Toronto Transit Commission v. Amalgamated Transit Union, Local 113, 1990 CanLII 5638

[1990] OLRB Rep. December 1346

2353-89-U Toronto Transit Commission, Complainant v. Amalgamated Transit Union, Local 113, Respondent, V. William L. Franco et al., Interveners

BEFORE: S. A. Tacon, Vice-Chair, and Board Members W. H. Wightman and H. Peacock.

APPEARANCES: Bruce Stewart, Neal Sommer and Bruno Iannacito for the complainant; L. C. Arnold, R. Hutcheson and L. Moore for the respondent; Harry Freedman, Barry Bernardo and William Franco for the interveners.

DECISION OF THE BOARD; December 20, 1990

1The name of the respondent is amended to read: "Amalgamated Transit Union, Local 113.

2This is a complaint pursuant to section 89 of the Labour Relations Act alleging violation of sections 70, 71a, 74, 76 and 78. (The allegation that section 71a was breached was not pursued.) The complainant is the Toronto Transit Commission (the "TTC" or the "employer"); the respon­dent is Local 113 of the Amalgamated Transit Union (the "union"). In an oral ruling, the Board directed that the inspectors represented by Mr. Freedman be added as interveners in these pro­ceedings. The complaint arises out of the expulsion from Local 113 in October 1989 of inspectors who are employees of the 'T'FC but excluded from the bargaining unit represented by the union.

3A number of preliminary objections were raised. Several were dealt with by the Board at the hearing and should be noted briefly.

4Counsel for the TTC clarified that the gravamen of the complaint was confined to two areas, namely: the moving of the resolution (set out in the schedule to the complaint), and the car­rying forward of that resolution once passed by means of the notice of October 16, 1989 over the signature of R. L. Hutcheson and L. Moore. Whether the allegation impugned by union counsel was characterized as sufficiently clear in the March 7 letter from company counsel or as an amend­ment requested at the hearing, the Board ruled it was satisfied that the allegation should not be struck out at that stage of the proceedings.

5With respect to another preliminary motion of union counsel, the Board ruled as fol­lows:

In the Board's view, the question at issue is simply "can the intervener agree to facts and prem­ises for purposes of these proceedings?" When framed in that manner, the question is not novel. Parties often reach factual agreements restricted to a particular case in order to facilitate the determination of legal questions and the Board proceeds on that basis. The "precedential" value of a Board decision reflects the factual context in which the case proceeded. In the instant case, the interveners take the position that, for purposes of these proceedings, the interveners agree to all matters agreed to by the company and the union. The Board regards that as an appropriate basis on which this case should proceed. That said, there is nothing to preclude counsel in other proceedings (such as the section 68 complaint) from raising whatever arguments he wishes for determination by that panel.

6The parties were able to agree, before the Board, on all relevant facts; documentary material was also filed with the Board on consent. That factual agreement was reduced to writing by the parties and filed with the Board at the continuation of the proceedings for purposes of hear­ing counsels' submissions with respect to the remaining preliminary motions and the merits of the complaint. It is not necessary, however, to set out that agreement, including the various para­graphs from the pleadings which were incorporated in that agreement. It is useful to briefly sum­marize the chronology of events, based on the parties' agreed facts, which are relevant for the pur­poses of this complaint.

7Prior to 1986, the constitution of the union provided that inspectors may retain union membership by paying dues and by remaining members in good standing. Further, the Local by­laws stated that those persons shall have their seniority rights protected upon their return to the bargaining unit provided, while outside the unit, they remained in good standing and paid dues. While outside the unit, the inspectors had no voice or vote in the Local affairs except in the elec­tion of officers and delegates to conventions. In 1986, the constitution was amended to place the retention of the active Local membership status of persons outside of the bargaining unit at the dis­cretion of the Local. If the Local declined to permit such persons to retain their Local union mem­bership, those individuals could, by taking a withdrawal card from the Local and filing such with the International, continue their membership in the International as a member-at-large. [The Board has throughout referred only to inspectors, given the instant complaint, although the consti­tution, by-laws and seniority regulations include persons in other categories, analogous to inspectors].

8The seniority regulations negotiated between the TTC and the Local (and for the Board's purposes in these proceedings considered incorporated into the collective agreement) pro­vided that employees who transferred to non-union staff positions (including inspectors) and subse­quently returned to the bargaining unit shall retain their seniority if their membership in good standing in the Local has been maintained while in their staff positions.

