Ontario Labour Relations Board
Between: Ram Seenanan, on his behalf and on behalf of a group of employees of Metro Taxi Ltd. c.o.b. as Capital Taxi, operating as taxi owners and/or taxi drivers, Applicant v. United Steelworkers of America, Responding Party v. Metro Taxi Ltd. c.o.b. as Capital Taxi, Intervenor
Before: M. Kaye Joachim, Vice-Chair, and Board Members Orval R. McGuire and B. L. Armstrong.
Appearances: Bruce Sevigny and Ram Seenanan for the applicant; R. Healey, H. Ghadban, Haile Gebraslasie and Melhem Rahine for the responding party; Andrew Tremayne and Marc Andre Way for the intervenor.
DECISION OF M. KAYE JOACHIM, VICE-CHAIR, AND BOARD MEMBER, B. L. ARMSTRONG; November 21, 1995
1This is an application under section 58 of the Labour Relations Act for a declaration that the responding party no longer represents the employees in the bargaining unit for which it is the bargaining agent. The application was filed on May 30, 1995.
2The responding party, the United Steelworkers of America ("Steelworkers" or the "union") filed a response dated June 15, 1995, alleging that the application is untimely by virtue of subsection 62(3) of the Act and therefore should be dismissed by the Board without a further hearing. Subsection 62(3) states:
62.- (3) Where a trade union has given notice under section 14 and the employees in the bargaining unit on whose behalf the trade union was certified as bargaining agent thereafter engage in a lawful strike or the employer lawfully locks out the employees, no application for certification of a bargaining agent of, or for a declaration that the trade union no longer represents, the employees in the bargaining unit determined in the certificate shall be made,
(a) until six months have elapsed after the strike or lock-out commenced; or
(b) until seven months have elapsed after the Minister has released to the parties the report of the conciliation board or mediator or a notice that the Minister does not consider it advisable to appoint a conciliation board,
whichever occurs first.
3The union alleges that a lawful strike commenced on May 25, 1995, and six months have not elapsed after the strike commenced nor have seven months elapsed after the "no Board" report was released on April 29, 1995. In addition, the union disputes the voluntariness of the petition submitted with the application.
4On June 27, 1995, the intervenor (also the "employer") filed a detailed response to the union s response to the application. The employer submitted that the bargaining unit employees did not commence a strike, lawful or otherwise, at any time between May 25 and May 30, the date of the application. Accordingly, the employer argued that the application was timely:
5The union objected to the employer raising the issue of whether a strike had occurred on the grounds that the Board ought not to permit the employer to intercede in the determination of employees regarding representation by a bargaining agent.
Employer's Intervention
6The Board heard and considered the submissions of the union with respect to the employer's right to intervene in these proceedings to raise the issue whether a lawful strike had commenced between May 25 and May 30, 1995. The employer and the applicant argued that the employer should be entitled to intervene and raise those matters. The applicant indicated that if the employer were not entitled to raise those matters, the applicant would be raising them in response to the union's motion regarding timeliness of the application.
7The union relied on the case of Re Canada Labour Relations Board and TransAir Ltd. 1976 CanLII 170 (SCC), 67 D.L.R. (3d) 421 S.C.C. for its position that where there are no employees taking the position that no strike occurred, the employer ought not to be allowed to intervene in this matter regarding the representation of employees to assert the rights of third party employees. At page 438, the Court stated:
If there is any policy in the Canada Labour Code and comparable provincial legislation which is pre-eminent it is that it is the wishes of the employees, without intercession of the employer (apart from fraud), that are alone to be considered vis-a-vis a bargaining agent that seeks to represent them. The employer cannot invoke what is a jus tertii, especially when those whose position is asserted by the employer are not before the Court.
8The applicant also referred to the Board decision of P. H. Atlantic Plumbing and Heating Division of 629629 Ontario Limited [1991] OLRB Rep. Jan. 97. which quoted and applied the TransAir decision.
9The Board ruled orally at the hearing that it would permit the employer to participate in these proceedings as an intervenor and to raise the issue of whether a lawful strike had occurred. There was no dispute that the employer was otherwise entitled to intervene in these proceedings.
10The Board has a discretion to grant intervenor status and to set the limits of that status. In this case, the Board chose to exercise its discretion in favour of granting the employer status to dispute the issue of whether a lawful strike occurred, for the following reasons:
(1) The Board has consistently considered that employers have an interest in the outcome of applications concerning representation of employees, both certification applications and decertification applications.
(2) The applicant has indicated that it supports the argument sought to be introduced by the employer and would in any event adopt such argument and evidence for its own, whether or not the employer is permitted to do so.
Timeliness
11The Board heard the evidence of Harry Ghadban, staff representative of the Steelworkers, Haile Gebraslasie a driver, and Marc Andr6 Way, General Manager of Metro Taxi, c.o.b. as Capital Taxi ("Capital Taxi").
12Capital Taxi owns and operates a fleet of approximately forty-five vehicles. Each of the vehicles is equipped with a radio set to the Capital Taxi dispatch frequencies, the Capital Taxi roof sign, and a taxi fare meter. The vehicles are made available on a daily basis to drivers who pay a rental fee for the use of the vehicle for a twelve or twenty-four hour period. There are approximately fifty-six rental drivers employed by Capital Taxi.
