[1989] OLRB Rep. October 1021
2382-88-U Energy and Chemical Workers Union, Complainant v. G. Lemaire and Chinook Chemicals Company, Respondent
BEFORE: Owen V. Gray, Vice-Chair, and Board Members W. A. Correll and C. McDonald.
APPEARANCES: Daniel Ublansky and David Pretty for the complainant; Ian Werker for G. Lemaire; Thomas Beveridge for Chinook Chemicals Company.
DECISION OF THE BOARD; October 6, 1989
From August 1986 until December 1988, Jean Bourgon was employed by Chinook Chemicals Company ("Chinook") to drive a truck which it leased from Gilles Lemaire. Mr. Lemaire also drove the truck for Chinook during that period, but most of the driving was done by Mr. Bourgon. In December 1988, Lemaire took over the driving his truck for Chinook full time, to the exclusion of Mr. Bourgon. On Mr. Bourgon's behalf, the complainant trade union complains that he has been and continues to be deprived of employment by Mr. Lemaire and Chinook contrary to sections 64, 66(c) and 70 of the Labour Relations Act ("the Act").
Chinook operates a fleet of eleven highway trucks hauling raw materials to and delivering finished product from its plant in Sombra, Ontario near Sarnia. All eleven of the trucks are leased from the individuals who own them. Chinook employs the owners to drive the vehicles. One of these trucks hauls acid from the Cornwall area to the Sombra plant and returns with loads of product destined for locations in Eastern Ontario. Mr. Lemaire lives in the Cornwall area. Chinook has employed him to drive this "acid run" since November 1980; since then, the vehicle used for the acid run has been a tank truck owned by Mr. Lemaire. The evidence put before us did not address the specific nature of Mr. Lemaire's relationship with Chinook during the early years. When the complainant trade union became certified as bargaining agent for long haul truck drivers of Chinook in September 1987, Chinook was party to a written lease with each of its owner-drivers pursuant to which Chinook had exclusive use of the owner-driver's vehicle and, on the face of it, the exclusive right to determine who would drive that vehicle. Except in the case of Mr. Lemaire and his vehicle, the situation at that time was that each vehicle's owner was its usual driver.
In 1986, Mr. Lemaire decided, for personal reasons, to cut down on the amount of driving he was doing. He determined to get a "spare driver" for the tank truck used in Chinook's acid run. After unsatisfactory experience with another individual, he found Mr. Bourgon and started using him as a spare driver. This caused some initial difficulty with Chinook, since Mr. Lemaire had not consulted Chinook in advance about the use of Mr. Bourgon as a spare driver on the truck Mr. Lemaire leased to Chinook. Mr. Bourgon proved to be a satisfactory driver, however, and he was put on the Chinook payroll a short time after he started driving its acid run. As was the case with the owner-drivers and the spare driver or drivers who occasionally drove the other ten trucks in its fleet, Chinook paid Mr. Bourgon wages calculated periodically according to the distance he drove and provided him with certain additional employment benefits.
From the start, Mr. Bourgon wanted to drive as many runs as he could. Mr. Lemaire, who owned other vehicles which were leased to other companies, was content to have Mr. Bourgon take most of the acid runs. Except during periods like the 1987 Christmas season, when Mr. Lemaire took all or majority of the runs himself in order to increase his cash flow, Mr. Bourgon did take a majority of the runs. In 1987, for example, Mr. Bourgon drove the truck one hundred and forty thousand miles; Mr. Lemaire drove it forty thousand miles in that year.
The complainant trade union was certified as bargaining agent for long haul truck drivers of the respondent Chinook on September 30, 1987. Although it had not previously felt the need to focus closely on the nature of its relationship with its owner-drivers and spare drivers, Chinook concluded that all of them were employees. Chinook and the complainant agreed on a single bargaining unit containing all such drivers, without regard to whether they owned the vehicle they drove. That is the unit for which the complainant was certified. During bargaining, the complainant took the position (in which Chinook ultimately acquiesced) that it was the exclusive bargaining agent for all drivers for the purpose of negotiating a collective agreement and of all owner-drivers for the purpose of negotiating the terms of the leases of their vehicles to Chinook.