9On August 27, 1989, the Local voted to initiate job action in the form of a work to rule and, then, effective September 3, through a four-day work week. Union members who refused to comply with the job action would be subject to such penalties as the membership might impose. By letter dated September 1, 1989, the "TTC informed the Local that bargaining unit work would be performed by staff employees, including inspectors. At a general meeting of the Local on Septem­ber 12, the following Notices of Motion were introduced and advertised as provided for in the by­laws.

NOTICES OF MOTION

#1 "WHEREAS MEMBERS OF LOCAL 113 HAVE BEEN APPOINTED TO THE MAN­AGEMENT AND SUPERVISORY POSITIONS WHICH ARE OUTSIDE THE BARGAIN­ING UNIT AND HAVE BEEN PERMITTED TO RETAIN MEMBERSHIP IN LOCAL 113 AS AUTHORIZED BY THE UNION CONSTITUTION;

AND WHEREAS ACTING INSPECTORS HAVE REMAINED MEMBERS OF LOCAL 113 AS PROVIDED FOR IN THE COLLECTIVE AGREEMENT; AND WHEREAS DURING THE CONTINUING STRIKE ACTION THE TI'C HAS REQUESTED BOTH SUPER­VISORY PERSONNEL ANI) ACTING INSPECTORS TO PERFORM BARGAINING UNIT WORK;

AND WHEREAS LOCAL 113 HAS STATED THAT IF SUCH PERSONS PERFORM BARGAINING UNIT WORK WHILE STRIKE ACTION CONTINUES, THEIR MEM­BERSHIP IN LOCAL 113, AND IN CONSEQUENCE THEIR RIGHT TO RETURN TO THE BARGAINING UNIT WITH FULL SENIORITY, SHALL BE REVOKED;

NOW THEREFORE BE IT RESOLVED AS FOLLOWS:

1. ANY INSPECTOR OR ACTING INSPECTOR OR SUPERVISORY PERSONNEL WHO IS A MEMBER OF LOCAL 113 AND WHO REFUSES THE TTC REQUEST TO PER­FORM BARGAINING UNIT WORK DURING THE PERIOD OF THE CURRENT STRIKE ACTION SHALL BE ACCEPTED BACK INTO THE BARGAINING UNIT WITH FULL ACCRUED SENIORITY.

2. ANY INSPECTOR OR ACTING INSPECTOR OR SUPERVISORY PERSONNEL WHO DOES NOT RETURN TO THE BARGAINING UNIT AS PROVIDED FOR IN PARA­GRAPH #1 SHALL HAVE HIS MEMBER5HIP IN LOCAL 113 FORTHWITH TERMI­NATED.

3. ANY INSPECTOR OR ACTING INSPECTOR OR SUPERVISORY PERSONNEL WHOSE MEMBERSHIP IN LOCAL 113 IS TERMINATED IN ACCORDANCE HERE­WITH SHALL BE ENTITLED TO TAKE OUT A WITHDRAWAL CARD AND REMAIN A MEMBER-AT-LARGE OF THE INTERNATIONAL UNION AS PROVIDED FOR IN THE CONSTITUTION."

THE ABOVE NOTICE OF MOTION WAS MOVED BY THE EXECUTIVE BOARD OF LOCAL 113

#2" WE MOVE OR CAUSE TO BE MOVED THE FOLLOWING MOTION ON NOTICE OF MOTION, THAT ALL MEMBERS WHO KNOWINGLY REFUSED TO COMPLY WITH THE JOB ACTION PASSED BY THE MEMBERSHIP IN ATTENDANCE AT THE MASS MEETING, AUGUST 27TH, 1989 WILL BE DEALT WITH IN ACCORDANCE WITH SECTION 22 OF THE CONSTITUTION AND GENERAL LAWS."

THE ABOVE NOTICE WAS MOVED BY THE EXECUTIVE BOARD OF LOCAL 113.

