Ontario Hydro v. Canadian Union of Public Employees, C.L.C., Ontario Hydro Employees' Union Local 1000
[1985] OLRB Rep. April 577
0046-85-U Ontario Hydro, Applicant, v. Canadian Union of Public Employees, C.L.C., Ontario Hydro Employees' Union Local 1000, Al Beaith, Dave Hepburn, Dave Hamilton, Dave Cooper, G. Messer, Cam Fraser, T. Potter, J. Miscione, Wagne Dent, Chuck Paquette, Fred Snow, Jim Vernelli, Bill Graham, John Brisimitzis, Lloyd Church, Harry Forrester, Harry Vanderzwet, John Smith, Jim Leslie, A. Zwaigenbaum, B. Watson, M. Thacker, D. Dudley, Rudy Bronkhorst and R. Lukas, Respondents
BEFORE: Harry Freedman, Vice-Chairman.
APPEARANCES: F. G. Hamilton, Q.C., H. A. Beresford, Q.C., L. E. Leonoff and R. J. Belton for the applicant; S. T. Goudge, Q.C., Jack MacDonald and G. Holland for the respondents.
DECISION OF THE BOARD; April 9, 1985
This matter came on for hearing before the Board on April 8, 1985. The parties agreed that the Board should defer to a later date consideration of the issues arising out of the applicant's claim for compensation for damages and request for a cease and desist direction against the respondent Canadian Union of Public Employees, C.L.C., Ontario Hydro Employees' Union Local 1000 and its officers, officials, stewards or agents. The parties further agreed that any evidence that might be adduced at this hearing relevant to those issues would not be relied on in any subsequent hearing and that the parties would be at liberty to adduce relevant evidence at a subsequent hearing into those issues, even if that evidence would be repetitious. Therefore, the applicant's claim for relief, as set out in paragraphs (d) and (f) of its complaint are hereby adjourned sine die. I am not seized of those issues.
The following decision was rendered orally by the Board at its hearing in this matter on April 8, 1985, after it recessed to consider the evidence and submission of the parties:
This is an application for a declaration and a direction under section 92 of the Labour Relations Act in respect of a work stoppage which commenced on Friday, April 5, 1985 at the Pickering and Bruce nuclear power generating facilities operated by the applicant.
At the opening of the hearing, counsel for the applicant sought leave to withdraw this application in respect of Darwin Adams and Russ Closs. Counsel for the respondents consented and the Board accordingly granted the applicant leave to withdraw its application in respect of those two individual respondents. The Board also, at the request of the applicant and with the consent of counsel for the respondents, hereby amends the name of the respondent Al Deaith to read Al Beaith.
The applicant has established that its employees represented in collective bargaining by the respondent Local 1000 employed in the operation and maintenance of its nuclear generating facilities at Bruce and Pickering engaged in a work stoppage which commenced on Friday April 5 and which continued to at least Sunday, April 7, 1985. This work stoppage occurred at a time when such a concerted refusal to work was illegal under the Labour Relations Act. Indeed, counsel for the respondents did not dispute that a strike had occurred and that it was illegal.
Counsel for the respondents submits that inasmuch as the applicant's employees have reported for work at the time this hearing commenced, April 8, 1985, the Board should exercise its discretion under section 92 of the Act and refuse to grant the relief requested.
Counsel for the applicant led evidence which demonstrated the significant and severe consequences, financial and social, that have arisen and could arise from an illegal work stoppage at a nuclear generating facility. Those consequences are and can be very extreme and are factors which, counsel for the applicant submits, are relevant in my consideration of whether to exercise my discretion to issue a cease and desist order in this case.
Counsel for the applicant argues that the employees who engaged in the work stoppage have not returned to work. Those employees were scheduled to commence three days of work on April 5 finishing on April 7. The employees are scheduled to work on 12 hour rotating shifts and are assigned to crews. The employees in the crews which engaged in the work stoppage are not scheduled to return to work until the evening of Wednesday, April 9, or the morning of April 10, 1985. Counsel for the applicant submits that their status as employees on strike has not changed since there has been no positive act on their part to indicate that they have ended their illegal strike.
I am satisfied that the strike is over. Employees who are not required or expected to be at work cannot be engaging in a strike. Thus, I am of the view that I must decide this case on the basis that, as of the hearing, the strike has ended.
The principles the Board has applied in exercising its discretion under section 92 of the Labour Relations Act where employees who are subject to the application have returned to work at the time of the Board's hearing have been set out in numerous cases, some of which were cited to me in argument. Those principles have been described in the Acoustical Association of Ontario case, [1975] OLRB Rep. July 540 at paragraphs 6 and 7; Consolidated Bathurst Packing Limited, [1976] OLRB Rep. Dec.
790 at 791-92; and Bechtel Canada Limited, 111977] OLRB Rep. May 269 where the Board stated at page 273:
Since both the strike declaration and direction available under section 123 mow 1351 are discretionary remedies, they do not issue as of right. The Board's general practice has been to refuse to exercise its discretion to issue either a declaration of an unlawful strike or a cease and desist order where the work stoppage has ended before the hearing as is the case here. (For a review of the practice and the rationale see the Acoustical Association case, 119751 OLRB Rep. July 539, Beatty Bros. (1965). 66 CLLC para. 16,049 and National Refractories (1963), 63 CLLC para. 16.276.)
