Ontario Labour Relations Board

[1983] OLRB Rep. July 1219

2715-82-U; 0014-83-U; 0015-83-U; 0016-83-U; 0017-83-U; 0363-83-U Keith MacLeod Sutherland, Complainant, v. Labourers' International Union of North America, Labourers' International Union of North America Local 493, Angelo Fosco, A. E. Coja, M. A. Ross, and G. Mullen, Respondents

BEFORE: R. D. Howe, Vice-Chairman, and Board Members E. J. Brady and B. K. Lee.

APPEARANCES: Harry Kopyto, Anne Davison and Keith Sutherland for the complainant, M. A. Ross for himself and Local 49; . B. D. WahI, G. Flook and G. Mullen fir the other respondents.

DECISION OF THE BOARD; July 18, 1983

I. These are six complaints under section 89 of the Labour Relations Act, which have been consolidated by the Board pursuant to section 81 of the Board's Rules of Procedure. The consolidated style of cause has been amended at the request of the complainant, by removing Peter J. Fosco, D. L. Henry, Ugo Rossini, Rocco D'Andrea, John Stefanini and H. Mancinelli as respondents. Thus, the remaining respondents are Labourers' International Union of North America (the "International"); Labourers' International Union of North America, Local 493 ("Local 493"); Angelo Fosco, the President of the International; A. E. Coia, the Secretary-Treasurer of the International; M. A. Ross, the Business Manager of Local 493; and G. Mullen, Secretary-Treasurer of Local 493.

2. It was submitted by Mr. WahI (on behalf of the respondents whom he represents) that the Board should dismiss the consolidated complaints without a hearing on the ground that they do not make out a prima facie case for any relief under the Labour Relations Act. After hearing the submissions of Mr. Wahl and Mr. Kopyto concerning that preliminary matter on June 8, 1983, the Board reserved its decision and adjourned the proceedings pending disposition of that matter. (Mr. Ross elected to make no submissions to the Board.)

3. In an appendix to his initial complaint (File No. 2715-82-U) which was apparently filed without the assistance of counsel, Mr. Sutherland outlined various difficulties (allegedly) encountered by him as Pension Administrator of The Labourers' Pension Fund of Central & Eastern Canada, which culminated in his discharge from that position in January of 1982, followed by various attempts on his part to gain reinstatement or to be permitted to resign with written and verbal recommendations. While those matters may provide a basis for proceedings in other forums, they are not matters which fall within the jurisdiction of this Board in apparent recognition of the Board's lack of jurisdiction over those aspects of the complaints, counsel for the complainant, in the particulars which he filed with the Board by letter dated May 18, 1983, and in his oral submissions to the Board in response to Mr. Wahl's motion for dismissal, dwelt upon other matters. The particulars, as set forth in that letter, are as follows:

"1. On or about the third day of March, 1983, the complainant was dealt with by Angelo Fosco, General President of the Labourers' International Union of North America, the respondent herein, contrary to the provisions of Section 3, 68 and 70 of the Labour Relations Act in that he did on his own behalf and on behalf of the respondent union send a letter to D. L. Henri, Secretary-Treasurer of Local 493, of which the complainant was a member at the time, advising the said Mr. Henri that the membership of the complainant in Local Union 493 was under suspension and should be cancelled.

2. On or about the third day of March, 1983, the complainant was dealt with by Arthur E. Coia, Secretary-Treasurer of the Labourers' International Union of North America contrary to the provisions of Sections 3, 68 and 70 of the Labour Relations Act in that he did on his own behalf and on behalf of the respondent union cancel the membership of the complainant in Local Union 493.

3. On or about the 14th day of March, 1983, the complainant was dealt with by Michael Ross, business manager of Local Union 493 contrary to the provisions of Sections 3, 68 and 70 of the Labour Relations Act in that he did on his own behalf and on behalf of the respondent unions cancel the membership of the complainant in Local Union 493.

4. On or about the 10th day of February, 1983, the complainant was dealt with by G. Mullen, Secretary-Treasurer of the Labourers' International Union of North America, Local 527 in Ottawa, Ontario, contrary to the provisions of Sections 3, 68 and 70 of the Labour Relations Act in that he sent a letter to the General President of the Labourers' International Union of North America complaining that the complainant was not eligible for continued membership in Local Union 493.

5. The complainant wishes to refer to the following facts as being part of the background to the complaint relevant to determine whether there has been an alleged violation of the Act.

6. Prior to September, 1982, the complainant performed certain functions as a representative of Local Union 493. On or about the 7th day of July, 1982, the respondent M. A. Ross entered into certain discussions with the complainant concerning his possible employment within one of the various pipeline companies working in the area entrusted to Local 493 at that time.

