International Brotherhood of Electrical Workers' Local 636 v. Mississauga Hydro Electric Company, 1994 CanLII 9992

Ontario Labour Relations Board

[1994] OLRB REP. OCTOBER 1376

1118-94-U International Brotherhood of Electrical Workers' Local 636, Applicant v. Mississauga Hydro Electric Company, Responding Party

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Member J. A. Ronson and C. McDonald.

APPEARANCES: Michael McFadden, Harold Vance and Rick Wacheski for the applicant; R. Budd, Ingrid Hann and Jo Ann Morello for the responding party.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER C. MCDONALD; October 28, 1994

I

1. On July 6, 1994 [now reported at [1994] OLRB Rep. July 883], the Board issued the following decision in this matter:

2. Having considered the evidence and representations of the parties at the hearing on July 5, 1994, the majority of the Board (Board Member Ronson dissenting) is satisfied that, in the circumstances of this case, the wearing of white T-shirts bearing the red lettering "Solidarity Lives IBEW 636" in the workplace was lawful activity protected by the Labour Relations Act, which activity the responding employer sought to stop. The responding employer has refused, and continues to refuse, to allow employees wearing such T-shirts to work in an effort to induce or compel them to refrain from exercising their rights under the Act and has therefore locked out the employees, within the meaning of section 1(1) and section 73.1 of the Labour Relations Act.

3. The Board is therefore satisfied that the provisions of section 73.1 apply and, further, that the responding employer has breached section 73.1(4) of the Act by using the services of employees in the bargaining unit during the lock-out.

4. The Board therefore declares that:

(a) the employer has violated section 73.1(4) of the Labour Relations Act by using the services of employees in a bargaining unit that is locked-out;

(b) declares that the responding employer has violated sections 67 and 71 of the Labour Relations Act;

(c) orders the responding employer to cease and desist from continuing to use the services of employees in the bargaining unit that is locked-out for so long as the lock-out continues.

5. The Board reserves its decision with respect to the remaining issues. The Board's decision in that respect, and the Board's reasons herein will follow in writing.

The "cease and desist" order was not intended to and does not apply to the use of services of bargaining unit employees as permitted by sections 73.1 or 73.2 of the Act.

II

2. This is an application under section 91 of the Labour Relations Act in which the applicant trade union ("Local 636") alleged that the responding employer ("Mississauga Hydro") had violated sections 65, 67, 71 and 73.1 of the Act. In section 1 of the Act, "lock-out" and "strike" respectively are defined as follows:

"lock-out" includes the closing of a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of employees, with a view to compel or induce the employees, or to aid another employer to compel or induce that employer's employees, to refrain from exercising any rights or privileges under this Act or to agree to. provisions or changes in provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, an employers' organization, the trade union, or the employees; ("lockout")

"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; ("grève")

Sections 3, 65, 67, 71, 73.1, and 91(4) and (5) provide that:

3. Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.

4. 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 the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

5. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

71.1 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.

73.1- (1) In this section,

"employer" means the employer whose employees are locked out or are on strike and includes an employers' organization or person acting on behalf of either of them; ("employeur")

"person" includes,

(a) a person who exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations, and

(b) an independent contractor; ("personne")

"place of operations in respect of which the strike or lock-out is taking place" includes any place where employees in the bargaining unit who are on strike or who are locked-out would ordinarily perform their work. ("lieu d'exploitation e l'egard duquel la grave ou le lock-out a lieu")

(2) This section applies during any lock-out of employees by an employer or during a lawful strike that is authorized in the following way:

1. A strike vote was taken after the notice of desire to bargain was given or bargaining had begun, whichever occurred first.

2. The strike vote was conducted in accordance with subsections 74(4) to (6).

3. At least 60 percent of those voting authorized the strike.

(3) For the purposes of this section and section 73.2, a bargaining unit is considered to be,

(a) locked out if any employees in the bargaining unit are locked out; and

(b) on strike if any employees in the bargaining unit are on strike and the union has given the employer notice in writing that the bargaining unit is on strike.

(4) The employer shall not use the services of an employee in the bargaining unit that is on strike or is locked out.

(5) The employer shall not use a person described in paragraph 1 at any place of operations operated by the employer to perform the work described in paragraph 2 or 3:

1. A person, whether the person is paid or not, who is hired or engaged by the employer after the earlier of the date on which the notice of desire to bargain is given and the date on which bargaining begins.

