[1984] OLRB Rep. December 1781
2450-84-U Toronto Transit Commission, Applicant, v. Amalgamated Transit Union, Local 113, A. E. Bolen, R. G. Clatworthy, W. A. Hughes, K. N. Killam, R. LeBlanc, D. T. McCann, W. Moreau, L. A. Trotter, Art Patrick, Paul McLaughlin and Larry Kinnear, Respondents
BEFORE: R. O. MacDowell, Vice-Chairman.
APPEARANCES: D. K. Gray, J. A. Baker and I. MacPherson for the applicant; H. M. Pollit and Arthur W Patrick for the respondents.
DECISION OF THE BOARD; December 7, 1984
I. This is an application under section 92 of the Labour Relations Act alleging that the named respondent employees have engaged in and are continuing to engage in an unlawful strike, and that the respondent union has counselled, encouraged, procured, or supported that strike. Both actions are said to be contrary to section 8 of the "T. T. C. Act". Here I am adopting the terminology used by counsel in reference to the Toronto Transit Commission, Greycoach Lines, Limited and GO Transit Labour Disputes Settlement Act 1984, S.O. 1984, c.42. The respondents concede that if the conduct that occurred here is a "strike", it must necessarily be an unlawful one by virtue of the T. T. C. Act and, likewise, the union's encouragement, etc. would also be unlawful.
Given the nature of this case, and in accordance with the Board's usual practice, the Board directed the abridgement of the time limits for filing pleadings, and put the matter on for hearing quickly. No objection was taken to this procedure, nor was there any claim of prejudice. In fact, as it turned out, the facts were not substantially in dispute.
There is currently ongoing a lawful strike against the T. Eaton Company. In connection with that strike there are picket lines at or near various Eaton stores, including one located in the Scarborough Town Centre. Most of the individual respondents are bus drivers who have refused and are continuing to refuse to drive their vehicles across those picket lines. Various reasons were given, including: that the decision was a personal one, that there were safety concerns, and that they had been told by their trade union not to cross. Indeed, Art Patrick, a member of the union's executive board, advised the T.T.C. that the executive board had voted unanimously to endorse the picket lines and that, therefore, union members would not cross them. It is hardly surprising, therefore, that the individual employees were prepared to follow their union s recommendation. As a result, supervisory staff have been required to step in and take charge of the vehicles so that normal service can be maintained.
I might also note, and again it is not disputed, that in late October or early November — that is about a month prior to the incidents giving rise to this complaint — the T.T.C. informed the union that it had reconsidered its established policy respecting picket lines, and that henceforth the T.T.C. would no longer make efforts to accommodate its drivers or their union with such actions as re-routing vehicles or having supervisory people available, in order that the drivers would not have to cross the picket lines themselves. It was, or should have been clear that whatever may have been done in the past, the drivers would now be expected to maintain normal service and carry out their regular driving responsibilities despite the presence of picket lines.
There were some minor disputes about details of particular past strike situations, but it is clear that until recently, the T.T.C. has had a policy of trying to accommodate its drivers' concerns, both in respect of safety problems which might arise if they were asked to take their buses across picket lines, and, more fundamentally, their natural aversion to contravening the commonly held principle of trade union solidarity. The union points out that the T.T.C.'s new stance involves a fundamental change from a past practice which has been in place for over thirty years. The union also points out that the actual amount of disruption is minimal, because there are supervisors at hand to take the buses across the lines and maintain normal service.
These are the essential facts. I shall turn to their significance in a minute. First, it may be useful to refer briefly to the definition of strike contained in the Labour Relations Act. That section reads as follows:
-(1) In this Act,
(o) "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 to restrict or limit output.
The definition of the term strike came before the Board some years ago in what was also something of a high profile case involving the C.L.C.-sponsored protest against wage controls which took place in October, 1976. (See, Domglas Ltd., [1976] OLRB Rep. Oct. 569.) In that case, a number of employees left their jobs and refused to work because of their disapproval of the federal wage control legislation. There was no dispute with their own particular employers. The work stoppage had a broader political motivation, although it undoubtedly had the affect of interfering with or interrupting production. An employer, Doinglas, sought a cease and desist direction in much the same way as does the T.T.C. here.
At page 573 the Board had this to say:
The definition of strike as found in the Labour Relations Act appears broad enough to encompass the kind of work stoppage that is the subject matter of this application. On its face, the statutory definition appears to require only that the work stoppage, or other disruption of work, result from the combined or concerted action of employees. The two essential conditions for conduct to be characterized as a strike, therefore, appear to be: 1) concerted employee activity; 2) some disruption of the employer's operation. The question is whether we should read into this definition a further condition that the conduct be carried out for the purpose of obtaining concessions from the employer, or some other employer.
The Board went on to say that there need be no intention to extract concessions from the employer — that is, the definition of strike was broad enough to encompass purely sympathetic action such as that which is charged here. This decision, including the part that I have read, was approved in a unanimous decision of the Divisional Court reported as Re United Glass and Ceramic Workers of North America et al. (1978), 1978 CanLII 1625 (ON HCJ), 19 O.R. (2d) 353. For the purpose of completeness, I might also mention the more recent decision of the Supreme Court of Canada in Maritime Employers Association, 78 CLLC ¶ 14,171, where the Court affirmed that a refusal to cross picket lines because of the commonly held belief in union solidarity was nevertheless a "strike".