The membership approved the motion in a secret ballot vote at a meeting on October 15, 1989. Immediately thereafter, a bulletin was published as follows (although the Board has not repro­duced the Notice of Motion as set out above but which was attached to the bulletin):

BULLETIN

ALL LOCAL 113 MEMBERS WHO HAVE JOBS OUTSIDE THE BARGAINING UNIT HAVE BEEN SENT THE FOLLOWING LETTER: After, a bulletin was published as follows (although the Board has not reproduced the Notice of Motion as set out above but which was attached to the bulletin):

TO ALL INSPECTORS, ACTING INSPECTORS, FOREMEN AND OTHER SUPERVI­SORY PERSONNEL:

DURING THE RECENT CONTRACT DISPUTE, CERTAIN INSPECTORS, ACTING INSPECTORS, FOREMEN AND OTHER SUPERVISORY PERSONNEL, WHO ARE MEMBERS OF LOCAL 113, PERFORMED THE WORK OF BARGAINING UNIT PER­SONNEL WHO WERE NOT WORKING AS A RESULT OF JOB ACTION CALLED BY LOCAL 113.

IN CONSEQUENCE, SUBJECT TO THE PART OF THIS NOTICE RELATING TO ACT­ING INSPECTORS SET OUT BELOW, THE MEMBERSHIP OF LOCAL 113 HAS DETERMINED BY RESOLUTION THAT IT IS INAPPROPRIATE FOR ANY SUCH SUPERVISORY PERSONNEL TO REMAIN MEMBERS OF LOCAL 113.

BY RESOLUTION OF LOCAL 113 MEMBERSHIP WHICH WAS PASSED BY BALLOT VOTE AT A REGULARLY CALLED MEMBERSHIP MEETING ON OCTOBER 15, 1989, IT WAS RESOLVED THAT ALL SUCH SUPERVISORY PERSONNEL ARE NO LONGER TO BE MEMBERS OF LOCAL 113. HOWEVER, IN ACCORDANCE WITH THE AMALGAMATED TRANSIT UNION CONSTITUTION, THESE PERSONS MAY BECOME MEMBERS-AT-LARGE OF THE INTERNATIONAL UNION.

A COPY OF THE RESOLUTION IS ENCLOSED.

ACTING INSPECTORS

THE APPLICATION OF THE RESOLUTION TO THE CLASSIFICATION OF "ACTING INSPECTOR" HAS BEEN DEFERRED PENDING RESOLUTION OF THEIR STATUS, WHICH WILL DETERMINE WHETHER OR NOT THE "ACTING INSPECTOR" SHOULD REMAIN IN THE BARGAINING UNIT.

CONSEQUENTLY, UNTIL THE STATU5 OF "ACTING INSPECTOR" IS DETER­MINED BY THE ONTARIO LABOUR RELATIONS BOARD OR BY AGREEMENT OF THE UNION AND THE TTC, PERSONS WHO ARE WORKING AS ACTING INSPEC­TORS MUST CONTINUE TO BE MEMBERS OF THE UNION IN GOOD STANDING.

[The Board is not concerned, in these proceedings, with the acting inspectors].

10As a result of the motion depriving inspectors of their local membership, inspectors could no longer return to the bargaining unit with their "departmental seniority" (affecting prefer­ential selection of available scheduled work) although their system seniority (affecting vacation for example) remained intact provided the inspectors continued as members-at-large in the Interna­tional. Grievance proceedings against the local were commenced by the "TTC but have been adjourned sine die.

11The Board next sets out the representations of counsel in highly abbreviated form. It should be noted that, given that the parties were able to reach agreement on facts, submissions of counsel included argument on the merits as well as those preliminary motions of union counsel not dealt with earlier.