2. The work of an employee in the bargaining unit that is on strike or is locked out.

3. The work ordinarily done by a person who is performing the work of an employee described in paragraph 2.

(6) The employer shall not use any of the following persons to perform the work described in paragraph 2 or 3 of subsection (5) at a place of operations in respect of which the strike or lock-out is taking place:

1. An employee or other person, whether paid or not, who ordinarily works at another of the employer's places of operations, other than a person who exercises managerial functions.

2. A person who exercises managerial functions, whether paid or not, who ordinarily works at a place of operations other than a place of operations in respect of which the strike or lock-out is taking place.

3. An employee or other person, whether paid or not, who is transferred to a place of operations in respect of which the strike or lock-out is taking place, if he or she was transferred after the earlier of the date on which the notice of desire to bargain is given and the date on which bargaining begins.

4. A person, whether paid or not, other than an employee of the employer or a person described in subsection 1(3).

5. A person, whether paid or not, who is employed, engaged or supplied to the employer by another person or employer.

(7) The employer shall not require an employee who works at a place of operations in respect of which the strike or lock-out is taking place to perform any work of an employee in the bargaining unit that is on strike or is locked out without the agreement of the employee.

(8) No employer shall,

(a) refuse to employ or continue to employ a person;

(b) threaten to dismiss a person or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condition of employment; or

(d) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of the person's refusal to perform any or all the work of an employee in the bargaining unit that is on strike or is locked out.

(9) On an application or a complaint relating to this section, the burden of proof that an employer did not act contrary to this section lies upon the employer.

91.- (4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting, the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of;

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally; or

(d) an order, when a party contravenes section 15, settling one or more terms of a collective agreement if the Board considers that other remedies are not sufficient to counter the effects of the contravention.

(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.

III

3. Local 636 and Mississauga Hydro have had a collective bargaining relationship for many years. Until a decision of this Board (differently constituted) dated June 11, 1993 (reported at [1993] OLRB Rep. June 523) directed that they be combined into one unit, the applicant represented two bargaining units of Mississauga Hydro employees; namely:

(a) all employees of Mississauga Hydro, save and except supervisors, those above the rank of supervisors, caretaker, office staff and individuals employed on Government sponsored programs ("bargaining unit #1"); and

(b) all office employees of Mississauga Hydro at Mississauga, save and except supervisors, all persons above the rank of supervisors, confidential secretaries, programmers, analyst, auditors, outside employees, persons employed for not more than 24 hours per week, students employed there during the school vacation period, students employed in the cooperative training program and individuals employed on Government sponsored programs ("bargaining unit #2").

4. The most recent collective agreement between the parties for bargaining unit #1 expired on March 31, 1994. The most recent collective agreement between them for bargaining unit #2 expired on October 31, 1993. After the Board directed that the two bargaining units be combined, the parties agreed to extend the collective agreement for bargaining unit #2 to March 31, 1994, thereby providing a common expiry date for collective bargaining purposes.

5. The parties began bargaining for a new collective agreement to cover the employees in the combined bargaining unit. One of the parties (it is not clear which) applied for conciliation and, on March 24, 1994, the Minister issued a "No Board Report". Accordingly, pursuant to section 74 of the Act, the parties were in a strike/lock-out position fourteen days later.

6. By letter dated April 15, 1994, after it was in a legal strike position, Local 636 advised Mississauga Hydro that the bargaining unit employees had rejected a tentative agreement reached by the parties, which had been unanimously recommended by Local 636's bargaining committee. The applicant further advised Mississauga Hydro that the bargaining unit employees would be working to rule", effective immediately; that is, that the bargaining unit employees would no longer work outside of their regularly scheduled hours.

7. In June, 1994, the parties resumed collective bargaining and the bargaining unit employees engaged in some "information picketing". On June 22, 1994, the bargaining unit employees rejected Mississauga Hydro's "final offer". Work to rule and information picketing continued.

8. Local 636 planned to hold a demonstration outside of Mississauga Hydro's offices on Mavis Street in Mississauga, on June 28, 1994, beginning at 4:00 p.m. For that purpose, it had white T-shirts made up bearing the red-lettered logo:

Solidarity

Lives

IBEW

636

These T-shirts were distributed to the bargaining unit employees.

