Mann Bros. v. Dufferin Aggregates, 1983 CanLII 823

[1983] OLRB Rep. July 1031

2382-82-U Mann Bros., G. Uzelac, A. Levin, C. Panuci, G. Andreacchi, J. Vujasinovic, Mann Bros. A. Capistrano, John's Haulage, M. Prokic, G. Kell, B. Ligdas, B. Uzelac, G. Gialelis, V. Galati and N. McKenzie, Complainants, v. Dufferin Aggregates, A Division of St. Lawrence Cement Inc., and Torres Transport Limited and Nick Torres, Respondent, Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Local Union 304, Intervener

BEFORE:

Pamela C. Picher, Vice-Chairman and Board Members J. A. Ronson and S. Cooke.

APPEARANCES:

L. E. Fingold for the applicant; George O. Tokar and Nick Torres for Torres Transport Limited and Nick Torres; Mark Contini and Mike O'Connor for Dufferin Aggregates, A Division of St. Lawrence Cement Inc.' John McNamee and Cameron Nelson for the intervenor

DECISION OF PAMELA C. PICHER, VICE-CHAIRMAN AND BOARD MEMBER, S. COOKE; July 25, 1983

I. The complainants in this matter are the 16 employees employed in the bargaining unit represented by the intervening union. The employees have filed a complaint under section 89 of the Labour Relations Act alleging that the respondent employer, Dufferin Aggregates, has violated sections 3, 64, 66, 70 and 80 of the Act. The union representing the 16 employees in the bargaining unit has declined to join with the employees in the filing of the instant complaint. While the employee complainants have expressed some disappointment with the union, they have declined to file a concurrent complaint against their union alleging that the union has breached its duty of fair representation.

3. At the outset of the hearing counsel for Dufferin Aggregates objected to the status of the employees to bring the instant complaint. Counsel maintains that the complaint should be brought by the union instead of the employees because the essence of the employees' complaint is that Dufferin Aggregates is trying to destroy the union through the manner in which it is assigning work. Counsel argues that in the absence of a parallel allegation by the employees that the union has breached its duty of fair representation, the Board should decline to process a complaint of this nature brought by employees alone. Secondly, respondent counsel maintains that the Board should defer to arbitration as in his view the heart of the complaint involves an alleged breach of the collective agreement between Dufferin Aggregates and the intervener union.

4. Counsel for Dufferin Aggregates concedes that nothing in the Act either precludes employees from filing a complaint under section 89 of the Act or specifically requires the co-sponsorship of their union. Counsel emphasizes, however, that under section 89 of the Act the Board has the discretion to refuse to inquire into a complaint and asks that the Board do so in this instance for the reasons set out above.

5. The employees have complained, in part, that Dufferin Aggregates is engaged "in a concerted and systematic attempt to undermine and destroy the Union by depriving the members of the bargaining unit of the work to which they are historically and lawfully entitled, by referring this work to Torres Transport Limited", the second named respondent. The employees further assert that Dufferin Aggregates "is in deliberate and calculated violation of the Collective Agreement" through its disputed work assignments. They fear that the work assignments will ultimately have the effect of depriving them of any work whatsoever. The employees argue that the respondent's conduct constitutes a violation of sections 3, 64 and 66(a) of the Act which provide as follows:

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

(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.

66. 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.

6. The employees maintain that the employer's conduct is calculated to eventually deprive them of their employment. They strongly assert that they should be permitted access to the Board for the adjudication of their complaint in order to protect their very employment and to enforce their rights under the Act, notwithstanding that the union has declined to lend them its support.

