[1989] OLRB Rep. June 653
2659-88-U Teamsters Local 1247 Chemical, Energy and Allied Workers, Complainant v. Victory Soya Mills, Respondent
BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members R. W. Pirrie and E. G. Theobald.
APPEARANCES: Eric del Junco, Ed Lymam, W. H. Mutimer, Gary L. Wesley, Joe Muyot and William Boyd for the complainant; A. D. G. Purdy, D. V. McLean and R. Strong for the respondent.
DECISION OF THE BOARD; June 22, 1989
I
- This is a complaint under section 89 of the Labour Relations Act alleging that the respondent employer has contravened section 64 of the Act. Section 64 reads as follows:
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.
The facts are not in dispute.
The union has had a collective bargaining relationship with the respondent employer for many years. In general, that relationship has been an amicable one. There is no evidence that the employer has ever indicated any overt anti-union animus, engaged in unfair labour practices, or otherwise suggested that it was not prepared to engage in the bargaining process mandated by the Labour Relations Act. On the contrary, the employer has not only engaged in that process for many years, without unfair labour practice allegations or assertions that it was "bargaining in bad faith", but has also accorded the union a number of "privileges" and benefits beyond what it is obliged to provide under the terms of the statute or its collective agreement. Specifically, the company has always permitted trade union officials to conduct union-management meetings on company premises and company time. The company has always paid the wages of the employees involved in contract negotiations. The company has always paid for the full cost of hotel meeting rooms engaged for that purpose. It has no legal obligation to make such accommodations, but has done so in order to promote a constructive bargaining relationship.
That practice became much more selective (the union argues discriminatory) as a result of an unfortunate incident in 1985.
In 1985 the bargaining committees of the company and the union were involved in a very tense set of negotiations. A strike appeared imminent. A provincial mediator was appointed to assist them.
Bud Mutimer was spokesman for the union negotiating committee. Mr Mutimer has been the employees' union representative since 1976. A Mr. Wright (who is no longer with the company) was spokesman for the management committee.
During a negotiating meeting in August 1985 there was some discussion about the cancellation of an earlier scheduled meeting. As Mr. Mutimer was explaining to Mr. Wright why the meeting had fallen through, Mr. Wright called him a liar. This enraged Mr. Mutimer, who swept an ashtray off the table (inadvertently hitting the mediator in the chest) and stormed around the table demanding that Mr. Wright get out of his chair. No physical altercation actually occurred, but the meeting ended abruptly and the bargaining broke down. There is no question that, until cooler heads prevailed, there was at least the threat of a physical confrontation.
A few weeks later Mr. Mutimer was hospitalized with coronary disease and was unable to work for several months. Another union representative took over his duties. As before, all union-management meetings were conducted on company premises. It was "business as usual". There is no evidence of any nascent anti-union animus or attempt to hinder the employees in the exercise of their collective bargaining rights. Nor is there any evidence that the employees were ill-served by the new union representative, or that he was either under the influence of, or subject to pressure from the employer, or less aggressive than he should have been.
By January 1986 Mr. Mutimer was able to resume partial duties as the employees' representative, but when he went to attend a meeting at the plant he was told at the gatehouse that he had been "banned" from the premises and would not be permitted to enter. The union did not make an issue of this at the time because Mr. Mutimer was not yet fully recovered. The other union representative continued to service the Local, holding meetings on company property in accordance with past practice. Again, there is no question about the quality of employee representation provided by the substitute.
In January 1987 Mr. Mutimer was declared physically fit to resume full duties. Accordingly, the President of Local 1247 wrote to the Personnel Superintendent of the company advising him that Mr. Mutimer was now back on the job and would thereafter be representing the employees in all of their dealings with the company. Once again, the company refused to meet with Mr. Mutimer and refused to allow him access to the premises. The company indicated that physical threats and intimidation had no place in the collective bargaining process and that because of the earlier incident it would have no dealings with Mr. Mutimer whatsoever. However, the company stressed that it was (and still is) prepared to carry on, as before, with any other union representative that the employees might select or the union choose to assign. Its concerns were both personal and specific to Mr. Mutimer. In the company's submission, his union position was quite incidental. It was not seeking a less aggressive employee advocate. It simply did not consider itself obliged to deal with someone who, in its view, had physically threatened a member of management.
