Tim Reay v. Arthur L. Moore and Sheet Metal Workers' International Association, 1982 CanLII 960

Ontario Labour Relations Board

[1982] OLRB Rep. August 1206

2624-81-U Tim Reay, Complainant, v. Arthur L. Moore and Sheet Metal Workers' International Association, Respondents

BEFORE: G. Gail Brent, Vice-Chairman, and Board Members L. Hemsworth and M. J. Fenwick.

APPEARANCES: Barry Edson for the complainant; M. Zigler and A. Moore for the respondents.

DECISION OF THE BOARD; August 9, 1982

1. The matter before the Board originated in a handwritten complaint filed on March 7, 1982, pursuant to section 89 of the Labour Relations Act. The complaint, in paragraph 4, alleged that:

On or about Nov. 13/81 and Dec. 22/81, the grievor was dealt with by Arthur Moore, Regional Director Sheet Metal Workers International Ass'n of the respondent contrary to the provisions of section 80 Article 2(b) of the Labour Relations Act in that he did on his own behalf or on behalf of the respondent:

Intimated the membership verbally and in a letter handed out to this Local (575) also imposed an illegal fine of $1,000.00 against me.

000

3. In response to a request for particulars, counsel for the complainant filed the following:

(a) The Complainant is and was at all relevant times an employee of Carrier (Canada) Limited, 8100 Dixie Road, Brampton, Ontario;

(b) The Complainant was employed at all relevant times and remains employed as a stock keeper and as such, was and is represented by Sheet Metal Workers' International Association, Local 575;

(c) On or about November 2, 1982, the International Union, United Automobile Aerospace and Agricultural Implement Workers of America, (U.A.W.)) applied for certification, during the open period, to be certified as the bargaining agent for the unit represented by Local 575 (Board File #1668-81-R);

(d) On or about November 17, 1981, the O.L.R.B. ordered that a representation vote be held amongst the bargaining unit employees on November 24, 1982 [sic] in which said employees were asked to indicate whether or not they wished to be represented by the U.A.W.or Local 575 in their employment relationship with Carrier Canada Limited;

(e) The U.A.W. lost the representation vote and was therefore not successful in its attempt to displace Local 575 as bargaining agent for said employees;

(f) The Applicant was well-known to the Respondents as being a key supporter of the U.A.W. in said displacement application;

(g) On or about December 8, 1981, the Complainant was notified by letter that he was being charged with violating the Constitution and Rituals of the Sheet Metal Workers' International Association Article 17. Section 1(F) and 1(M) as a result of his participation in the fore-mentioned application for certification of the U.A.W.;

(h) On or about December 16, 1981, a meeting was convened to elect the officers of Local 575. The Complainant was nominated for the position of Chief Steward. He was not permitted to seek election to that office.

(i) On or about December 22, 1981, the Complainant was advised that said charges would be heard by an International Trial Board under Article 18 of the Sheet Metal Workers' International Constitution. Edward J. Carlough, General President of Sheet Metal Workers' International Association appointed Arthur E. White, Jr., Business Representative, Local 30, Raymond F. Paterson, Business Manager, Local 235, and Robert J. Flood, Business Manager, Local 540 as members of said Trial Board;

(J) Said International Trial Board convened at the Howard Johnson Hotel, Dixon Road and Highway 27 on Tuesday, February2, 1982;

(k) The International Trial Board found that the Complainant had violated Article17, Sections 1(F) and 1(M) and fined the Complainant one thousand ($l,000.00) dollars.

4. At the commencement of the hearing counsel for the respondent informed the Board that the parties had agreed to all the facts as set out in section 2 of the particulars save and except for paragraph (h). Counsel for the respondent also referred in his remarks to section 80(2)(b) of the Act whereupon it became apparent that there was some confusion concerning the agreement reached by the parties. After a brief recess, the Board was informed by counsel for the complainant that the complainant was not making any claim for damages and was not seeking a declaration that section 80 had been violated. He specifically informed the Board and the respondent that the initial complaint alleging a breach of section 80 was to be disregarded, that the complaint was to be treated only as alleging a breach of section 3 and section 70, and that the particulars were to be treated as the complaint. The case was heard on that basis.

