[1982] OLRB Rep. July 993

0456-82-U Canadian Paperworkers Union and its Locals 308, 309, 595, 934, 1196 and 1597, Complainants, v. Domtar Packaging, Respondent.

BEFORE: George W. Adams, Q.C., Chairman, and Board Members F. W. Murray and B. L. Armstrong.

APPEARANCES: Harold F. Caley and Gary Buccella for the complainants; and L. Bertuzzi and Win. Shore for the respondent.

DECISION OF THE BOARD; July 12, 1982

1. This is a complaint filed on behalf of the Canadian Paperworkers Union, its Locals 308, 309, 595, 934, 1196 and 1597, and all employees of the respondent represented by the complainants. It is alleged that the complainants have been dealt with by the respondent contrary to the provisions of sections 3, 15, 64, 66 and 70 of the Labour Relations Act.

2. It is useful to set out the allegations contained in the complaint. They read;

1. The Complainant and Respondent are parties to the following collective agreements:

(a) Domtar Packaging Corrugated Containers Division Carlaw Plant and Local 308;

(b) Domtar Packaging Corrugated Containers Division Keele Plant and Local 309;

(c) Domtar Packaging Corrugated Containers Division Etobicoke Plant and Local 595;

(d) Domtar Packaging Corrugated Containers Division St. Marys Plant and Local 934;

(e) Domtar Packaging Corrugated Containers Division Kitchener Plant and Local 1196;

(f) Domtar Packaging Corrugated Containers Division Peterborough Plant and Local 1597.

2. The Respondent operates seven (7) packaging and corrugated container divisions in the Province of Ontario. In addition to the six (6) locations listed in paragraph 1 above there is a further unorganized location at Laird Avenue in the City of Toronto.

3. The work performed at the various plants of the Respondent is inter-changeable, and in order to avoid layoffs at the Laird Avenue Plant the Respondent has deliberately directed that orders be filled at such plant in preference to the other six plants. The reason for this is solely related to the fact that the Laird Avenue plant is non-unionized.

4. Although there have been layoffs at the six plants listed in paragraph 1 hereof there have been no layoffs at the Laird Avenue plant. The employees at the Laird Avenue plant have been told that they are guaranteed there will be no layoffs so long as there is no union.

5. The wages and working conditions for the employees at the Laird Avenue plant are in some respects superior to those of the employees at the six plants listed in paragraph I hereof. Once again, the employees have been told that this situation will continue to exist so long as there is no union.

6. The Carlaw Avenue plant is being closed effective September 1, 1982. This closure affects approximately one hundred members of Local 308, and is a further example of the Respondent sacrificing the union members for the unorganized employees. Indeed, contrary to Section 15 of the Act, no mention was made of a possible closure during the negotiations for the current collective agreement.

7. On April 7, 1982, Mr. G. W. Shore, Director of Employee Relations of the Respondent, when asked if he would transfer laid off employees to the Laird Avenue plant, stated words to the effect that if the person is not a trouble maker (that is, does not file a lot of grievances or make complaints) the Respondent would consider the person for employment.

8. During the week of April 12, David Welham, a foreman at the Carlaw Avenue plant, stated words to the effect that he had told the employees that if they went like Leaside (that is, non-union) the plant would still be open and would not close.

9. On March 29, Kevin Peddle, a foreman of the Respondent, stated that if the employees did not have a union here they would get the Leaside rates (that is, Laird Avenue plant).

10. Approximately one month prior to April 19, 1982, Tom Paxton, the plant manager at Keele, stated that the reason the employees at the Laird Avenue plant make the rates they do is because there is no union.

3. The relief requested is set out in Appendix "A" in the following form:

1. A declaration that the Act has been violated.

2. A direction that the Respondent cease violating the Act.

3. A declaration and direction that the Carlaw Avenue plant remain open employing members of the Complainant.

4. A declaration and direction that work is to he distributed amongst the employees in such a manner that all locations are kept working.

5. Compensation and damages to the employees affected.

6. Such other relief as may be appropriate.

4. This matter came before the Board on a preliminary matter pertaining to the Board's procedure. It was submitted by the respondent that the so-called "reverse onus provided for by section 89(5) of the Labour Relations Act applied only to section 66 and section 70 and that therefore the complainants should be required to adduce evidence first with respect to all allegations of statutory violations. At the end of the case the Board would apply the different legal on uses to the various provisions. On behalf of the complainants it was submitted that particular claims based on sections 64 as well as 66 and 70 could trigger the burden of proof provided for by section 89(5). Counsel submitted that the alleged treatment of the individual grievors in their employment relations with the respondent could violate section 64 as well as sections 66 and 70. On the other hand, counsel for the respondent emphasized that section 89(5) made a specific reference to conduct of an employer which relates to employment or opportunity for employment or conditions of employment and that section 64 makes no explicit reference to such employment related conduct. The Board's attention was also drawn to Craftline Industries Limited, [1977] OLRB Rep. April 246 and Silverwood Dairies, [1981] OLRB Rep. Mar. 321.