7. On September 14, 1982, the complainant was initiated into Local Union 493 by the international head office of the Labourers' International Union of North America, located in Washington, District of Columbia, U.S.A. When the complainant applied for membership in Local 493 he met the criteria set down for all members in the past including registration on the Local out-of-work list.

8. At the time that the letter dated March 3, 1983, aforementioned, was directed to D. L. Henri, Secretary-Treasurer of Local 493, from Angelo Fosco, General President, advising that Local that upon a complaint filed with the international office by the respondent, Mr. G. Mullen, that the complainant's membership was being cancelled for lack of payment of taxes to the head office of the Labourers' International Union of North America, the entire membership of Local Union 493 was in fact late in having its per capita tax forwarded to such head office.

9. The complainant states that such per capita taxes as were required to be forwarded to the head office had not been forwarded for reasons entirely out of his control and which he believes involved the administrative difficulties of Local 493. To the best of the complainant s knowledge, he has been the only one whose membership has been cancelled in the manner as aforesaid.

10. The complainant alleges that the individuals and bodies which acted in the manner indicated above acted in a manner which was arbitrary, discriminatory and in bad faith in the representation of the complainant by the trade union or individuals involved. The complainant alleges that the complaints and letters concerning his status were designed to obtain his wrongful suspension from Local 493 and constituted acts of coercion [sic] designed to cause him to cease to be a member of Local 493 and to continue exercising his rights as such a member.

The complainant seeks to have the cancellation of his membership in Local Union 493 rescinded and wishes to be reinstated with full rights of membership. The complainant further seeks full compensation for lost wages, salaries or any other income resulting from the cancellation of his membership."

4. The aforementioned letter dated March 13, 1983 from Mr. Fosco to Mr. Henri reads as follows:

"Re: K. Sutherland, #2535821,

Local Union 493, Sudbury, Ont.

Dear Sir and Brother:

Please be advised that both General Secretary-Treasurer Coia and I received a letter dated February 10, 1983. from G. Mullen, complaining that the above-mentioned individual was initiated in Local Union 493, notwithstanding the fact that it was contrary to the provisions of Article III, Section 1(a) of the Uniform Local Union Constitution. Our records reflect that he was initiated September 14, 1982, and per capita tax was last offered in his behalf by your Local Union for November, 1982; and that he now stands suspended as December per capita tax should have been offered by your Local Union prior to February 25, 1983.

I call to your attention Article III, Section 1(a) of the Uniform Local Union Constitution:

“In order to be eligible for membership a person must be working at the calling within the territory of the Local Union in which the individual applies for membership.”

Based on the circumstances, I have requested General Secretary-Treasurer Coia to cancel his membership in Local Union 493; and that all monies forwarded to the Headquarters in Mr. Sutherland's behalf be credited to your account. Local Union 493 is to refund to Mr. Sutherland the amounts he tendered to the Local Union as initiation fees and dues."

Mr. Ross, in his capacity of Business Manager of Local 493, responded to that letter in the following letter dated March 14, 1983, a copy of which was forwarded to the complainant, along with a copy of Mr. Fosco's letter:

"1 have this date received your letter dated March 3, 1983 concerning the above mentioned Brother.

Please be advised that we are forwarding a copy of this communication as well as yours, to Keith Sutherland, which is self explanatory to him. We are also enclosing a cheque in the name of K. Sutherland reimbursing him for full initiation fees and dues as per your instructions.”

5. Mr. Kopyto contends that the cancellation of the complainant’s membership in Local 493, and the actions of the various respondents that led up to that cancellation, contravened sections 3, 68, and 70 of the Labour Relations Act. Mr. WahI, on the other hand, submits that the complaints, as particularized, do not make out a prima facie case since section 3 does not create an offence under the Act, the complainant is not within the ambit of section 68, and the complaints do not allege any facts that could be found to) constitute "intimidation" or "coercion".

6. 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."

