MacMillan Bathurst Inc. v. Canadian Paperworkers' Union, Local 1497

[1987] OLRB Rep. December 1568

2256-87-U; 2268-87-U

MacMillan Bathurst Inc., Applicant v. Canadian Paperworkers' Union, Local 1497, Respondent; MacMillan Bathurst Inc., Applicant v. Canadian Paperworkers' Union, Local 1497 and Joao Amarelo and all hourly rated employees of the applicant Who are not on layoff, Respondents

BEFORE: Judith McCormack, Vice-Chain.

APPEARANCES: Michael Gordon, Thomas Stefanik and Ronald Gruber for the applicant; Joe Herbert, Sandra Nicholson, Milton Shapiro and Robert Vey for the respondents.

DECISION OF THE BOARD; December 2, 1987

1. These matters are two applications for declarations that the refusal of employees to work overtime for the applicant constitutes an illegal strike, and for associated remedies. The applicant and the respondent union are parties to a collective agreement effective July 1, 1985 to June 30, 1988, and there is no dispute that a strike in these circumstances would be untimely.

2. The applicant operates a corrugated carton manufacturing plant in which approximately one hundred and fifty people are employed. The evidence in this matter indicates that for the past 10 years, on every occasion in which there has been a layoff of employees, those employees not laid off have declined to work overtime for the period of the layoff. It was unclean from the evi­dence whether part of this period might have involved a predecessor company, but both parties did not dispute that this was a well established and regular event between the applicant and the respondents. It is also evident that layoffs were a frequent occurrence; the facts placed before the Board show that there have been at least two other layoffs during the life of the current collective agreement, and one employee testified that he had been laid off twenty times in approximately seven years of employment. Although there were some discrepancies in the evidence on this point, I conclude that on each occasion, the respondent union posted a local union bylaw which provides as follows:

ARTICLE 20 OVERTIME

There will be no overtime worked by members of Local 1497 while other members are on layoff. Except in emergency situations that have been approved by the execu­tive of the local.

This bylaw was voted upon by members and passed at a meeting some years ago. Under the cur­rent collective agreement, all employees eventually become members of the union.

3. On the evidence before the Board, it appears that the applicant until now accepted the overtime refusals as a fact of life. Although it is a little difficult to convey the flavour of this accep­tance, by way of example, Gerry McNeil, the applicant's plant superintendent indicated that the applicant made its decisions with respect to staffing taking into account that the effect of layoffs would be a ban on overtime. Similarly, the parties made informal adjustments with respect to the bylaw. For example, in the case before us, the applicant gave notice to employees of a layoff on November 4th, 1987 although the layoffs did not actually commence until November 7th. Over­time refusals, however, commenced as of November 4th. As a result, Mr. McNeil spoke to Milton Shapiro, the union's local president, giving his view that the bylaw should not be effective until November 7th. Mr. Shapiro agreed, and spoke to employees to ask them to work overtime until November 7th. It is also apparent that on a number of occasions the applicant and the union have jointly worked out which situations constituted "emergencies" within the meaning of the bylaw.

4. The sequence of events which form the subject of these applications commenced on November 4th, 1987 with the issuance of layoff notices. Some twenty-two employees were laid off, representing a change from a three-shift operation to a two-shift operation. Shortly thereafter, seven more employees were laid off. Subsequent to the adjustment described earlier, overtime refusals commenced in earnest for the period following November 7th. (Some requests to employ­ees to work overtime were made before November 7th but were related to days after November 7th). On November 10th, the bylaw was posted on the union bulletin board, and on November 13th, the applicant filed these applications.

5. Much of the union's evidence was directed toward establishing that employees had indi­vidual or personal reasons for declining to work overtime that were unrelated to a common under­standing. It may well be that certain employees had personal reasons for their decisions, and that there were other problems leading to overtime refusals in the shipping area in particular. I also accept that there were other factors which partially explain the reduction in overtime hours worked following November 7th. However, in light of the timing and pattern of the refusals, the posting of the bylaw, and a number of statements made by union officials, I conclude on balance that employ­ees were acting in accordance with a common understanding relating to the layoffs.

6. It should be noted that the respondents sought to reopen their case during the hearing to adduce further evidence relating to the issue of whether there was a common understanding. The parties were able to agree on the facts the respondents wished to adduce, although not on whether the Board should consider them. At the time a ruling on the matter was reserved. ln com­ing to my conclusion with respect to a common understanding, I did not rely on this evidence, as ultimately my view was that the respondents should not have been able to reopen their case at that point in the hearing. Having heard the agreed upon facts however, I can say my conclusion would have been no different if I had relied upon them.