9. Sandra Vetrano is a "project accounting clerk" with Mississauga Hydro. She has been the "Unit Chair" for "inside employees" (bargaining unit #2) for approximately one and one-half years. On June 28, 1994, she was scheduled to start work at 8:30 a.m. She arrived, wearing one of the Solidarity T-shirts, at approximately 8:20 a.m., punched in, turned on her computer and went to the washroom. When she returned, her supervisor, Craig Fleming, called her into his office. Ms. Vetrano testified that Mr. Fleming said "you know you and I have an understanding about this union thing" and told her to get a pile of the Solidarity T-shirts which someone had apparently placed there off her desk. Ms. Vetrano said she would and left to return to her desk.

10. Ms. Vetrano testified that as she was walking back to her desk she laughed at some joking she overheard at which point Mr. Fleming came out of his office and screamed "Do you think this is funny?". Ms. Vetrano explained that she was laughing at a joke another supervisor had made.

11. At approximately 9:20 a.m. Mr. Fleming approached Ms. Vetrano and told her that he had been instructed that any employee wearing one would have to remove the Solidarity T-shirt or "get out". Ms. Vetrano told Mr. Fleming she would not take off her T-shirt and he told her to get out, so she left.

12. Ms. Vetrano returned at 8:30 a.m. the next day, June 29, 1994. She was wearing her Solidarity T-shirt again. When she turned on her computer she found her voice-mail had been deactivated. At approximately 8:50 a.m., Mr. Fleming approached her and told her to take the T-shirt off or go home. Ms. Vetrano left.

13. On June 28, 1994, bargaining unit employees Lois Muise and Paul Sidhu were also told to take off the Solidarity T-shirts they were wearing or go home. Both refused to remove their T-shirts and left.

14. John Stewart is a member of the applicant's executive and the "Unit Chair" of the "outside unit" (bargaining unit #1). On June 29, 1994, he was one of many bargaining unit employees who came to work wearing a Solidarity T-shirt. Also like the other employees, he was told to take the T-shirt off or go home. Like the other employees, he chose to leave.

15. Mississauga Hydro's sole witness was Ingrid Hann. Ms. Hann is Mississauga Hydro's Director of Employee and Customer Relations and is the person who has led the management bargaining team. She testified that Mississauga Hydro has a clothing policy or dress code which bargaining unit employees who wore the Solidarity T-shirts at work during business hours had violated. She said that when Ms. Vetrano, Ms. Muise and Mr. Sidhu refused to remove their T-shirts on June 28, 1994, they were "dismissed" for the remainder of the day. Their respective supervisors wrote a "memo to file", which it appears was not provided to either the person concerned or the applicant at the time, as follows:

June 28, 1994

MEMO TO FILE

Re: Lynn Vetrano - Suspension

June 28 1994

On Tuesday, June 28, 1994 at 9:20 am. I, in accordance with a company wide directive, advised the associates within the Project Accounting Department to desist from wearing white T-shirts displaying a union slogan within the confines of the building during work hours. The consequences of non-compliance were made clear to the group.

Lynn Vetrano subsequently refused to comply and was promptly dismissed for the day. This act of insubordination will carry a one-day suspension without pay.

"Craig Fleming"

Craig Fleming

Manager, Project Accounting

CF:ay

cc.

K.N. Wahl

R. Herman

1. Hann

H. Vance

June 28, 1994

MEMO TO FILE

Re: Lois Muise - Suspension

June 28, 1994

On Tuesday, June 28, 1994 at approximately 10:20 am. in accordance with a company wide directive, I advised Lois Muise of the Meter Reading Department to desist from wearing a white T-shirt displaying a union slogan within the confines of the building during work hours. The consequences of non-compliance were made clear.

Lois Muise subsequently refused to comply and was promptly dismissed for the day. This act of insubordination will carry a one-day suspension without pay.

"Frank Crawford"

Frank Crawford

Meter Reading supervisor

FC:ay

cc.

K.N. Wahl

I. Hann

H. Vance

June 28, 1994

MEMO TO FILE

Re: Paul Sidhu - Suspension

June 28, 1994

On Tuesday, June 28, 1994 at approximately 3:00 p.m. in accordance with a company wide directive, I advised Paul Sidhu of system Planning Department to desist from wearing a white T-shirt displaying a union slogan within the confines of the building during work hours. The consequences of non-compliance were made clear.

