United Steelworkers of America v. Shaw-Almex Industries Limited, 1988 CanLII 3690

[1988] OLRB Rep. March 322

2795-84-U United Steelworkers of America, Complainant V. Shaw-Almex Indus­tries Limited, Respondent v. Group of Employees, Objectors

BEFORE: Harry Freedman, Vice-Chair, and Board Members R. J. Gallivan and J. Kennedy.

APPEARANCES: Brian Shell, Norm Carriere, Joe Miles and Dennis Stevenson for the complainant; Michael Gordon and Johnathon Shaw for the respondent; no one appearing for the objectors.

DECISION OF THE BOARD; March 3, 1988

1. When the Board reconvened the hearing in this matter in Parry Sound on March 1,

1988, counsel for the complainant requested the Board make an interim order directing the respon­dent to return the striking employees to work pending the ultimate disposition of this matter. The Board is presently dealing with whether the return-to-work protocol contained in the respondent's complete proposal for a collective agreement dated January 9, 1987, discriminated between the respondent's striking employees and the employees hired by the respondent as strike replace­ments. While counsel for the complainant characterized the request as an order to be made pursu­ant to the Board's remedial authority under section 89 of the Labour Relations Act, he ultimately asserted that the request he was making was in the nature of reconsideration of the Board's order of December 22, 1986, as amended by the Board's decision of February 16, 1987.

2. Counsel for the complainant submitted that the circumstances facing the parties and the Board were extraordinary and therefore called for an extraordinary response by the Board at this time. The strike against the respondent has continued for almost five years, bargaining is not tak­ing place, there have been numerous Board and judicial proceedings arising out of this labour dis­pute and this particular Board proceeding is not close to completion.

3. Counsel for the respondent, while agreeing that the Board had the jurisdiction to make an order of the type requested by the complainant based on the authority conferred upon the Board by section 106 of the Act, submitted that we should not do so. Counsel argued that the com­plete proposal for a collective agreement, exhibit #1, tabs (a) and (b) filed in these proceedings, was still outstanding. Counsel pointed out that no real bargaining had taken place with respect to the respondent's proposal. The complainant's only response in a bargaining context was a letter to the respondent indicating that its proposal was not acceptable to the complainant.

4. During the course of argument, the Board asked counsel whether the respondent was in a position to now implement the proposal it had made in January, 1987. Counsel responded that as a matter of principle, it could certainly do so, but argued that no order should be made since the Board would be taking over the bargaining for one of the parties to this collective bargaining dis­pute.

5. Counsel for the complainant strenuously argued that the respondent's January 9, 1987 proposal was unacceptable and discriminatory. Counsel ultimately conceded however, that if we were to make any interim order that differed from the respondent's proposal, the result in effect would be to prejudge the dispute that is now before us without first having heard all of the evi­dence and submissions of the parties with respect to the issue that is before us, that is, whether the return-to-work protocol was non-discriminatory as between the striking employees and those employees hired as strike replacements.

6. It seems clear to us that the respondent's proposal of January 9, 1987 presented to the complainant which is still outstanding and which the respondent could implement if agreed to by the complainant is, at the very least, some basis for the striking employees to begin, on a gradual basis, to return to work. We are constrained to point out that as an interim matter we would not vary any of the terms of the proposal because to do so would clearly suggest that we find some of those terms, at this stage of the proceedings, contrary to our order of December 22, 1986 as amended by our decision of February 16, 1987, before giving the parties the opportunity to com­plete the presentation of their respective cases on this issue.

7. During argument, counsel for the complainant was asked whether the complainant wanted the respondent's proposal implemented as an interim order or dismissal of the motion for reconsideration. We also indicated to the parties during argument that if the Board did order implementation of the respondent's proposal, that order was not to be taken as a determination or any indication that the proposal did comply with the Board's earlier decisions in this matter. Rather, we emphasized that such an order would be an interim measure, providing some frame­work within which a gradual return to work of the striking employees could take place. Counsel for the complainant then asked the Board to direct the respondent to implement its proposal of Janu­ary 9, 1987.

8. Counsel for the respondent urged us not to make any interim order since doing so

would involve the Board in the parties' bargaining in an unprecedented fashion. Counsel con­tended that the parties have not engaged in any real bargaining since the Board's December 22,

1986 order was made, suggesting that it was up to the complainant to discuss and provide some

counter proposal to the respondent in a bargaining context.

9. Counsel for the respondent specifically did not raise any procedural objections to the complainant's request.

10. At the hearing we orally ruled that we would vary our previous orders and direct imple­mentation of the respondent's offer of January 9, 1987.

11. The collective bargaining dispute between these parties has now gone on for almost five years and the parties' energies have in large part been devoted to preparing for and engaging in liti­gation over their respective rights. While both the complainant and respondent are clearly entitled to resort to litigation to attempt to vindicate their positions and we do not criticize them for doing so, it seemed to us that the interim order, in the nature of a variation of our earlier order, based entirely on a proposal that the respondent had made and which was still outstanding and which the respondent could implement, was a step towards getting the striking employees back to work with­out in any way prejudicing either the complainant or respondent in their apparent desire to resolve their collective bargaining disputes through these legal proceedings before the Board.

12. The parties did agree at our hearing that the implementation of the respondent's pro­posal should be March 14, 1988. The respondent undertook that it would not hire any employees into the bargaining unit between the day of the hearing in Parry Sound and March 14, 1988.

13. The Board therefore directs:

i) the respondent to implement and,

ii) subject to paragraphs 14 and 15 below, the parties to abide by

the terms and conditions contained in the respondent's proposal for a complete collective agree­ment, including the return-to-work protocol, that is dated January 9, 1987 and which is found at tabs (a) and (b) of exhibit #1 to these proceedings, on and after March 14, 1988.

14. As neither the complainant nor respondent have agreed to being bound by the respon­dent's proposal, and are only so bound to that proposal by reason of this order, the complainant is hereby relieved of the requirement set out in paragraph 1 of Part II of the respondent's proposal to sign a letter of understanding. The condition, however, contained therein with respect to the inter­pretation of article 2.02 of Schedule "A" to part I of the respondent's proposal remains in effect.

15. The parties are free to amend any of the terms and conditions set out in the respon­dent's proposal of January 9, 1987 by agreeing to any such amendments in writing.

16. This interim order shall remain in force until the parties enter into a collective agree­ment or until the Board otherwise directs, whichever occurs first.

17. For reasons given at the hearing of March 1, 1988, the hearings scheduled for March 2nd and March 3rd, 1988 were adjourned at the request of the respondent and over the objections of the complainant.

18. The hearings in this matter will resume in Parry Sound during the week commencing May 16, 1988 and will continue in Toronto on all other hearing dates.

19. While the Board is not making any further directions at this time, we once again urge the parties to meet in collective bargaining, with the assistance of a mediator or other intermediary to attempt to reach a collective agreement. The Board recognizes that the parties' dispute over the propriety of the respondent's proposal continues to exist as does the determination of compensa­tion. The parties are, of course, free to include those matters in any collective bargaining negotia­tions that may take place. If either party however is unwilling to negotiate over those two matters, they will continue to be before the Board in these proceedings.