The freedoms enshrined in section 3 are fundamental to the attainment of the object (set forth in the preamble of the Act) of "encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees". Section 3 does not itself create a substantive offence or unfair labour practice capable of being remedied under section 89 of the Act (see, for example, Frank Manoni, [198] OLRB Rep. Dec. 1775, at paragraph 19; Woodall Construction Company Limited, [1979] OLRB Rep. June 597, at paragraph 6; Winson Construction Limited, (1976) OLRB Rep. Nov. 714, at paragraph II; and Deborah Brown, [1976] OLRB Rep. Feb. 4, at paragraph 12). Nevertheless, the section 3 freedoms are protected from violative conduct through sanctions set out in other sections of the Act, such as sections 64. 66, and 70 (see The St. Catharines General Hospital, [1982] OLRB Rep. Mar. 441, at paragraphs 34 - 38, and the authorities referred to in that decision). Section 3 (which finds its U.S. counterpart in section 7 of The National Labour Relations Act) was enacted against the background of common law doctrines, such as criminal and civil conspiracy, which dealt severely with attempts by workers to join together with a view to obtaining improvements in wages and working conditions through collective action (see, for example, Fleming, The Law of Torts (5th ed Melbourne: The Law Book Company Limited, 1977) at 689-694: Forkosch, Treatise on Labour Law (2nd ed. New York: The Bobbs-Merrill Company, Inc., (1965) at 312-320; Labour Relations Law (2nd ed. Kingston: Industrial Relations Centre, Queens University, 1974) at 11-17, and 364-366; and Adell, The Legal Status of Collective Ageements (Kingston Industrial Relations Centre. Queen's University, 1970) at 6.) Section 3, together with other legislative enactments such as the Rights of Labour Act, R.S.O. 1980, c. 456, has removed the taint of unlawfulness which used to accompany trade union membership and various trade union activities. Moreover, as indicated above, the provisions of section 3, in conjunction with unfair labour practice provisions such as sections 64, 66, and 70, have created a substantive protection for legitimate activities of trade unions, although these statutory protections are not unlimited (see, for example, The Adams Mine, Cliffs of Canada Ltd. Manager, [1982] OLRB Rep. Dec. 1767, and St. Catharines General Hospital, supra, at paragraphs 39 and 40). However, section 3 does not require a trade union, such as Local 493 or the International, to admit as a member every person who applies for membership, or to retain as a member every person who has been admitted into membership. Section 46(2) of the Act implicitly recognizes the power of a trade union to deny or withhold membership, and to expel or suspend members. That provision does not make such actions unlawful; it merely precludes a trade union from requiring an employer to discharge an employee because "he has been expelled or suspended from membership in the trade union", or because "membership in the trade union has been denied to or withheld from the employee", for one of the five reasons specified in clauses (c) - (g) of that subsection. Thus, it is clear from a reading of the Act as a whole that section 3 does not prevent Local 493 or the International from denying the complaint membership or "cancelling" his membership.

7. The complainant's case is also not assisted by section 68 of the Act. That section provides:

"A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be."

Although it is alleged (and must be taken as having been duly established for purposes of this motion that the complainant has "performed certain functions as a representative of Local Union 493", and that in July of 1982 "the respondent M. A. Ross entered into certain discussions with the complainant concerning his possible employment within one of the various pipeline companies working in the area entrusted to Local 493 at that time", it is not alleged that the complainant is now, or has ever been, an employee "in a bargaining unit" for which Local 493 or the International has bargaining rights. Thus, the complainant cannot rely upon section 68 in regard to the impugned actions of the respondents since the complainant does not fall within the ambit of section 68 which, by its express terms, applies only to representation of employees in a bargaining unit. See Frank Manoni supra, in which the Board wrote as follows at paragraphs 10 and 11 (in a decision concerning a motion, similar to the present one, to dismiss a complaint pursuant to section 71 of the Board's Rules of Procedure):

"The first problem facing the complainants in regard to section 68 is that neither of them are employees in a bargaining unit. This is more than a technicality. The section is an outgrowth of what certain American cases, such as Vaca v. Sipes (1967), 386 U.S. 171, described as 'the duty of fair representation', and is concerned with the representation of employees with their employer.

11. This precise point was dealt with by the Board in Arthur Joseph Roberts v. Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 48, [1974], OLRB Rep. Mar. 169, in which the complainant, an elected business agent of the Local, complained that he was arbitrarily removed from office. The Board stated, at paragraph 8:

…the duty of fair representation owed by a trade union to an employee under section 60 (now section 68) of the Act does not contemplate controlling the manner in which a trade union conducts its affairs with its elected officials whether they be on the payroll or not. The case law indicates that the propriety of a trade union's behaviour vis a vis its members is governed by its constitution and by-laws and the procedural remedies provided therein. And recourse must be made by an aggrieved member of the governing rules provided under the constitution for relief. The safeguards provided by the controlling supervision of the courts are his assurance that these rules will be implemented fairly and impartially. (See White v Kuzych (1951), 1951 CanLII 373 (UK JCPC), A.C. 585; Lee v Showmans Guild (1952), All. E.R. 1175; Orchard v Tunney (1957), 1957 CanLII 57 (SCC), S.C.R. 436; 8 D.L.R. (2d) 273; Jurak et al v Cunningham (No. 1) (1959), 1959 CanLII 340 (BC SC), 20 D.L.R. (2d) 377; Jurak et al v Cunningham (No. 2) (1959), 1959 CanLII 341 (BC SC), 20 D.L.R. (2d) 381; Gee v Freeman et al (1958), 1958 CanLII 258 (BC SC), 26 W.W.R. 546).