The Board has consistently stated, however, that it will depart from this general practice of refusing to grant either a declaration or a direction in the face of the existence of any one or more of the following three circumstances: firstly, where the evidence establishes a past practice of unlawful strike activity, secondly, where the evidence indicates that the unlawful activity is likely to recur or thirdly, where the unlawful strike upon which the application is based has implications which extend beyond the immediate parties.
The third exception to the general rule that the Board will not exercise its discretion to issue a declaration or a cease and desist order where there has been a return to work prior to the hearing was first developed in the Norfolk Hospital Association case, [1974] OLRB Rep. Sept. 581 where the Board discussed the general rule at paragraph 23 of that decision and then stated at paragraph 25:
…it is our duty, as we see it, as the tribunal seized with the primary responsibility for administering the Labour Relations Act and portions of the Hospital Labour Disputes Arbitration Act, to re-affirm the law as laid down in those two statutes. The criteria for exercising our discretion in applications of this sort, as set out in the National Refractories Ltd. case supra will no doubt continue to be appropriate in most circumstances. However, where, as here, there is a deliberate and sustained effort to flout the law, not only at the Norfolk hospital, but elsewhere across the province, we believe it to be our responsibility to so declare. To fail to do so might be construed, at worst, as a condonation of illegal conduct, or at the very least, as an abdication of our public responsibility.
It is clear to me that the unlawful strike resulted from the frustration that the employees felt at the amount of time that the collective bargaining process often takes. However, that process is still ongoing, and may not reach a definitive result for some time to come.
As well, I am satisfied that the union officials did not appear to be actively supporting the illegal actions of their members. The union stewards stayed at their work stations for most of the duration of the illegal strike. However, it is clear to me that the stewards at the work sites did not take positive steps to encourage the employees to return to work. Indeed, the chief stewards at the Pickering generating facility have resigned from union office.
Do these circumstances give rise to any of the exceptions that the Board has developed in dealing with situations where a strike has ended at the time of the Board's hearing?
It is evident to me that the underlying issue, i.e., that of frustration about the bargaining process, has not been eliminated. Indeed, it is open to draw an inference from the evidence that the illegal conduct was specifically designed to put pressure on the employer at the bargaining table. While I do not need to make that finding, I am satisfied that there has not been a resolution of the collective bargaining dispute which gave rise to the work stoppage.
Additionally, I am satisfied that this particular work stoppage does have implications beyond the immediate parties to the dispute. The evidence makes it clear that an illegal work stoppage at a nuclear generating facility can raise grave concerns about the safety of persons at work on the site, and the environment as well as creating significant risks to the electrical grid throughout the province which supplies electric power to the people of this province. The actual and potential consequences of an illegal strike in these circumstances are not simply borne by the immediate parties to the dispute. Those consequences may adversely affect a large number of persons and industries through the Province of Ontario.
I am therefore persuaded that because the collective bargaining issues underlying the illegal strike have not been resolved and because the respondent union was not able to quickly persuade its members to return to work, a declaration and a cease and desist direction should issue. It is apparent to me from the evidence that it took three days for the union's members to be persuaded to report for work and that the union stewards were not in control of the situation. Thus, I am satisfied that there is a reasonable likelihood that another illegal strike may occur.
In any event, I believe the circumstances of this case fall within the principles enunciated by the Board in the Norfolk Hospital Association case and this is therefore an additional ground for issuing the declaration and cease and desist order.
Counsel for the respondents argues that the Board should restrict the order to only the named respondents. He submits that making the order apply to any other person having notice of the direction is contrary to section 7 of the Canadian Charter of Rights and Freedoms. He relies on the recent decision of the Supreme Court of Canada in the Singh case (unreported, April 4, 1985). In my view, that argument has no merit. The deprivation of a person's liberty or security by reason of a cease and desist direction issued by this Board can only occur after a proper hearing before a judge of the Supreme Court of Ontario. See the decision of the Ontario Court of Appeal in Ajax and Pickering General Hospital v. Canadian Union of Public Employees (1981), 1981 CanLII 1849 (ON CA), 35 O.R. (2d) 293. A person's life, liberty or security will only be affected after all of the procedural safeguards in the court's enforcement processes have been followed. That type of direction issued by the Board is both lawful, and in this case, particularly appropriate. (See Bechtel Canada Ltd., 111979] OLRB Rep. June 473.)
Therefore, having regard to the foregoing, the Board hereby finds and declares that the individual respondents engaged in an unlawful strike.
The Board hereby directs the individual respondents and any other employee of Ontario Hydro represented by the respondent Local 1000 having notice or knowledge of this direction to:
(a) cease and desist from engaging in a strike against Ontario Hydro until such time as a strike becomes legal under the Labour Relations Act,
and
(b) cease and desist from engaging in any act if he knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in a strike against Ontario Hydro until such time as a strike becomes legal under the Labour Relations Act.
I am not persuaded that I should direct the union to issue instructions or distribute this decision to its members as requested by counsel for the applicant since there has been insufficient evidence to establish what role, if any, the union had in instigating or prolonging this strike. Of course, it is certainly open to the applicant to distribute this decision and direction among its employees at it sees fit.