12Counsel for the "FTC reviewed the sequence of events. It was argued that the notice of the motion to revoke the membership in the Local of inspectors who complied with company orders to perform bargaining unit work constituted a threat contrary to sections 74 and 76 of the Act. Further, the actual implementation of this "threat" at the October 15, 1989 union meeting after the strike itself had ceased, violated the Act as well. Counsel acknowledged that the union had acted in compliance with its constitution in approving the impugned motion but asserted that "constitutionality" could not insulate the conduct from Board review if that conduct was contrary to the Act. It was stressed that the company was not seeking the restoration of membership in the Local for the inspectors but merely to restore their right to return to the bargaining unit with their full departmental seniority. That is, counsel was challenging the retroactive stripping of the inspec­tors' seniority by the unilateral action of the union. The unusual nature of the protection of the seniority of inspectors upon their return to the bargaining unit, i.e. that right was not time-limited, was also emphasized. Counsel noted that the inspectors, in performing bargaining unit work, had a legal obligation to carry out the company's directives. Counsel contended that the union threat­ened the inspectors (with the revocation of the inspectors' membership) if they (the inspectors) did not engage in an unlawful strike. It was argued that the reference to "strike" in sections 74 and 76 was broader than the definition of "strike" in the Act itself and could include a "strike" at com­mon law. In this regard, counsel noted that the reference to "strike" in sections 74 and 76 was broader than that reference in section 78 which was qualified by the phrase "under this Act". Nonetheless, counsel argued, on grounds of public policy, for a broad construction of the term "strike" to prevent unlawful actions in the course of exercising statutory strike rights. Cases referred to included: Toronto Transit Commission (unreported, November 8, 1989) (Keller); C.P.R. Co. v. Zambri (1962), 34 I).L.R. (2d) 654 (S.C.C.); Sarnia Construction Association, (1982) 82 CLLC ¶16,182 (OLRB); Bents Brewery Co., Ltd. and others v. Luke Hogan, [1945] 2 All E.R. 570; A.A.S. Telecommunications Ltd. and Zipcall Ltd., [1976] OLRB Rep. Dec. 751.

13Counsel for the interveners adopted the submissions of employer counsel but stressed that the argument proceeded on the agreement, in the context of this complaint that the inspectors were not employees for purposes of the Act. It was argued that the work performed by the inspec­tors in 1989 had been performed without incident in the past and, as the inspectors continued to pay union dues, they should not be retroactively deprived of their seniority rights for resisting the union's threat. Counsel noted that the union's by-laws had recognized the potential conflict between the inspectors and other members by restricting the inspectors' right to vote, etc. and the union should not be able to destroy the status quo with respect to seniority merely because that potential conflict materialized. Counsel emphasized that the seniority rights of inspectors were conferred in the collective agreement through the incorporation therein of the Seniority Regula­tions and, therefore, contended that the stripping of those rights could not be construed merely as an internal union matter. Counsel argued, that by virtue of section 50, the seniority rights under the collective agreement became rights under the Act. Thus, it was submitted, a person exercising a right under a collective agreement was, in fact, exercising rights under the Act and a threat (as here) to take away those rights constituted a breach of section 70. It was stressed that the inspec­tors were not seeking to enforce the collective agreement itself but were relying on those collective agreement rights (of seniority), through section 50, to ground an asserted violation of section 70. Counsel emphasized the importance of seniority rights and distinguished those cases cited by union counsel on the ground that the inspectors were not seeking reinstatement to local membership, just restoration of the status quo in regard to seniority rights. It was contended that the Act applied to section 1(3)(b) persons, albeit with limitations, in view of their position as "managerial." On this basis, the inclusive form of the definition of "strike" could encompass a cessation of work by non-employees, counsel submitted. Counsel noted that the jurisprudence rejected the proposition that trade unions need be organizations wherein membership was restricted to "employees" only and argued that the Board could and should have regard to the "raw deal" inflicted by the union on the inspectors wherein the inspectors were deprived of their seniority rights for following the compa­ny's orders and performing their duties as they had in the past. Cases referred to or commented on included: Dufferin Aggregates, [1982] OLRB Rep. Jan. 35; Re. Miller et al. and Algoma Steelwork­ers Credit Union Ltd. et al., 1974 CanLII 860 (ON HCJDC), [1974] 6 O.R. (2d) 676 (Ont. Div. Ct.); J. G. Rivard Limited, [1980] OLRB Rep. July 1009; Barbara Jarvis v. Associated Medical Services Ltd. et al. (1964), 64 CLLC ¶15,511 (S.C.C.); Ottawa General Hospital, [1974] OLRB Rep. Oct. 714; A.A.S. Telecommunications, supra.

