Leslie A. Manders v. Carlton Cards Ltd. et al., 1986 CanLII 1536

[1986] OLRB Rep. December 1673

0024-86-U Leslie A. Manders, Complainant, v. Carlton Cards Ltd., Canadian Paperworkers Union, Dieter Plautz, R. Smart, and G. Bucella, Respondents

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members J. A. Ronson and J. Redshaw.

APPEARANCES: T. D. Crawford for the complainant; D. L. Rogers and Dieter Plautz for the respondent Carlton Cards Ltd.; J. J. Nyman, M. Pupeza and S. Novick for the respondent Canadian Paperworkers Union.

DECISION OF OWEN V. GRAY, VICE-CHAIRMAN, AND BOARD MEMBER J. REDSHAW; December 3, 1986

1. Leslie Manders was dismissed from employment by Carlton Cards Ltd. ("Carlton") on April 1, 1986, for failure to comply with a collective agreement "union shop" clause which requires that employees in the bargaining unit covered by that agreement must become and remain members of the Canadian Paperworkers' Union ("the CPU"). She has filed this complaint under section 89 of the Labour Relations Act ("the Act") on her own behalf and on behalf of six other employees and former employees of Carlton: Marsha Young and Saidie MacKay, who were dismissed for the same reason, and Teresa Stone, Robert Gurlitz, Beverly Doyle and Bert Rocha, who became members of the CPU "under protest" after being told they would be dismissed if they did not. The complaint as filed alleges that the actions of the respondents in enforcing the union shop clause violated sections 68, 70, 71 and 46(2)(f) of the Act. The seven persons on whose behalf this complaint was filed are hereafter referred to collectively as "the grievors."

2. For many years, plant production employees of Carlton were represented in collective bargaining by the Independent Greeting Cards Workers' Union of Canada ("the Independent Union"). In 1985, a number of those employees joined the Canadian Paperworkers Union ("the CPU") and it applied to this Board for certification as exclusive bargaining agent for the unit of employees then represented by the Independent Union. The Board conducted a secret ballot vote in which the approximately 1000 workers then employed in that unit had the opportunity to say which union they wished to represent them. A majority of those who cast ballots selected the CPU, and the CPU's application for certification was granted on July 4, 1985.

3. The CPU and Carlton then entered into collective bargaining. They concluded a collective agreement which came into force on January 12, 1986, following a ratification vote among affected employees. That agreement included a "union shop" clause, which required as a condition of continued employment that all present employees become and remain members of the CPU and that all new employees apply for and maintain membership following completion of a probationary period. Apart from the identity of the union, these requirements are substantially the same as those of the union shop clause which appeared in the last collective agreement between Carlton and the Independent Union.

4. On January 14, 1986, notices were posted advising non-member employees in the bargaining unit of their obligation to join the union and directing them to the personnel office, where application cards were available. On February 3, 1986, employees who had not by then joined were sent a letter signed by Robert Smart, President of Local 322 of the CPU, advising them that if they did not join by February 14th their failure to do so would become the subject of a grievance and their employment would be in jeopardy. On February 5th, employees who had not by then joined received a memorandum from Dieter Plautz, Director of Personnel for Carlton, advising them that failure to become a member could result in dismissal. The grievors received these letters and memoranda because at that point in time none of them had applied for membership in or became a member of the CPU.

5. On February 7, 1986, Tyrone D. Crawford wrote a "without prejudice" letter to Robert Smart, stating that he was solicitor for eight employees (the grievors and one other) who had received Smart's letter of February 3rd. He asked for "confirmation, in writing, of the specific section together with the name of the contract in question by which you have taken authority to serve notice upon my clients." He went on to say that he had a copy of the collective agreement between Carlton and the CPU, and made these arguments:

Nowhere does it state that an individual who does not sign a MEMBERSHIP APPLICATION CARD shall, or will, become a non-member of the Union or a member not in good standing. It states only that a member must pay dues. It is our contention that my clients are willing to pay dues and that you have the opportunity to collect the dues.