Section 8 of the T. T. C. Act is quite clear and specific. There is an absolute prohibition on all strike activity. The question then, as I see it, is whether the existence of a past practice which either tolerated what would otherwise be an unlawful strike, or put employees in a position where they would not have been prompted to engage in an unlawful strike, somehow changes the character of the employees' conduct today. I do not think that it does.
Counsel for the respondents point to section 8(2) of the T T. C. Act which, he rightly says, preserves in force employee privileges which were in effect prior to the passage of the legislation. One such "privilege", he says, was a right to be accommodated in respect of the employees' reluctance to cross picket lines.
I have difficulty accepting that submission since it seems to me that, in substance, counsel is asserting a "privilege" frozen by section 8(2) to engage in a concerted work refusal — a work refusal of the kind which is expressly prohibited by the opening provisions of section 8. I also note parenthetically, that if there is a dispute as to the employer's obligations or those of the employees, or if there is some question as to what is "frozen" or what is required, section 8(4) of the T. T. C. Act seems to contemplate an arbitration remedy. The remedy for the employer's change of policy, if any, lies elsewhere — not in a concerted refusal to work or a refusal by employees to carry on their normal responsibilities despite the picket line.
I am reinforced in my view by several of the earlier cases which have arisen before this Board. For the very reason that there are commonly held views regarding the "obligation" to respect picket lines, cases such as the present one have come up before. Circumstances such as those present in this case are, in fact, by no means novel.
In both King Paving, [1976] OLRB Rep. June 291 and Associated Freezers of Canada Limited, [1972] OLRB Rep. May 445, there was a concerted refusal by employees to cross picket lines set up by another union. In both cases, the respondent employees pointed to a clause in their collective agreement which expressly allowed them to refuse. In other words, in both cases there was not just an established employer practice, but an express and purportedly binding contractual statement as to the parties' rights in the very circumstances under review. But in each case the Board said — to put the matter colloquially — "you cannot contract out of the Act". The "no-strike ban" is imposed by statute as a matter of public policy, not the private convenience of the parties. It admits of no exceptions. Any private arrangement which attempts to circumvent or avoid the thrust of the Act is void. I do not see how the parties' practice can stand on a higher footing than an express clause in their collective agreement; but even in the latter case, the Board has clearly found such clauses to be void.
It seems to me that, in the instant case, the conclusion is inescapable: the employees have engaged in a strike. There was a refusal to do work which they were assigned to do. That refusal was undertaken in concert, and, indeed, was prompted, at least in part, by their own union which has encouraged their show of solidarity. That being so, I do not see how it can be said they were not engaged in a strike, nor do I see why the employer should not be entitled to the remedy contemplated by the statute.
Now, lest there be any misunderstanding, I do not minimize the importance to many employees of the principle which the union has expressed in its resolution to respect the picket line, nor the real pangs of conscience which individual members may feel — particularly in the emotionally charged circumstances of this particular strike. However, those principles are not ones which find support in the law.
I also do not minimize a union's real concern that in an accommodation which has worked amicably for thirty years has, from the union's point of view, been rejected with unseemly haste, insufficient discussion, and an appearance of partisanship not exhibited in the past. The union may even be right that the employer's reversal of policy will sow seeds of discontent which will exacerbate labour relations problems in an important public system where, heretofore, relationships have generally been amicable. However, the wisdom of the employer's actions are not for me to judge; and even if I were to find that they were unwise, I do not think that would be sufficient to deprive the employer of a remedy to which it is otherwise entitled.
For the foregoing reasons, then, the Board makes the following declarations and directions:
Amalgamated Transit Union, Local 113, has authorized an unlawful strike and Art Patrick, Paul McLaughlin and Larry Kinnear, as officers, officials or agents of Amalgamated Transit Union, Local 113, have counselled, procured, supported or encouraged an unlawful strike.
A. E. Bolen, R. G. Clatworthy, W. A. Hughes, K. N. Killam, R. LeBlanc, D. T. McCann, W. Moreau, and L. A. Trotter, employees of the Toronto Transit Commission who operate T.T.C. vehicles, have engaged in an unlawful strike.
Amalgamated Transit Union, Local 113 shall cease and desist from authorizing an unlawful strike, and Art Patrick, Paul McLaughlin and Larry Kinnear, as officers, officials or agents of Amalgamated Transit Union, Local 113, shall cease and desist from counselling, procuring, supporting or encouraging an unlawful strike.
A. E. Bolen, R. G. Clatworthy, W. A. Hughes, K. N. Killam, R. LeBlanc, D. T. McCann, W. Moreau, and L. A. Trotter, employees of the Toronto Transit Commission who operate T.T.C. vehicles, shall cease and desist from engaging in an unlawful strike.
There is no reason, at this stage, to believe that any further remedy is required. Accordingly, the request for further relief listed on Schedule "D" of the complaint is dismissed.