14Counsel for the union asserted the complaint should be dismissed on several grounds. It was argued that the facts as agreed did not make out a prima facie breach of the Act. The inspec­tors' seniority rights were merely inchoate rights dependent upon continued membership in the Local which could be revoked following the 1986 constitutional amendment or lost through negoti­ation or the failure to pay union dues. It was stressed that the union acted in accordance with its by-laws in revoking the inspectors' membership in the Local, that such a response was reasonable in the circumstances wherein managerial persons were performing bargaining unit work, that per­sons within the bargaining unit would be at similar risk of loss of membership if they refused to engage in a lawful strike and that the inspectors retained their membership in the International Union and could return to the bargaining unit with their system wide seniority, albeit not their departmental seniority (which affected bidding rights on runs, for example). The Board should not, and does not, interfere in the internal affairs of unions, it was submitted, particularly since, it was not disputed, the union had acted in accordance with its by-laws. Counsel contended that the Board had no jurisdiction to find a contravention of sections 74 and 76 brought by an employer and that the interveners could not seek their own remedy in section 70 through reliance on section 50. It was submitted that the only practical means of restoring the inspectors' inchoate seniority rights was to directly or indirectly reinstate them as members of the Local, a direction which the Board lacked the jurisdiction to order or, at least, should not exercise its discretion to order in the circum­stances, particularly on behalf of "managerial" persons. It was argued that Bill 58 (which ended the strike) which precluded changes to the collective agreement except those agreed to by the par­ties deprived the Board of authority to order the relief requested. Counsel acknowledged that a collective agreement could provide benefits to persons outside the bargaining unit but submitted that those rights were not enforceable through sections 50 and 70 at the instance of such persons (the inspectors, in the instant case). Counsel asserted that sections 74 and 76 did not create "sub­stantive" rights but were merely prohibitions and, further, that section 70 (and 74 and 76) were not provisions under which managerial persons could claim protection. The Board should not use sec­tion 89 except to enforce, for managerial persons, substantive rights under the Act. In the alterna­tive, counsel argued that, even if the union sought to induce an unlawful strike of managerial per­sons, the Board should not direct relief at the instance of those managerial persons to have their privileges restored or at the instance of the company which, it was asserted, had precipitated the problem. It was suggested the inspectors could look to the courts for relief alleging a threat to induce breach of contract but the Board should exercise its discretion to refuse to entertain the complaints. Or, the Board should exercise its discretion to defer to arbitration, which proceedings had been initiated by the company and adjourned sine die. Finally, in the further alternative, should the Board find a breach, the only appropriate remedy was a declaration, not a direction to amend the collective agreement and/or restore the inspectors' membership in the Local. Cases referred to: J. Paiva Foods, [1985] OLRB Rep. May 690; Toronto Transit Commission, [1967] OLRB Rep. Feb. 878;, Transit Windsor, [1979] OLRB Rep. Mar. 262; Ottawa General Hospital, supra; A.A.S. Telecommunications, supra; The Board of Education for the City of York, [1985] OLRB Rep. June 997; Frank Manoni, [1981] OLRB Rep. Dec. 1775; Luciano D'Alessandro, [1987] OLRB Rep. July 986; Barbara Jarvis, supra.

15Counsel for the interveners distinguished those cases cited by the union on the basis that the inspectors were not seeking reinstatement to union membership or to employment but merely restoration of their seniority rights. It was argued that there was no evidence before the Board of "hard feelings" or "animosity" between the bargaining unit members and the inspectors because of the inspectors' carrying out of the company's directives. That the parties could negoti­ate away the inspectors' seniority rights was distinguished from the unilateral act by one party, as here. Counsel argued that Bill 58 did not preclude a Board order directing the union, for example, to agree to a provision protecting the inspectors' seniority rights. Counsel also submitted that the interveners were entitled to seek relief, albeit for their benefit, which arose from the company's pleadings. That is, the inspectors had rights under the Act by virtue of section 50 and the provi­sions of the collective agreement and section 70 protected the inspectors in the exercise of those rights.

16In reply, counsel for the "TTC sought to distinguish those cases referred to by union counsel and asserted that the Board 'was not bound by the decision in Jarvis, supra, with respect to the interpretation of the reference to "persons" in sections 74 and 76. It was conceded that there was no evidence of a breach of contract by the inspectors and no written contract of employment but counsel contended that the union's conduct was intended to cause a mass quitting or a mass resignation and, therefore, contravened sections 74, 76 and 78.

DECISION

17Given the allegations and the scope of counsels' submissions, it is useful to first set out the relevant sections of the Act.

70. 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.