His letter concluded with a threat of court action "[i]f you persist in sending notices threatening my clients with expulsion from the Union, thereby placing their jobs in jeopardy...." Mr. Crawford acted as counsel for the complainant at the hearing of this complaint. He did not testify. It is not apparent how he got the notion in February that his clients were union members threatened with expulsion.

6. Gary Buccella is a full-time union representative employed by the CPU. He responded to Mr. Crawford's letter to Smart with a patient three page letter dated February 17, 1986. Its message was clear. The collective agreement required that Mr. Crawford's clients become members of the CPU in order to remain employed by Carlton in the unit of employees for which the CPU had been certified; to become members, they had to make an application and take an oath of membership. Mr. Crawford responded with a letter dated February 21,1986 in which he said that Buccella's letter of February 17th "makes no sense concerning my request of February 7th", that he did not agree with Buccella's interpretation of the CPU constitution and that "[m]y clients are placing you on strict notice that failure to provide sufficient particulars regarding the signing of a membership application card will be treated as a nullity."

7. The union did file a grievance on February 17th. By memoranda dated March 4, 1986, Plautz advised Mr. Crawford's clients directly that Carlton was obliged to require membership in the CPU as a condition of employment and that their employment would be terminated on March 14th unless they provided Carlton with proof of membership or satisfied it that they were exempt from the provisions of the union shop clause. The union treated the delivery of these memoranda as a satisfactory settlement of its grievance. By subsequent memoranda to the grievors, Plautz extended their termination dates to April 1st for some and April 29th for others, in order to comply with the requirements of the Employment Standards Act with respect to notice of termination. Thereafter, four of the grievors took the steps necessary to become members of the CPU. Leslie Manders, Marsha Young and Sadie MacKay did not. Manders and Young were terminated on April 1st and MacKay was terminated on April 29th.

8. This complaint was filed April 2, 1986. Among other things, it alleged that both before and after February 3rd, each grievor had "verbally stated to Union and Employer officials that he or she is willing to comply with the terms of the Collective Agreement and the Constitution of the C.P.U." When the Board's hearing began, counsel for the complainant advised the Board and the other parties that this phrase ought to have read "verbally stated to Union and Employer officials that he or she is not willing to comply with the terms of the Collective Agreement and the Constitution of the C.P.U.", and asked that it be amended accordingly. He then demanded that the union and employer provide particulars of the reasons for the dismissals as requested in his letter to Smart of February 7, 1986, arguing that the grievors were entitled to know the case they had to meet. Counsel said his concern for particulars would be satisfied if the union and Carlton presented their evidence first. Rather than debate the point, and without conceding any obligation to do so, counsel for Carlton and Plautz ("the employer respondents") and counsel for the CPU, Smart and Buccella ("the union respondents") both agreed to proceed in that manner.

9. Counsel for the employer respondents recited the evidence his witness would give, which covered most, if not all, of the matters described in paragraphs 2 through 7 of this decision. Counsel for the complainant and counsel for the union respondents both agreed that his statement was accurate, which made calling the witness unnecessary. Counsel for the union respondents called Buccella, who testified that union shop clauses have for many years appeared in almost all collective agreements negotiated by the CPU and its predecessor. He explained that when there is a union security clause, each employee who is not a member is approached personally or by a notice to become a member. The employee is required to sign an application card, pay an initiation fee and take an oath. The oath may be taken at the time the card is signed or at a later time. The application card is sent to the union's national office in Montreal, and in due course a membership card is sent to the employee. He stated that this was the practice which had been followed with respect to employees at Carlton after the collective agreement was ratified. That statement was not challenged by counsel for the complainant in cross-examination, nor was it put to Buccella that the taking of an oath or any other formality had been waived or overlooked in admitting any Carlton employee to membership. Cross-examination focused on the union's interpretation of the provisions of its constitution and on whether the grievors knew before April 1, 1986, what the union's requirements and practices were with respect to acquisition of membership.