Paul Sidhu subsequently refused to comply and was promptly dismissed for the remainder of the day. This act of insubordination will carry a 11/2 hours suspension without pay.

"Raymond Rauber"

Raymond Rauber

Project Manager

RR:ay

c.c.

K.N. Wahl

R. Jones

I. Hann

H. Vance

The Board was also presented with another letter dated June 29, 1994 addressed to "Associate" as follows:

June 29, 1994

Associate,

On Tuesday, June 28, 1994 both the workplace and I.B.E.W. officials were advised that wearing I.B.E.W. T-shirts on site was unacceptable and would not be condoned.

As you elected on Wednesday, June 29, 1994 to disregard Management's directive to refrain from wearing attire inappropriate to our business a one day unpaid suspension has resulted effective today's date.

Any future actions of this or a similar nature on your part will result in more severe disciplinary action being taken. Yours truly, Director

cc. I. Hann

J. Morello

L. Vetrano

J. McNeil

It is not apparent how, when, or to whom this document was delivered.

16. Similarly, all employees who wore Solidarity T-shirts to work on June 29, 1994 were suspended for the day.

17. All bargaining unit employees were told that they would not be allowed to return to work wearing their Solidarity T-shirts.

18. Ms. Hann testified that (as of the date of the hearing) any bargaining unit employee was free to return to work at any time, so long as s/he does not wear a Solidarity T-shirt at work. She said that the bargaining unit employees had been sent home as a disciplinary response to their breach of Mississauga Hydro's clothing policy, and that Mississauga Hydro did not intend to lock them out. Indeed, Mississauga Hydro specifically responded to a suggestion that this was a lock-out, in a letter to the union dated June 29, 1994, that "such action as a disciplinary measure and does not constitute a lock-out." Then, by letter dated June 30, 1994, Mississauga Hydro wrote to the union that, among other things:

"You are clearly advised that there was no LOCK-OUT and from your members' picketing we must assume you are in a legal strike position."

In another letter dated June 30, 1994 Mississauga Hydro wrote as follows:

"This letter will confirm our telephone conversation of June 29/94 at approximately 3:00 p.m.

I emphasized my concern over the picketers restricting access on and off our property and having caused damage to company property.

You were clearly advised that there was no LOCK-OUT and from your members' picketing we must assume you are in a legal strike position.

We reviewed my letter to you of June 28/94 which was written in compliance with Section 73.2 (3) (a) of the Labour Relations Act. The replacement workers that we reference are regular lineman crews and/or are the contractors whom we have been employing for some time. As a result your reference to Bill 40 is not applicable.

Rick, again we must emphasize the importance of the picketing to cease. I've given you some suggestions in order to restore order and labour peace at Hydro Mississauga."

19. The evidence before the Board with respect to Mississauga Hydro's clothing policy or dress code includes the following two memos:

BULLETIN BOARD NOTICE/NO. 29

Re: OFFICE SUMMER DRESS CODE

Date of Notice: July 21, 1993

Date of Removal: September 1, 1993

IN THE INTEREST OF COMFORT, BUT YET MAINTAINING A PROFESSIONAL IMAGE, WE WILL BE OBSERVING THE FOLLOWING CASUAL SUMMER DRESS CODE DURING JULY & AUGUST FOR ALL EMPLOYEES SITUATED AT THE OFFICES OF 3240 MAVIS ROAD. SUITABLE ATTIRE SHOULD STILL PROJECT A

PROFESSIONAL IMAGE AND NOT INCLUDE:

BLUE JEANS

UNCOLLARED SHIRTS (WITH WRITING OR ADVERTISING)

SHORTS (OTHER THAN WALKING SHORTS)

HALTER TOPS

CAPS & HATS

OPEN SANDALS (SUCH AS FLIP FLOPS OR BIRKENSTOCKS)

CASUAL ATTIRE SHOULD BE SUBTLE IN COLOUR, AND NOT BE OF FLUORESCENT TONES.

WHEN BUSINESS MEETINGS ARE BEING CONDUCTED WITH EXTERNAL REPRESENTATIVES, APPROPRIATE BUSINESS ATTIRE IS REQUIRED.

EFFECTIVE SEPTEMBER, WE WILL REVERT TO OUR USUAL BUSINESS ATTIRE.