71. No trade union or council of trade unions shall call or authorize or threaten to call or autho­rize an unlawful strike and no officer, official or agent of a trade union or council of trade unions shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike.

76.-(1) No person shall do any act if he knows or ought to know that, as a probable and reason­able consequence of the act, another person or persons will engage in an unlawful strike or an unlawful lock-out.

(2) Subsection (1) does not apply to any act done in connection with a lawful strike or lawful lock-out.

78. No trade union shall suspend, expel or penalize in any way a member because he has refused to engage in or to continue to engage in a strike that is unlawful under this Act.

l.(1) (o) "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;

1. (3) Subject to section 90 for the purposes of this Act, no person shall be deemed to be an employees,

(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.

50. A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.

51. For the purposes of section 80 and any complaint made under section 89, "person" includes any person otherwise excluded by subsection 1(3).

18The Board first deals with the alleged violations of section 74, 76 and 78 of the Act. The thrust of the complainant counsel's argument was that if the inspectors had refused to perform bar­gaining unit work as directed by the TTC, that refusal would have constituted an unlawful strike. By requiring the inspectors to refuse to perform bargaining unit work as directed by the T1'C or else lose their membership in the Local (and thus their departmental seniority rights should they wish to return to the bargaining unit), it was argued the union at least counselled, procured, sug­gested or encouraged an unlawful strike (in contravention of section 74, and, in contravention of section 76, acted in the knowledge that a probable and reasonable consequence of their action was that other persons (the inspectors) would engage in an unlawful strike. It was asserted that the Local's expulsion of the inspectors from membership in the Local for the inspectors' performance of bargaining unit work as directed by the TTC and their refusal to engage in a strike that would be unlawful under this Act contravened section 78. The Board, however, is not persuaded by this analysis.

19It is accurate to note that the definition of "strike" in the Act is "inclusive" in its terms. In the Board's view, the inclusive nature of the definition refers to the types of activities which may constitute a strike (such as the cessation of work, refusal to work or to continue to work or a slow­down or other concerted activity) rather than a reference to the persons who may so act. That is, a strike under the Labour Relations Act is conduct by employees in combination or concert or in accordance with a common understanding. And, for purposes of these proceedings, it is not in dis­pute that the inspectors are deemed not to be employees by virtue of section 1(3)(b) of the Act. The Board is not persuaded that the presence of the phrase "under this Act" modifying the term "unlawful strike" in section 78 and its absence from sections 74 and 76 broadens the scope of "un­lawful strikes" encompassed by section 74 and 76 to include the instant circumstances. In short the Labour Relations Act provides a definition of the term "strike", sections 74, 76 and 78 are to be read with reference to that definition and the touchstone of that definition is conduct by employees. The inspectors are not "employees" within the meaning of the Labour Relations Act, as indicated earlier, for purposes of these proceedings.

20The Board does not consider it useful or appropriate to import common law notions of what constitutes an unlawful strike into the Labour Relations Act in the face of a definition section in the Board's governing statute. Whether the cessation of work, or a refusal to perform bargaining unit work, by the inspectors even in concert (had such occurred) would constitute a "strike" at common law, is problematic and a question which the Board need not answer. For the Board's purposes, the Board is satisfied that such conduct would not have constituted a "strike" covered by the Labour Relations Act and, hence, the references to "unlawful strike" in the sections 74, 76 and 78 would not cover activity by persons excluded from the Act by virtue of section 1(3)(b). This conclusion is consistent with the jurisprudence which has held that the rights extended to "manage­rial" persons by the Labour Relations Act are severely restricted: see Barbara Jarvis, supra and paragraph 24, infra.

21The Board, therefore, finds that the union has not contravened sections 74, 76 and 78. Whether there are other avenues for redress available to the 'FTC is not for this Board to deter­mine. As noted, the "TTC has initiated grievance proceedings which are currently adjourned sine die. Whether the collective agreement has been violated is a question for an arbitrator to determine. Whether the circumstances would give rise to a common law cause of action is for the courts to assess. What the Board has found is that sections 74, 76 and 78 are not breached by the Local's actions. Given its analysis, the Board need not determine whether an employer could, in other cir­cumstances, succeed in a complaint alleging breach of section 78.