5. The events which occurred prior to the hearing of evidence and submissions have been recited in detail because of the following letter which was delivered to the Board by counsel for the complainant:

Dear Mr. Aynsley:

I have just returned from a hearing before the Ontario Labour Relations Board in relation to the above-captioned matter. I acted on behalf of the Applicant in the matter. I stated in my opening remarks that the Applicant was alleging a violation of Section 3 and 70 of the Labour Relations Act and was not in the proceedings before the Board asking the Board to find a violation of Section 80(2)(b). I wish to request that this Board, in addition to finding a violation of Section 3 and 70, also find a violation of Section 80(2)(b) on the part of the Respondents.

I realize that my request is unorthodox and that I am altering my position somewhat, and that my request may cause some inconvenience to the parties. However, the claim that Section 80 has been violated would not involve the hearing of any further evidence on the part of the Applicant, and furthermore, the Applicant would not be precluded from alleging a violation of Section 80 in a fresh Complaint as such as Complaint would not be resjudicata.

I am fully prepared to re-attend before the Board to make submissions on the issue should the Board so desire. I believe that the Respondents have not been prejudiced by my request because the allegation of a violation of Section 80(2)(b) arises out of the evidence already before the Board. However, should Counsel for the Respondents wish to make further submissions relating to Section 80(2)(b) or call evidence on that question, I would be fully supportive of that position. Alternatively, the Board may find it more convenient to permit written submissions in the event that Mr. Zigler does not wish to call any evidence.

Given the limited prejudice that my request may generate, and given that it would be more inconvenient to file a fresh Complaint alleging a violation of Section 80, I request that the Board permit the Applicant to request that a violation of Section 80(2)(b) has occurred with respect to the evidence adduced in today's proceedings.

Counsel for the respondent responded to the letter in this way:

We are in receipt of Mr. Edson's letter dated June 10, 1982 and have obtained our clients' instructions with respect to same.

We are instructed to advise the Board that our clients will not, under any circumstances, consent to re-opening of the hearing in this matter, either by way of continuation of hearing or by way of written submissions before the Board. In our submission, a re-opening of the hearing would be inappropriate in the circumstances and cause unnecessary inconvenience to our client. The Applicant was given a full opportunity to present his evidence and argument at the hearing before the Board in this matter and we responded accordingly to the case which was presented. It would be contrary to the practice and procedure of the Board to permit submissions to be made after the presentation of evidence and argument by the parties and before a decision is reached. In our submission, it is not open to a party, particularly one acting through a solicitor, to substantially change and reshape his case because he was unhappy with the turn of events at the hearing before the Board.

We submit that the proper practice would be for the Board to reach its decision on the evidence and argument before it and, should either party be dissatisfied, counsel may then be in a position to ask the Board to reconsider its decision. The decision of the Board on the evidence before it should not be affected in any way by submissions made after the fact.

We further cannot agree with Mr. Edson's contention that the Applicant "would not be precluded from alleging a violation of Section 80 in a fresh complaint, as such a complaint would not be res judicata". Having chosen not to rely on Section 80, the Applicant cannot seek to have the matter relitigated on the basis of arguments which he could have advanced before the Board (see Napev Construction Limited, [1980] OLRB Rep. June 862 at p. 872).

Accordingly, we would ask that the Board be permitted to make its decision in this proceeding undisturbed by any further submissions by counsel.

6. The first decision which must be reached is whether the Board will grant the request made by counsel for the complainant. It is a most unorthodox request, and, given the initial statements of counsel, a most surprising one. The issues which were canvassed at the hearing were those raised by counsel for the complainant and dealt specifically with allegations that only sections 3 and 70 of the Act had been violated. An allegation that section 80 was violated would raise other issues. It could involve cross-examining witnesses for the complainant on matters which were considered irrelevant in view of the complaint as stated; it could involve hearing other witnesses and evidence which was not relevant to the complaint as stated. It would definitely involve hearing submissions on the alleged violation of section 80. In short, the request asks the Board to completely reopen the case so that the question of an alleged violation of another section of the Act can be examined. This request does not come as a result of new facts which have just come to the attention of the party making it. It does come following the express assurance of counsel for the complaint, who was in possession of all the facts, that no such allegations were being made and that no declaration of a violation of that section was being sought. There is nothing in the letter from counsel for the complainant which we can see that justifies the granting of such a request. Accordingly, the Board will consider only whether violations of sections 3 and 70 of the Act have been made out. Both counsel dealt with the question of res judicata in their letters. This Board will make no finding in that regard and considers that that is properly an issue to be dealt with in the context of any new proceedings which may be brought.

