Energy and Chemical Workers Union, C.L.C. v. United Cement, Lime, Gypsum and Allied Workers International Union, A.F.L.-C.I.O.-C.L.C., 1983 CanLII 799

[1983] OLRB Rep. December 2125

1683-83-U Energy and Chemical Workers Union, C.L.C., Complainant, v. United Cement, Lime, Gypsum and Allied Workers International Union, A.F.L.-C.I.O.-C.L.C., Respondent

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members W. H. Wightman and S. Cooke.

APPEARANCES: Daniel Ublansky, Donald Burshaw and Eric Batten for the complainant; Ross Seaman, Sidney Huizenga and Douglas G. Pitt for the respondent.

DECISION OF THE BOARD; December 5, 1983

1. This is a complaint filed under section 89 of the Labour Relations Act in which it is alleged that the respondent union breached sections 3 and 70 of the Act when it posted a notice on the union bulletin board at the premises of Lake Ontario Cement Limited, Picton, Ontario, where it holds bargaining rights which advised that any members "actively engaged in the distributing and signing of cards for the Energy and Chemical Workers Union" could be charged under the constitution.

2. Section 3 of the Act provides:

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

Section 70 of the Act provides:

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.

3. The evidence is that the complainant, Energy and Chemical Workers Union, began' to make contact with the bargaining unit employees of Lake Ontario Cement at Picton in the summer of 1982 for the purpose of laying the groundwork for a displacement application for certification. The Energy and Chemical Workers Union actively commenced to sign the employees of Lake Ontario Cement at Picton into membership in early September, 1983 and the evidence is that by October 19, 1983 approximately 85 of the 170 bargaining unit employees then working had been signed into membership. Mr. Don Burshaw, a former Vice-President of the United Cement, Lime, Gypsum and Allied Workers International Union, was in charge of the organizing drive of the Energy and Chemical Workers Union and had established a four-man in-plant organizing committee. The evidence of Mr. Burshaw and the two members of the in-plant organizing committee who testified is that the organizing drive had been well received by the employees of Lake Ontario Cement at Picton.

4. It is their evidence that the mood changed from October 19, 1983 and that from that date forward the organizing efforts of the Energy and Chemical Workers Union fell on deaf ears. They attributed this change to the posting of the notice by the United Cement, Lime, Gypsum and Allied Workers International Union which is the subject matter of this complaint. The notice reads:

BROTHERS!!

It has come to the attention of the Executive of Local 387 that there are members of this Local actively engaged in the distributing and signing of cards for the Energy and Chemical Workers Union. This is contrary to the by-laws of the United Cement, Lime, Gypsum and Allied Workers International Union, which states as follows:

"Article 20 — Section 5 — Offenses

The following shall be considered offenses against the laws, regulations and practices of this International Union and subordinate bodies, and subject the offender to penalty upon conviction thereof under the provisions of this Article:

S.S(2) Advocating or attempting to bring about a withdrawal from the International Union of any district council, local union or any member or group of members."

THIS PRACTICE MUST CEASE IMMEDIATELY

or the Executive of Local 387 will be left no alternative but to charge those involved.

It is also to be observed that the United Cement Lime, Gypsum and Allied Workers International Union conducted a general membership meeting on October 20, 1983 for the purpose of discussing the raid by the rival Energy and Chemical Workers Union.

5. The collective agreement in effect at all relevant times and covering the employees of Lake Ontario Cement in Picton makes membership in the United Cement, Lime, Gypsum and Allied Workers International Union a condition of employment.

6. The Energy and Chemical Workers Union, in laying the groundwork for the organizing drive which it commenced in September, 1983, mailed a notice to the homes of all the bargaining unit employees of Lake Ontario Cement at Picton which is dated August 24, 1982. The relevant portion of that notice is reproduced below:

Dear Fellow Trade Unionists:

Some of the fears expressed by many workers during our organizing campaigns centre around two areas which I shall cover in this letter.

I want to point out to each of you that the Ontario Labour Relations Act is the law that governs labour relations in the Province of Ontario. This law supercedes any Union's Constitution and I want to make it abundantly clear, regardless of what your Constitution may state, the law prevails.

