The Corporation of Massey Hall and Roy Thomson Hall v. The International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58, Toronto and Jim Fuller

[1991] OLRB Rep. January 55

2384-90-U The Corporation of Massey Hall and Roy Thomson Hall, Applicant v. The International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58, Toronto and Jim Fuller, Respondents

BEFORE: Robert Herman, Vice-Chair.

APPEARANCES: Ann E. Burke and Dave Taylor for the applicant; Thomas W. G. Pratt and James Fuller for the respondents.

DECISION OF THE BOARD; January 16, 1991

1. This is an application under section 92 of the Labour Relations Act alleging that the respondent union ("I.A.T.S.E.") and its President Jim Fuller have engaged in or threatened to engage in an unlawful strike. The applicant employer has not relied upon any provision of the Labour Relations Act other than section 92 itself.

2. Section 92 of the Act reads as follows:

92. Where, on the complaint of a trade union, council of trade unions, employer or employers' organization, the Board is satisfied that a trade union or council of trade unions called or authorized or threatened to call or authorize an unlawful strike or that an officer, official or agent of a trade union or council of trade unions counselled or procured or supported or encouraged an unlawful strike or threatened an unlawful strike or that employees engaged in or threatened to engage in an unlawful strike or any person has done or is threatening to do an act that the person 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, the Board may so declare and it may direct what action, if any, a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike.

3. At the conclusion of the hearing, the Board reserved its decision. The following day it issued a decision dismissing the application, with reasons to follow, which are hereby provided.

4. The applicant employer operates and administers two concert venues in the City of Toronto, Massey Hall and Roy Thompson Hall. I.A.T.S.E. Local 58 is the bargaining agent for all the stage employees working for this employer at these two locations.

5. There are four permanent or full-time employees in the bargaining unit: the head electrician (David Still), the head soundman (Tom Saunders), the head carpenter, and the property manager. When a vacancy occurs (other than of a temporary nature) with respect to any of these positions, I.A.T.S.E. refers a number of candidates to the employer. The employer then interviews these individuals and selects from among them the new full-time employee. Due to particular rehearsal or performance requirements, additional employees may be temporarily required. As well, there may be a need to temporarily replace a full-time employee; for example, when one of the full-time employees is on vacation. When the employer does need them, it requests temporary employees from the union, which refers them to the employer, in accordance with the applicable provisions in the collective agreement. The numbers and skills of these referred employees vary, depending on the current needs of the employer. In order for the other employees in the bargaining unit to perform their work, there must be a head electrician and head soundman, or replacement personnel performing the work of their positions. If their work is not somehow performed, rehearsals and performances would have to be cancelled.

6. Still (the head electrician) and Saunders (the head soundman) were involved in an incident, or incidents, on or about November 30, 1990. The Board was not apprised of the nature of the incidents. As a result, the employer decided to suspend these two individuals. On the evening of Thursday December 6, 1990, the employer indefinitely suspended Still without pay, and advised the union accordingly. Management of the employer phoned Jim Fuller, the President of Local 58, and Bill Hamilton, the Business Agent of Local 58, advising them of Still's suspension, and indicating as well that Saunders was being suspended. The next day, after there had been an opportunity for the employer to meet with him, Saunders also was suspended indefinitely without pay.

7. Article 3 of the Collective Agreement, headed "Union Security", reads as follows:

3.1 The Manager agrees to employ only stage employees supplied by the Union and who are members in good standing by the Union.

3.2 The Union agrees to supply the number of competent persons required by the Manager to perform work under the provisions in this Agreement.

Relying upon this Article, on Thursday evening when it informed the union of the two suspensions, the employer requested that the union refer replacement employees for Still and Saunders. The union responded that the employer was not entitled to suspend employees under the collective agreement, that Still and Saunders were therefore still entitled to work, they were there to work, and if the employer felt otherwise it could file a grievance. The union also told the employer that replacements would not be sent. Over the course of that week-end, on several different occasions, the employer again requested of the union that replacement employees be sent for Still and Saunders, and the union again took the position that the employer could not discipline or suspend these employees, that no replacements would be forwarded, and that if the employer felt otherwise it could file a grievance. The union also suggested, during at least one of the conversations, that the employer could avoid the problem if warnings were substituted for the suspensions.

