United Steelworkers of America v. Automotive Hardware Limited

[1982] OLRB Rep. May 759

2010-81-R; 2011-81-U United Steelworkers of America, Applicant/Complainant, v. Automotive Hardware Limited, Federal Bolt and Nut Corporation Limited, Automatic Screw Machine Products Limited and Securicor Investigation and Security Ltd., Respondents

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members F.W. Murray and W.F. Rutherford.

APPEARANCES: Brian Shell, J. de Klerk and John Fitzpatrick for the applicant; R.A. Werry for the respondents Automotive Hardware, Federal Bolt and Nut Corporation and Automatic Screw Machine Products; F. B. Cumine. Q. C. and Dean Peroff for the respondent Securicor investigation and Security Ltd.; John J. Chalmers for Const. M. Mc Clure

DECISION OF THE BOARD; May 18, 1982

1. The Board directs that the above application and complaint be and the same are hereby consolidated.

2. These complaints, filed under section 89 of the Act during the currency of a protracted strike, allege violations of section 15, 64, 66 and 70 of the Labour Relations Act. Automotive Hardware Limited, Federal Bolt and Nut Corporation Limited and Automatic Screw Machine Products Limited (hereinafter referred to as Automotive) were named as respondents. A section 1(4) application in respect of the automotive companies was also filed. These matters were adjourned sine die on January 11, 1982. By letter dated February 26, 1982, the complainant requested to have Securicor Investigation and Security Ltd. (hereinafter referred to as Securicor) added as a respondent and set out particulars in support of an allegation that one or more of the automotive companies made an arrangement with Securicor and/or David Ivers, an employee of Securicor, whereby Ivers became an employee of one of the automotive companies in order to infiltrate the trade union.

3. These matters came on for hearing on March 16, 1982. The strike between the complainant and the automotive companies had been ongoing for almost six months at the time. With the assistance of the Board panel assigned to hear the case, the complainant union and Automotive reached an agreement, confirmed in an oral ruling, under which the complainant and Automotive would resume bargaining towards a renewal collective agreement. The agreement provided that:

(a) the matter be adjourned to March 31, April 2, 14, 15 and 20;

(b) the parties resume bargaining under the auspices of a mediator and continue bargaining so long as, in the opinion of the mediator, bargaining was productive;

(e) the company reinstate bargaining unit employees seeking reinstatement under section 73(1) of the Act, as if the 6 month time period stipulated in the section had not elapsed, until the Board's determination was made.

4. The mediator required the parties to be present at a bargaining session commencing at 10:00 a.m. on March 31st. Although the complainant wanted both to bargain and to proceed with its complaint at the same time, the Board adjourned the proceedings on its own motion. The parties continued to bargain on April 14th and reached a tentative settlement which resulted in a request for an adjournment on April 15th. The Memorandum of Settlement was ratified on Sunday, April 17, 1982.

5. The complainant, by letter dated April 19, 1982, advised the Board that as a result of the agreement it had reached with Automotive, it was requesting leave to withdraw its complaint against the Automotive companies. The union further advised the Board that:

"The United Steelworkers of America takes note that the only respondent who remains named in this complaint is Securicor Investigation and Security Ltd.

The particulars of alleged violations of the Labour Relations Act in respect of Securicor Investigation and Security Ltd. are set forth in our letters to the Board dated February 26, 1982 and March 4, 1982.

The United Steelworkers of America will be seeking remedial relief from only Securicor Investigation and Security Ltd."

6. The essence of the complainant's allegations against Securicor relates to the activities of one David Ivers; alleged to be an employee of Securicor. It is alleged that on or about the end of August, 1981 or early September, 1981, one or more of the Automotive companies made an arrangement with either Securicor or with David Ivers, an employee or agent of Securicor, whereby lvres became an employee of one of the Automotive companies in order to carry out duties as spy and agent provacateur. It is alleged that during the strike Ivers received strike and welfare assistance from the complainant union, while at the same time counselling striking members of the bargaining unit to engage in a number of criminal acts.

7. Securicor takes the position that the Board should deny the complainant's request to withdraw against the Automotive companies. Alternatively, Securicor argues that if the Board allows the request, the effect must be to "wipe out" the complaint against Securicor. Finally, Securicor argues, in the alternative, that if the Board allows the request and does not "wipe out" the complaint against Securicor, it must allow Securicor to add Automotive as a respondent to these proceedings.