The law states, under section 3, that every person is free to join a Trade Union of his own choice, and to participate in its lawful activities. I want to emphasize this freedom that you, as workers, have the right to join a Trade Union of your own choice.

Section 46, subsection 1 of the Ontario Labour Relations Act is of the utmost importance, which states:

(1) Notwitnstanding anything in this Act, but subject to subsection (4), the parties to a collective agreement may include in its 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 Union;"

I want to explain this to you. This means that it's not against the law to include into a collective agreement, a Union Shop provision requiring employees to join the Union. However there are certain conditions that the law stipulates which are as follows:

"Subsection (2) "No trade union that is a party to a collective agreement containing a provision mentioned in clause (1) (a) (Union Shop), 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) has 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."

What the law is saying is that regardless of whether there is a Union Shop requiring you to join the United Cement, Lime, Gypsum and Allied Workers International Union, under section (3), you as a worker have the freedom to join the Canadian Cement, Lime and Gypsum Workers Council of the Energy and Chemical Workers Union and there's nothing the International Union can do about it.

You, as a worker, have the right, under law, to join the Canadian Cement, Lime and Gypsum Workers Council of the ECWU, which is covered under subsection (2) (c) of section 46.

You have the right under law, to get involved with the Canadian Cement, Lime and Gypsum Workers Council of the ECWU to speak your mind and to even sign your fellow workers into becoming members of the Canadian Cement, Lime and Gypsum Workers Council of the Energy and Chemical Workers Union.

You have the right to voice your opinions and dissent against the International Union and if you were to be expelled or suspended from membership in the United Cement, Lime,Gypsum and Allied Workers International Union for such lawful activities, your employer could not discharge you, under section 46, subsection (2), and the Energy and Chemical Worklers Union could file unfair labour charges with the Ontario Labour Relations Board, that you have been expelled or suspended for exercising your rights under the law.

(emphasis added)

7. The submissions of the complainant, Energy and Chemical Workers Union, may be summarized as follows: The complainant argues that there are two elements required to establish a breach of section 70 of the Act; an intention to coerce or intimidate within the meaning of the section and the carrying out of intimidatory or coercive conduct. The complainant argues that where, as in this case, a notice of the type before us is posted during the course of a rival union's organizing campaign and in the face of a subsisting collective agreement under which continued membership in the incumbent trade union is a contention of employment, it must be found that both of the preconditions necessary to support a finding under the section exist. More specifically, it is argued that it must be found that the purpose of the posting of the notice is to cause employees to refrain from signing into membership in the complainant out of a fear that to do so could jeopardize their continued employment. The complainant relies on the sudden difficulty it experienced in signing employees into membership following the posting of the notice in support of the position that the notice has had the desired effect. The complainant asks the Board to find that the posting of the notice in question constitutes a threat to the continued employment of anyone who signed a card in support of it, and that it had this affect and therefore, constitutes intimidation within the meaning of section 70 of the Act. Terry Matus and International Longshoremen's Union, Local 502, March 6, 1981, 37 di, a decision of the Canada Labour Relations Board, is cited in support of the position advanced by the complainant.

8. The respondent union, which did not call any evidence, argues simply that the notice was not posted for the purpose of intimidating anyone from exercising rights under the Act and furthermore, that it cannot be read as threatening anyone's employment, nor, on the evidence, did it have this effect.

9. A concise description of the scope of section 70 of the Act is contained at para. 59 of the Corporation of the City of Thunder Bay, [1983] OLRB Rep. May 781 as follows:

