International Brotherhood of Electrical Workers, Local 636 v. The Hydro-Electric Commission of the City of Ottawa
[1993] OLRB Rep. November 1231
2819-93-M International Brotherhood of Electrical Workers, Local 636, Applicant v. The Hydro-Electric Commission of the City of Ottawa, Responding Party
BEFORE: S. Liang, Vice-Chair, and Board Members W. A. Correll and P. V. Grasso.
APPEARANCES: P. Hunt and P. Routliff for the applicant; J. A. Emond and J. A. Lunney for the responding party.
DECISION OF THE BOARD; November 29, 1993
- This is an application for an interim order made pursuant to the provisions of section 92 (1) of the Labour Relations Act, which states:
92.1-(1) On application in a pending or intended proceeding, the Board may grant such interim orders, including interim relief, as it considers appropriate on such terms as the Board considers appropriate.
The "pending proceeding" to which this request for an interim order relates is an application made under section 7 to combine two bargaining units currently represented by the applicant union. These two units were referred to by the parties as the "office unit" and the "outside unit". The application under section 7 was made on November 12, 1993; no hearing dates have yet been set on the matter.
Both bargaining units have been in collective bargaining negotiations for most of 1993 to reach collective agreements to succeed those that expired (for both units) on March 31. In July, the office unit voted to approve a tentative agreement reached between the employer and the union. With respect to the outside unit, however, no agreement has been reached. In fact, as of November 18, 1993, the parties were in a legal strike/lock-out position. This strike or lock-out deadline was extended on mutual consent of the parties, in the form of a Board order prohibiting the use of any economic sanction, including lock-out or strike, for five days from November 17. This period has now expired.
The applicant seeks an order prohibiting either the employer or the union from engaging in any economic sanctions until the application under section 7 has been disposed of by the Board. The applicant clarified at the hearing that "economic sanctions" includes strikes and lock-outs, as well as changes to terms and conditions of employment that would no longer be prohibited under section 81 of the Act.
Upon hearing the representations of the parties and reviewing the materials before us, which include the application, the response and their accompanying declarations, the Board decides that it will not grant the order requested.
Based on the representations and materials, we are satisfied that the applicant has made out an arguable case on the "main" application for a combination of the two units. We make this assessment for the purposes of this interim order application, without in any way making any determination on the actual merits of the section 7 application and the factual disputes that arise hereunder, which will be for another panel to decide.
The applicant has asked that the Board preserve the status quo between the parties pending the determination of the section 7 application by prohibiting otherwise lawful resort to economic sanctions. There is no dispute that what the applicant seeks to prohibit would be otherwise lawful under the Labour Relations Act. There is no dispute that the parties are in a legal strike and lock-out position, and that the statutory freeze has now expired.
The employer asserts that it would be beyond the jurisdiction of the Board to prohibit by interim order what the Act itself makes lawful. We do not need to decide this because of our conclusion that it is not appropriate to make any such order here. We also do not need to decide the issues under section 96 of the Constitution Act, 1867. However, we are not convinced that the issue goes to our jurisdiction in any event. The Board's interim orders are often made in a context
where an action taken is alleged by a party to be unlawful, but may ultimately be determined to be lawful.
- It is significant to our determination of the interim order request however, that there is not even an allegation that the actions sought to be prohibited are unlawful. Further, in our view, the harm that the applicant has identified in the event the order is not granted is far outweighed by the unusual and intrusive effect that this order would have on the process of collective bargaining as established by the Act. The applicant essentially asserts that the harm of not granting the order consists of the friction and divisions which would result from economic sanctions being taken with respect of one of two units, all of which might ultimately have been "unnecessary" depending on the results of the section 7 application. In the context of the undisputed legality of what is sought to be prohibited by this interim order, however, and the effect of this proposed relief on the ongoing process of collective bargaining, we do not find the reasons advanced for the order sufficient to justify its imposition.