The ensuing collective bargaining did not immediately bear fruit. The Minister issued a "no board" report on October 21, 1988. On November 3, 1988, the complainant union applied under section 40a of the Act for a direction that the first contract be settled by arbitration. A termination application was filed by Mr. Lemaire's brother-in-law shortly thereafter. In the meantime, further bargaining resulted in a memorandum of agreement, which was placed before the employees at a ratification meeting on November 19, 1988.
One of the features of this tentative agreement which was of considerable significance to both Mr. Bourgon and Mr. Lemaire concerned demurrage. Demurrage is a payment made by Chinook to the owners of the trucks it leases in respect of time during which the truck is being loaded or unloaded and cannot, therefore, be on the road. The payment of demurrage was part of the existing arrangement between Chinook and the truck owners at the time the memorandum of agreement was negotiated. There was no existing arrangement to compensate the truck driver for the time he spent waiting for a truck to be loaded or unloaded. The memorandum of agreement made provision for a payment to drivers for this delay time, but there was to be a corresponding reduction in the truck leases of the demurrage charges paid to truck owners. This was not as major an issue for those involved in other runs as it was for Mr. Bourgon and Lemaire. The other runs did not involve as much delay time as the acid run and most of the driving on those runs was done by the owners of the trucks; at the time of certification, there were only one or two other spare drivers for all the trucks other than Mr. Lemaire's. The issue was a major one for Messrs. Lemaire and Bourgon, because there was substantial delay time on the acid run and most of the runs were being driven by the spare driver, Mr. Bourgon.
There was a very substantial adverse cost to Mr. Lemaire if the tentative agreement came into effect. His 1988 income from Chinook would have been many thousands of dollars less under its terms. Naturally, he opposed it. There was a point during the meeting of November 19, 1988 at which it appeared the proposed agreement had been ratified. Mr. Bourgon testified that at that point Mr. Lemaire was upset and "mentioned to me that if I had voted against him it would have been better for me to stay home." In the end, however, the agreement was not ratified that day.
Some time before this, in the spring of 1988, Mr. Lemaire had decided that he would like to go back to driving the acid run full time. He ordered a new truck with that in mind. He told Mr. Bourgon of his plan, and offered to sell him the old truck so that Mr. Bourgon could seek similar work with another company. Mr. Bourgon did not pursue that. Mr. Lemaire's plan had been to return to driving the acid run when the new truck arrived in late spring or early summer. Mr. Bourgon asked for the opportunity to drive the acid run for a while longer. Mr. Lemaire deferred his return to driving the acid run; Mr. Bourgon continued to drive most of the acid runs until late December.
On December 18, 1988, Mr. Lemaire met Mr. Bourgon and asked how he had voted at the November ratification meeting. Bourgon answered that what was in proposed contract was very good for him and that he had voted for the union. According to Mr. Bourgon, at the end of a short discussion Mr. Lemaire said that there would not be any "reprimand or bad feelings", that he understood and that each of them would do what was best for him. At that point, Mr. Lemaire took the truck in order to deal with an issue over some repairs it required.
On December 23, 1988, Mr. Lemaire telephoned Mr. Bourgon and told him he had decided that he would thereafter drive the truck himself. Mr. Bourgon says that Mr. Lemaire then told him that if the union did not win the January vote, it was possible he (Bourgon) would get the truck back, but if the union did win, he (Lemaire) was going to continue driving it himself. Mr. Lemaire's denial that he said this is not convincing.
In the meantime, there had been further termination proceedings, which were resolved on the basis that a vote would be held in early January at which bargaining unit employees would have a choice between ratifying the November memorandum of agreement and terminating the union's bargaining rights.