"Karl Wahl"

KARL WAHL

GENERAL MANAGER

KW:WC

MEMORANDUM TO: System Control Centre

Operators and Students DATE: December 4, 1992

COPY: Karl WahlJ.P. Michaud Ingrid Hann/ Jim McNeil

Gunars Ceksters

FROM: Mike Angemeer

RE: PROFESSIONAL ATTIRE - SYSTEM CONTROL CENTRE

Our system Control Centre has become the envy of the industry. Your efforts to promote a professional image thus far are appreciated.

In order to maintain this professional image, the following minimum requirements have been agreed upon by management and the union.

During normal office hours, the following must be observed:

./No jeans

./No running shoes

./No t-shirts or sweatshirts

Appropriate clothing including shirts and ties should be worn for special tours with advance notification.

With your help we will continue to show that we are the best in the industry.

Thanks,

“Mke”

Mike Angemeer

Operations Manager

20. In addition, Ms. Hann testified that three employees received "verbal reprimmands" for not complying with this clothing policy. These included a customer service clerk who wore a see-through blouse with no undergarments, a cash clerk who wore a Corona beer T-shirt, and another employee who wore a dress or sweat-shirt considered to be inappropriate. There was no evidence that this verbal discipline had been brought to anyone else's attention. On the other hand, Local 636's witnesses testified that they have often seen bargaining unit employees at work wearing T-shirts or sweat-shirts with or without various logos. Ms. Vetrano said she herself has commonly worn a T-shirt to work and has observed employees at work in uncollared shirts and other informal clothing. She said she had never been disciplined or spoken to about this prior to June 28, 1994, and, in her capacity as Unit Chair, was unaware of any other employees being spoken to or disciplined for wearing such clothing. Mr. Stewart testified that the December 4th, 1992 memo, above, was routinely ignored by employees, including himself. He said it was common for employees to wear T-shirts, he also said that he and other employees have routinely worn caps or shirts bearing an IBEW logo. He said he had never previously been disciplined for this, and was not aware that any other employee had been either.

21. Ms. Hann conceded that the Solidarity T-shirts would not have created a hazard or impeded any employee's physical ability to perform his/her work. However, she said, first that "it would be inappropriate to advertise the IBEW slogan to the public or Business Representatives", and, second, that the problem was not with the union logo but with the message the Solidarity T-shirt sent, which was not one Mississauga Hydro wish to promote.

IV

22. Local 636 argued that Mississauga Hydro's action was intended to send a message to bargaining unit employees that they would have to pay a price for supporting their trade union, and that it was intended to stop the employees from exercising their right to do so. Local 636 submitted that the Board should therefore conclude that Mississauga Hydro's actions constituted a lock-out. Local 636 further argued that Mississauga Hydro's action was contrary to the unfair labour practice provisions of the Act. It submitted that there was nothing about the Solidarity T-shirts which was illegal or even contrary to the employer's practised clothing policy, and that Mississauga Hydro's response to the Solidarity T-shirts was motivated by its desire to stop the employees from expressing their support for Local 636. Local 636 conceded that employees are not entitled to wear whatever they want and that employees who are required to wear uniforms (like meter readers for example) could not wear T-shirts over their uniforms. Finally, Local 636 argued that the Board should not defer to arbitration. In argument, Local 636 referred the Board to Rondar Services Limited, [1977] OLRB Rep. Oct. 655, Rosco Metal Products Ltd., 64 CLLC paragraph 16,303 page 1250, Canadian Controllers Limited, [1966] OLRB May 130, Canadian Imperial Bank of Commerce, North Hills and Victoria Hills Branches, Kamloops, B.C., 80 CLLC paragraph 16,001 page 339, Independent Canadian Transit Union, 7 CLRBR (NSN) 137, Valdi Inc., [1980] OLRB Rep. Aug. 1254 and Ford Glass Limited, [1986] OLRB Rep. May 624.

