Ontario Labour Relations Board

[1989] OLRB Rep. November 1095

1819-89-U; 1754-89-U Cambridge, Corporation of the City of, Applicant v. Amalgamated Transit Union, Local 1608, Russell Abernethy, Raymond Blackmore, and Russell Falkiner, Respondents; The Corporation of the City of Cambridge, Applicant v. Amalgamated Transit Union, Local 1608, Russell Abernethy, Ray­mond Blackmore, and Russell Falkiner, Respondents

BEFORE: G. T. Surdykowski, Vice-Chair.

APPEARANCES: D. I. Wakely and George Vandermey for the applicant; Frank Carere, Russell Abernathy, Raymond Blackmore and Russell Falkiner for the respondent.

DECISION OF THE BOARD; November 1, 1989

1. Board File No. 1819-89-U is an application under section 92 of the Labour Relations Act. In the course of the hearing with respect to it on October 30, 1989, the parties agreed, in writ­ing, and filed with the Board, as follows:

The parties to the Application in Board file #1819-89-U agree to dispose of that application by amending the Board order in Board file 1754-89-U in accordance with the attached.

"Russell S. Abernethy" "Georae P. Vandermey"

R. Aberthnethy G. Vandermey for City of Cambridge

"Raymond Blackmore"

R. Blackmore

"Russell Falkiner"

R. Falkiner

"Frank Carere"

Local 1608

1. Having regard to the written agreement of the parties dated October 20, 1989, filed, the

Board:

(a) declares that members of the respondent union have engaged in a concerted refusal to work overtime and have thereby engaged in an unlawful strike contrary to the Labour Relations Act;

(b) union, orders R. Abernethy, R. Blackmore and R. Falkiner to cease and desist from engaging in or counselling either a concerted refusal to work overtime or anything else which would constitute or cause an unlawful strike;

(c) orders, the respondent local union through its officers R. Abernethy, R. Blackmore and R. Falkiner shall sign and deliver in writing to each member of the Local a copy of the following Notice which they shall also post in the employer's premises, all of this no later than Wednesday, November 1, 1989 for a period of 60 days.

TO MEMBERS OF LOCAL 1608

The Ontario Labour Relations Board has found that the members of Local 1608 by a concerted refusal to work overtime have engaged in an unlawful strike in violation of the Labour Relations Act.

The Ontario Labour Relations Board by its direction of Octal order of October 30/89 has ordered the members and officers of Blackmore and R. Falkiner to immediately cease and desist fro by encouraging and counselling the members of Local 1608 to work overtime.

We have also been ordered by the Ontario Labour Relations Board in writing and by way of posted notice that their concerted refusal and in violation of the Labour Relations Act and is to cease immediately.

We, the officers of Local 1608 have expressly agreed and undertaken both to the Ontario Labour Relations Board and The City of Cambridge to encourage our members to fully cooperate with the employer in the working of overtime.

As an indication of the intention of the officers of this Local to abide by and honor this order of the Board, we intend to cooperate with the employer with respect to working overtime. Any issue arising with respect to the employer's method of distributing overtime will be dealt with through the grievance procedure and not by refusing to work overtime.

“R. Abernethy” “R. Blackmore”

“R. Falkiner”

October 30, 1989

(The agreement of the parties has been reproduced as filed, without correction.)

2. The nature of labour relations, particularly ongoing relationship between an employer, a trade union and employees bound by a collective agreement, is such that it is always preferable for the parties to an application such as this one to resolve the dispute themselves rather than hav­ing the Board adjudicate it for them. Accordingly, and having regard to the agreement of the par­ties, the Board finds it appropriate to vary its decision in Board File No. 1754-89-U by amending its order dated October 20, 1989 therein to the following:

(a) The Board declares that members of the respondent union have engaged in the con­certed refusal to work overtime and have thereby engaged in an unlawful strike con­trary to the Labour Relations Act;

(b) The Board orders the union, Russell Abernethy, Raymond Blackmore, and Russell Falkiner to cease and desist from engaging in or counselling either a concerted refusal to work overtime or anything else which would constitute or cause an unlawful strike;

(c) The Board orders the respondent trade union, through its officers Russell Abernethy, Raymond Blackmore and Russell Falkiner, to sign and deliver in writing to each member of the Local a copy of following Notice which they shall also post in the employer's premises, all of this no later than Wednesday, November 1st, 1989, for a period of 60 days:

TO MEMBERS OF LOCAL 1608

The Ontario Labour Relations Board has found that the members of Local 1608 by a concerted refusal to work overtime have engaged in an unlawful strike in violation of the Labour Relations Act.

The Ontario Labour Relations Board by its direction of Oct0ber 20/89 and as modified by its order of October 30/89 has ordered the members and officers of Local 1608, R. Abernethy, R.

Blackmore and R. Falkiner to immediately cease and desist from engaging in unlawful conduct by encouraging and counselling the members of Local 1608 to engage in a concerted refusal to work overtime.

We have also been ordered by the Ontario Labour Relations Board to advise each of our mem­bers in writing and by way of posted notice that their concerted refusal to work overtime is ille­gal and in violation of the Labour Relations Act and is to cease immediately.

We, the officers of Local 1608 have expressly agreed and undertaken both to the Ontario Labour Relations Board and The City of Cambridge to encourage our members to fully cooper­ate with the employer in the working of overtime.