There was a further telephone conversation between Messrs. Lemaire and Bourgon on or about December 30, 1988, during which they discussed whether Mr. Bourgon could get the company to pay him for his waiting time if the union was voted out. This was in the context of Mr. Lemaire's explaining to Bourgon that the waiting time provided for in the memorandum of agreement would effectively come out of Lemaire's pocket, not Chinook's.
The union won the January vote; the tentative collective agreement came into effect. Mr. Lemaire continued to drive his new truck on the acid run.
Chinook's management had understood for some time that Mr. Lemaire would be taking over the driving of his truck on the acid run at some point. Nevertheless, it appears they were uneasy about the circumstances in which this occurred, since they asked Mr. Lemaire to give them a letter explaining why he had done so. Duncan Hockin testified that Chinook felt Lemaire was entitled to resume driving his own truck. Although the terms of the written lease between Chinook and its owner-drivers gave Chinook total control over who would drive the vehicle, Mr. Hockin testified that it had been part of Chinook's understanding with its owner-drivers since before the union was certified that a truck's owner had the right to be its driver if he wished. Because of that, Chinook had not felt it could interfere with Mr. Lemaire's having taken over the driving of his truck. Although it could not guarantee any particular level of work, it did offer to give Bourgon such work as came available for a spare driver on other trucks in its fleet. This was similar to an offer Chinook had made to Bourgon a year earlier, when Mr. Lemaire had taken over driving his truck during the Christmas season. As he had then, Mr. Bourgon turned the offer down, as it would have involved his moving from Cornwall to Sarnia without any guarantee of work.
The sections of the Labour Relations Act on which the complainant relies are these:
No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.
No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
- 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.
[emphasis added]
The complainant acknowledges that Mr. Lemaire is not an "employer" or "person acting on behalf of an employer" within the meaning of sections 64 and 66 and, so, cannot be in breach of either of those sections. Chinook was Mr. Bourgon's employer at all relevant times. The union argues that Chinook knew Mr. Lemaire took the truck away from Mr. Bourgon because he had voted and was expected to vote in favour of the union. It says Chinook could have done something about that. By choosing not to do anything about it, it argues, Chinook violated sections 64 and 66.
Because it does not appear in the form of lease used by Chinook or in any other document, the union invites us to discount Mr. Hockin's assertion that it was part of Chinook's relationship with its drivers that a vehicle's owner had a right or privilege to be its driver. The fact that this right or privilege is not recorded in a document is not the end of the matter; an oral agreement to that effect would be perfectly proper and not inconsistent with anything in the lease. The real question is whether we believe Mr. Hockin's testimony in this regard. We do.
One of the observations made on Chinook's behalf was that Mr. Lemaire had more seniority than Mr. Bourgon and that the collective agreement negotiated with the complainant recognized the principle that seniority should determine the allocation of work. The complainant argued that Mr. Bourgon had a special right under the "dispatching procedures" article of the collective agreement to continue driving the acid run for a period of time notwithstanding his lack of seniority because the acid run is a "dedicated account". There are other portions of the "dispatching procedures" article which suggest that Mr. Bourgon, as a "spare driver", did not have any claim to the acid run which takes preference over Mr. Lemaire's claim. It is not clear that any of these provisions can apply to changes in dispatching which occurred prior to the January ratification of the collective agreement . Apparently no grievance was pursued to arbitration or even filed under the collective agreement on this theory that Mr. Bourgon was entitled under the agreement to be dispatched on the acid run. That was the appropriate forum in which to pursue that argument.
For the purpose of assessing the complainant's claim that Chinook violated sections 64 and 66 of the Labour Relations Act, we assume that what Mr. Lemaire did would have constituted a breach by him of those sections if he were an employer or person acting on behalf of an employer. He was neither, however. He was not acting on behalf of Chinook; Chinook did not cause or invite or suggest that Lemaire do as he did. It acquiesced in his having resumed the role of full-time driver of the truck he owned because it reasonably believed that he had the right to do so, whatever may have motivated him to exercise that right. There is no evidence, and no suggestion, that Chinook's acquiescence was to any extent motivated by a desire to interfere with the trade union or discriminate against Mr. Bourgon as a result of or in anticipation of his exercise of rights under the Labour Relations Act. We find no violation of that Act by Chinook.