8. The respondent Securicor advances three arguments in support of its alternate positions. Firstly, Securicor argues that the law of "joint tortfeasor" applies to the interpretation of the Labour Relations Act so that a release of one of the tortfeasors (the Automotive companies in this case) is a release against all. Secondly, Securicor argues that it is a denial of natural justice to allow the complainant to withdraw against Automotive, as part of an agreement exclusively between those parties, to leave it in a position where, as the agent of Automotive, it may have to call evidence from persons employed by Automotive, the principal, who may be adverse in interest. Thirdly, Securicor relies on the express wording of section 64 and 66 of the Act, sections cited by the complainant, and argues that an essential ingredient of a contravention of either section is the requirement that the party found to be in contravention be "acting on behalf of an employer or employers' organization". Securicor argues that the complainant, by its action in withdrawing against Automotive, has recognized that Automotive has done nothing wrong, so the essential element referred to above has been removed in respect of the agent. Securicor maintains that if the Board allows the complainant to proceed against it in these circumstance, it will be exceeding its jurisdiction.

9. The complainant argues firstly that the reference to "an employer" in both section 64 and section 66 is not limited to the employer party to the relationship with the complainant union and, therefore, for purposes of this complaint, Securicor is an employer within the meaning of the section. We find this argument to be without merit. The complainant argues secondly, that sections 64 and 77 refer specifically to a "person acting on behalf of an employer" and, therefore, it cannot be a denial of natural justice or an excess of jurisdiction to proceed against a "person acting on behalf of an employer." In the complainant's submission the statute specifically identifies the agent as a proper and separate party respondent. The complainant argues that there is nothing in the agreement between itself and the Automotive companies that in any way limits or prevents Securicor from calling whatever evidence it wishes in defence of the allegations against it. There is no denial of natural justice. Finally, the complainant argues that if it is found on the evidence that the Automotive companies and Securicor were acting in concert or were in some sense similar to the position of joint tortfeasors at common law, it is within the discretion of the Board to fashion a remedy which takes into account the decision of the complainant to withdraw against the Automotive companies. In the complainant's submission, the Board should not force it to proceed unwillingly against Automotive or prevent it from proceeding against Securicor which, it is alleged, has also breached the Act to the union's detriment. The complainant cautions, however, that although Securicor is an agent of the Automotive companies it may have acted at times without the approval of Automotive.

10. The respondent Automotive takes the position that the Board should respect the agreement between itself and the complainant but maintains that having resolved the labour relatons dispute the complainant should consider withdrawing the complaint.

11. Both Securicor and the complainant cited policy considerations in support of their respective positions. Securicor argues that to proceed on the basis suggested is to go beyond the entire purpose for which the Board exists. In circumstances where the collective agreement has been signed and the allegation of bargaining in bad faith withdrawn against Automotive, and where the relief now sought can be obtained in the courts, Securicor argues that the matter can no longer be characterized as pertaining to the employer/employee relationship. The complainant union, on the other hand, argues that although the remedial relief sought is extremely broad, the allegation before the Board arose in the context of a lengthy strike and involves conduct which strikes at the heart of the union's rights as established under the Labour Re/a ions Act. The allegations involve breaches of the Labour Relations Act, moreover the use of paid agents to infiltrate a trade union or forment disruption raises important labour relations policy questions which should be determined in that context. The complainant maintains that in these circumstances the Ontario Labour Relations Board is the appropriate forum.

12. As we have already noted, Securicor contends that the Board should resolve the complaint before it as if Securicor and Automotive are "joint tortfeasors" so that a release against one, releases the other. In order to evaluate this argument, and assess its utility (directly or by analogy) in interpreting the Labour Relations Act, it will be necessary to refer briefly to the meaning attributed to the concept at common law.

13. The most often cited definition of "joint tortfeasor" is contained in the dicta of Scrutton L.J. in The Koursk [1924] p. 140; 93 L.J.P.R.; 131 L.T. 700; 40 T.L.R. 399:

"The substantial question in the present case is: What is meant by 'joint tortfeasors"? and one way of answering it is: 'Is the cause of action against them the same?' Certain classes of persons seem clearly to be 'joint tortfeasors': The agent who commits a tort within the scope of his employment for his principal, and the principal; the servant who commits a tcrt in the course of his employment and his master; two persons who agree on common action, in the course of, and to further which, one of them commits a tort. These seem clearly joint tortfeasors; there is one tort committed by one of them on behalf of, or in concert with another."

It is to be noted that where an agency or an employment relationship is relied upon as creating joint tortfeasance, the agent or the employee, as the case may be, must have acted "in the course of his employment" or "within the scope of his authority". There must exist concurrence, either active or passive, towards achieving a common end. It is by no means certain on the filings before us that Automotive and Securicor are in a position analogous to joint tortfeasors in respect of all of the alleged misconduct. In so far as Securicor acted beyond the scope of its authority they would not be.