7. The facts in this case are relatively straightforward. The complainant has been an employee of Carrier Canada) Limited in Brampton for about three-and-one-half years. He is a member of the respondent union and is employed as a stock keeper at a wage of around $9.00 per hour. Sometime in September 1981, he became engaged in a campaign to replace the respondent trade union with the United Automobile Workers (hereinafter referred to as the UAW), and to that end, became a member of the UAW and formed a committee to have UAW cards signed. He said that he did this because he saw problems with the respondent trade union, and believed that it was his right under the Act to join the union of his choice.

8. At the time that the complainant became involved in the UAW campaign, he was a steward in the local of the respondent trade union. He had held that office for about one-and-a-half years. He resigned his office the day after the committee for the UAW was formed.

9. The complainant testified that during the course of the UAW campaign about seventy-one per cent (7 1%) of the bargaining unit signed UAW cards and that he was responsible for securing around 110 cards. At all material times there were approximately 220 people in the bargaining unit.

10. During the course of the campaign, the complainant made a statement at a meeting to the effect that "when the Company and the Union are in bed together, the workers get screwed". The respondent sent the following letter to all of its members:

TO ALL BARGAINING UNIT EMPLOYEES OF

CARRIER, CANADA

Dear Sisters and Brothers:

I thank you for your devoted attendance at our meeting on Wednesday, as a result of your positive action taken, the unwarranted RAID by the U.A.W. will not succeed.

By their action, in spite of the no raid Agreement, the U.A.W. have placed themselves in violation of the AFL-CIO Constitution, the central body of Labour in the North American Continent. Our organization has laid charges against the U.A.W. and trusts that justice will prevail.

We have over 5,000 members employed by Carrier in Canada and the U.S. You have their undivided support as well as the support of the thousands of our members who install the equipment that Carrier produces. Because of this we have been able to establish a sound and fruitful collective bargaining relationship with the Carrier Corporation for many years.

Our members will not support or install any air handling equipment made by any union who attempts to raid our membership. I am in receipt of the following telegram from S.M.W.I.A. Local Union 527:-

"We understand an election is to be held between S.M.W.I.A. and U.A.W. for representation rights at the Carrier plant Bramalea on Friday November 20th stop 80% of the work performed inBramalea is sub-contract work from Carrier plants in Syracuse N.Y. stop Should this vote go to the U.A.W. Local Union 527 S.M.W.I.A. will insist that this subcontract work be performed in Syracuse."

Next Tuesday is election day; I urge you all to vote, for job security and progress. Vote for your Local Union 575 of the Sheet Metal Workers International Association.

Thanking you in advance,

I remain,

"Arthur L. Moore"

Regional Director.

One of the witnesses for the complainant, Laurie Spence, said that she took the letter as a threat to her job. She was the only witness questioned about the letter.

11. As a result of a Board order, a vote was held on November 24, 1981, and the respondent trade union received more votes than the UAW.

12. After both the UAW campaign and the vote were over, the complainant received the following letter from the respondent trade union:

Dear Sir and Brother:

You are hereby charged with violating the Constitution and Ritual of the Sheet Metal Workers' International Association Article 17 Section 1(0 and 1(m).

This action is being taken pursuant to your active participation in assisting the United Automobile Workers in their attempt to raid the membership of our Local Union 575.

You will be notified in due course of the date and location these charges will be heard.

Fraternally,

Arthur L. Moore".

13. On December 9, 1981,there was a meeting of the members of the respondent trade union to elect the local executive for the six-month period from December 1981 to June 1982. The election was to fill the unexpired portion of the terms of the members of the executive who had resigned. The complainant was nominated by Marcel Lafrance for the position of Chief Steward. Mr. Moore was chairing the meeting, and he ruled that the complainant could not run for office because he was a member in poor standing pending charges. When Mr. Lafrance asked the nature of the charges, the question was ruled out of order by Mr. Moore. Mr. Moore's rulings were not challenged. The election was held on December 16, 1981, at which time Mr. Lafrance acted as a teller and signed the report of the results without adding any reservation or objection thereto.