22The Board next turns to the alleged violation of section 70. In the instant case, it is sub­mitted that the union used intimidation or coercion to compel persons (the inspectors) to continue to be members of a trade union or to refrain from exercising any other rights under this Act. The essence of the argument by interveners' counsel is that the seniority rights granted to inspectors in the collective agreement became, by virtue of section 50, "rights under the Act" encompassed by the wording of section 70. J. G. Rivard, supra, was cited as support for this proposition. The Board disagrees that J. G. Rivard, supra, may be construed so broadly. That case, relying on Imperial Tobacco Products (Ontario) Limited, [1974] OLRB Rep. July 418, found that the counterpart in the construction industry provisions of section 50 made the provincial agreement binding, inter alia, on the employer bargaining agency and the employers represented by the employer bargain­ing agency. Thus, the non-payment of industry fund dues by an employer, contrary to its obligation under the collective agreement, is a deviation from the terms of that agreement contrary to [now] section 147(2). The substantive provisions of [now] section 147(2) were found to be available to the employer bargaining agency in grounding a request for relief under section 89 of the Act. The Board therein considered that the requirement to pay industry fund dues as analogous to the dues check-off provisions and held that there is a labour relations interest in ensuring the viability of employers' organizations and employer bargaining agencies. The payment of industry fund dues provided the basis for the viability of such organizations and agencies in the process of collective bargaining and in the administration and policing of collective agreements.

23In the Board's view, there are no comparable labour relations considerations favouring an extension of the reasoning in J. G. Rivard, supra, to the instant case. First, the Board notes that section 50 does not operate to make the collective agreement binding on the inspectors who are neither parties to that agreement nor "employees in the bargaining unit" defined in the agreement. At best, it may be said that the inspectors are third party beneficiaries, outside the bargaining unit, of provisions negotiated between the employer and the trade union. This is a critical distinction rendering the reasoning in J. G. Rivard, supra, inapplicable to the instant case. Section 50 cannot be construed to create rights under the Labour Relations Act enforceable for the benefit of persons agreed to be "managerial" within the meaning of section 1(3)(b) of the Act (for purposes of this proceeding).

24Further, the Board has held that the rights of managerial persons to obtain relief under the Labour Relations Act are quite limited as the following excerpt from A.A.S. Telecommunications Ltd., supra, indicates:

23. There remains the difficult question of the respondents' dismissal of Bird, assuming that she is a managerial employee. The prohibitions set out in section 58 [now 66] of the Act, protecting the right of individual employees to organize, do not extend as far as the managerial employee. The Board has recognized that the effect of Associated Medical Services Ltd., 1964 CanLII 12 (SCC), 44 D.L.R. (2d) 407 was to restrict the meaning of the word "person" in section 58 to "employees" as defined by the Act. (See Ottawa General Hospital (No.1), [1974] OLRB Rep. Mar. 193.) Mana­gerial employees, since they are expressly excluded as employees, are not covered by the core of employee protections set out in section 58 [now 66]. In other words, these protections apply only to those persons entitled under the Act to join a union and to participate in its lawful activi­ties.

24. Managerial employees, however, are not left completely unprotected by the Labour Rela­tions Act. A limited protection has been extended to this group of persons by section 80 [now 90]. The Board has held that section 80 [now 90] not only extends to the managerial employee remedial protection where there has been a violation of section 71 [now 80], but remedial pro­tection where there has been a violation of any other provision of the Act. (See Ottawa General Hospital (No. 1), supra.) This protection, however, is much more narrow than might appear from the fact [sic] of this proposition. The important limitation is that there must be a violation of a substantive provision of the Act before any remedial relief is available to the managerial employee, raising the question of the extent to which the managerial employee falls within the substantive protections of the Act.

25. Dealing with the issue of whether a managerial employee has any statutory right to become a member of a trade union and to participate in its lawful activities, the Board, in Ottawa General Hospital (No.2), [1974] OLRB Rep. Oct. 715, stated, at p. 723:

26. In our view, it would be repugnant to the whole scheme of the Act to conclude (as we would have to do if we were to accept the argument of counsel for the complain­ant) that a managerial person is given any such right by the Act. The broad language of section 3 - "Every person is free to join a trade union and to participate in its lawful activities" - must be read subject to the definition of "trade union" (section 1(l)(n) as an organization of "employees" and to section l(3)(b) which says, in effect, that a managerial person is not an "employee" for the purposes of the Act. This is not to say that no one other than an employee, in this restricted sense, can join a trade union. One of the reasons, presumably, why "person" (rather than "employee") is used in section 3 is to enable a person not currently employed to become a member of a trade union. However, as we have said, it would he contrary to what we conceive to be the essential purpose and scheme of the Act to conclude that a managerial person has a protectable right to union membership.