The union filed a grievance alleging that the company's stance constituted a violation of the collective agreement. The union asserted that the company had no right to interfere with its internal affairs or to dictate who would be the union representatives on any committee. While the union did not seek to justify Mr. Mutimer's conduct in August 1985, it pointed out that it was an isolated incident in the face of provocation from the employer, and, in any event, had happened years ago. The management official in question has now left the company. Any residual personal animosity is now irrelevant. The arbitrator was urged to interpret the language of the collective agreement in a manner that was consistent with section 64 of the Act.
The arbitrator considered the several provisions in the collective agreement concerning union-management meetings and observed:
"The company has no right to interfere with the choice of the Union's designated representative and must meet with that representative for the three purposes set out in the collective agreement".
However, she went on to say:
"In my view I have no jurisdiction to order that Mr. Mutimer be granted access to the premises because they are private property, but I declare that the company is in breach of the Collective Agreement by refusing to meet with the Union's designated representative and direct that it does so hereinafter.
It would be inconvenient, time consuming, and expensive for both parties to hold all meetings off the premises, but I cannot order that the meetings be held on the premises because the Collective Agreement does not specify where the meetings shall be held. Accordingly, the company will have to determine itself whether it is in the interests of harmonious labour relations and sound business efficiency to continue its ban of Mr. Mutimer from the premises.
The arbitration award was released on June 1,1987. Since that time the company has been prepared to meet with Mr. Mutimer in accordance with the arbitrator's direction, but has maintained its position (consistent with the arbitration award) that it will not meet on, or permit him access to, company premises. It will meet with any other union representative on company property; however, if Mr. Mutimer is involved, it will only discuss its employees' collective bargaining concerns somewhere else.
Initially, the parties met at various union halls where rooms were available free of charge; however, more recently, such accommodation has been unavailable, leaving the parties with the option of meeting in a nearby hotel. The company is prepared to pay half the cost of those hotel rooms and, as we have already mentioned, to meet anyone except Mr. Mutimer on its own premises as it has done in the past. The company is not prepared to permit Mr. Mutimer on the property, and quite candidly acknowledged that, but for the arbitration award, would not be prepared to meet with him at all. The company is prepared to abide, (albeit reluctantly), with the terms of the collective agreement as interpreted by the arbitrator, but, in Mr. Mutimer's case, it is prepared to go no further than that.
The company maintains that the board has no jurisdiction to direct how it may use its business premises nor is there anything improper in restricting access to persons who have (in the company's view) abused what was described as a "privilege". The company reiterates that there is nothing in the collective agreement requiring it to meet on those premises or even to subsidize the rental of outside meeting rooms.
The union argues that this entire affair has been blown out of all proportion (a submission with which we concur) because Mr. Mutimer's outburst, four years ago, was an isolated incident, in a tense situation, for which he is now prepared to tender a written apology. The individual directly affronted is no longer even a member of the management team. The union argues that the effect of the ban is to impose upon the local union members a financial penalty if they wish Mr. Mutimer to represent them as he has done in the past. That penalty is quite specific: if the employees want Mr. Mutimer to represent them they must pay for a portion of the meeting room charges, whereas any other union representative will be admitted to the company premises "free of charge". The union argues that the company's position is intended to influence the employees' choice of advocate by exacting a financial cost if the choice is someone with whom the company is displeased. That, the union argues, is an explicit and overt attempt to interfere with the representation of employees by their union, and to send a clear message that if the company disapproves of the identity, or conduct of the employees' advocate, those employees will have to pay.
II
The parties argued this case as a matter of "high principle": the union relying upon the employees' statutory right to select their bargaining representative without employer interference, and the employer relying upon its allegedly inviolate property rights. Neither position is particularly useful in resolving this dispute, and both must be put in perspective.
We are troubled by the lack of business justification or even internal logic in the company's current stance. If the company is truly concerned about a repetition of Mr. Mutimer's inappropriate behaviour, the venue of its meetings with him should not matter very much - especially since the intemperate outburst, some years ago, of which it still complains, occurred off company premises in the first place. It is difficult to understand why an isolated incident, more than four years ago, involving a management person who has since departed, and for which Mr. Mutimer is prepared to tender a formal written apology, should cloud the current collective bargaining relationship. Indeed, a repetition of that inappropriate behaviour is probably less likely to take place on company premises now that the company has clearly indicated its position regarding such behaviour and its desire to maintain a degree of civility between employer and employee representatives. To put the matter colloquially, there is much to be said for the union's submission that this entire affair is a "tempest in a teapot" and that sound labour relations judgement has been replaced by a preference for the rules of the playground.