7. On numerous occasions the Board has considered the status of an employee to bring a matter before the Board without the concurrent support of his union. There are some circumstances where the Board has declined to process an employee's individual complaint. In T.I.A. Limousine Operators, [19791 OLRB Rep. Aug. 810 an individual employee filed a complaint with the Board alleging that his employer had breached sections 56 (now 64) and 58 (now 66) of the Act. The employee maintained that he had been discharged from his employment because his employer thought he had been active in the formation of a trade union. The employer challenged the employee's status to bring the complaint because no trade union had joined the employee in the filing of his complaint. The Board upheld the employer's objection, in part, and dismissed that aspect of the complaint alleging a breach of section 56 (now 64) of the Act. The Board held that a complaint alleging interference with the trade union must be brought by a trade union and not an individual employee. At p. 811 the Board said,

While the Board in A.A.S. Telecommunications, supra, was dealing with a managerial person it is clear from its statement that a section 79 complaint alleging a violation of section 56 of the Act must be brought by a trade union and cannot be brought by an individual employee. For this reason, the complaint in respect of section 56 in the instant case is dismissed.

The basis of the Board's decision in T.I.A. Limousine Operations denying the individual the opportunity to bring an application under section 64 of the Act is that section 64, which precludes employers from interfering with trade unions, protects union rights as distinct from employee rights. Notwithstanding the absence of the union, however, and as long as the individual was established to be an employee under the Act, the Board was willing to entertain his individual complaint under section 66 of the Act to protect his own right not to be discharged for union activity.

8. In Central Park Lodges of Canada, [1980] OLRB Rep. Oct. 1373 the Board held that individual employees may not ask the Board through section 106(2) of the Act to determine their employee status during the course of bargaining for a collective agreement or during the operation of a collective agreement. At p. 1380 the Board stated,

The scheme of the Act, the decided cases, and the ramifications of an alternative interpretation, all support the inference that section 952 now section 106(2)1 was only intended to resolve disputes between the immediate parties to the bargaining relationship, the employer and the union j.

For similar decisions under section 106(2), see Indusmin Limited, 119751 OLRB Rep. March 184; York University, [1978] OLRB Rep. Aug. 790 and Wallace Barnes Limited 1961), 61 CLLC ¶16,198.

9. On a similar basis the Board in Canadian General Electric, 119801 OLRB Rep. Aug. 1179 stated that it would not inquire into the complaint of an individual employee alleging that his employer had breached its duty to bargain in good faith. In reaching its decision the Board emphasized that the duties and obligations found in section 15 of the Act are of legal interest to the employer and the trade union only, the two parties to the collective agreement, and not the individual employee.

10. While certain provisions of the Act such as sections 15, 64 and 106(2) either embody union rights only or focus on the collective bargaining relationship between the union and the employer, section 66 establishes individual employee rights as well as union rights. Section 66a) precludes an employer from refusing to employ or continuing to employ a person or from discriminating against a person in regard to employment or any term or condition of employment because the person was or is a member of the trade union or was or is exercising any other rights under the Act.

11. No provision in the Act stipulates that a complaint alleging a breach of section 66(a) may only be brought by a trade union. Presumably, in this instance, if the complaining employees were not represented by a union, the respondent would not object to the employees' status to initiate the instant complaint. Is the fact that the employees in this matter are represented by a trade union sufficient to deprive them of their ability to individually complain to the Board to protect their individual rights not to be discriminated against for their union affiliation.

12. Counsel for the employer argues that unless the employees couple their complainant against the employer with a complaint against the union for failure to represent them in good faith, the Board should insist that the complaint before the Board be brought by the employees' exclusive bargaining agent. The Board, however, cannot agree. There may be numerous reasons why an employee may decide not to file a complaint against his union even though his union refuses to process a complaint against his employer alleging a violation of the Labour Relations Act. The employee may consider that he and his union have an honest difference of opinion as to whether or not the employer has acted contrary to the Act. The employee may realize that even if he were to ultimately prove the employer's breach of the Act, he could never establish that his union had breached its duty of fair representation in view of the extent of union misconduct needed to make out such a complaint. If the Board were to accept the employer's argument in this matter, an employee, in order to protect his rights, would be put in the position of having to file a complaint against his union even if he is of the view that the union has not in fact breached its duty of fair representation as that duty has been interpreted by the Board. Not only would this approach encourage the filing of vexatious complaints but also, in the Board's assessment, it would run counter to the aims of the Labour Relations Act to require an employee to proceed against his union simply and only to enforce his individual rights, established by the Act, vis a vis his employer.