10. Counsel for the complainant pursued the latter theme in his examinations of the three grievors whom he called as witnesses: Manders, MacKay and Rocha. Rocha testified that he knew what was required in order to become a member after seeing the letter Crawford received from Buccella. He signed an application card under protest on March 27, 1986 in the presence of Mr. Crawford, paid a one dollar initiation fee and took an oath. He was not terminated. Although Rocha said "everyone hasn't taken an oath" in an unresponsive answer to a question in cross-examination, that allegation was not addressed by any evidence led by counsel for the complainant.

11. In answer to their own counsel's questions, Manders and MacKay both testified that they did not know of the requirement of the oath before April 1st. In cross-examination, each of them said she could not recall seeing the letter their lawyer had received from Buccella in February setting out the steps by which membership is acquired. Each conceded, however, that she had never had any intention of joining the CPU, whatever that entailed, despite her awareness of the requirement in the collective agreement. Each made it clear that her unwillingness to join had nothing to do with a dispute over the nature of the required formalities. Manders said it was her belief that she could not be required to do anything more than pay dues.

12. In opening his argument, counsel for the complainant submitted that there were two issues, which he defined as follows:

Can an employee be compelled to join a union in order to work, notwithstanding his or her willingness to recognize the union as exclusive bargaining agent and pay dues, when he or she is unwilling to be a member? Does the grievor know the case he has to meet or is he prejudiced by the ambiguity of the alleged violation?

On the first issue he had defined, counsel argued that exclusive bargaining rights and a requirement that all represented employees pay union dues are as far as a free and democratic society can go in compelling an unwilling employee to associate with a union. As authority that union membership could not be required, counsel cited section 2(d) of the Canadian Charter of Rights and Freedoms ("the Charter") and the decision of Mr. Justice White in Re Lavigne and Ontario Public Service Employees Union et al. (1986), 1986 CanLII 2629 (ON HCJ), 55 O.R. (2d) 449. He submitted that the decision in Lavigne stood for the proposition that compulsory check off could not be compelled, and said it followed that applying for membership could not be compelled. He did not argue that any provision of the Labour Relations Act was contrary to the Charter. The focus of his Charter argument was on the union security clause in the collective agreement.

13. In the argument he addressed to his second issue, counsel for the complainant invited the Board to find that the correspondence sent by the CPU and Carlton had not defined the "criteria for membership" or, alternatively, had not done so in sufficient detail. After referring to subsections 89(5), 1(1)(l) and 103(4) of the Act, counsel argued that the union must satisfy a number of criteria before this Board could "back up what the employer did to discharge an employee unwilling to satisfy a union security clause." He said that even if the requirements of the collective agreement are met, the union is obliged to advise the employer and the employer is obliged to satisfy itself that the "refusal by the employee to join the union was not contrary to any statutory or common law rules and was effected with due regard to rules of natural justice with respect to fair and proper procedure." This, he said, required that there be particulars in the union's notice to the employees and in its notice to the company sufficient to enable the company to satisfy itself that there was proper cause under the union's constitution and bylaws. He cited two arbitration decisions — Orenda Engines Ltd., (1958), 8 L.A.C. 116 (Laskin) and Franklin Mfg. Co. Ltd. (1962), 12 L.A.C. 327 (Reville), both cases involving the expulsion or supposed expulsion of an employee from membership by the trade union — in support of the proposition that the employer in this case did not make appropriate enquiries before terminating the employment of the three discharged grievors. Finally, he submitted that employees cannot be terminated in a case like this without "some kind of hearing" involving the employees, the union and the employer.

14. Counsel for the complainant was asked by the Board to relate his arguments to the provisions of the Act which were specified in the complaint as having allegedly been violated. Those were sections 68, 70 and 71 and subsection 46(2)(f).

