Canada Packers Inc. v. United Food & Commercial Workers International Union, Local 114P, 1983 CanLII 965

[1983] OLRB Rep. September 1405

1128-83-U Canada Packers Inc., Applicant, v. United Food & Commercial Workers International Union, Affiliated with The A.F.L. — C.I.O. and The Canadian Labour Congress (C.L.C.), Local 1 14P V. L. Derraugh, N. Alexander, Perfecto Ng, A. Tinto, F. Shushelski, Steve Rathwell, Ron Isaacs, G. Hillier, E. Smiciklas, J. C. Bobbitt, A. Galea, C. J. Formosa and J. Said, Respondents

BEFORE: R. A. Furness, Vice-Chairman.

APPEARANCES: Patrick Moran, Norm Courtney and Clint English for the applicant; Paul J. J. Cavalluzzo and Brain Herlich for the respondent.

DECISION OF THE BOARD; September 1, 1983

1. The applicant has applied to the Board for relief under section 92 of the Labour Relations Act. The applicant alleged that commencing on August 18, 1983, and continuing, the respondents have authorized, counselled, procured, supported and encouraged an unlawful strike contrary to section 74 of the Act by directing employees not to work overtime. The applicant has also alleged that G. Hillier, E. Smicikias, J. C. Bobbit, A. Galea, G. J. For­mosa and J. Said engaged in an illegal strike contrary to section 74 of the Act.

2. The applicant and the United Food and Commercial Workers International Union (the "International") and certain of its local trade unions; including the United Food and Commercial Workers International Union, Local 1 14P ("Local 1 14P"), are parties to a col­lective agreement which was signed on June 7, 1982, and which remains in effect until May 31, 1984. Local 1 14P represents certain employees of the applicant at 2200 St. Clair Avenue West in the City of Toronto (the "plant"). The collective agreement covers employees of the applicant at thirteen plants in seven provinces. Mr. V. L. Derraugh is the assistant to the di­rector of the International and Mr. N. Alexander is the president of Local 1 14P. Mr. Ng and Mr. Tinto are chief stewards at the plant. Messrs. Shushelski, Steve Rathwell and Ron Isaacs are stewards at the plant. Messrs. Hillier, Smiciklas, Bobbitt, Galea, Formosa and Said are employees at the plant.

3. The respondent frequently requests its employees to work overtime. At the plant the respondent slaughters hogs and cattle and in addition to its pork and beef facilities operates a pet food department and a nut department. The need for overtime work varies with the de­mand for the applicant's products. In the immediate past there has been no shortage of em­ployees who were willing to perform overtime work. This has been particularly true with respect to younger employees on the afternoon and night shifts. The applicant experienced no difficulties in obtaining employees willing to perform overtime work at the plant until August 18, 1983. From that date onwards it has encountered difficulties in obtaining employees will­ing to perform overtime work at the plant.

4. Before examining the evidence with respect to the allegations of the applicant, it is appropriate to set forth the surrounding circumstances as established by the evidence. The applicant has announced its intention to cease the slaughter of hogs and cattle at the plant at the end of this year. At the commencement of the next year the applicant will perform its cattle slaughtering at a recently acquired location in Burlington and will perform its slaughter of hogs at a newly acquired facility at Kitchener. This will mean a loss of between seven and eight hundred jobs at the plant with employees having less than nine or ten years of seniority being most directly affected by this development. This represents the loss of about one third of the jobs at the plant. The applicant has recently acquired a company at Burlington where it will be slaughtering cattle. This company is known as Tender-Lean Beef Inc. and was for­merly not unionized. Recently, Local 1 14P has obtained bargaining rights for employees at Tender-Lean Beef Inc. in Burlington. Such employees are not covered by the collective agree­ment referred to in paragraph two. Local 1 14P is presently engaged in negotiating a collective agreement with respect to certain employees at Burlington. The progress of these negotiations is apparently not to the satisfaction of Local 1 14P and the employees at Burlington and a strike is in progress by the employees at Burlington.