14. If two or more persons are found to be joint tortfeasors, a release against one is a release against all the others. However, if instead of releasing one joint tortfeasor from the cause of action the plaintiff merely gives a covenant not to sue, the plaintiff is not barred from continuing his action against the other joint tortfeasors (see Cutler v. McPhail [1962] 2 All E.R. 474, Dixon v. R. in the Right of B. C. and B. C. Hydro and Power Authority 1979 ALTASCAD 36, [1979] 2 WWR 289). The basis for this subtle and difficult distinction is set out in Duck v. Mayer [1892]; 2 Q.B. 511, the leading case on point:

"It is, we think, clear law, that a release granted to one joint tortfeasor, or to one joint debtor, operates as a discharge of the other joint tortfeasor, or other joint debtor, the reason being that the cause of action, which is one and indivisible, having been released, all persons otherwise liable thereto are consequently released... It has also been held that a covenant not to sue one of two joint debtors does not operate as a release to the other joint debtor... the reason being that the joint action is still alive. We have found no case in which it has been held that a covenant not to sue releases a joint tortfeasor." (Emphasis added)

15. The agreement between the complainant and Automotive was not put before the Board and we have no way of knowing, therefore, whether we are dealing with a release or a covenant not to sue. It is to be noted however, that the courts have recognized not just an express reservation of the right to sue other joint tortfeasors but an implied reservation as well. (See Apley Estates Company Limited v. DeBernales [1947] 1 Ch. 217 (C.A.), Gardiner v. Moore [1969] 1 Q.B. 55). We are satisfied that the complainant, in entering into its agreement with Automotive, had no intention of releasing Securicor. Be that as it may, we do not have to decide if we are dealing with a release or a covenant not to sue.

16. These rules have long been recognized as overly technical and counterproductive to a settlement of outstanding litigation. Fleming, John G. in The Law of Torts, 5th Ed, at p. 241 refers to the "release of one releases all" rule as an anachronism that has miraculously escaped statutory reform. He states that this "nefarious" rule "would not have survived so long if the whole category of joint torts were not so narrow, and a convenient, if pettifogging, escape were not available to those with knowledge of legal niceties by employing a 'covenant not to sue' rather than a 'release'." He then goes on to say that the bias in modern times is evidenced by the fact that courts are willing to imply a reservation, where it is not expressed. In Apley Estates, supra, at page 221, Morton, L.J. said of the "release ~ "it must necessarily follow that a release of that cause of action against one is a release of that cause of action against all. That is a rule which, in my judgement, should not be extended beyond the limits within which it has hitherto been confined. It is a rule which has often operated to work hardship and I, for one, am certainly not prepared to extend it in any way' As for the position of the United States, "Today, courts and state legislatures have realized the inconsistency and inequity of compelling the plaintiff to give up the opportunity of settling with one joint tortfeasor because he would thereby lose his cause of action and be without complete compensation. Many states have enacted statutes which prevent a release from discharging a second tortfeasor unless the terms of the release so provide", Loretta V. Kepler, Joint Tortfeasors — The Effect of a Release - Harris v. Grizzle, Land & Water Law Review, 337-347, Winter '80. In Bryanston Finance v. de Vries [1975] Q.B. 703, [1975] 2 All E.R. 609 Lord Denning referred to the rule as "an arid and technical distinction without any merits" and as a "trap into which the unwary fall but which the clever avoid."

17. The concept of joint tortfeasors is both complex, and in some respects highly technical. We are not bound as a matter of law, to apply it in interpreting and applying the Labour Relations Act. Certainly nothing in the statue expressly requires the Board to do so, and we see little wisdom or utility in importing so technical a common law tort concept as the touchstone for interpretation of statutory rights. We will be governed in this matter by the wording of the statute, the requirements of natural justice and by labour relations policy considerations.

18. Section 64 and 66 of the read:

"64. No employer or employer's organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

66. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(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."