There is no absolute right of property in this country either under the Constitution of Canada, or the laws of this jurisdiction. Property rights, like other rights, are not some inalienable abstract notion, but rather a creation of law and subject to law. For example, section 103 of the Act permits the Board to authorize someone to enter an employer's premises even though such entry might otherwise have been trespassing; and in Re Cadillac Fairview Corp. Ltd. et al and R. W.D.S. U., 1987 CanLII 4319 (ON HCJ), 62 O.R. (2d) 337, the Supreme Court of Ontario affirmed that, in appropriate circumstances, the Board could direct that a union be permitted access to private property if that is reasonably necessary to redress a proven unfair labour practice.
On the other hand, we cannot ignore the employer's basic position that, but for the arbitrator's award, it was not prepared to meet with Mr. Mutimer at all; and we have no reason to conclude that in taking that position the company was seeking to undermine the union or deprive the employees of their chosen representative. We accept the union's assertion that the company's response creates some additional expense which may, arguably, "interfere", to a minor extent, with the way in which the union represents the employees in the bargaining unit. But that is a result wholly traceable to a personality clash - sometimes inevitable in the wear and tear of collective bargaining - rather than any desire on the company's part to control the employees' choice of union representative. And, of course, during the period when sister local unions were providing free accommodation, no complaint was made. The union's extra cost, stems, in part, from the refusal of sister unions to permit the free use of their property. The company's position has not changed.
The company's logic is weak, there is some inconvenience to the union, and this consequence flows directly from the position which the company has taken, but we are not prepared to find that the employer has engaged in any scheme to undermine the union's bargaining position. The situation here is the product of personal pique rather than premeditated plot. And, suppose a union representative does physically assault a member of management, or engage in racial slurs, or otherwise transcend the bounds of reasonable behaviour - even given the adversarial nature of the collective bargaining process. Is such conduct to be condoned or ignored, and, more importantly, is it appropriate for the Board to intrude in this area to compel a continuation of accommodations not otherwise legally required, and initially based upon amicable personal relationships rather than the law?
The union's position also has its weaknesses. In the first place, there is only an indirect connection to what may be described as "rights" protected by the Labour Relations Act. It is worth a moment's digression to examine the way in which that Act is structured.
During the organization phase, when the union is attempting to persuade employees to support it, there is no protected right to organize on company premises during working hours (see section 71 of the Act). Even after the union's bargaining rights have been established by certification, there is no obligation on the employer's part to subsidize the cost of collective bargaining by providing the union with meeting rooms free of charge, by subsidizing the wage losses of the employees involved, or by absorbing incidental costs which might otherwise be borne in equal measure. In fact, section 64 of the Act, upon which the union here relies, actually prohibits the employer from providing financial or other support to the union, and section 46(1) suggests that the use of the employer's premises or the kind of subsidies which the company here has freely given, should ordinarily be the product of collective bargaining. Thus, the paradox in the union s position is that, in reliance upon section 64, it is demanding the continuation of a form of "financial or other support" even though neither the statute nor the current collective agreement expressly requires it.
In essence, then, the union is demanding that the company continue to provide an ex gratia benefit because it has provided such benefit in the past and remains willing to continue such accommodation in a fashion which the union describes as discriminatory. Here, too, there is a certain irony. If the company had always taken an absolute position: i.e. no use of employer premises for any union representatives, no wage subsidies, and so on, it is difficult to see how the union would have any case at all. If the company had asserted all along that it was adhering to its strict legal rights under the collective agreement in respect of all of its dealings with the union, it might be hard to find fault with its position (although, as the arbitrator pointed out, that might not make much sense from a labour relations point of view). Accordingly, while we are troubled by the fact that the company has been selective in the way in which it has dealt with a particular union official, that activity has been narrowly focused, and is not tainted by any general anti-union motive.
We acknowledge the union's concern that an employer, by granting or withholding "indulgences" should not be permitted to undermine the independence of the employees' bargaining agent or control the identity of the employees' representative. A withdrawal, without business justification, of accommodations previously made, with the intention or obvious effect of penalizing the employees for their choice of bargaining representative, might well breach section 64. But that is not really what has happened here. What we have before us is a simple conflict of personalities and a contest over which party will ultimately turn out to be more stubborn and short-sighted. That is not the kind of situation in which the Board, in its discretion, should be involved. Assuming, without finding that the company's conduct might constitute a contravention of section 64 of the Act, we would not be disposed to grant any remedy. In the particular circumstances of this case, we are satisfied that the problems raised before us are best resolved through the process of discussion and collective bargaining between the parties, and not through intervention by this Board. The matters of "high principle" raised by the parties are better addressed in a case which really warrants their consideration. This is not such a case.