15. Section 68 of the Act provides:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

Counsel for the complainant argued that section 68 was violated by the union's failure to provide particulars and its insistence that the grievors become members when they did not want to do so. Section 70 of the Act provides:

No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

Counsel for the complainant argued that section 70 had been breached because, in his submission, statements that the grievors would be discharged if they did not comply with the collective agreement constituted coercion of the sort prohibited by that section. Section 71 provides:

Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade him during his working hours to become or refrain from becoming or continuing to be a member of a trade union.

This section had been breached, counsel said, because the membership requirement was discussed during working hours.

16. The provisions of section 46 to which argument was addressed are these:

46.-(l) Notwithstanding anything in this Act, but subject to subsection (4), the parties to a collective agreement may include in its provisions,

(a) for requiring, as a condition of employment, membership in the trade union that is a party to or is bound by the agreement or granting a preference of employment to members of the trade union, or requiring the payment of dues or contribution to the trade union;

(2) No trade union that is a party to a collective agreement containing a provision mentioned in clause (1)(a) shall require the employer to discharge an employee because,

(a) he has been expelled or suspended from membership in the trade union; or

(b) membership in the trade union has been denied to or withheld from the employee, for the reason that the employee,

(f) has been discriminated against by the trade union in the application of its membership rules; or

Counsel's argument for the application of subsection 46(2)(f) rested on the assertion that none of the grievors had been offered a chance to take the oath until some time after other employees had taken the oath and become members. Thus, he argued, the union had discriminated against the grievors. He conceded that the evidence disclosed no other action by the union which could constitute discrimination in the application of its membership rules. He also argued that the use of the word "may" in the opening words of subsection 46(1) gives this Board some discretion whether to permit the inclusion in a collective agreement of a term of the sort described in paragraph (a) of that subsection.

17. This is a complaint filed under section 89 of the Labour Relations Act. That section gives this Board the power to inquire into an allegation that the Act has been contravened and to fashion a remedy for the contravention if satisfied that the allegation is true. The gist of the instant complaint is that the union and employer parties to a collective agreement have both violated the Act by enforcing and complying with a provision of the agreement which required membership in the union as a condition of employment of persons in the bargaining unit covered by that agreement.

18. Section 46 of the Labour Relations Act regulates the enforcement of provisions of this kind and prohibits agreements which include them in certain circumstances not present in this case. The Labour Relations Act does not require inclusion of such provisions in collective agreements in any circumstances. The provision in question here appears in the collective agreement between Carlton and the CPU because Carlton and the CPU agreed to it. Section 50 of the Act makes a collective agreement binding on the employer and union parties to it and on the employees in the bargaining unit defined in the agreement. Sections 44 and 45 ensure that either party to a collective agreement may resort to arbitration to enforce its provisions. Section 47 addresses the limited circumstances in which this Board can relieve against the application of certain types of union security provisions to particular employees. Subsection 46(1) does not itself confer on the Board any discretion to regulate or prohibit the inclusion or enforcement of provisions of the sort referred to in it. Subsection 46(1) does make it clear, if it is not otherwise, that the inclusion in a collective agreement of a provision of that sort does not contravene any other section of the Act.

19. Having regard to the complainant's pleading and the evidence, we found it most difficult to understand the relevance or applicability of their counsel's arguments about the union's alleged failure to give particulars and the employer's alleged failure to make enquiries. Counsel's repeated theme that the grievors did not know of the oath requirement before April was particularly incomprehensible, in light of the fact (which he conceded at the conclusion of the recital of facts by counsel for the employer respondents) that, as solicitor for the grievors, he was informed of the oath requirement by letter in mid-February. This is not a case in which the grievors failed to satisfy the membership requirement because they did not know, or could not discover, how to become members. They did not want to become members. Those of the grievors who ultimately agreed to become members "under protest" had no difficulty in ascertaining and satisfying the required formalities. The whole question of the degree of detail in the union's description of membership formalities was made quite irrelevant by the complainant's amended pleading that the grievors had told the union and the employer from the outset that they would not comply with the provisions of the collective agreement or the union's constitution.