14. The complainant received the following letters from the respondent trade union:

Dear Sir and Brother:

This is to advise you that I have appointed Brothers Arthur E. White, Jr., Local Union 30, Raymond F. Paterson, Local Union 235 and Robert J. Flood, Local Union 540, to serve as an International Trial Board to hear the charges preferred against you by Brother Arthur L. Moore. A copy of these charges are enclosed for your information.

You should be hearing from Brother White in the near future as to the time, date and place of the Trial. Brother White is Chairman of the Trial Board and will make all necessary arrangements for conducting the Trial.

Fraternally yours,

"Edward J. Carlough".

January 12, 1982

Dear Sir and Brother:

You are hereby directed to appear before an International Trial Board which will meet at the Howard Johnson Hotel, Dixon Road and Hwy. 27, Room 147, on Tuesday, February 2, 1982 at 9:30 a.m.

The Trial Board will be hearing the charges preferred against you by Brother Arthur L. Moore, Regional Director of the Sheet Metal Workers' International Association.

Failure to appear may result in the charge being dealt with in your absence.

Your attention is drawn to Article 18, Section 2(e) concerning your rights and privileges at this time.

Fraternally yours,

"Arthur E. White"

15. The complainant attended the hearing on the date set out in the notice letter. He was accompanied by an agent of his choice, Laurie Spence, who was at that time Recording Secretary of the Local. At the hearing he was asked by Mr. White if he knew the charges and they were read to him from the respondent trade union s constitution. He was then asked if he understood his rights regarding representation and his right to call witnesses. Mr. White then asked the complainant to plead to the charges. The complainant then said that as far as he was

1213

concerned, "he had committed no crimes under the Canadian Constitution or the Labour Relations Act". The reference to the "Canadian Constitution" is not a reference to the respondent trade union's constitution.

16. During the course of the hearing Mr. Moore brought up the subject of the complainant's having approached the President of another Local of the respondent trade union concerning the UAW. The complainant spoke to that. He also requested the right to read a prepared statement and was allowed to do so. The complainant said that, during the course of the statement, Mr. Moore advised him that he was "coming close to slander" and "to watch himself'. The complainant testified that he finished reading his statement and was told that it had nothing to do with the case. He said that he was asked whether or not he had arranged to bring in the UAW, and he admitted to having done it. That ended the meeting.

17. The complainant received the following letter with the Minutes of the hearing attached thereto:

Dear Sir and Brother:

Enclosed please find the results of the International Trial Board regarding your trial held February 2, 1982.

The Board finds you guilty as charged and by unanimous decision has fined you the sum of One Thousand ($1,000.00) dollars.

You are reminded of your right to appeal under Article 19 of the

Constitution and Ritual of the Sheet Metal Workers' International

Association.

Fraternally,

"Arthur E. White"

"Raymond F. Paterson" "Robert J. Flood".

He had not appealed the decision through the respondent trade union's appeal procedure. He said, in essence, that he thought such an appeal would be futile. He has not paid the fine. He has not been asked to pay the fine.

18. Since the February hearing, the complainant has been nominated to run for President of the Local. Mr. Moore chaired the nomination meeting and he did not rule the nomination out of order. The complainant testified that nobody has taken any action to prevent him from running.

19. Sections 3 and 70 of the Act read as follows:

20. Every person is free to join a trade union of his own choice and to participate in its lawful activities.

21. 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.

The Board has consistently held that section 3 is declaratory; therefore, if there is a substantive breach of the Act to be found, it must be found in relation to section 70. Section 70 deals exclusively with intimidation and coercion in relation to specific activities. It is this section, and this section alone, with which we must deal in order to determine whether the complaint succeeds.

20. The constitution of the respondent trade union was filed with the Board as Exhibit 2, and it was pointed out to the Board that there were internal appeal procedures to which the complainant could have access, even though the fine was not paid. It was argued by the respondent trade union that there was ample recourse available to the complainant through other for a and that the Board should not cast itself in the role of watchdog over internal union affairs. In Canadian Textile Union, [1971] OLRB Rep. Aug. 470, the Board held that it had jurisdiction to deal with allegations of actions which were contrary to the Act and to the public policy which found expression therein. Where there is arguably a violation of the Act, the Board will not defer to the internal union procedures. It is also the duty of the Board to interpret the Act and not the union s constitution; therefore, the presence of any possible constitutional justification for what was done is not determinative of the issue before us.