The Board then went on to deal with the specific question of whether section 61 [now 70] of the Act was sufficiently wide to include managerial employees. At p. 726, the Board stated:

31. The fundamental premise of the complainant's argument is that a managerial per­son is free to join a trade union and to participate in its lawful activities (section 3 of the Act) and that that right is protected by section 61 [now 70]. Where, precisely, does that argument lead? Did the Legislature intend to confer upon a managerial per­son a protectable right to join an organization which has no legally enforceable right to represent him in collective bargaining? Does it follow, if the complainant's argu­ment is accepted, that a managerial person can hold elective office in the union, par­ticipate in bargaining on its behalf, vote in ratification and strike votes, and, where the law otherwise permits join in strike action with other members of the union? We prefer a construction of the statute which avoids these questions.

The effect of this decision, and the earlier Ottawa General Hospital decision, is to narrowly restrict the remedial relief available to the managerial employee. The first decision made it clear that the protections of section 58 [now 66] do not apply to the managerial employee, while the second decision made it clear that the even more narrow protections of section 61 [now 70] could not be extended that far. In both cases, moreover, the extent of remedial relief available to the managerial employee under section 79 [now 89] was determined by defining the scope of substantive provisions of the Act, rather than by merely interpreting the remedial provision in the abstract.

26. The general remedial provision of the Act, section 79 [now 89], has been amended since these two decisions. See SO. 1975, c. 76, s. 21. Did the amendment of this remedial provision extend the legal protections afforded to the managerial employee? The Board has already rec­ognized that the source of such protections is found in the substantive provisions of the Act. The 1975 amendments, however, did not alter the substantive provisions of the Act so as to give the managerial employee a protectable right to join the union. The amendment of section 79 [now 89], therefore, only provided the Board with a wider and more comprehensive power to remedy conduct that already constituted a contravention of the Act, and in no way conferred any new substantive rights.

25The analysis expressed in the jurisprudence, which the Board affirms, does not support the argument advanced by interveners' counsel. Section 70 is not available for the benefit of per­sons excluded from the bargaining unit as managerial, particularly where the foundation of the statutory right which the persons in question are purportedly exercising is grounded in section 50, which has no application to the person in question. Again, the Board echoes its comments in para­graph 24 that the issue as to whether the collective agreement has been violated is not before this Board. Nor, it must be stressed, is the Board dealing at this juncture with the section 68 complaint filed by the inspectors and the Board makes no comment about that complaint.

26Given the Board's findings, it is not necessary to deal with the respondent counsel's argument, in the alternative, to defer to arbitration.

27For the foregoing reasons, the Board concludes that the respondent has not violated sections 70, 74, 76 or 78. Accordingly, the complaint is dismissed.

CONCURRING OPINION OF BOARD MEMBER W.H. WIGHTMAN: December 17, 1990

1. While I suspect the conclusion reached by my colleagues is correct at law I would be remiss not to express my concern with the decision, the effect of which would seem to discourage promotion levels from within the bargaining unit to supervisory levels.

2. The logic and desirability of promotion from within, particularly in the case of the oper­ations people in a transit system, need hardly be described here. Nor is it difficult to conceive of many reasons, beyond the control of the parties involved, which could result in persons thus pro­moted becoming redundant and in anticipation of which event the parties would see it in their mutual interest to have made provision for their orderly return to the bargaining unit. Such arrangements are the norm and, in my experience, are not likely to be upset by the unions involved on the grounds that to do so could well foster internal dissent either on the part of those members who perceive their union to be foreclosing on promotion opportunities or those who would per­ceive the union action as punitive to those who might accept promotion. Moreover, such punitive action would be seen as a denial the of traditional value unions have long held should be ascribed to the concept of "seniority".

3. It is unfortunate that the Board finds itself in the position of upholding this union in a course of action which on its face appears to be contrary to the interest of the union itself let alone its implications for the other parties involved.