7. The substance of the common understanding between employees appears to have been a decision to forego optional work opportunities in the hope that this would provide work for employees on layoff. Employees who testified before the Board described what were obviously deeply felt convictions with respect to the sharing of both available work and the impact of the eco­nomic losses suffered by employees on layoffs, and a sense of their own vulnerability in terms of being placed in a similar situation. It was also apparent from the evidence that much of the over­time work requested of employees, at least in the production area, was required because of the lay­offs. For example, because the applicant had moved from a three-shift operation to a two-shift operation, employees were asked to come in before the start of their regular shift to prepare and start up machines which otherwise would have been operating continuously.

8. A number of able and thoughtful arguments were made by all counsel with respect to whether, regardless of the Board's jurisprudence, a concerted refusal to work overtime should be considered to fall within the definition of a "strike" under the Labour Relations Act. It is not nec­essary for me to address those arguments however, because I have determined that I would not exercise my discretion in favour of issuing a declaration or associated relief in any event. To the extent that the arguments made in this regard were also directed to the appropriate exercise of the Board's discretion, they are dealt with below.

9. It is well established, and the parties did not dispute that the Board has such a discre­tion both as to whether to issue a declaration and with respect to remedy. (Canadian Elevator Manufacturers, [1975] OLRB Rep. Nov. 868). There are good reasons why the Board takes this discretion seriously. The definition of "strike" in section 1(l)(o) of the Labour Relations Act is a broad one, and leaving aside the respondents' arguments with respect to that definition, at first glance it would appear to sweep in a wide range of activity. This is particularly so given the Board's decision in Domglas Ltd. 76 CLLC ¶16,050 to the effect that it is not necessary for the activity to be carried out for the purpose of obtaining concessions from an employer. The broad reach of the Act thus interpreted can lead to some curious results. In British Columbia Telephone Company (1980) 40 di 163, the Canada Labour Board puts forward the following examples which may fall within the ambit of a "strike" when it is widely construed:

10. Two or more employees go to lunch. They drink too much and decide not to return for the afternoon.

11. Two or more employees decide to go golfing, fishing or hunting so they call in sick and fail to report to work.

12. One day has special religious meaning for several employees. They are scheduled to work. They fail to report.

13. There is a tragic bus accident in the community. The employer refuses to interrupt production. Employees combine and refuse to work so they can attend the funeral services.

14. There is a mine accident and miners are trapped. Miners in another community employed by another employer refuse to work and volunteer to help in the rescue operations.

15. Truckers on long distance haul encounter a community threatened by flooding or maybe forest fires. Rather than pass on through, they park their rig and volunteer to help.

16. Female employees in a bargaining unit refuse to work because they are joining a pro­test in support of more women's rights.

17. Longshoremen incensed at the invasion of a country by a foreign power being boycot­ted by the national government refuse to load vessels destined to that foreign power.

18. An employer schedules employees for more than the hours he is permitted under hours of work regulations. The employees combine and together refuse to work.

19. Employees in a bargaining unit refuse to perform duties of fellow employees who are lawfully on strike.

20. Several employees faced with a working circumstance determine they are in imminent danger to their safety or health and refuse to do the work assigned.

21. Some of these examples are not apt for Ontario as the Board has previously said that both a concerted refusal to work overtime in circumstances where overtime exceeds the maximums set out in The Employment Standards Act, R.S.O. 1980, c. 137 and a concerted refusal to work in accordance with the Employees' Health and Safety Act, 1976, S.O. 1976, c. 70 [now The Occupa­tional Health and Safety Act, R.S.O. 1980 c. 321] will not be considered to be strikes (Cameron Packaging Inc., [1979] OLRB Rep. June 489; B. C.L. Canada Inc. , [1981] OLRB Rep. July 836 and Inco Metals Co.,[1980] OLRB Rep. July 981). Nonetheless, they do highlight the importance of the Board's discretion in fashioning appropriate responses to the variety of fact situations which come before it.

22. It is also evident that strikes are not usually isolated events occurring in a vacuum. Rather, they are more likely to be part of a series of interrelated events taking place in the context of a labour relationship that may be long-standing and complex. Often the activity which falls within the strike definition is merely the symptom of a more extensive deterioration or breakdown in labour relations. The Board must therefore consider both the appropriateness of intervening to impose its powerful remedies with respect to only one event in this larger picture, and the suit­ability of any particular remedy in addressing the labour relations problems before it. The fact that the responsibility for this task falls to the Board under section 92 reflects both the Board's special expertise in labour relations matters and a recognition that the Labour Relations Act cannot be administered mechanically or without regard to changing social values.

