[1984] OLRB Rep. February 386
1860-83-U Graphic Arts International Union Local 517, Complainant, v. Sumner Press, Respondent v. Becky La Mantia and Mary Moore, Interveners
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members L. Collins and W. H. Wightman.
APPEARANCES: G. A. Beasley, R. Berman and J. Holmes for the complainant; Richard Rosenthal for the respondent; Becky La Mantia and Mary Moore on their own behalf
DECISION OF THE BOARD; February 10, 1984
This is a complaint under section 89 of the Labour Relations Act alleging that the respondent employer has contravened sections 46, 50, and 64 of the Act. A hearing in this matter was held in Windsor, Ontario on January 26, 1984. As it turned out, most of the facts were not substantially in dispute.
The respondent employer, as its name suggests, operates a printing business in Windsor. The intervening employees, Becky La Mantia and Mary Moore, are employees of the respondent and, until recently, members in good standing of the complainant union. Ms. Moore has been an employee and a union member for eleven years. Ms. La Mantia has been employed for six and a half years and has been a union member for about three years.
The respondent has historically had an amicable relationship with both its employees and the various unions which have represented them over the years. The founders of the company were former union members and as in many small businesses, adopted a paternalistic approach to the employees whose labours contributed to their success. In 1972, the company unilaterally introduced a profit sharing plan in addition to the wage and benefit package established in the collective agreement. Following profitable years in 1978 and 1979, the company decided to issue shares to all employees with six years of service. In some thirty years of collective bargaining there have been only two work stoppages: a "weekend strike" a dozen years ago, and a short lockout in 1982. There is no pattern of unfair labour practices, nor any real evidence of antipathy to trade unions in general, or the complainant union in particular. Certainly there is no evidence that the conduct complained of in this case was part of a scheme to subvert the collective bargaining relationship.
The chain of events giving rise to this proceeding begins with the lockout in the summer of 1982. At the time, the company was a participant in an informal process of coalition bargaining. The employers involved had agreed among themselves that if any one of them was subjected to strike action or picketing, the others would lock out their employees. However, there was nothing particularly novel about this round of negotiations. The same pattern of coalition bargaining had been used in the past. This time, however, bargaining reached an impasse, the union took action against one of the employers, and the others, including the respondent, responded with a lockout. Ms. Moore and Ms. La Mantia were locked out along with the other two full-time and two part-time members of their small bargaining unit. The employees of the respondent in the other bargaining unit represented by the complainant continued to work.
Once the lockout was imposed, the union began picketing the respondent's premises. Ms. Moore and Ms. La Mantia took part in that picketing. Indeed, the evidence establishes that they spent more time on the picket line than most of the other members of their bargaining unit whose loyalty to the union, it seems, did not extend to interfering with their plans for the Labour Day long weekend. The interveners thought they were required to picket for nine hours a day — and did. It is but one of the several ironies in this case that David Moore, a fellow employee who would later allege that the interveners had evaded their picketing responsibilities, was among those who decided to leave the line on the Friday before Labour Day, so that he could enjoy an extended long weekend.
Because the bargaining unit was so small, the picket line at the respondent's premises was occasionally visited by forty or fifty other members of the Local union who paraded in solidarity with those who had been locked out. Such episodes of mass picketing lasted for about half an hour each morning, then the pickets would leave. During these periods, Mr. Rosenthal, the company president, usually came outside to make sure that there were no problems. The respondent shares a common driveway with other companies, and Rosenthal wanted to make sure that his difficulties did not unduly interfere with his neighbours.
During one such episode of mass picketing Mr. Rosenthal had occasion to have a brief conversation with three of his employees who, at the time, were standing a little apart from the main group of picketers whom Rosenthal did not know. That conversation led to charges against the three employees under the union constitution, the expulsion of Ms. Moore and Ms. La Mantia, and, finally, a demand that Ms. Moore and Ms. La Mantia be fired. Since that remains the union's objective and is the remedy sought in this proceeding, it is interesting to consider just what was said in that brief discussion with Mr. Rosenthal.