10. Section 70 of the Act prohibits any interference with the rights of individuals under the Act amounting to compulsion by means of intimidation or coercion. Without exhaustively defining the meaning of those terms it appears to the Board that at a minimum they must relate to conduct which, directly or indirectly deprives an individual of his free choice in the exercise of his rights under the Act. While that might include acts or threats which are physical or economic, the section is aimed at preventing interference with an individual's rights by some form of pressure or force that removes their ability to choose. (Tim Reay, 1119821 OLRB Rep. Aug, 1206; Beatrice Foods (Ontario) Ltd., 111982] OLRB Rep. Apr. 519; Purple Heart Film Corp., [1979] OLRB Rep. Sept, 900; Great Lakes Forest Products, [1979] OLRB Rep. July 651; International Marine Surveys Ltd., [1979] OLRB Rep. Apr. 321; Innovative Wood Products, 111978] OLRB Rep. Feb. 161; Alex Henry and Son Ltd., [1977] OLRB Rep. May 288; A. Greco, [1976] OLRB Rep. June 323; Andrew Warren, [1976] OLRB Rep. Jan. 963; Canadian Textile and Chemical Union, 111971] OLRB Rep. Aug. 469.

11. In this case the complainant argues that what we are faced with when the notice is read in conjunction with the union security clause in the collective agreement between the company and the respondent union is a threat to employment conditional upon supporting the complainant union which constitutes intimidation within the meaning of the section. However, there is no express threat to employment contained in the notice. The notice does not expressly tie any action which might be taken by the incumbent union to a possible loss of employment. Given the provisions of section 46(2) of the Act this is not surprising. Section 46(2) (a), (b), (c) and (d) provides as follows:

12. (2) No trade union that is a party to a collective agreement containing a provision mentioned in clause (l)(a) 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) has engaged in activity against the trade union or on behalf of another trade union.

The continued employment of a person expelled from union membership for engaging in activity on behalf of another trade union is protected. The United Cement, Lime, Gypsum and Allied Workers International Union, therefore, could not have brought about the termination of employment of its members who supprted the rival Energy and Chemical Workers union even if it so desired. Furthermore, the evidence establishes that employees in the bargaining unit wereadvised of their legal rights in this regard, in the August 24, 1982 notice mailed to the homes of all bargaining unit employees by the Energy and Chemical Workers Union. In the absence of any reference to job security in the impugned notice, in the face of section 46(2) if the Act and in the face of the August, 1982 notice from the Energy. and Chemical Workers Union advising the affected employees of the protection afforded under section 46(2) of the Act, we are unable to conclude that the notice threatened or was intended to threaten the employment of anyone. We make this finding notwithstanding the difficulty which the Energy and Chemical Workers Union encountered in signing employees into membership, following both the posting of the notice and the holding of the October 20th membership meeting by the United Cement, Lime, Gypsum and Allied Workers International Union.

11. In the absence of sufficient evidence to support a finding that the notice was intended to or threatened employment, the threat of expulsion from membership of those who support the Energy and Chemical Workers Union, which is clearly the message conveyed by the notice, does not constitute intimidation or coercion within the meaning of section 70 of the Act. While an attempt by a union to threaten the employment of anyone supporting a rival union would constitute a clear case of intimidation or coercion within the meaning of section 70 of the Act, it is envisaged under section 46(2) of the Act that employees who are members of an incumbent union and at the same time support or become members of another union may be liable for expulsion from membership in the incumbent union. If expulsion from membership in these circumstances constituted intimidation or coercion within the meaning of section 70 of the Act there would have been no need to provide the employment protections which are provided in section 46(2) of the Act. The Legislature has provided employment protection in these circumstances because it does not consider the expulsion from membership of an employee who supports a rival union, absent any attempt to tie the expulsion from membership to a loss of employment, to constitute intimidation or coercion within the meaning of section 70 of the Act. An employee is always free to exercise his right under section 3 and section 70 of the Act to support or join a rival union but in the face of the system of exclusive representation that is established under the Act, he does so in the knowledge that he is rejecting the incumbent union and may be expelled from membership in it.

12. The Terry Matus decision, supra of the Canada Labour Relations Board stands for the proposition that the Canada Labour Relations Board has the authority to provide redress to individuals who have been deprived of employment through the enforcement of a discriminatory internal union rule. More specifically, the Canada Board enforced a statutory provision similar to section 46(2) of the Ontario Labour Relations Act in circumstances which are not at all analogous to those that are before us. The case does not assist the complainant in this matter.

13. Having regard to all of the foregoing, this matter is hereby dismissed