19. Securicor is not an employer or employers' organization and, therefore, in order to be within the ambit of either section, Securicor must be a "person acting on behalf of an employer or an employers' organization." If a private security company contracts with an employer party to a labour dispute to provide security services in connection with that dispute for a fee, it is difficult to resist the conclusion that the security company is a person acting on behalf of the employer, subject to the prohibitions contained in sections 64 and 66 of the Act. In these circumstances, it does not lie in the mouth of the security company, in defence of allegations that its conduct in connection with the labour dispute has breached section 64 or 66 of the Act, to claim that it exceeded the authority of the employer and, therefore, was not acting on behalf of the employer and cannot be brought within either of these sections. These sections are designed to protect important union and employee rights from employer interference and where a person is acting in a labour dispute under the general authority of the employer that person is brought within the ambit of these sections in respect of all of its action, including those which may be outside of its specific terms of reference. We are not about to interpret the words "acting on behalf of" in such a way as to allow third parties in contractual relations with the employer to provide services in connection with a labour dispute to violate employee and union rights and then rely on carefully worded contracts to take themselves outside the ambit of the Act. Given the purpose of the statute and the specific language of these sections, a person in contractual relations with an employer to provide security services in connection with a labour dispute is acting on behalf of the employer within the meaning of these section. Securicor, therefore, if in contractual relations with Automotive, was subject to the prohibitions contained in sections 64 and 66 of the Act throughout the totality of its involvement in the labour dispute between the complainant and Automotive. If the complainant had not withdrawn against the employer there is no question that Securicor would have been a properly named respondent.

20. Does the withdrawal of the complaint against Automotive constitute a withdrawal against Securicor, and, if it does not, should the Board refuse to grant the request to withdraw against Automotive? Failing a natural justice impediment, the answer to the question posed at the outset of this paragraph is no. As we have stated, Securicor, as a separate entity in contractual relations with the employer and charging a fee for its service, is subject to the prohibitions contained in section 64 and 66 of the Act. The statute clearly identifies "a person acting on behalf of an employer" as an independent actor capable of breaching the law, and therefore capable of being a separate respondent in its own right. In so far as the merits are concerned, therefore, Securicor must stand or fall on its own conduct. The fact that the union agreed not to proceed against Automotive as part of the overall settlement to a protracted labour dispute does not in any way lessen the obligation upon Securicor to act within the statute. From a policy stand point, the matters complained of, if proven, are sufficiently destructive of the collective bargaining process as to suggest to the Board that if the requirements of natural justice can be satisfied it should inquire into them.

21. In our view, this matter can proceed against Securicor without breaching the requirements of natural justice. By withdrawing against the employer, the complainant has lost the advantage of the reverse onus in section 89(5) of the Act so that the complainant will be required to proceed first and to establish its allegations on the balance of probabilities. Securicor will know in advance precisely the case it must meet. Securicor has first hand knowledge of both the extent of its authority to act in this matter and of its action. There is no restriction on Securicor with respect to the evidence it might wish to call. If Securicor calls as its witnesses employees of Automotive who show themselves to be adverse, there are procedures to deal with this eventuality. Given the discretion of the Board with respect to remedy, we do not see any natural justice impediment to proceeding against Securicor as a party alleged to have breached section 64 and 66 of the Act.

22. The prohibition against intimidation and coercion contained in section 70 oft he Act extends to persons acting on their own behalf. There is no requirement under the section for a person to be acting on behalf of the employer. Section 70 provides:

No person, trade union or employer's organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

If it is proved that the agent's actions, once disclosed, have an ongoing coercive impact in the exercise of employee rights under the Act, including the right to strike, then, arguably at least, the agent has breached the section and is subject to the remedial authority of the Board. In so far as a breach of section 70 is alleged, therefore, the withdrawal of the complaint against Automotive cannot affect the complaint against Securicor.

23. In summary, the Board has before it a complaint against Securicor; a private company in contractual relations with the employer, Automotive, to provide security services for a fee in connection with a labour dispute. The complainant union as part of a settlement to the labour dispute (a long and bitter strike) has agreed to withdraw the complaint against the employer. Securicor argues that the effect of this withdrawal is to create a withdrawal against itself or, alternatively, if the matter is to go on, the agreement between the parties to the labour dispute must be ignored and the request to withdraw against Automotive rejected. We have determined that if Securicor was in contractual relations with the employer, it is regulated by the prohibitions contained in section 64 and 66 of the statute in all of its activities in connection with the labour dispute. Furthermore, we have satisfied ourselves that if we allow the complainant to proceed against Securicor alone, the requirements of natural justice can be met. Furthermore, a breach of section 70 is alleged against Securicor and we have found that as a "person" within the meaning of that section, Securicor must defend that aspect of the complaint. Finally, we are satisfied that the allegations against Securicor give rise to an issue which the Board, with its specialized knowledge, should inquire into.

24. Having regard to all of the foregoing, we hereby consent to the withdrawal of this complaint against Automotive and allow the complainant to proceed against Securicor. Having withdrawn against the employer Automotive, the complainant loses the advantage of the reverse onus and may have prejudiced itself with respect to the extent of the remedial relief granted if the allegations are proven.