8. In light of the suspensions of Still and Saunders and the refusal of the union to refer replacement employees, and given the fact that neither rehearsals nor performances could be conducted without the work of the head electrician and head soundman, the employer faced some difficult choices. The two halls could be closed down, with rehearsals and performances cancelled. The employer could continue to attempt to secure replacements from the union. Or the employer could use management personnel to perform the work of Still and Saunders. If managers did perform the jobs of head electrician and head soundman, the employer felt that the rest of the bargaining unit employees would either picket or walk out. It based this fear upon two factors. First, approximately four years earlier, there had been another incident with the union involving differing views as to management's authority. In that instance, the union had sent to the employer six men more than the employer felt were required. The employer decided not to employ the six extra men, and the union in response withdrew the services of the remaining crew. A complaint was filed with the Board, but it was settled between the parties. Second, the chief witness for the employer, Patrick Taylor, the corporation's Senior Producer, had himself been in the union, and held numerous union positions, up until 1983. He believed there was a clause in the union constitution that did not allow union members to work with non-union personnel. Because of these two factors, management feared that any use of management personnel to perform the work in question would lead to a walkout of all employees.

9. There was evidence that Jim Fuller, the Local's President, told management that if Still and Saunders were not allowed to do the work, there might be a work stoppage. However, this statement was a reference to the fact that the other bargaining unit employees could not have performed their respective jobs if the jobs of head electrician and head soundman were not performed. The employer's submissions to the Board clearly indicated that it realized that the other employees could not have worked without the duties of head soundman and head electrician being performed. Fuller's statement was also confirmation that he was still unwilling to provide replacements for Still and Saunders. In context, it was not a threat that the other employees would refuse to work if management performed the jobs of Still and Saunders. The parties had not in fact ever discussed this possibility, nor had the union made any comments as to what would happen if management performed the work.

10. Still and Saunders had been suspended, but the union would not refer any replacement employees. The employer felt it had no means of otherwise obtaining employees. It feared a walkout if its own managers acted as head electrician and head soundman. If the jobs were not performed, the halls would have to close. Faced with this dilemma, and while continuing to insist that the two were on suspension without pay, and while continuing to urge the union to refer replacement employees, it allowed Still and Saunders to enter the building and to perform their jobs. It took no steps to bar or impede their access, nor to interfere with them while they worked. Still and Saunders therefore continued with their jobs as if not suspended, performing all their duties and missing no scheduled shifts. There is no question that the employer was aware that they would continue to report for work and continue to fully perform their duties. Fuller had advised the employer that if Still and Saunders were physically removed or barred, the other union members at the site were to let him know.

11. On Sunday evening, December 9, the union was advised of the periods of suspension. Patrick Taylor told the union that Saunder's suspension would be effective until December 15, and Still's until December 29, 1990. Both individuals continued to work at the halls.

12. As of the hearing before the Board, on Wednesday, December 12, 1990, neither party had filed a grievance, and there had been no actual work stoppage of any sort, nor any verbal or other threat of a work stoppage. Though maintaining that Still and Saunders were under suspension and would not be paid, it was apparent at the hearing that the company wanted them to continue to perform their work until the Board issued a decision.

13. The remedies requested by the applicant employer in its materials are worth reciting:

(a) an Order requiring the Respondents to cease and desist from calling or authorizing an unlawful strike or a threatened unlawful strike;

(b) an Order requiring the Respondents to supply to the Applicant any employees required by the Applicant to maintain its productions;

(c) an Order requiring the Respondents to instruct members of the Respondent Union to perform all necessary work for the Applicant;

(d) an Order requiring members of the Respondent Union to report for work as required;

(e) an Order requiring the Respondents to rescind any instructions to members of the Respondent Union to refuse to report for work as required;

(f) such other Orders as may be appropriate.

In final submissions, counsel for the employer made clear that the primary direction it sought was a direction requiring the respondents to supply replacement employees to the applicant, as required by the collective agreement, and further, the direction should indicate that neither Still nor Saunders could be a replacement.

14. Based on the above, the employer submitted that the respondents were either engaged in or threatening an illegal strike. The employer submitted that the halls could not operate if the duties of head soundman and head electrician were not performed. The employer argued that the union, by refusing to supply it with replacements as required by the collective agreement, was threatening the employer with an illegal strike. This amounted to a refusal to work by employees

or members of the union. There was as well an implied threat, the employer submitted, in that there was a threat that the other employees in the bargaining unit would not work because of the understaffing. Alternatively, the employer submitted that without these replacement employees, management would itself have to perform the work of the suspended employees, and this in turn would lead the union to engage in an illegal strike. It therefore argued that the union's position amounted to a threat to unlawfully strike if management did the work.