13. Moreover, even if an employee could establish that his union had breached its duty of fair representation, the employee, in an effort to nurture and improve his relationship with his union rather than exacerbate it, may want to handle his problem with his union on an informal basis, without resorting to the adversary process of the Act. The Board is most reluctant to exercise the discretion it has under section 89 of the Act to refuse to entertain a complaint where the natural effect of the refusal would be to force the employee to proceed against his union in order to enforce his individual rights under section 66 of the Act.

14. The Board has previously allowed individual employees to proceed with complaints against employers when the complaint has involved an alleged breach of section 66 of the Act. In Kingston Vending Limited, [1976] OLRB Rep. Oct. 602, for example, the Board entertained a preliminary objection similar to the instant objection: the employer objected to the status of an individual to bring a complaint under section 58(a) (now section 66(a)) of the Act. The employer in Kingston Vending maintained that for an employee to have status to file a complaint against his employer under section 66(a) of the Act, he would first have to establish that the union had breached its duty of fair representation. The Board dismissed the objection and determined that an employee could file a complaint under the Act alleging an employer breach of section 66 of the Act without first having to establish that the union had breached its duty of fair representation. It is apparent from its reasoning that the Board further considered that it was not even necessary for the employee to file a concurrent complaint against his union in order to proceed against his employer under section 66 of the Act. At p. 603 the Board stated the following,

Secondly, dealing with the merits of the respondent's objection, the Board accepts the view expressed by counsel for the union in its written submission that section 58(a) now section 66(a)J of the Act gives rights to employees as individuals and that the scope of section 79(1) I now section 89(1)1, which authorizes the Board to inquire into a ui complaint, does not limit the remedial powers of the Board by requiring that the complaint originate with a trade union.

Moreover, the overall scheme of the Act would indicate that the protection of the rights of employees can be affected otherwise than through a trade union. While the great bulk of the proceedings before the Board may involve trade unions, it is worth remembering that section 92(2) of the Act provides for the appointment of Board Members in equal numbers "representative of employers and employees" and not of employers and trade unions.

One of the mischiefs that The Labour Relations Act was meant to correct is the threat to the livelihood of an individual for engaging in union activity. In the present economic order an individual's job may be of greater value to him than many forms of conventional property. Therefore, the unlawful taking of his job may call for legal remedies as ample, effective and available as those legal remedies fashioned to protect his property. In our view, if the legislation had intended to circumscribe the remedial rights of individuals in a manner as narrow as that suggested by the respondent, it would have done so expressly. We are not prepared to do so by deduction or inference.

(See also T.I.A. Limousine Operators discussed supra.)

15. In John Christopher and Pre-Fab Cushioning & Vita Form Ltd., (file no. 0097-76-U, unreported decision dated June 11, 1976) the Board entertained an individual employee's complaint against his employer and refused the respondent employer's request that the Board draw an adverse inference from the union's failure to support the employee's complaint that the employer had discharged him because of his involvement with the union. At paragraph 2 of its decision the Board said,

[The] U.E. applied to be certified as bargaining agent on behalf of a unit of employees of the respondent on January 7, 1976. The application resulted in a certificate being issued to U.E. on April 6, 1976. The complainant ceased to be employed by the respondent on or about March 12, 1976, and his complaint was filed on April 14, 1976. Counsel for the respondent submitted that the Board should draw an inference as to the merits of the complaint from the fact that the complainant was not being represented by U.E.. The Board, however, declines to draw any such inference, and will instead proceed to determine the complaint solely on the basis of the evidence before it.

(See also Sammy Lovano and Pre-Fab Cushioning & Vita Foam Ltd., file no. 0085-76-U, unreported decision dated June 18, 1976).

16. Having regard to the Board's jurisprudence and the considerations set out above the Board denies the employer's preliminary motion and will inquire into the complaint of the 16 employees alleging that the employer has breached section 66(a), notwithstanding that the employees' bargaining agent has not joined them in their complaint and notwithstanding that the employees have expressly declined to bring a concurrent complaint against their union. To do otherwise would do violence to the scheme of the Act and the protection it gives employees to engage in union activities. For the reasons contained in TI.A. Limousine Operations, however, the Board will not inquire into that aspect of the complaint alleging a breach of section 64 of the Act.