23. The combination of the Board's expertise and the complexity of the situations which may come before it under section 92 reinforce the wisdom of, according to the Board, some flexibility in considering whether to issue a declaration on associated relief. The Board described its discretion in the following terms in Canadian Elevator Manufacturers, supra:

24. The Board's power under sections 82, 83 and 123 are discretionary and ought to be exercised in accord with sound principles of industrial peace, it cannot be said that this obligation can only be fulfilled by the reflex-like exercise of the Board's powers under these sections. Where, as in this case, an employer deliberately embarks upon a course of action that is unsupported by a reasonably arguable interpretation of the collective agreement, thereby primarily, and we might say baldly, resting its claim on the principle that an employee is obligated "to perform first and grieve later", this Board would not be serving the public by buttressing such recklessness with the full force of the laws of this Province. We of course approve the aforementioned arbitral principle and the Board must be wary in interpreting collective agreements even on a very lim­ited basis. But the application of the arbitral principle in discipline cases is a qualitatively differ­ent function than using it to specifically enforce the demands of an employer under the sections in question. To issue such powerful relief in the peculiar circumstances of this case could well undermine the integrity of the Board's orders and discourage the self-restraint required in a complex industrial society. Very similar sentiments, quite appropriate to this case, were expressed by the Board in Northdown Drywall and Construction Limited, [1972] OLRB Mthly. Rep. June 666 where the majority of that panel evidenced its concern for self-government in the following way:

We recognize that this Board has an obligation to maintain industrial peace. We recognize that there is an obligation on the industry to assist in maintaining industrial peace by conducting it affairs in an orderly and careful manner so as to avoid the ten­sions and conflicts that area already rampant in the construction industry. There must be some form of self-help or policing by the industry. This Board is not to be viewed as a panacea for the ills of the construction industry. We do not sit as Solomon ever ready to divide the baby. We expect that the parties will exercise some self-restraint in their affairs and not expect this Board to be a forum which absolves them from excesses.

Because the purpose of the remedies available under section 92 is to educate rather than to punish, the Board will usually decline to grant a declaration on directions if the unlawful activity has ceased by the time of the hearing (Steinberg Inc., [1983] OLRB Rep. Feb. 253). The Board has said in this regard that it "must be cautious that its intervention, by way of declaration, will play some con­structive role, rather than disrupt a relationship which, by the time of the hearing, has stabilized" (Norfolk Hospital Association, [1974] OLRB Rep. Sept. 581). In addition, the Board may also decline to grant declarations where the employer's application or conduct has been provocative or facetious (Ontario-Minnesota Pulp and Paper Co., [19781 OLRB Rep. July 668; Pigott Construc­tion Limited, [1976] OLRB Rep. April 160; Ottawa Civic Hospital, [1986] OLRB Rep. June 812).

13. In this case, the respondents argue that we should decline to issue a declaration on directions for a number of reasons, including the fact that employees are entitled to refuse over­time work under the collective agreement, the nature of overtime work itself, and the existence of an established practice between these parties where overtime refusals have gone hand in hand with layoffs. Turning to the first two arguments, the applicant conceded that an employee does have the right to refuse overtime work under the collective agreement between the parties. Leaving aside the question of whether overtime refusals in concert constitute a strike, the gist of the respondents' argument with respect to discretion is that the applicant is asking the Board to compel employees to work overtime when it gave up that right in collective bargaining. There are a number of prob­lems associated with that argument. The Board has said that the fact that parties have sanctioned certain conduct in their collective agreement will not prevent that conduct from falling within the ambit of the strike prohibition. To hold otherwise, the Board has commented, would be to allow parties to contract out of the Labour Relations Act. (Belmont Plastering Company Limited, [1970] OLRB Rep. March 1459). While considering the kind of collective agreement provisions before me in the context of exercising discretion may not necessarily have the same implications, it is also true that an injudicious use of that discretion may undermine the purpose of the mid-term strike ban. In addition, this approach may also have the effect of drawing into section 92 a somewhat controversial body of arbitral jurisprudence.

14. At the same time, a binding collective agreement is the centerpiece of the scheme of collective bargaining contemplated by the Labour Relations Act. Indeed, it is difficult to divorce the ban on strikes during the term of a collective agreement from the importance of the collective agreement itself. It seems inconsistent for the Board to issue remedies to enforce the strike ban at the expense of rights under a collective agreement, when the purpose of the ban is at least in part directed at protecting that same agreement. As well, collective agreements are typically package deals, arrived at by a process of trade-offs in negotiations. In the ordinary course of events, it is not unreasonable to infer that the applicant obtained some other benefit in exchange for surrendering the ability to compel employees to work overtime, and that employees gave up some night or benefit to obtain the right to refuse. If the Board cannot restore to a party that which was given up, a remedy which erodes the rights obtained in exchange may have an inequitable impact.