The complainant concedes that Mr. Lemaire cannot have breached either section 64 or section 66 because he is not an employer or a person acting on behalf of an employer. While sections 64 and 66 could not apply to Mr. Lemaire, section 70 could. The complainant says Mr. Lemaire violated section 70 when in November and December 1988 he made remarks linking the possibility of a pro-union vote result with adverse consequences for Mr. Bourgon.
One of the themes of Mr. Lemaire's evidence and of the argument presented on his behalf was that Mr. Lemaire's assumption of the role of full-time driver on the acid run was the inevitable consequence of plans which had been put in place long before there was any reason or occasion to intimidate or coerce Mr. Bourgon or anyone else with respect to the exercise of rights under the Labour Relations Act. While the evidence supports the proposition that Mr. Lemaire planned to resume driving on the acid run full-time, it does not persuade us that the plan was irrevocable or that the timing of implementation was unalterable. More than once prior to December 1988, Mr. Lemaire was prepared to and did, for whatever reason, delay this inevitable event. Although he denies it, we find that when he took over driving the truck in late December 1988, he did tell Mr. Bourgon that he might get back on the truck if the union lost the January ratification/termination vote. He certainly was not telling Mr. Bourgon that the change was inevitable.
When he and Mr. Bourgon had the discussions on which the complaint against him focuses, it would have been clear to Mr. Lemaire, if not also to Mr. Bourgon, that implementation of the proposed collective agreement would radically change for Mr. Lemaire the economics of his decision whether to drive his truck himself or not. If the agreement were ratified, its terms would create a powerful incentive for Mr. Lemaire to drive the truck himself, and a corresponding unlikelihood that there would be any further opportunity for Mr. Bourgon to drive it. The comment Mr. Lemaire made to Mr. Bourgon on the occasion in late December could be seen as a simple explanation of this logic to Mr. Bourgon, who, to Mr. Lemaire, seemed not to understand that the benefit he would get under the proposed collective agreement would have a corresponding detriment to Mr. Lemaire. It is also possible to see the remark as the use of economic pressure to influence Mr. Bourgon's exercise of his rights in the upcoming vote. This is the way the complainant invites us to see it. It argues that this amounts to intimidation and coercion contrary to section 70 of the Act. By way of remedy, it asks that we restore Mr. Bourgon to his position as the regular driver of Mr. Lemaire's truck and direct that Mr. Lemaire compensate him for the loss he has suffered by being deprived of the opportunity to drive that truck since December 1988.
The terms "intimidation" and "coercion" are not defined in the Act, and the Board has not attempted an exhaustive definition of them in any of its decisions. In the Corporation of the City of Thunder Bay, [1983] OLRB Rep. May 781, the Board observed that:
Section 70 of the Act prohibits any interference with the rights of individuals under the Act amounting to compulsion by means of intimidation or coercion. Without exhaustively defining the meaning of those terms it appears to the Board that at a minimum they must relate to conduct which, directly or indirectly, deprives an individual of his free choice in the exercise of his rights under the Act. While that might include acts or threats which are physical or economic, the section is aimed at preventing interference with an individual's rights by some form of pressure or force that removes their ability to choose.
A threat that his or her employment or employment opportunities will be reduced or eliminated unless he or she exercises rights in a particular way has generally been regarded as creating the sort of pressure which removes an employee's ability to choose.