15. The Board turns first to consider whether there was a threatened illegal strike, and whether the union in some manner threatened to strike if management personnel performed the work in question. Although the Board recognizes the employer's bona fide concern in this regard, there is simply insufficient evidence of any such threat. There are no statements or current actions by the union, or any of its officers, indicating that the union will take such action. The statement by Fuller that there might be a work stoppage if Still and Saunders didn't work was not a threatened strike but a statement emphasizing that the others would be unable to do their work or perform their jobs without a head electrician and head soundman. The duties of these two positions are pivotal to the ability of the employer to put on rehearsals and performances, and both parties are fully aware of this. Fuller was reinforcing how the employer had no choice but to let Still and Saunders continue to work, not because other employees would walk out, but because without them, the halls would have to close. The fact that four years ago a wildcat walkout occurred is not an event sufficiently connected to the instant events to support a conclusion that a strike has been threatened. Nor is the vague recollection of a former union member from approximately seven years ago about a clause in the union constitution (which was not placed before us) sufficient evidence upon which to conclude that the union or Fuller have threatened an illegal strike.

16. In this regard, we might usefully refer to the decision of the Board in Acme Building and Construction Limited [1987] OLRB Rep. Feb. 179, where the Board stated, at paragraph 1 therein, in part, as follows:

Therefore, I am not persuaded that there is a real or strong likelihood that picketing will occur so that the Board should exercise its discretion to grant, in effect. quia timet relief in respect of picketing. See paragraph 11 of Maitland Ready Mix Concrete Products Limited, [1980] OLRB Rep. Dec. 1751 where the Board stated at 1754:

"The application for relief is, in the Board's view, premature and may be compared to a request for an injunction quia timet before the courts. Injunctions quia timet are not granted by courts unless a plaintiff shows a strong case that the apprehended mischief will in fact arise, see Cheeseworth v. Toronto (1921), 1921 CanLII 473 (ON SCHCD), 49 O.L.R. 68 and Matthew v. Guardian Assurance Company (1919), 58 5CR. 47, and that the mischief, when it comes, will be very substantial, see Fletcher v. Bailey (1885), 28 Ch. D. 688.

Statements by the respondents that a picket line would be set up do not persuade the Board that an unlawful strike will occur at the site. The mere apprehension by the applicant that a picket line might be set up which in turn might lead to an unlawful strike is not sufficient, on the facts before the Board, to entitle the applicant to the granting of discretionary relief under either section 82 or section 123."

As for relief with respect to the statements made by Mr. Verner, those isolated statements have not promoted any further conduct and there have not been any subsequent statements of a similar nature made. In my opinion, these circumstances are analogous to situations in which an applicant seeks a cease and desist order before the Board in respect of an unlawful strike when the strike is over at the time of the hearing before the Board. I am not persuaded that it is likely that Mr. Verner or the respondent union will make such statements to the applicant in the future, and there is absolutely no suggestion that there is a history of such statements being made. In these circumstances, the Board does not exercise its discretion to grant the relief requested. See Bechtel Canada Limited, [1977] OLRB Rep. May 269 at 273; Ontario Hydro, [1985] OLRB Rep. April 577.

Therefore, the Board hereby refuses to exercise its discretion under section 135 of the Act to grant any remedy. This application is hereby dismissed.

17. Similarly here, the Board cannot conclude that there has either been an actual threat of an illegal strike, or the circumstances are such that there is a real or strong likelihood that an illegal strike will occur, if the employer uses management personnel to perform the work of head electrician and head soundman. The Board does not suggest that an employer must first induce an unlawful strike in order to obtain relief. To the contrary, the statutory language and the Board's approach to these matters is to prohibit any unlawful strike before it starts, provided the Board is satisfied that there is a threat of such a strike or a real likelihood of it. But a mere fear of a strike by the employer is not sufficient to lead the Board to interfere. Here, the union made no comments suggesting that the other employees would strike if management did the work of Still and Saunders. Past practice evidence was not sufficient to indicate a strike would occur. All the work in question was still being performed by bargaining unit employees, with the employer's full knowledge. On this evidence, the Board cannot conclude that there is a threat or real likelihood of a work interruption if management performs the two jobs. If an unlawful interruption did then result, management could of course apply forthwith to the Board. The application fails on this ground.