The conversation occurred on the morning of September 7, 1982. There were about forty or fifty pickets near the company's premises, although there was no formal order to the picketing. Mr. Rosenthal approached three of his employees: the interveners and Michael Moore (no relation to either the interveners or David Moore who at the time was also in the unit). Rosenthal asked if there were any problems, and indicated that they were free to use the washrooms or the company's coffee machine if they wished to. The interveners replied that there were no difficulties except for a missing motorcycle, believed to have been stolen from one of the neighbouring companies. The interveners then pointed in the direction of the company in question. Mr. Rosenthal suggested that it was too bad that the employees were not working. Ms. La Mantia replied that it was unfortunate that the two sides couldn't reach agreement (as they did a few days later) so that the strike could be settled and everyone could go back to work. She also enquired about the son of a fellow employee who was very ill and receiving treatment. At some point during the conversation there were remarks about the hot weather and someone suggested that perhaps the employees should be wearing their bikinis while picketing — a suggestion which they all thought was amusing.
That was the substance of the conversation. There was nothing mocking, malicious, or disparaging about it, nor was there anything which could reasonably be construed as subversive to the union's interests. Yet that is apparently how some members of the union chose to characterize it. They regarded this entirely innocent conversation as a form of strikebreaking. The suggestion is ridiculous; and had the union officials made even minimal efforts to investigate or discuss their concerns with Ms. Moore and Ms. La Mantia, much subsequent unpleasantness (not to mention the expense of these proceedings) could have been avoided.
The International Union constitution provides for the discipline of union members who commit various "offences" against the interests of the union. One of the enumerated offences found at Article 20.2B of the constitution is "strikebreaking during any sanctioned strike or evasion of responsibilities during a recognized lockout". The interveners' conversation with Rosenthal was said to be a contravention of this article of the International constitution. They were charged with that offence and put on trial.
The terms of the constitution warrant some further comment. Article 20.4 entitled "Investigation" provides:
Except in the case of charges filed by a Local Executive Board or by the International Council (in either of which cases probable cause for trial shall be presumed), whenever charges are filed they shall first be investigated to determine whether there is probable cause for trial of the charges. In cases arising before a Local, such investigation and determination shall be made by the Local Executive Board. . . .In cases which the Local Executive Board determines that there is no probable cause for trial, it shall so notify the charging party in writing who shall have the right to refer the matter to the membership meeting of the Local next following ten (10) days after such notice.
We mention this provision because the evidence before this Board is that none of the Local union executive members were direct witnesses of the interveners' alleged misconduct. The complaint against them was made by David Moore and three or four other individuals who were not identified. Accordingly, a superficial look at the constitution would suggest that when one member levies a charge against another, the local executive board should conduct an investigation to determine whether there is "probable cause" to put the accused on trial. If that happened in this case, the investigation did not extend to asking the interveners their side of the story. The executive board seems to have decided to press the charges itself, without ever discussing the alleged problem with the interveners, and as late as three months after the trial Ron Berman, the president of the Local, was refusing to advise the interveners who their accusers were. John Holmes, the co-chairman of the Windsor Local told this Board that he could not remember who had made the charges against Ms. Moore and Ms. La Mantia. We find this submission just a little difficult to believe; for Holmes was not only a member of the executive board with the responsibility for investigating and (as it turned out) prosecuting the complaint, but also a member of the trial board which sat in judgment. It is a little hard to understand how he could not recall either who made the allegations or whose evidence he heard before deciding that the interveners were guilty. And we but note in passing the interesting process in which the functions of investigator, prosecutor, judge and jury are combined in one group of individuals.
By letter dated November 11, 1982, Michael Moore and the interveners were advised that they were being charged with a breach of Article 20.2B of the constitution because they had been observed away from the picket line talking to their employer. It was alleged that: "during your period of conversation with your employer, you were observed to be laughing and gesturing towards those who were picketing in what was taken to be a mocking of those on the picket line". These charges, it will be noted, were framed more than two months after the alleged improper conversation on September 7, 1982. It remains a mystery why it took so long to press charges. Certainly, it would not have taken very long to investigate although, as we have already noted, such investigation as there may have been did not include any enquiry of Ms. La Mantia or Ms. Moore.
The interveners submit that the "real reason" for the charges against them was a dispute which they had with David Moore, the picket captain, and Ron Berman, the union president, about the payment of strike pay to those who had participated in picketing. The interveners had been told that before they would be eligible for strike pay, they would have to put in nine hours a day on the picket line. The interveners did so, but afterwards discovered that persons who had not met that obligation nevertheless were paid in full. They protested to the Local executive and later wrote to the International union president. The interveners note that it was only after they had appealed to the International union president that charges were laid against them at the Local level. In their view, the timing of the charges — two months after the lockout had been settled — was no coincidence.
