Monarch Fine Foods Company Limited v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647
[1986] OLRB Rep. May 661
0545-86-U Monarch Fine Foods Company Limited, Applicant, v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647, Randy Doner; Michael Reid; Arthur Morley; Ronald Debartok, Steve Sajbic and Alice Gralek, Respondents
BEFORE: R. 0. MacDowell, Vice-Chairman.
APPEARANCES: Brian P. Smeenk, D. Dobin and D. Fisher for the applicant; Harold Caley for the respondents (appearing under protest).
DECISION OF THE BOARD (ORALLY); May 28, 1986
1This is an application under section 92 of the Labour Relations Act alleging that a group of the applicant's employees have engaged in an untimely and unlawful strike, and further that the Union and certain Union officials have encouraged, supported or counselled that illegal activity. It is not disputed that the parties are currently engaged in collective bargaining and that the "no board report" referred to in section 72 of the Act has not been released by the Minister of Labour. Accordingly, no lawful strike can take place at this time.
2The definition of "strike" is found in section l(l)(o) of the Act which reads as follows:
"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.
3It is not necessary to engage in any extensive review of the law. The section speaks for itself. It prohibits any form of collective action until the collective agreement is no longer in operation and the conciliation process has been concluded (see section 72). The strike definition covers "ordinary strikes", boycotts, slowdowns, study sessions, calling-in sick, or any other type of concerted employee refusal - including a boycott of overtime. Employee motive is irrelevant as the Board held, and the Supreme Court of Ontario confirmed more than ten years ago, in Doing/as Ltd., [1976] OLRB Rep. Oct. 569 upheld 78 CLLC ¶14,135. It does not matter whether the employees are seeking any benefit for themselves, are protesting some employer action, or are simply acting out of a sense of solidarity. In Ontario, such conduct is illegal. Any concerns which employees may have, must be addressed at the bargaining table or through the grievance procedure.
4The Labour Relations Act is concerned, for the most part, with the rights of employees. It guarantees the right to organize a union. It requires the employer to recognize that Union. It protects employees and Union officials from reprisals. It obligates the employer to bargain in good faith with a view to concluding a collective agreement. It ensures the preservation of bargaining rights and the collective agreement when an employer sells his business. Indeed, it is sometimes said that there is not much in the Labour Relations Act dealing with the rights of employers.
5But in fact there is: there is an absolute guarantee of industrial peace during the life of the collective agreement, and until the parties have gone through the compulsory conciliation process. That is why the definition of "strike" is so broad, and that is why, under the Act, an employer has a broad range of remedies or options when faced with an unlawful strike - just as the employees have a broad range of remedies if they are dealt with improperly. Most employers do not exercise the full range of those rights unless they are forced to do so, but it may be worthwhile to mention what they are:
(I) Under section 92 an employer can seek a cease and desist order enforceable in the Supreme Court of Ontario as an Order of that Court. Disobedience can result in fine or imprisonment.
(2) An employer may seek damages at arbitration for any lost profits.
(3) An employer can discipline employees who engage in unlawful concerted activity because engaging in a strike is a serious breach of their employment obligations which warrants at least discipline and, in the view of some arbitrators, discharge.
(4) The employer may seek consent to prosecute and subsequently prosecute employees or the trade union for their breach of the law. A strike is not just a private protest. It is contrary to the Labour Relations Act. A successful criminal prosecution may result in fines of up to $1,000 per day for employees and $10,000 per day for the Union.
6I mention these matters simply by way of background to the present case which I am pleased to note the parties have resolved without the need of a formal hearing. Having regard to the representations of the parties, I find and declare that certain of the applicant's employees have engaged in an overtime boycott which constitutes an unlawful strike contrary to section 72 of the Labour Relations Act.
71 note for the record the agreement of the respondent trade union officials that they will not counsel, encourage, procure, support, or condone such unlawful activity or a continuation of such activity - let alone participate in it themselves.
8I further note the undertaking of the union officials that they will advise all interested employees that they are not to engage in a concerted boycott of overtime and that it is unlawful for them to do so. To this end, the Union agrees that it will provide copies of this decision to the employees in the bargaining unit.
9This decision is made without prejudice to the employer's right to pursue such remedies as may be legally available to it and, without restricting the generality of the foregoing, to return to the Board on twenty-four hours' notice to the respondents and their solicitors, to seek such further redress under section 92 as the Board may deem appropriate. The parties also reserve all rights and defences in respect of the outstanding grievance dated April 29, 1986.
10The employer has indicated to the Board that the company will not take disciplinary
action against any individual employee for anything occurring up to the date hereof, provided that there is no repetition or continuation of his unlawful conduct as referred to above.