18. The Board turns next to the employer's primary argument, that the refusal of the union to refer replacement employees as required by the terms of the collective agreement, constituted an illegal strike, and amounted to a refusal to work by the employees or members of the union. The Board assumes, for purposes of this ruling, that a refusal of a union to refer union members as required under a collective agreement could constitute an illegal strike (in this regard, see International Longshorement's Association, Local 273 et al v. Maritime Employers' Association et al (1978) 1978 CanLII 158 (SCC), 89 D.L.R. (3d) 289; The Ottawa Board of Education [1983] OLRB Rep. May 694.) But even assuming such activity could constitute, in appropriate circumstances, an illegal strike, it does not do so here.

19. Employers and unions often engage in power struggles, each flexing their labour relations muscles, and each convinced that the other's authority or power is significantly less than it believes. In the instant case, the employer and the union take significantly different views of the powers each enjoys under the collective agreement. The employer, understandably, takes the view that it is entitled to impose discipline (including suspending employees) without the requirement that it first obtain the union's agreement that the discipline is proper. The employer believes that the union's right to object to a suspension is the customary right enjoyed by unions, to file a grievance. From the employer's perspective, to accede to the union's position would be to provide the union with a right of veto over any discipline imposed; if the union doesn't approve of the action, it will simply refuse to refer replacement employees and the employer will not be able practicably to enforce the suspension. The union, on the other hand, takes the view that the employer cannot discipline employees as it has. The union believes that the referral clause effectively gives it the sole right to staff the bargaining unit with replacement employees, so it declines to refer replacement employees. It can thereby in effect ignore the suspensions. The parties clearly have significant differences of opinion as to the correct meaning and application of several articles or clauses of the collective agreement.

20. What they don't have, however, is a scenario which involves an unlawful strike or raises mischief of the sort encompassed by the prohibition on illegal strikes contained in the Labour Relations Act. There has been no actual work stoppage, nor threat of a work stoppage. As discussed above, the evidence does not suggest that a stoppage is either imminent or a real likelihood if management personnel perform the work. The rehearsals and shows have all been fully performed. Still and Saunders remain willing and able to continue to perform all their duties and responsibilities and they continue to report for work. In effect, the employer has accepted that Still and Saunders can continue to work. While it maintains the position that they are under suspension without pay, it acquiesces (grudgingly) in their continuing the full performance of their jobs. Unlawful strike applications deal with work interruptions, threatened or actual. Because of the conduct of both parties, there does not appear to be any such interruption or real likelihood of one. There is no doubt that Still and Saunders will continue to show up as scheduled and to perform their jobs. Assuming, as we have, that a refusal to supply any replacement employees as required under a collective agreement can constitute an unlawful strike, in the unique circumstances before the Board, it does not.

21. The Board is being asked, through the expedited procedures for dealing with unlawful strikes, and in the absence of any work interruption or threat thereof, to rule upon the correct interpretation of particular clauses in the collective agreement, and then to direct the specific manner in which the union must fulfil its obligations under those clauses. The activity of real complaint is the union's refusal to comply with (what the employer asserts are) its obligations of referral under the collective agreement. The main remedy sought by the employer underscores this: a direction that the union refer replacement employees other than Still or Saunders. An order that directs that the respondents cease and desist from calling an unlawful strike, or that requires them to supply replacement employees, would not resolve the dispute. In response, the union might still refer Saunders or Still as the temporary replacement employees, on the basis suggested at the hearing, that they would be the two most senior, available members. The real disputes between the parties are not over an unlawful work stoppage, but over whether the employer has the right to discipline or suspend employees, whether the union must refer replacement employees in such circumstances, and whether it can refer employees on suspension. These are disputes for which arbitration is the appropriate resolution mechanism. Unlawful strike applications are expedited proceedings which deal with untimely interruptions in work, or threats of such interruptions. In the course of considering whether such unlawful activity has occurred and whether the Board ought to interfere, it may be necessary to interpret and apply numerous clauses in a collective agreement. But the Board will do so in these applications only when it is necessary in order to deal with the unlawful work interruption. Here, there has been no such interruption or threat of one, and in these circumstances the dispute between the parties is best dealt with in a different context.

22. For these reasons, this application was dismissed.