The charges and the request that they appear for trial came as a considerable surprise to Ms. La Mantia and Ms. Moore. They thought the charges were preposterous — a reaction which is not surprising in the circumstances. Both wrote to the executive board to deny that they had done anything improper. In her letter, Ms. La Mantia indicates that she did not think there was anything wrong in her standing a little apart from a large group of strangers, nor was it unnatural to speak to her boss when he addressed her. She explains:
The third charge is a complete misunderstanding as I did not laugh at, gesture to, or mock any of these gentlemen as I had no reason to, and had nothing to gain by it. The only thing I can add is that I have reviewed the section I am being charged under and do not find anything that says you cannot laugh during a strike or lockout, nor do I see where you must picket in a specified area and did not read where you must ignore your employer.
One must presume that this denial of impropriety was before the executive board when it decided that the interveners should be penalized. The interveners' evidence was substantially the same before this Board. Moreover, in this proceeding, the union officials were hard pressed to identify anything which the interveners did wrong. When Mr. Holmes was asked whether the interveners had done anything wrong, he simply avoided the question.
The trial took place on December 8, 1982. Michael Moore was present to answer the charges against him. Ms. La Mantia and Ms. Moore did not appear. Michael Moore received a reprimand. The interveners were suspended for three months and required to pay a fifty dollar fine. John Holmes, a member of the trial board, testified that the board did not turn its mind to, or enquire about, what passed between the interveners and Mr. Rosenthal. Its focus was on what Michael Moore had to say. No one asked about the general tenor or text of the conversation, even though Michael Moore was a participant and obviously in the best position to explain what transpired, and what was said. But no one asked. One would have thought that before imposing a penalty upon Ms. La Mantia and Ms. Moore — particularly a heavier one than on Michael Moore — the executive board would have enquired about what in fact they said, and whether in fact there were any deprecating comments or mocking gestures.
Ms. Moore and Ms. La Mantia should have attended the trial, even though they believed the charges to be totally unfounded. But they did not. Ms. La Mantia went to the airport to meet relatives who were arriving from out of town, and Ms. Moore stayed home with her children. Neither requested an adjournment. Both chose to ignore a proceeding which they believed to be unwarranted and unfair. By declining to take part, they merely compounded their difficulties.
The decision of the trial board was confirmed at a Local membership meeting held on February 9, 1983. The three-month suspension was made effective from March 1, 1983, to May 31, 1983, and the fifty dollar fine was made due and payable as of March 1, 1983. By letter dated February 21, 1983, the interveners were advised of this determination and warned that if the amount was not paid within thirty days, they would become in arrears in dues in accordance with the Local bylaws and would face possible expulsion from the union. The bylaws provide that union dues deducted automatically from the employees' wages will first be applied to outstanding fines or penalties. As a result, an employee can be in jeopardy of expulsion from the union, and loss of his job even though his dues are fully paid.
Ms. Moore and Ms. La Mantia refused to pay. By letter dated June 1, 1983, they were again warned that they might face expulsion and were advised that if the fine were paid they could still appeal under the terms of the International constitution. Copies of the constitution and bylaws were provided. The interveners did not appeal. They testified that they did not fully understand the appeal process; however, it is apparent that they were also influenced by their belief that the entire process was unfair and an appeal would be fruitless. The interveners were expelled from the union on or about July 18, 1983. By letter dated September 13, 1983, they were warned that if they did not pay the fine the union would approach their employer and demand that they be discharged.
On or about September 13, 1983, Ron Berman, the president of the Local, met with Mr. Rosenthal. During that meeting, Berman advised that the Local would be demanding that the interveners be discharged. Mr. Rosenthal indicated that he would not do so. In his view, their termination was not required by the terms of the collective agreement. Rosenthal pointed out Article 2.01 of the agreement which reads as follows:
All employees, including working Supervisors I and working Supervisors II, in the bargaining unit, must be members of the Union in good standing on the effective date of this Agreement and must as a condition of employment maintain their membership in good standing for the life of this agreement. To keep his or her membership in the Union in good standing, an employee, must pay amounts required of union members under Article 19, Check-off
[emphasis added)
Article 19 reads:
19.01 The company agrees, upon receipt of a written non-revocable authorization, to deduct weekly from the wages of each employee, a stated amount to be determined by the Union. Such authorization shall be signed by each employee as a condition of employment.