15. My concerns in this regard cannot be separated from the nature of the rights involved in this case. The respondents argued that overtime work, by definition, involves something above and beyond the regular commitment made by an employee. There is some merit in the point of view that overtime is inherently extra work, something "oven" that which employees have contracted to provide. The collective agreement in this case, which includes specified regular hours of work and voluntary overtime provisions, only serves to bring this more general proposition into sharpen focus. This is not to say that overtime is not also considered a precious commodity in many work places. The collective agreement in this case and many others provide for overtime distribution schemes of various kinds for that very reason. But it is not a contradiction to say that overtime is both voluntary and prized, or that it is optional but must be distributed in accordance with a cer­tain formula. It is also difficult to ignore that behind this proposition lies an historical social move­ment in regard to the length of the work day which has coloured public policy with respect to mini­mum working conditions. The Board commented on that policy in Cameron Packaging Inc., [1979] OLRB Rep. June 489 in a discussion of the strike definition in the Labour Relations Act, and the overtime provisions in the Employment Standards Act:

16. As was said in the C & C Yachts case, "the setting of maximum hours of work in the day or the week is a matter of public policy. That policy is enforced by rendering both employers and employees liable to prosecution for sponsoring or performing work in excess of the maximum hours". In our view The Labour Relations Act must be interpreted to be consistent with this announced public policy, and it would be patently absurd for us to find that refusal to engage in conduct, which would be in breach of The Employment Standards Act if engaged in, should nonetheless be considered a breach of The Labour Relations Act. When the Legislature defined "strike" as it did in section 1(1)(m) of the Act it can only have been referring to actions which would be lawfully permissible save for the fact that they are undertaken "in combination or in concert". Under the circumstances of this case the employer was precluded by law from requir­ing employees to work in excess of eight hours in any day and the refusal by employees to do so cannot be used to be found a contravention by them of the Labour Relations Act.

17. In this case some of the overtime work declined would not fall within the area charac­terized as voluntary under the Employment Standards Act because overtime under the collective agreement is triggered at an earlier point. However, it is not evident that the Employment Stan­dards Act overtime provisions are necessarily exhaustive as an expression of public policy in this regard. Among other things, that Act also provides that where a collective agreement provides a greater right or benefit than the Act, the collective agreement provisions will prevail (section 4). As well, the criteria for overtime in the Act are currently under active review (see Working Times: The Report of the Ontario Task Force on Hours of Work and Overtime, 1987). Similarly, the Board cannot afford to be insensitive to the fact that overtime work is the subject of considerable social debate in a society grappling with the implications of layoffs, unemployment and technological change. Where parties have arrived at their own accommodation of their competing interests in this regard, it may be inappropriate for the Board to disturb that balance.

18. Turning to the respondents' last argument, the Board has held previously that a history of unlawful strikes may prompt it to issue a declaration regardless of whether employees have already returned to work (Ball Brothers Limited 57 CLLC ¶18,091; Goodyear Tire and Rubber Company of Canada Limited, [1967] OLRB Rep. Oct. 655). In this case, however, it is argued that the history between the parties should have a different effect. This is not a situation where an employer has made it clear to employees that their conduct is unacceptable and has pursued its legal remedies. Neither is it a case where an employer has settled short of legal remedies in the interests of good labour relations on because the remedies have become moot as a result of a return to work. Rather, the parties here have accepted for many years that overtime bans follow layoffs as a matter of course. Indeed, in this case, they negotiated the date on which the ban would com­mence. While the distinction between this situation and that typified by Goodyear Tire, supra, may be fine, it is also important. One of the hallmarks of labour relations is that a continuing relation­ship is involved. In the circumstances of this case, and for all the reasons described above, I am not persuaded that it would be in the interests of harmonious labour relations for the Board to step in at this point and direct the remedies requested at only one aspect of this informal trade-off. While I recognize that the overtime refusals caused the applicant some inconvenience, in this situation it would be more appropriate for this problem to be addressed at the bargaining table.

19. This is not to suggest that employers who forego litigation for sound labour relations reasons will find themselves without a remedy at some later point. I feel compelled to reiterate that this case is significantly different from that addressed by the Board in the Goodyear Tire line of cases, both in terms of the extent to which the parties have accepted this situation and in light of the other facts set out above. In addition, this more extensive discussion of the Board's discretion under section 92 does not mean that the Board cannot continue to respond to more routine cases in a routine manner. This was simply not such a case. For all these reasons, I decline to exercise my discretion in favour of issuing a declaration on associated remedies in these matters.