The Board went on to hold, at paragraph 20, that 'under section 60 a trade union's duty of fair representation does not extend to members in good standing who are not employees in a bargaining unit'. To a similar effect, see Gale Douglas Devereaux, [1975] OLRB Rep. Nov. 885, at paragraph 9. It should be added that even if brought by persons currently employed in a bargaining unit (and the complainants claim to 'represent' a number of such persons), the present complaint still would be misconceived under section 68. The arbitrary, discriminatory or bad faith conduct directed at such employees and regulated by the section must be such as to produce actual, and not merely speculative prejudice to those employees at the hands of their employer.

Those observations, including the final sentence, are also directly applicable to the instant complaints. (See also United Association of Journeyman and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46, [1980] OLRB Rep. May 808; Bricklayers, Masons Independent Union of Canada, Local 1, [1979] OLRB Rep. Apr. 278; and Lawrence Aluminum Incorporated, [1975] OLRB Rep. Nov. 885.)

8. For the foregoing reasons, the Board finds that the complaints as filed do not fall within the purview of section 68 of the Act.

9. It remains for the Board to determine whether the consolidated complaints make out a prima facie case for any relief on the basis of the complainant's allegations that the respondents have contravened section 70 of the Act. That section 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 other rights under this Act or from performing any obligations under this Act."

As indicated above, section 70 is one of the unfair labour practice provisions which protect from violative conduct the freedoms enshrined in section 3 of the Act. However. section 70 only applies to situations which involve compulsion, by "intimidation or coercion.

10. The Shorter Oxford English Dictionary (Oxford: Oxford University Press, 1978i defines intimidation as "the use of threats or violence to force or restrain from some action, and defines "coercion" as "the action of coercing; constraint. restraint, compulsion". Its definition of "coerce" is "to) constrain or restrain by force, or by authority resting on force". The Random House Dictionar of English Usage (New York); Random House, 1969) defines "coerce" as follows:

11. to compel by force, intimidation, etc., especially without regard for individual desire or volition ....

12. to bring about by using force or other forms of compulsion

13. to dominate or control, especially by exploiting fear, anxiety, etc."

14. Common law cases concerning the tort of intimidation also shed some light on the meaning of that term. For example, in Stratford v. Lindley, [1964] 2 All E.R. 209 (C.A.), Lord Denning, M.R., wrote as follows (at pages 215-216):

"[The tort of intimidation has long been known in cases of threats of violence. If one man says to another, 'I will hit you unless you give me £5', or 'unless you give the cook notice', or 'unless you stop dealing with your butcher', and the party so threatened submits to the threat by paying over the £5, or by giving notice to the cook, or by ceasing to deal with the butcher, then the party damnified by the threat - the payer of the £5, or the cook or the butcher, as the case may be - has a cause of action for intimidation against the person who made the threat....] One of the elements] that is essential to the cause of action is that the threat should be a coercive threat. It must be coupled with a demand. It must be intended to coerce a person into doing something that he is unwilling to do or not doing something that he wishes to do. It must be capable of being expressed in the form, 'I will hit you unless you do what I ask', or 'if you do what I forbid you to do'. A bare threat without a demand does not, to my mind, amount to the tort of intimidation. If a man says to another, 'I am going to hit you when I get you alone', it is undoubtedly a threat; and an injunction can be obtained to restrain him from carrying out his threat. But the threat itself does not give rise to a claim for damages. It is only when he delivers the blow that it is actionable; and then as an assault, not as intimidation. Very recently it has become clear that the tort of intimidation exists not only in threats of violence, but also in threats to commit a tort or a breach of contract. The essential ingredients are the same throughout; there must be a coercive threat to use unlawful means, 50 as to compel a person into doing something that he is unwilling to do, or not doing something that he wishes to do; and the party so threatened must comply with the demand rather than risk the threat being carried into execution. In such case, the party damnified by the compliance can sue for damages for intimidation."