21. Quite frankly, the real difficulty for the complainant in this case is trying to fit the facts before us into section 70. There is no doubt that the complainant was entitled to join the UAW and to participate in its lawful activities. There is also no doubt that one of those lawful activities was to engage in a campaign to replace the respondent trade union during the relevant time. There is absolutely no evidence of any attempt by anyone connected with the respondent trade union to prevent the complainant from being a member of the UAW or doing anything which affected his ability or right to campaign on behalf of the UAW. As far as this Board knows, the complainant was not threatened, coerced or intimidated by anyone during his campaign on behalf of the UAW. The fine which was imposed upon him was not imposed upon him for being a member of the UAW, and no evidence was heard which would suggest that any attempt was ever made to get him to cease being a member of the UAW.

22. The fine which was imposed on the complainant was essentially for having tried to replace the respondent trade union with the UAW. It is possible to view it as a penalty imposed on someone for having exercised his rights under the Act; however, it is very difficult to view it on its face as being either current or prospective. That is, it was not on its face imposed to prevent him from exercising rights he was in the course of exercising rights he was in the course of exercising, or to threaten him concerning the future exercise of those rights. Obviously, when penalties are imposed, it is hoped that they have a deterrent effect and will discourage those upon whom they are imposed from repeating the behavior for which they have been penalized; however, the question remains whether the mere imposition of a fine in the absence of any other behavior can properly be labeled intimidation or coercion.

23. Section 70 of the Act speaks of intimidation and coercion alone, whereas section 80(2)(b) speaks of intimidation, coercion, and the imposition of penalties. Clearly then there was some recognition on the part of the Legislature that the imposition of a penalty was not tantamount to intimidation or coercion, even though all three activities may have the result of discouraging certain behavior. One distinction between intimidation and coercion on the one hand, and penalizing on the other is that in the latter case negative reinforcement is being applied only in part to prevent the possible repetition of a certain sort of behavior. It is not necessary to have any real or immediate apprehension of the repetition of that behavior. Penalties are intended primarily to try to express disapproval for past action; intimidation and coercion on the other hand, both involve an apprehension of some future, current, or continuing behavior which is to be stopped by extreme means which are intended to limit the individual's freedom of choice. Section 80(2)(b) is reproduced below for information:

80.-(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,

(b) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act.

24. There is no evidence of any pattern of behavior aimed at preventing or restraining the complainant from doing anything. There were no threats of any sort against the complainant. The evidence does not disclose that the complainant has been prevented from exercising his full rights as a member of the respondent trade union. The ruling made concerning his eligibility to run for chief steward in December was never challenged and he has since been a candidate for President of the Local. There is no evidence to show that the complainant believed or felt that he was being prevented from exercising his full rights of membership in either the respondent trade union or the UAW. In short, the evidence does not disclose intimidation or coercion, and we cannot hold that the imposition of a penalty itself is intimidation or coercion.

25. Section 80(2)(b) has already been reproduced, and we have already pointed out that it speaks specifically of the imposition of a penalty. It is possible that, had the original allegation of a breach of section 80(2)(b) been proceeded with, a violation of that section could have been made out. Because of the allegations dealt with, we are not in a position to make any determination concerning section 80(2)(b) at all. We point this out because we do not wish this decision to be misread as standing for the proposition that the Board will always condone the imposition of a penalty by a trade union regardless of the circumstances.

26. For all of the reasons set out above, the complaint is dismissed.

DECISION OF BOARD MEMBER, LLOYD HEMS WORTH;

1. The Board's decision is, as I see it, technically correct. The complaint has to be dismissed because of a misadventure in presentation.

2. Be that as it is. My concern is that, on the evidence, the acts of the complainant are privileged under the Labour Relations Act.

3. In fact a major thrust of the Act is to prohibit the imposition of penalties such as those ostensibly imposed in this instance.

4. It should be made doubly clear that the dismissal of the complaint on technical grounds must not be interpreted as an exoneration.