It seems to us that one person's assertion to another that there will be an adverse result if he or she follows a certain course of action would not ordinarily be described as a "threat" unless the adverse result were something which the speaker appeared to be in a position to bring about and which would not have been a consequence of the course of action in question but for the apparent intention of the speaker to make it so in order to influence the other's behaviour. The first of these conditions is met here: Mr. Lemaire was in a position to affect whether Mr. Bourgon drove the acid run at the time he made the statements complained of. It is the second condition which is problematic in this case. Because of the economic impact its terms would have on Mr. Lemaire, his taking over the full-time driving of his truck was an entirely logical and predicable consequence if the proposed agreement were implemented, whether Mr. Bourgon voted for the agreement or not and no matter how Mr. Lemaire felt about him or the union.
We are not entirely sure that the conduct complained of amounts to intimidation or coercion within the meaning of section 70. Even if it does, however, we do not think the remedy sought is the appropriate remedy for such a breach.
The remedy sought would put Mr. Bourgon in the position he would have been in if Mr. Lemaire had not resumed driving the acid run himself. That would be an appropriate remedy for Mr. Lemaire's exercise of his right to drive the truck if that were a breach of the Act, but it was not. Mr. Lemaire had the right to resume driving his truck himself or not, as he chose. Although the exercise of that right would have a profound adverse economic effect on Mr. Bourgon, that effect does not make its exercise a violation of the Act. In that regard, Mr. Lemaire's position was no different from that of an employee who has a right to bump another employee out of the only job available to that other employee. Even if he were motivated in the exercise of his right by antipathy to the trade union or to the union activities of the person adversely affected by its exercise, he would not violate the Act or any other law by exercising it, bearing in mind that the constraints of sections 64 and 66 apply only to employers, employer's organizations and persons acting on behalf of employers. The alleged breach of section 70 is not Mr. Lemaire's exercise of his right to take over driving his truck but, rather, his having interfered with Mr. Bourgon's rights in relation to a ratification vote by threatening that the way he exercised (or continued to exercise) his right would depend on the outcome of that vote.
The Board's jurisdiction under section 89 to design a remedy for an offender's breach of the Act must be distinguished from the courts' jurisdiction under section 96 to punish the offender. The Board's remedy must be designed to compensate for or to reverse the effects of the breach; its object should not be punishment of the wrongdoer. Section 70 of the Act is concerned with preventing interference with the exercise of statutory rights. The right with which it is said Mr. Lemaire sought to interfere was Mr. Bourgon's right to freely chose between the alternatives presented in the vote conducted in January 1989. There is no evidence and no suggestion that Mr. Lemaire's having sought to interfere had any actual effect on Mr. Bourgon' s exercise of that right. The union won the vote despite Mr. Lemaire's opposition. The complainant does not ask that another vote be conducted. Even if Mr. Lemaire breached section 70 by attempting to interfere with Mr. Bourgon's exercise of his right to vote, the fact that Mr. Bourgon has not since then driven Mr. Lemaire's truck on the acid run is not a result or effect of that breach but, rather, the result of Mr. Lemaire's lawful exercise of his right to resume driving his own truck, and is not properly the subject of a remedy for the alleged breach of section 70.
We have considered whether Mr. Lemaire's having deprived Mr. Bourgon of the opportunity to drive the truck during the period before the vote might appropriately be the subject of a remedy for the alleged breach, on the theory that his taking away the truck at that time had the effect of emphasizing the threat and so was an integral part of the breach. The difficulty with this may be illustrated by considering a more conventional example, in which one employee threatens another with physical harm if he or she does or does not join the union. The Board has no jurisdiction to remedy an assault. Whatever else it could do, the Board could not award the victim damages for assault if the wrongdoer later carried out his threat. It does not seem to us that the Board's jurisdiction to award damages for assault could be any greater if, when making the threat, the wrongdoer had illustrated the threatened consequences by striking the victim.
We conclude that even if Mr. Lemaire's actions constituted a breach of section 70 of the Act, we would not grant the grievor the remedy he seeks. We do not think any labour relations purpose would be served by an injunctive remedy in the circumstances of this case. In the result, there is no practical need for a decision about whether Mr. Lemaire's actions constituted a breach of section 70 of the Act.
For the foregoing reasons, this complaint is dismissed.