyd has assisted the company in defusing unrest among the employees. Mr. Burke further agreed that it was uncharacteristic for Mr. Floyd to encourage employees not to work or to threaten an illegal strike. Mr. Burke stated that he was surprised that on May 5th Mr. Floyd told the employees to stay in the cafeteria before trying to discuss the matter with the company.
2222. In reflecting on the situation Mr. Floyd stated his opinion that the company was in fact saved considerable heartache by his having kept the employees in the cafeteria for a few minutes beyond the expiration of their coffee break on May 5th in order to set a course for the resolution of the problem between the two bosses which by that date had reached an acute stage. He stated he was under a lot of pressure to get the situation settled down and commented that if he hadn't acted as he did, the employees might have been on the street.
2323. The employer seeks a finding from the Board that the union, through the actions of Mr. Floyd on May 5th, has violated the Labour Relations Act by calling an illegal strike and threatening to do so again in the future. The employer requests that the Board issue a declaration of these violations and order a posting.
2424. Having reviewed the evidence and the submissions of the parties, the Board concludes that even assuming, but without finding, that the actions of Mr. Floyd on May 5th constitute a technical breach of sections 74 or 76 of the Act, we do not in the circumstances of this case consider it appropriate to issue any remedy whatsoever.
2525. The uncontradicted evidence of the union was that the problem giving rise to the May 5th incident emanated from a dispute between two bosses which was adversely affecting the employees. To that extent management may be viewed as partly, though obviously not entirely, responsible for the incident which occurred on May 5th.
2626. More importantly, however, the work stoppage was not premeditated and was extremely brief, lasting as it did for only fifteen minutes. It ended approximately three weeks prior to the Board's hearing and in the intervening period there were no further work stoppages. The employer did not establish in evidence any prior incidents of illegal work stoppages. The settlement agreement entered into between the parties in March of 1982, for example, specifically provides that the agreement shall not be deemed to be an admission of any wrongful conduct by the union or the employees. No history of illegal work stoppages has therefore been established so as to cause the Board to be concerned that the instant work stoppage, albeit brief, is part of a pattern.
2727. Finally, notwithstanding the allegation that Mr. Floyd threatened future illegal strikes the evidence does not cause the Board to conclude that the employer has a reasonable fear that its operations will again be disrupted in a similar manner. Although Mr. Floyd stated that if the same set of circumstances were to arise in the same way again he wouldn't hesitate to do what he did on May 5th, the Board concludes from the evidence that when Mr. Floyd made his comment to Mr. Burke on the afternoon of May 5th, he was not in fact threatening to encourage employees not to work in the future. We do not accept the suggestion that the appropriate inference to be drawn from his comment is that Mr. Floyd meant to imply that if the employees wanted to "hit the streets" that was fine with him. The Board concludes from the evidence that through his comment Mr. Floyd was attempting to emphasize his view that what he did was to everyone's benefit because it quickly settled down the employees and brought an end to a problem that by all reasonable appearances to a man who was called in immediately upon his return from vacation was rapidly getting out of hand. The Board is satisfied that Mr. Floyd, as the business agent summoned by the employees to deal with the unrest caused by the problem with the two bosses, acted in what he, in good faith, deemed to be the most effective way to bring an unstable situation under control. The Board rejects outright the suggestion that Mr. Floyd told management that directing employees to stay in the cafeteria was going to be his tactic in the future. It is readily apparent that his actions on May 5th were in response to particular problems and resulting unrest that had built up while he was on vacation and not part of a larger objective. Mr. Burke himself said that it was uncharacteristic for Mr. Floyd to tell employees not to work. In all of the circumstances the Board readily concludes that Mr. Floyd's comment on the afternoon of May 5th does not create a threat of a future illegal work stoppage.
2828. Contrary to the suggestion of counsel for the employer Mr. Floyd did not intentionally decline to meet with the employer about the situation before telling the employees not to return to their work stations. When Mr. Floyd arrived at Steinbergs he went to talk to employees during their break. It has not been suggested that this was not an appropriate first step. It was when he unexpectedly encountered employees who were, according to his uncontradicted evidence, yelling and hollering about the problem occasioned by the dispute between the bosses that he told them to wait where they were until he solved the problem.
2929. The problem between the bosses which was the primary cause of the employee unrest was fully settled the day following the May 5th incident. The peripheral problems were also solved. At the conclusion of the union-management meetings on May 6th all of the problems connected with the incident had been fully resolved. In these circumstances and having regard to the considerations set out above, the Board declines to issue either a declaration or a posting. (Supporting the Board's conclusion not to issue a remedy in circumstances such as these see the Board's decisions in National Refractories Ltd., (1963), 63 CLLC ¶16,276; Norfolk Hospital Association Ontario, [1974] OLRB Rep. Sept. 581; Acoustical Association Ontario, [1975] OLRB Rep. July 539; Acme Building and Construction Limited, [1975] OLRB Rep. Nov 810; Consolidated Bathurst Packaging Limited, [1976] OLRB Rep. Dec. 790; and BCL Canada Inc., [1981] OLRB Rep. July 836.)
3030. We turn to the complaint that through the May 5th incident, the union failed to live up to the settlement agreement entered into between the parties in March of 1982. In reply argument counsel for the employer stated that his complaint concerning the alleged breach of the settlement agreement was not that Mr. Floyd had failed to use his best efforts to bring any future illegal strike activity to an end but that he himself called or authorized an illegal strike. The settlement agreement states in paragraph 1 that the union will inform employees that they are to cease and desist from engaging in any illegal strike activity. While it might naturally be understood and expected a union would not act in a manner contrary to the Labour Relations Act, the settlement agreement does not specifically state that the union undertakes not to call or authorize an unlawful strike.
3131. The Board is satisfied that Mr. Floyd did not on May 5th or 6th engage in conduct that was a clear violation of the settlement agreement. Accordingly, the employer has failed to establish a breach of section 89(7).
3232. Having regard to the foregoing a remedy under section 89 of the Act is hereby denied with respect to both the alleged violation of sections 74 and 76 of the Act and the alleged violation of the settlement agreement. The complaints are hereby dismissed.
DECISION OF BOARD MEMBER, C. G. BOURNE;
I dissent.
The uncontradicted evidence given in this case clearly establishes that the employees were instructed by Mr. Floyd to stay in the lunch room. ..... to hang tight there until I go up front and get this mess straightened around," and later Floyd told Blake "Those guys are in the cafeteria and they are not going back until you settle this.. .
The majority award also reports "that if the same set of circumstances were to arise in the same way again, he (Floyd) wouldn't hesitate to do what he did on May 5th."
Whether or not these statements constitute actual incitement to strike, they certainly condone work stoppages as an effective way of settling disputes at the workplace. Such an attitude encourages poor industrial relations. As noted in Westeel Roscoe Limited [1981] OLRB Rep. Dec. 1849 at paragraph 13:
"A 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
The Board in that instance went on to issue a declaration that section 74 of the Act had been breached.
There are some mitigating circumstances in this case but these, in my opinion, go solely to the matter of remedy. I would not suggest that any further steps be taken although a posting might well have been considered to discourage further incidents.
There is no doubt in my mind that the Act has been breached, and that a declaration to that effect should issue from the Board.