19.02 All employees who, as of the date of signing of this agreement, have previously signed authorizations allowing the company to deduct weekly from the wages of the employee, a stated amount to be determined by the Union, shall, as a condition of continued employment, be required to continue to have deducted from their wages such stated amounts to be determined by the Union.
19.03 Such amount will be determined by Union resolution, a certified copy of which will be remitted to the company concerned.
19.04 The company will remit monthly to the Local concerned, the amounts so deducted but not later than the 20th of the following month.
19.05 If the company is in default in making payments required under this article for more than thirty (30) days, it shall be liable for and agrees to pay, such legal, court and/or other costs incurred in the collection proceedings, and the union may take any action it deems advisable, notwithstanding any provisions of this agreement.
Berman testified that he had difficulty understanding the second sentence in Article 2.01. In his view, it appeared to be redundant. However, according to Mr. Rosenthal, the addition to Article 2.01 was designed to prevent precisely the kind of problem with which he was then confronted.
Mr. Rosenthal explained that in the mid- 1960's, the employers in the area were having problems because of internal strife within the International Typographical Union. Rivalry and dissent within the union had resulted in the expulsion of dissenters and a demand of their employers that they be discharged. The employers had no wish to meddle with the internal affairs of the union but, by the same token, they did not wish to lose skilled workers whom they had made the effort to train. Accordingly, the employers decided to insert language so that, for the purposes of the agreement, "membership in good standing" would be defined in terms of payment of dues and assessments pursuant to Article 19 of the agreement. Whether a union fine would fit into the terms of Article 19 we need not determine because, the fact is, the procedural requirements contemplated by Article 19 were not followed. Berman indicated that he never considered demanding that the fine be deducted by the employer from the employees' wages.
We need not make any final determination about what Article 2.01 means. It suffices to say that Mr. Rosenthal's interpretation is an entirely plausible and a reasonable response to the union's demand that the interveners be fired. In his submission, the terms of the collective agreement did not entitle the union to require the discharge of Ms. Moore and Ms. La Mantia so long as their dues were being properly deducted. Mr. Rosenthal verified with his accountant that the amounts demanded by the union had been deducted. (He did not know about the provision in the union's bylaws by which sums deducted as dues were in fact applied to the payment of outstanding fines.) Rosenthal's position was that the employees' dues had been paid and that he could not be required to fire them.
It is this position which the union now contends is an unfair labour practice. The union asserts that the respondent is willfully interfering with the internal affairs of the union and seeking to subvert the union's constitutional requirements. The union demands that this Board direct the employer to discharge Ms. Moore and Ms. La Mantia, and further, that the Board treat that discharge as having been effective as of November 8, 1983, when the company advised the union, in writing, that it would not fire the two employees. The reason for this latter submission is that on or about November 17, 1983, Ms. La Mantia and Ms. Moore were served with copies of the instant complaint in which it was evident that the union was seeking their discharge. Their response, on January 4, 1984, was to make application to this Board for termination of the union's bargaining rights. There are currently only three employees in the bargaining unit. Given the circumstances of this case, it is evident that if the interveners were employees in the unit at the time of the termination application the union would face some difficulty in demonstrating that their desire to be rid of the union was not sincere and voluntary. Counsel for the union conceded as much when he indicated that unless the section 89 complaint was entirely successful, the termination application might become ''moot''.
The union argues that the respondent's failure to fire Ms. La Mantia and Ms. Moore is a breach of Article 2.01 of the collective agreement and an interference with the administration of the trade union and its constitutional processes. We do not agree. The respondent's interpretation of the collective agreement is arguably right, certainly reasonable, and not motivated by any intention to interfere with the internal affairs of the union. If there is a difference as to the interpretation of the collective agreement, that is a matter which should be resolved by arbitration. No doubt Mr. Rosenthal is anxious not to lose two good employees who have worked for him for years. However, we do not think this expression of loyalty or the assertion of an entirely bona fide contractual interpretation constitutes an unfair labour practice. While there may be cases where non-compliance with the terms of a collective agreement will trigger liability under section 64 of the Act, this is certainly not one of them.
For the foregoing reasons, we are unanimously of the view that this complaint must be dismissed.