13Capital Taxi also provides dispatch services for approximately forty-three individuals who own their own taxi licences and vehicles. These owners pay a monthly stand rent, which entitles them to operate a Capital Taxi sign, receive dispatch requests, and access taxi stands.
14There are approximately forty-two individuals who lease a taxi licence from Capital Taxi. These individuals own their own vehicles and equipment, but do not own a taxi licence plate. These lessees pay a monthly lease rate for the taxi licence plate as well as the monthly stand rent.
15All the drivers, owners and lessees (sometimes referred to as "drivers") described above are considered to be employees of Capital Taxi for the purposes of the Labour Relations Act.
16Approximately 100 drivers operate in the Ottawa area while the remaining 40 operate in Vanier and Gloucester.
17On May 25, 1994, the Board certified the Steelworkers as the exclusive bargaining agent for all employees of the Metro Taxi Limited c.o.b. as Capital Taxi, subject to certain exclusions. The bargaining unit consists of all drivers, lessees and owners.
18By letter dated June 27, 1994, the union served the employer with notice of its desire to bargain pursuant to section 14 of the Act. By request dated August 30, 1994, the union requested the Minister to appoint a conciliation officer pursuant to section 16 of the Act. On September 12, 1994, the Minister of Labour appointed a conciliation officer to confer with the parties and to endeavour to effect a collective agreement between them. On or about March 16 and 17 and April 12 and 13, 1995, the parties met with a conciliation officer. Some progress was made between the parties with respect to a collective agreement. On April 13, the union requested that a "no Board" report be issued. By letter dated April 29, the Minister issued a notice in writing to the parties that she did not consider it advisable to appoint a conciliation Board. The parties continued to meet with a conciliation officer to endeavour to effect a collective agreement on April 25, May 5 and May 9.
19On May 12 and 13, the parties met with a mediation officer. On May 13, the employer tabled what it characterized as its final offer. In reviewing the employer's final offer, the union's negotiating committee discussed taking the offer to the bargaining unit members with a recommendation to reject the offer. However, Mr. Ghadban testified that because of the potentially divisive nature of these proposals the union decided not to take the proposal to its members for a ratification vote. The union was concerned that the employer's offer, which significantly increased the fee payable by drivers in Vanier and Gloucester but not in Ottawa, would have a divisive effect on the bargaining unit.
20Mr. Ghadban described his experience of organizing strikes in this industry. He described strikes in the taxi industry in which the drivers shut down the company's dispatch system, strikes in which the drivers refused to pay fees to the employer but continued to run fares, and strikes in which the drivers had refused to move from the airport parking lot. He testified that over the years the union had had to learn how to strike a balance between applying pressure to employers and the effect of losing customers.
21In deciding whether to call a strike and, if so, what form of strike to call, the union considered the effect of a strike on the bargaining unit, the effect of a strike on subsequent first contract arbitration, if any, and the union's desire to put pressure on the employer to come back to the bargaining table to change their final offer. In this particular bargaining unit, the employees were concerned that a complete shutdown would result in a loss of customers. Therefore, in order to encourage the bargaining unit members to participate in the strike while at the same time reassuring them that the union was attempting to minimize their loss of income and customers, the union decided not to request the employer to shut down the dispatch service. Accordingly, Mr. Ghadban prepared a flyer on May 24th which was handed out to drivers on the street which stated as follows:
RETAIL WHOLESALE CANADA
CAPITAL TAXI ON STRIKE
Effective May 25, 1995 at 12:00 noon, we are going on strike to show our displeasure with the Company's offer for a collective agreement.
See you at the Company office on 12:00 noon on Thursday May 25.
Our intention is to put maximum pressure on the Company, while at the same time minimize any inconvenience to our customers.
Our fight for fairness is with the Company and not the customers we serve.
We will plan and carry out specific actions directed against the Company but are not requesting the Company to shut down the dispatch system.
We ask you to participate in all actions in order to get the collective agreement we deserve.
It is not acceptable to have Vanier and Gloucester plate lease rents to almost triple, and in Ottawa the cab rents and plate rents have historically only increased when a meter increase became effective.
It is not reasonable to expect us to pay more when business is not increasing.
We believe that the Company offer is insulting to all of us, and we will not accept anything less than a fair contract and not the Company's view of what is fair.
We are in the process of setting up a strike support committee, and anyone interested in volunteering please contact your negotiating committee.
Issued by: Ontario Taxi Union Local 1688, Retail Wholesale Canada, Div. of USWA, the Capital Taxi Negotiating committee
22Also on May 24, the union advised the employer in writing as follows:
Please be advised that the bargaining unit will be on strike commencing at 12 noon on Thursday, May 25, 1995.
23The next day, on May 25, 1995, the employer's counsel wrote to the union and advised that:
In our view, the proposed action described in your flyer does not constitute a strike or work stoppage. You have not requested that the Company shut down the dispatch system, nor have you requested the employees to return all rental vehicles, plates and equipment. The company will, therefore, conduct its business as usual. All terms and conditions of employment remain intact and all drivers are expected to continue making regular rental payments.