23. Mississauga Hydro argued that it is entitled to put restrictions on what its employees can wear and to require that its employees present a professional image. Counsel argued that by wearing the Solidarity T-shirts to work, the employees were bringing their demonstration into the workplace and that they were not entitled to do so because it was provocative and disruptive to the workplace, and because they were no longer demonstrating on their own time. Counsel asserted that Mississauga Hydro's response was disciplinary and that there was no evidence of any intent to lock-out the employees or to strike out at the union in an unfair labour practice manner. Counsel argued that this dispute was something to which the "obey now grieve later" rule applied and that the real dispute was whether Mississauga Hydro had just cause to impose the discipline it did, which is something properly dealt with at arbitration. Counsel said that it was the union which had engaged in a strike. Counsel said that there was nothing to indicate a violation of the Act and that the employer had every right to protect its public image and maintain order in the workplace. In argument, Mississauga Hydro referred to The Perley Hospital, [1981] OLRB Rep. June 769, The Corporation of the City of Toronto, [1986] OLRB Rep. Dec. 1834, Re BC Telephone and Telecommunications Workers Union, (1982) 8 LAC (3d) 271 (B. Williams), Re Dominion Stores Ltd. and Department Store Union, 1985 CanLII 5469 (ON LA), 19 LAC (3d) 269 (J.D. Oshay), Ralph Milrod Metal Products Limited, [1977] OLRB Rep. Feb. 79 and Re Pacific Western Airlines and Airlines Employees, 1981 29 LAC 2(d) 142 (Christie).

V

24. We were satisfied that the Board should deal with the dispute between the parties herein and not defer to arbitration. The real dispute between the parties was not a contractual one. Indeed, there was no collective agreement in effect between them. The dispute raised issues which are central to the collective bargaining process, and raised serious questions with respect to the interpretation and application of provisions which are central to the scheme of the Labour Relations Act. In our view, it could not be said that the dispute between the parties was essentially contractual in nature, or that an arbitration, if one was held, would resolve it (Valdi Inc., supra, Sunworthy Wall Coverings [1986] OLRB Rep. Jan. 164, Ford Glass Limited, supra, The General Hospital of Port Arthur, [1986] OLRB Rep. Sept. 1218).

25. The Labour Relations Act specifically provides, in section 3, that every person is free to join a trade union of his/her choice and is entitled to participate in its lawful activities. The Act specifically prohibits an employer (or a person acting on its behalf) from interfering with the representation of employees by a trade union, or with the exercising of any rights under the Act (sections 65, 67 and 71). Section 3 is limited by section 72, which provides that:

26. Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade the employee during the employee's working hours to become or refrain from becoming or continuing to be a member of a trade union.

Section 72 does not absolutely prohibit the solicitation of support for or opposition to a trade union at the workplace or during working hours. It does not prohibit propaganda for or against a trade union, or demonstrations of support for or opposition to a trade union. Section 72 does not authorize an employer to interfere with trade union activity. All section 72 does is indicate that the right to exercise rights under the Act, including participating in the lawful activities of a trade union, is not an absolute one. Consequently, an employer is not prohibited from disciplining employees or otherwise running its business. However, an employer is not entitled to impose discipline or economic sanctions in order to induce employees to refrain from exercising their rights under the Act (Rondar Services Limited, supra).

26. As the jurisprudence demonstrates, it is now well accepted that wearing pins, buttons or clothing which expresses support for a trade union, or for a bargaining position in negotiations, is collective bargaining activity which is protected by the Labour Relations Act, so long as it is not offensive and does not unduly interfere with the operations or legitimate interests of the employer (see, for example, Air Canada and Canadian Airline Employees Association, 1985 CanLII 5398 (CA LA), 19 LAC (3d) 23 (Brent) Quan v. Treasury Board, (1990) 90 CLLC paragraph 12,039 (Federal Court of Appeal), Metroland Printing, Publishing and Distributing, Board File No. 0823-92-U, June 15, 1994, unreported (to be reported in the OLRB Rep. for June) [now reported at [1994] OLRB Rep. June 738] Rosco Metal, supra, Canadian Imperial Bank of Commerce, supra). To put it another way, an employer is prohibited from interfering with trade union activity unless it interferes with the employer's control or direction of its employees or business. An employer is entitled to make clothing rules or implement a dress code. However, as both the arbitral and Board jurisprudence demonstrates, such rules must be reasonable and based on legitimate and cogent business concerns that employees dress or appearance will affect their work performance or the employer's business. An employer does not have an absolute right to create employees in its own image by imposing its views of appearance or dress on them (Canadian controllers Ltd., supra; Borough of Scarborough 1972 CanLII 1981 (ON LA), 24 LAC 78 (Shime); Air Canada and CALFA 1975 CanLII 2124 (BC LA), 9 LAC (2d) 254 (Deverell); Ralph Milrod Metal Products, supra; Air Canada and CALEA (1980) 27 LAC (2d) 289 (Simmons); B.C. Telephone and Communications Workers Union, supra; the Dominion Stores, supra cited by Mississauga Hydro is distinguishable in that the buttons in that case had nothing to do with the employment relationship in question). Consequently, where the trade union activity consists of employees displaying support for their bargaining agent on their persons or clothing, an employer cannot interfere unless it is demonstrably disruptive or interferes with the employee's safety or ability to work, or with the employer's business. Expressing support for a bargaining agent on one's clothing is not necessarily incompatible with an orderly or professional workplace.