As an indication of the intention of the officers of this Local to abide by and honour this order of the Board, we intend to cooperate with the employer with respect to working overtime. Any issue arising with respect to the employer's method of distributing overtime will be dealt with through the grievance procedure and not by refusing to work overtime.

"R. Abernethy" "R. Blackmore" "R. Falkiner"

October 30, 1989

3. For the benefit of those affected by these applications, I find it appropriate to repeat and expand on some of the comments I made orally at the conclusion of the hearing on October 30, 1989.

4. The Labour Relations Act absolutely prohibits any strike during the effective period of a collective agreement. As the Board emphasized in Monarch Fine Foods Limited, [1986] OLRB Rep. May 661, the parties to a collective agreement, and the employees bound by it, are prohib­ited from engaging in, or threatening to engage in, any strike or lockout activity during the terms of the collective agreement or prior to the completion of the compulsory conciliation process.

5. Section 1(1)(o) of the Labour Relations Act, a "strike" is defined as:

"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.

Job action designed to pressure an employer with respect to a grievance or bargaining objective is not permitted while a collective agreement is in effect or during the conciliation process. Some employees seem to think that if their collective agreement specifies that overtime is "voluntary" in that it permits them to refuse to work overtime on an individual basis, they may also do so, whether expressly or tacitly, in combination or in concert in order to put pressure on their employer either in support of some bargaining objective or otherwise. That is not so. Such a con­certed refusal to work overtime constitutes an unlawful strike. In Watts and Henderson Ltd., [1988] OLRB Rep. July 721, the Board declined to apply the reasoning on MacMillan-Bathurst Inc., [1987] OLRB Rep. Dec. 1568 and [1988] OLRB Rep. March 312 and commented, at paragraph 16, on "overtime bans" as follows:

It is well established that a concerted refusal to [work] overtime constitutes a strike within the meaning of the Labour Relations Act and, concomitantly, that if such an overtime ban is imposed in an untimely manner (that is, within the term of a collective agreement or during a "freeze" period), such a strike is unlawful within the meaning of sections 92 and 135 of the Labour Relations Act (see for example Canada Packers Inc., [1983] OLRB Rep. Sept. 1405, C & C Yachts Manufacturing Limited, [1977] OLRB Rep. July 433, Domtar Packaging Limited, [1974] OLRB Rep. Dec. 899). The respondents relied heavily upon the Board's recent decision in MacMillan-Bathurst Inc., [1987] OLRB Rep. Dec. 1568 (application for reconsideration dis­missed, [1988] OLRB Rep. March 312). In that case, there was a well.established practice whereby whenever there was a lay-off, those employees not lai~l off would, pursuant to a local union by-law known to and accepted by the applicant employer, refuse to work overtime for the duration of the lay-off, except with the agreement of the union in emergency situations. The employer had accepted and taken into account this practice for some ten years before applying to the Board for a declaration that such a refusal to work overtime constituted an unlawful strike and for associated relief. Although the Board found that there was an overtime ban and that it had been imposed by the respondents in accordance with a common understanding, it declined to issue any declarations or give any other remedy the respect thereto on the basis that the parties had "... accepted for many years that overtime bans follow lay-offs as a matter of course". MacMillan-Bathurst Inc. was distinguishable on the facts. The evidence before the Board in this case did not establish any practice remotely approaching that in MacMillan-Bathurst Inc., or that any of the applicants knew of pr accepted the Local 46 by-law upon which the respondents rely, or that, as was the case in MacMillan-Bathurst Inc., they accepted overtime bans. Furthermore, the mere fact that parties have sanctioned, either by spe­cific agreement or by tolerance, a course of conduct in their collective bargaining relationship does not preclude such conduct from being subject to the strike prohibitions in the Labour Rela­tions Act. To suggest otherwise would be to permit parties to c4ntract out of the strike prohibi­tions in the Act, which is not permissible (see, for example, Toronto Transit Commission, [1984] OLRB Rep. Dec. 1781). Of course, even if unlawful conduct has occurred, the Board has the discretion, under section 135 (and section 92) of the Act, to determine whether or not it is appropriate, in the circumstances of the case, to issue a declaration or direction with respect thereto. In MacMillan-Bathurst Inc., the Board declined to determine whether an unlawful strike had occurred because it concluded that, in the circumstances of that case, it would not exercise its discretion to issue any declaration or direction with respect thereto in any event.

6. The Board treats allegations of illegal strike activity seriously. So should the persons involved. In the event of an unlawful strike, and employer may seek an number of remedies:

(1) Under section 92 an employer can seek a cease and desist order enforceable in the Supreme Court of Ontario as an order of the 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 (see, for example, Re Oshawa Group Ltd. and Teamsters Union Local 419 (1988) 1988 CanLII 9224 (ON LA), 33 L.A.C. (3d) 97 where the arbitrator upheld a fourteen day suspension with consequent lose of pay for an employee engaging in an illegal strike; see also the unreported decision of Michel Picher involving the same parties released June 30, 1988),

(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 $1,000.00 per day for employees and $10,000.00 per day for the union.

7. The Board also treats any declarations or orders it makes with respect to unlawful strike activity seriously. So do the courts. The courts are not slow to enforce and give effect to directions given by the Board with respect to unlawful strike activity. As indicated above, persons who dis­obey a Board direction issued with respect to an unlawful strike, and therefore disobey an order of the court (see section 92 of the Labour Relations Act) may find themselves before the Supreme Court of Ontario and may, if they are found to have breached directions issued with respect to unlawful strike activity, be fined or imprisoned.