17. Turning to the second aspect of the employer's preliminary objection, the Board is further satisfied that this is not a situation where it would be appropriate to defer to arbitration. While the employees maintain that the employer has violated an article of the collective agreement, the essence of the employees' complaint is an alleged breach of the Labour Relations Act. The employees maintain that the employer is acting with anti-union animus and attempting to destroy the union through the manner in which it is assigning work. The collective agreement does not contain a "non-discrimination" clause prohibiting the employer from discriminating against employees for their union affiliation. The Board is satisfied that the employees have selected the proper forum for the adjudication of their complaint and declines to defer to arbitration for the resolution of a grievance which may or may not ever be carried to arbitration by the union.

18. On the basis of the foregoing the Board dismisses the employer's preliminary objection.

19. The matter is referred to the Registrar to be scheduled for hearing.

DECISION OF BOARD MEMBER, JAMES A. RONSON;

1. Contrary to the original style of cause, no complaint has been filed by the Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Local No. 304. Rather, this is a complaint by 16 employees of the respondent Dufferin Aggregates, A Division of St. Lawrence Cement Inc. (also amended at the hearing), who are dissatisfied with their union and their employer. They complain that their employer has violated sections 3, 64, 66, 70 and 80 of the Act, by giving the work they usually perform to the respondents Torres Transport Limited and Nick Torres. The particulars of their complaint are attached to this decision as Appendix "A". Counsel for the employees acknowledged that the union has not filed a complaint and the union agreed that it had not filed a grievance on the issues nor was it adopting the complaint as its own. Nevertheless, the union submitted, the Board should hear the complaint in spite of the fact the union is not a party.

2. The employer has requested that the Board exercise its discretion and refuse to accept the complaint:

(a) unless or until the employees make a complaint against their union under section 68; or

(b) if the employees choose not to complain under section 68, to defer to the arbitration process.

3. The Act envisages, and the Board in its expertise has always applied the concept that disagreements arising out of the interpretation of a collective agreement are best decided using the arbitration procedures found in the collective agreement or the Labour Relations Act. Within the last 3 years or so the Board has taken jurisdiction in cases where previously it would have deferred to arbitration, usually on the basis that an unfair labour practice was the basis of the complaint or an important interpretation of the Act was involved and the Board felt it should enunciate. This is not the case here. Even the union does not complain that it has been treated unfairly although that is the substance of the employees' complaint when one reads their allegations.

4. More frequently now, we are seeing cases before the Board where a party unable to arbitrate a difference or sensing that it has a weak case to take to arbitration, comes instead to this Board. Probably this is clone in the hope that by tarring the employer with the anti-union brush, the Board will respond to its plight by applying the feathers. With this case my colleagues issue an open invitation to applicants to take advantage of this possibility.

5. Recently again, the Board has strengthened and reinforced the position of the union as the exclusive bargaining agent of the employees. Unions can enter into binding collective agreements even though a majority of employees have voted against the deal. And an employer cannot ignore the union and attempt to deal directly with its employees. Sc) where does this "exclusivity" leave an employer'? By this decision, my colleagues say that the exclusive agency of the union to bargain and interpret the collective agreement affords the employer no protection whatsoever. It can still be brought before the Board (with attendant loss of time and cost) to answer the complaints of its employees who are dissatisfied with their union. The Labour Relations Act contains other remedies for employees who find themselves in this position.

6. Employers should be able to talk to a union and rely on the union's authority to speak for the bargaining unit without fear of being "sand-bagged" by the union and its members/employees. That is what is happening here, when we don't force the union to take a position on the section 66 issue. Exclusive bargaining rights have no corresponding bargaining obligations for the union. In the circumstances of this case and in the exercise of our discretion. I would defer matters to arbitration under the collective agreement; or if the union refuses to file a grievance, require that a complaint under section 68 of the Labour Relations Act be filed, before proceeding further.

[Appendix “A” attached to Board Member Ronson’s decision containing the material facts and particulars in the complaint has been omitted. ]