See also Clerk & Lindsell on Torts (15th ed. London: Sweet & Maxwell, 1982) at pages 729-730:

"A commits [the tort of intimidation] if he delivers a threat to B that he will commit an act or use means unlawful as against B, as a result of which B does or refrains from doing some act which he is entitled to do, thereby causing damage to himself or to)C…

The word 'threat', together with other words such as 'coercion or even 'intimidation', has often been applied to utterances which are quite lawful and give rise to no liability. A threat, for our purposes, is something which puts pressure. perhaps extreme pressure, on the person to whom it is addressed to take a particular course, something by means of which that person is 'improperly coerced'. A threat is an 'intimation by one to another that unless the latter does or does not do something the former will do something which the latter will not like'. The threat must be coercive, it must be of the 'or else' kind. Furthermore, the concept is not limited to express threats; for there may be acts from which a threat can be implied, e.g. a strike engaged upon without previous negotiation with an employer, where the implication is clear that unless the employer does certain things the strike will be continued.

12. Those passages are not, of course, applicable in their totality to section 70, which makes it an unfair labour practice to seek by intimidation or coercion to compel any person to do or refrain from doing any of the things specified in that section. Thus, the provision outlaws any resort to intimidation or coercion for such purpose, and does not require that such purpose be in fact accomplished for section 70 to apply. See, for example. Saverio A. Greco, [1976] OLRB Rep. June 323, in which the Board stated:

"32. It is clear from a reading of section 61 [now section 70] that a violation of that section occurs the moment a person 'seeks' to compel another to do one of the acts set out in the section. It is therefore unnecessary for a complainant to prove that he has in fact been intimidated or coerced in doing or refraining from doing anything. The offence is complete once an attempt to compel by intimidation or coercion has been made."

Nevertheless, at a more general level, the passages quoted above concerning the tort of intimidation are useful in emphasizing that for intimidation or coercion to be established, there must be a threat or other intimidating or coercive action coupled with an express or implied demand that a person (for example) refrain from exercising a right under the Act or from performing an obligation under the Act. Thus, as stated by Paterson J. in Hodges v. Webb, [1920] 2 Ch. 71, at page 86, "'coercion' involves something in the nature of a negation of choice". (See also Central Canada Potash Co. Ltd. v. Government of Saskatchewan (1978), 1978 CanLII 21 (SCC), 88 D.L.R. (3d) 609, at 635-636 (S.C.C.); and Gershman v. Manitoba Vegetable Producers' Marketing Board (1976), 1976 CanLII 1093 (MB CA), 69 D.L.R. (3d) 114, at 120 (Man. C.A.)).

12. Having considered the submissions of the parties, we are of the view that Mr. Sutherland's complaints, as particularized by counsel, do not make out a prima facie case for any relief on the basis of a contravention of section 70. It is not alleged that any of the respondents attempted to use a threat to cancel the complainant's membership in the International or Local 493 as a means to compel him 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 right under the Act or from performing any obligation under the Act. Indeed, it is not alleged that any such threat was ever made for any purpose; the factual allegations indicate that the complainant did not even become aware of the impugned membership cancellation until after it had been effectuated. Thus, the present case is clearly distinguishable from the Manoni case supra, in which the Board expressed a willingness to receive evidence in support of allegations that, through threats of physical violence, certain union officials "engaged in a pattern of intimidating and coercive conduct designed to frustrate the mechanisms for free and open elections under the union constitution". By way of contrast, there is no suggestion in the present case of any threats of physical violence or of any other threats. The complainant does not allege that the respondents threatened to cancel his union membership unless he refrained from exercising any right or from performing any obligation under the Act; to the contrary, the essence of the present complaints is that the respondents, without any advance contact with the complainant, wrongfully cancelled his union membership, thereby depriving him of the benefits of such membership. Thus, there is no allegation of any actual or attempted compulsion, domination, or control of the complainant by force or other form of compulsion, the use or attempted use of which is the subject matter of the prohibition set forth in section 70. Thus, the complainant has not made out a prima fade case for any relief on the basis of a contravention of section 70 of the Act.

13. Although we have concluded that this complaint should be dismissed because the complainant has not made out a prima facie case for any relief under the Act, this decision should not be read as indicating any approbation by the Board of the respondents' alleged actions. Our dismissal of these complaints merely reflects the fact that the Board has only such jurisdiction as has been conferred upon it by statute. As noted by the Board in Ontario Hydro, 19801 OLRB Rep. July 1039, at paragraph 15, "this Board has no specific authority under the Act to undertake any sort of watch-dog role over a union's internal processes under its constitution and by-laws". Since the present complaints pertain to internal trade union processes which, on the basis of the complainant's allegations as particularized by counsel, do not fall within the scope of our jurisdiction, any relief which may be available to the complainant must be obtained in another forum, such as the Courts, or through resort to the avenues of appeal provided by the Constitution of the International.

14. For the foregoing reasons, these complaints are hereby dismissed.