5. There was apparently a meeting of Local 114P's stewards during the afternoon of August 17, 1983. Subsequently, the following sheet was distributed outside the plant and states:

LOCAL 114P UFCW

STRIKE REPORT

On Friday afternoon, Perfecto and I went out to visit our Brothers & Sis­ters on the picket line at the new Beef Plant. What was happening there makes us feel Union — Company relations have hit an all-time low. The Company has reached to the bottom of their bag of dirty tricks. We found that the 12 truck drivers were offered jobs inside the plant to scab on their fellow employees. Two (brothers) ? were made foremen so that they could cross the picket line. Naturally this excited the people. Trucks were driven through the picket line and in the excitement that followed, one Sister was arrested and we are told, thrown into one of six police cruis­ers.

Julius Hoebink, the Business Agent in charge of the picket line, has been a personal friend of ours for many years. He has always conducted him­self as a true Union leader. We found he has been arrested also and thrown in jail. We went ot the jail to bail him out. Asking four officers who were on the picket line what had happened, they told us someone in the plant had charged Julius with scratching his car.

The police had thrown him in jail even though they all said they had seen Julius do nothing wrong.

These tactics by the Company confirm what we all believed in the first place. That the Company did not move the Beef Kill because of the old multi-storied plant but because they thought they could work our people in the new plant as Paletta did — like slaves. But our people are firm. To-gether [sic] we will show the Company we are not slaves....

The Company is proposing a contract that would leave a $5.00 per hour wage gap between Burlington and the rest of Canada Packers.

Fraternally,

N. Alexander, President

Perfecto Ng, Chief Steward.

P.S. WE MUST STAND TO-GETHER [sic]! NO ONE SHOULD WORK ANY OVERTIME FOR CANADA PACKERS.

The Executive Board and

Steward Body.

6. From time to time in previous years a ban had been placed on overtime in the plant. For example, over the last eight to ten years there had been bans on the performance of over­time during negotiations for collective agreements and for other reasons such as anger by em­ployees over the behaviour of foremen. None of the witnesses was able to give evidence that the applicant had commenced legal action in connection with previous bans on overtime.

7. On the morning of August 18, 1983, Mr. Alexander came to the office of Norman Courtney, the supervisor of industrial relations for the applicant's Toronto operations, and in­formed him that no more overtime would be worked. He also stated that he would be visiting Robert Tomlinson, the production manager at the plant, to inform him of this state of affairs. Subsequently, Mr. Alexander did inform Mr. Tomlinson of this fact. At that time, Mr. Alex­ander informed Mr. Tomlinson that until negotiations were straightened out at Burlington, Mr. Derraugh was calling an overtime ban across the country. In addition, Mr. Ng also left a message for Mr. Tomlinson to the same effect. Since the distribution of the sheet referred to in paragraph five, virtually no overtime has been performed at the plant. Throughout August 18, 1983, senior management received reports from junior management that there was a ban on performing overtime work and that news of this ban had been conveyed to the applicant's employees by the officers and stewards of Local 1 14P.

8. Messrs. Hillier, Smiciklas, Galea and Said were asked on August 16, 1983, to work during the weekend of August 20, 1983. Initially they agreed to work. After the sheet ap­peared each of them refused to work on that weekend. Mr. Hillier subsequently stated that now that he knew the circumstances he would not work overtime. Mr. Smiciklas subsequently stated that while he wanted to work overtime on that weekend he would let things cool off for a week before he would work overtime. Mr. Galea subsequently refused to work overtime on that weekend because of the ban on overtime and told the member of management who spoke to him to speak to the steward Ron Isaacs. Mr. Said subsequently declined to work on that weekend and declined to discuss the matter further. Messrs. Bobbitt and Formosa are maintenance employees. Both of them initially agreed on August 16, 1983, to work overtime on that weekend. There was no evidence that Mr. Formosa subsequently declined to work and the approach of his scheduled vacation appears to have disrupted his commitment to work. On the other hand, Mr. Bobbitt subsequently stated that he did not know if he would work on that weekend because of the ban on overtime and in fact he did not work on that weekend.