20. On the evidence before us, the grievors at all times had the same opportunities to become members as were available to other employees, and on the same terms. They had reasonable notice of the requirement that they become members of the CPU if they wished their employment with Carlton to to continue. They had a reasonable opportunity to comply with that requirement. The ultimate difference in treatment of the grievors was solely the result of their own decisions not to avail themselves of those opportunities. The CPU did not discriminate against the grievors in the application of its membership rules contrary to subsection 46(2)(f), nor did it act in a manner which was arbitrary, discriminatory or in bad faith in the representation of the grievors contrary to section 68. Section 71 of the Act does not itself prohibit the activities described in it; there cannot be a "contravention" of section 71 about which a complaint under section 89 may be made. Having regard to the statutory provisions referred to in paragraph 18 of this decision, the action of the respondents in notifying employees of their obligations under the collective agreement and the consequences to them of non-compliance did not constitute "intimidation or coercion" within the meaning of section 70 of the Act: see, Andrew Warren, [1976] OLRB Rep. Jan. 963. If a party is entitled to enforce a provision against a person bound by the agreement, it can hardly be improper for that party to tell that person that it will do so.

21. Having regard to the evidence and the provisions of the Labour Relations Act, therefore, there has been no contravention of that Act and there is no reason or basis for granting the relief sought by the complainant. With respect to the complainant's rather superficial Charter argument, counsel for the respondents correctly observed that the result in the Lavigne case rested on the finding that the employer party to the collective agreement in question there was a crown agent and on the court's conclusion that imposition of conditions employment on its employees by a crown agent was government action of the sort to which the Charter is directed. The Lavigne decision accepts the finding of the Ontario Court of Appeal in Re Blaney and Ontario Hockey Association et al. (1986), 1986 CanLII 145 (ON CA), 54 O.R. (2d) 513, that by virtue of section 32 of the Charter, the Charter's provisions extend only to government action and do not impinge on private activity. Counsel for the complainant did not suggest that the actions complained of constituted government action, nor did he argue that any provision of the Labour Relations Act was made invalid by reason of the Charter. In Re Bhindi et al. and British Columbia Projectionists Local 328 (1986), 1986 CanLII 1100 (BC CA), 29 D.L.R. (4th) 47, 86 CLLC 14,024, (B.C.C.A. - application for leave to appeal to S.C.C. denied November 6, 1986), the British Columbia Court of Appeal held that the Charter does not apply to a provision in a private sector collective agreement requiring membership in the union as a precondition of employment. Counsel for the respondents argued that the decision in Bhindi is a complete answer to the complainant's Charter argument. Counsel for the complainant offered no reply to these arguments. His Charter argument does not establish a violation of the Labour Relations Act and so cannot affect the result of our inquiry into this complaint.

22. Accordingly, this complaint is dismissed.

DECISION OF BOARD MEMBER J. A. RONSON;

1. I am constrained, by recent Court decisions, to agree with the decision of my colleagues.

2. I must admit that, in a case like this, I have some difficulty in understanding how the collective agreement escapes being subject to the provisions of the Charter.

3. The complainants were staunch supporters of Union #1. That union was displaced in a "raid" by Union #2. By virtue of statute, the complainants became bound to having Union #2, whom they did not support or want, become their bargaining agent. On their behalf Union #2 negotiated a clause in the collective agreement which required the complainants to become members of Union #2. And, as I understand the present law, that is legal because it is a "private" action by an organization which, but for governmental action, would have no authority to speak for the complainants.

4. It thus seems that an illegal action by government would be a legal action if carried out by a private body which is not an agent of the government but which derives its absolute authority from the government to so act "privately" for the complainants.