5. Finally, counsel for the complainants summarized that the complaint was essentially a section 66 matter and that the allegation of a section 15 violation was somewhat secondary or collateral although important. From this perspective it was submitted that the complainants ought not to be deprived of the procedural benefit of section 89(5) simply because another section of the Act might be relevant. Counsel for the complainants emphasized that the respondent possessed all of the knowledge fundamental to explaining the conduct complained of and that it would defeat the procedural purpose of section 89(5) to require the complainants to proceed first.

6. Beginning first with section 89(5). It provides:

89.-(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discri­minated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to his employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.

The section is confined to complaints alleging that persons as opposed to, for example, trade unions, have been discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to the Act and such conduct must relate to such persons in respect of their employment, opportunity for employment or conditions of employment. The onus, it is to be noted, is also confined to employers and their organizations and, thus, is not relevant in the context of a fair representation complaint, for example. It is also to he observed that section 89(5) is not on its face limited to specific substantive or charging sections of the Act. More general language is employed.

7. Turning to sections 64, 66, and 70 they provide as follows:

64. No employer or employers' 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 the representation of employees by 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.

65. 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;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat or 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 any 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.

70. No person, trade union or employers' 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.

Clearly, allegations made in respect to section 66 trigger section 89(5). This section refers to employment related conduct of employers vis-a-vis employees and persons. However, it is interesting to note that section 70 makes no explicit reference to "employment, opportunity for employment or conditions of employment". Thus, while the respondent admitted that section 70, or rather allegations thereunder, trigger section 89(5), such allegations could only trigger 89(5) if it were thought that intimidation or coercion "factually" relating to a person s employment was sufficient to activate section 89(5). And, indeed, we think this was the intent of the legislature in that section 66 makes no explicit reference to the terms "intimidation and coercion", terms which are employed in sections 89(5) and 70.

8. From this analysis, one must conclude that the phrase "contrary to this Act as to his employment, opportunity for employment or conditions of employment" does not require the reliance on a provision of the statute that explicitly deals with employment but rather s. 89(5) applies to any substantive provision that, in relation to a person, can be breached by employment related discrimination or other such improper employer conduct. Clearly, it is possible to envisage employment related discrimination which violates both section 66 and section 64 of the Labour Relations Act and it is our view that s. 89(5) was intended to be of benefit to persons in respect of all unfair labour practice conduct by employers affecting employment. It was not intended to give preferential treatment to any one substantive section. Accordingly, we are satisfied that the allegations made before us, if established, could constitute employer prohibited conduct with respect to persons and with respect to their employment, opportunity for employment or conditions of employment within the meaning of section 89(5). Thus, the reliance of the complainants on section 64, 66 and 70 do not justify the Board exercising its discretion and requiring the trade union to proceed first. However, even if we had concluded differently, we are not satisfied that the mere reliance on a section other than one relevant to section 89(5) should always result in the complainant proceeding first. Indeed, this case is a good example with respect to the complainants' reliance on section 15.

9. Should the additional reliance on section 15 dictate that the union proceed first in respect to all its allegations as was the approach followed in Crqftline Industries, supra? We think not. The section 15 allegation is integrally related to the other fundamental and primary allegations. We are not of the view that the case is one primarily relating to bargaining conduct nor can we conclude that the other sections of the Act were relied upon simply to achieve the employer proceeding first on the section 15 allegation. All the allegations involve many common factual features; we see no substantial embarrassment to the employer if it is required to proceed first; and much of the allegations involve matters primarily within the employer's knowledge. There is no dispute that whoever proceeds first with respect to the section 15 allegation, the legal burden remains with the complainant trade unions on that issue.

10. We are therefore inclined to agree with the complainants that the primary nature of this case is one centering on sections 64, 66 and 70 and that evidence pertaining to that primary core of the complaint is likely to be relevant and integral to the alleged violation of section IS. Having regard to all of the circumstances, the employer will be required to proceed first.

11. This matter is referred to the Registrar to be listed for hearing.