9. There was no direct evidence that Mr. Derraugh was involved in the counselling, procuring, supporting, encouraging or authorizing the ban on overtime. While his name was referred to in the evidence, the Board is not prepared to find on the evidence before it that the allegations with respect to Mr. Derraugh have been established. The evidence with respect to Mr. Alexander clearly establishes his role in counselling, procuring, supporting or en­couraging a ban on overtime. His name appears on the sheet and he announced the ban to members of management in his capacity as president of Local 1 14P. The name of Mr. Ng, a chief steward, also appeared on the sheet and he was prominent in advising members of management of the ban on overtime. Mr. Tinto informed Joseph Richard not to work overtime and also engaged in disseminating the decision about the ban on overtime to members of man­agement and informed Tans Soltys, the general foreman in nut production, that the ban on overtime was in support of negotiations at Burlington. Mr. Isaacs informed members of man­agement that two mechanics would not be permitted to work overtime. There is not a shred of evidence with respect to the alleged involvement of F. Shushelski and Steve Rathwell in the ban on overtime. There is no evidence that they attended the stewards' meeting or on their views or conduct with respect to the ban on overtime. The applicant made much of the con­duct of the presence of Messrs. Tinto and Rathwell in a car outside a plant gate and sought to characterize their presence one evening during the ban on overtime as coercive. The evi­dence, however, completely fails to establish coercion. The two men chatted in a friendly manner to a member of management and an employee and some employees reported for over­time work during this episode. The respondents did not call any evidence.

10. In viewing the evidence as a whole, the Board is not prepared to find that V. L. Derraugh, F. Shushelski, Steve Rathwell and G. J. Formosa participated in the ban on over­time or that the applicant has established any of its allegations with respect to them. This application is dismissed in so far as it related to V. L. Derraugh, F. Shushelski, Steve Rath­well and G. J. Formosa.

11. The International has been named as a respondent. There is no evidence with re­spect to any involvement by the International in the ban of overtime or in any of the appli­cant's allegations. This application is also dismissed in so far as it relates to the International. The applicant also appears to have named the Canadian Labour Congress (C.L.C.) as a re­spondent. This appears to be as a result of reproducing the description of the trade unions used at the commencement of the collective agreement. The applicant informed the Board that it did not intend to name the Canadian Labour Congress as a party to this application. In these circumstances, this application is dismissed in so far as it applies to the Canadian Labour Congress.

12. The Board now considers whether the ban on overtime was an unlawful strike as proscribed by section 74 of the Act which states:

No trade union or council of trade unions shall call or authorize or threaten to call or authorize an unlawful strike and no officer, official or agent of a trade union or council of trade unions shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike.

Section 72(1) of the Act provides:

Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out such an employee.

There was no dispute that the ban on overtime occurred during the period of operation of a collective agreement. In order for the applicant to be entitled to relief it must first be estab­lished that the ban on overtime was a strike. If the ban on overtime was a strike, then. such a strike would be unlawful under the terms of section 72(1). In section l(l)(o) "strike" is defined as:

"strike" includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed restrict or limit output.

13. Under article 10 of the collective agreement provision is made for the working of overtime and in article 25 Local 114P has agreed not to authorize, promote, direct, condone or encourage any slowdown or other curtailment or restriction of production or interference with work in or about the applicant's plants or premises. Article 25 further provides that Lo­cal 114P agrees that it will not, during the life of this agreement, authorize, promote, direct, condone, or encourage or strike of employees affected by the collective agreement and that employees will not take part in such action. The performance of overtime work has been per­formed in the past on a voluntary basis and the applicant has obtained the necessary permits under the Employment Standards Act for the authorization of hours of work in excess of the hours permitted and as set forth under sections 17 and 20 of the Act. These permits, ac­cording to their terms, are required to be posted by the applicant in a conspicuous place where the applicant's employees are engaged in their duties. One of the permits was posted in the personnel office and other permits were placed in a file folder in the office of the applicant's employment co-ordinator. While the applicant apparently did not comply with the terms and conditions of the permits, these matters are more properly referred to the Director of Em­ployment Standards rather than raised before the Board. The apparent non-compliance with the terms and conditions does not, in our view, withdraw the authority granted under the per­mits and does not change the complexion of the ban on overtime as established in this ap­plication.