27. Further, we are unable to see what is necessarily wrong with employees declaring their support for their trade union in the workplace, particularly in the context of ongoing collective bargaining between the trade union and the employer. Collective bargaining is not a tea party. Often it is a test of wills. In the context of the collective bargaining process, it is unrealistic to suggest that such expressions of support can or should be kept out of the workplace. Collective bargaining disputes are about the workplace and inevitably permeate the workplace to some degree.

28. In this case, it is clear that the purpose of the Solidarity T-shirts was to express support for Local 636 and to increase solidarity among the bargaining unit employees. Although somewhat provocative, the T-shirts are not offensive, do not malign Mississauga Hydro, and were not intended to cause disruption or interfere with Mississauga Hydro's operation. Mississauga Hydro conceded that the T-shirts did not create any kind of hazard and would not have impaired any employee's physical ability to do his/her work. The evidence does not suggest that this expression of support for Local 636 caused any violence or other disturbance, interfered with the quality or quantity of work done by employees, interfered with anyone's rights, created any safety problems, affected Mississauga Hydro's relations with customers or suppliers, or undermined public confidence in the utility. It is also apparent from the evidence that the existence and nature of the collective bargaining dispute between the parties was no secret.

29. Indeed, it was neither the T-shirts themselves nor the reference to "IBEW Local 636" which Mississauga Hydro objected to. It is apparent from Ms. Hann's testimony that it was the message sent by the words "Solidarity Lives"; that is, the expression of support for Local 636 which Mississauga Hydro did not like and which it intended to stop.

30. Further, on the evidence, Mississauga Hydro's purported clothing policy or dress code has been more honoured in the breach than the observance.

31. In any case, it is apparent that Mississauga Hydro's intention was to stop bargaining unit employees from expressing support for their trade union in the workplace and that it resurrected its moribund dress code to accomplish that end.

32. In the circumstances of this case, we were satisfied that the bargaining unit employees who wore Solidarity T-shirts were exercising their right to support their trade union. We were further satisfied that Mississauga Hydro refused to allow such employees to continue to work with a view to compel or induce them to refrain from exercising that right, which is a right protected by the Labour Relations Act. That constitutes a "lock-out" within the meaning of the Act.

33. The bargaining unit employees refused to accept their employer's ultimatum, and they did picket Mississauga Hydro when they were locked-out. However, the employees were not refusing to work or otherwise acting in concert to restrict or limit their employer's output. They were prevented from working by their employer. That is, they were locked-out, not on strike.

34. Section 73.1(3) of the Act provides that for purposes of sections 73.1 and 73.2 a bargaining unit is considered locked-out if any of the employees in it are locked-out. Section 73.1(4) prohibits an employer from using the services of any employee in a bargaining unit that is locked out. Accordingly, as soon as the first bargaining unit employee who wore a Solidarity T-shirt was disciplined and thereby locked-out, which appears to have been Ms. Vetrano, the whole bargaining unit was locked-out, and Mississauga Hydro was prohibited from using the services of any bargaining unit employee. It did so for at least June 28, and part of June 29, 1994, contrary to section 73.1.

35. In addition, in disciplining bargaining unit employees for exercising rights under the Labour Relations Act, Mississauga Hydro breached sections 67 and 71 of the Act.

36. For these reasons, the Board made the declarations and orders in its July 6,1994 decision as aforesaid.

37. Because of the Board's conclusions as aforesaid, and also because the parties did not really address the issue in argument, we find it unnecessary to deal with Local 636's pleaded assertion that Mississauga Hydro's conduct also violated section 65 of the Act.

38. The Board continues to remain seized with respect to the issues of damages. If the parties are unable to resolve that issue between them, they may request a hearing before the Board.

39. Board Member Ronson's dissent will follow.