14. Since 1956, in the decision of the Board in Harding Carpets Limited 56 CLLC ¶18,031, the Board has found that the concerted withholding of overtime to limit an em­ployer's output is a strike within the meaning of the Act and that the untimely impositions of such a strike is an unlawful strike contrary to section 72. See, for example, Beaver Shirt and Sportswear, [1964] OLRB Rep. July 187; Hydro-Electric Power Commission of Ontario, [1969] OLRB Rep. May 169; Mobil Paint Company, [1974] OLRB Rep. Oct. 650; Domtar Packaging Limited, [1974] OLRB Rep. Dec. 900; and C & C Yachts Manufacturing Limited, [1977] OLRB Rep. July 433. In the instant application the ban on overtime constitutes an unlawful strike. By virtue of section 99(2) of the Act, the acts of Messrs. Alexander, Ngant have engaged in an unlawful strike.

15. It was argued by the respondents that because the behalf of Local 114P are deemed to be acts or things done or omitted by Local 114P. The Board finds that Messrs. Alexander, Ng, Tinto and Isaacs and Local 114P counselled or procured or supported or encouraged an unlawful strike of employees of the applicant and that Local 114P authorized an unlawful strike of employees of the applicant. The Board also finds that G. Hillier, E. Smiciklas, J. C. Bobbitt, A. Galea and J. Said as employees of the applicant have engaged in an unlawful strike.

16. It was argued by the respondents that because the applicant had not taken any legal actions in connection with previous unlawful strikes that the Board ought not to exercise its discretion in favour of the applicant and decline to issue a declaration and/or a direction. The fact that an employer may have chosen to approach its labour relations in the past without recourse to legal proceedings against Local 114P and its employees does not preclude it from seeking relief before the Board. There has clearly been no detrimental reliance on the part of the respondents because of the previous forbearance by the applicant. The respondents have embarked on a course of action notwithstanding the terms of the collective agreement and the provisions of the Act. While the Board sympathizes with the situation of one third of the employees of the applicant and understands the emotions which are unleashed when collective bargaining for the facility at Burlington is not coming up to the expectations of Lo­cal 114P, the present conduct of instituting a ban on overtime and violating the Act cannot be ignored by the Board. The applicant is entitled to relief under section 92 to the extent that it has established its allegations before the Board. The Board has considered the request by the respondents that the Board merely issue a declaration. The Board notes that there was no mention by the respondents of a willingness to lift the ban on overtime in the event that the Board found that the respondents had engaged in an unlawful strike. In addition, the pro­claimed position of some of the respondents was that the ban on overtime would remain. In these circumstances, the Board is prepared to issue a declaration and a direction. The appli­cant requested more extensive relief in its application than a declaration and a direction. The additional relief consisted of a request for damages and a mailing of letters and copies of this decision to all the employees. The Board is not prepared to grant this additional relief. There was no evidence with respect to the amount of the applicant's alleged losses and, in our view, the issuance of a declaration and a direction is a sufficient remedy in this application.

17. Having regard to the foregoing, the Board makes the following declarations and directions:

18. United Food and Commercial Workers International Union, Local 114P, has authorized an unlawful strike of employees of Canada Packers Inc.

19. Norman Alexander, Perfecto Ng, A. Tinto and Ron Isaacs as offi­cers, officials or agents of the United Food and Commercial Workers International Union, Local 1 14P, have counselled or procured or sup­ported or encouraged an unlawful strike of employees of Canada Packers Inc.

20. G. Hillier, E. Smiciklas, J. C. Bobbitt, A. Galea and G. Said as em­ployees of Canada Packers Inc. have engaged in an unlawful strike.

21. United Food and Commercial Workers International Union, Local 114P, shall cease and desist from authorizing an unlawful strike of employees of Canada Packers Inc.

22. Norman Alexander, Perfecto Ng, A. Tinto and Ron Isaacs as officers, officials or agents of the United Food and Commercial Workers International Union, Local 114P, shall cease and desist from coun­selling or procuring or supporting or encouraging an unlawful strike of employees of Canada Packers Inc.

23. G. Hillier, E. Smicikias, J. C. Bobbitt, A. Galea and G. Said as em­ployees of Canada Packers Inc. shall cease and desist from engaging in an unlawful strike.