24On May 25, 1995, approximately twenty-five to twenty-eight people arrived at the employer's premises at noon. The group consisted of bargaining unit employees and staff representatives of the union. Signs had been prepared stating that the employees of Capital Taxi were on strike. The picketers took the signs and marched across the sidewalk of the employer's premises from noon until approximately four p.m. that day.
25Mr. Ghadban was interviewed by a reporter of the Ottawa Sun who quoted him in an article the following day as stating "we didn't want to pull everyone off the road and alienate the public. The dispute we are having is with a company, not the general public". Mr. Ghadban is also alleged to have said that the union is asking drivers to volunteer for the rotating pickets and that the protest could escalate into a full strike. Mr. Ghadban testified that he used the words "full shut down", not "full strike". In the Board's view, nothing turns on whether Mr. Ghadban used the words "full strike" or "full shut down" as it appears that Mr. Ghadban's position throughout the process has been that the employees have been on strike since May 25th.
26The picketing continued May 26, 29, 30 and 31, June 1, 2, 5, 7, 9, 12, 14 and 16. On those days approximately fifteen to eighteen bargaining unit members and union staff arrived at the employer's premises at noon and walked across the employer's premises for one to three hours with signs stating that they were on strike against Capital Taxi.
27On May 26, 1995, Mr. Ghadban distributed a flyer outlining some common questions and answers concerning employer conduct during a strike. The flyer was prepared in response to questions from a number of people who had attended on the first day.
28On June 16, 1995, the negotiation committee decided that they were not getting the kind of participation that they needed. The union decided to apply for first contract arbitration and did so by letter dated June 16, 1995. A hearing was scheduled for October 12, 1995.
29The employees who spent time on the picket line were paid strike pay out of the union's strike fund. During the picketing, Mr. Ghadban spoke to a few members of the public. He also spoke to other employees in the bargaining unit, urging them to join the picket line.
30Haile Gebraslasie, a driver of Capital Taxi, testified that he shares the rental of a vehicle with another driver. His hours of access to the cab are 4 a.m. to 3.30 p.m. He testified that he generally works throughout that period, either waiting at a taxi stand, driving around the city, or picking up fares. He agreed that the company did not require him to spend twelve hours in his cab and that he would not be penalized in any way by the company if he did not do so. He agreed that if he did not respond to a call from the dispatch, the only consequence to him would be the loss of that call. There would be no disciplinary consequences to not answering a dispatch call.
31Mr. Gebraslasie noted that by attending at the picket line on the days that he did, he lost the opportunity to obtain fares during that time. He agreed that the noon time was generally a slow time for him.
32Marc Andre Way, General Manager of Capital Taxi, described the general operations of the employer. He noted that the drivers are charged a daily rate (payable weekly) for a period of either twelve hours or twenty-four hours. Lessees and owners are charged on a monthly basis for the upcoming month. Mr. Way stated that all rental fees which were payable on Friday, May 30, were paid.
33Mr. Way testified that the company does not set schedules for their drivers or set minimum fares for drivers to collect. The rental fees were flat fees, and the company does not take any percentage of the drivers' earnings.
34The business of attracting taxi customers is derived from five sources: corporate accounts, taxi stands, flags (customers picked up from the street), direct lines, (telephones with direct lines to the company's head office) and advertised telephone lines. Calls which come in from corporate accounts, direct lines or advertised telephone lines are given to the dispatcher. The dispatcher determines the geographic zone of the call and goes down a list of the car numbers in the area in order until a driver acknowledges and accepts the fare. If a driver who has put himself/herself on the list does not answer, the dispatcher moves down to the next one on the list.
35At the commencement of the strike, Mr. Way asked his dispatch staff to advise him of any customer complaints or any unusual activities arising as a result of the "strike". Mr. Way testified that during the days on which the pickets occurred, business operations continued as usual. There was no disruption to the normal business operations. There were no customer complaints related to the picketing. Calls came through in the usual manner and were dispatched in the usual manner.
36Mr. Way also spoke to the Ottawa Sun Reporter and was quoted in the newspaper the next day stating that it was business as usual on the day of the strike: "Our operations weren't at all affected".
37Mr. Way asked his assistant to prepare a comparison of the number of calls received on the first two days of the strike with the number of calls received during that time period in the previous three years. He was advised by his assistant of the overall numbers and concluded that there was no significant change in the number of calls received during the first two days of the strike. Mr. Way did not request any further analysis of calls received during the remaining days of the strike.
38Mr. Way testified that the company did not suffer financially in any way as a result of the union's actions. Mr. Way agreed that the company could be affected if drivers left and paid their fees to another taxi company.
Union's Argument
39The union stated that the issue was whether the union engaged in activity designed to interrupt the employer's business. Section 1(1) of the Act defines "strike" as follows:
"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.
40The union acknowledged that the Board has generally accepted a two pronged approach to the definition of strike. That approach is set out in the decision of Doinglas Ltd., [1976] OLRB Rep. Oct. 569, affirmed by the Divisional Court in United Glass & Ceramic Workers of North America et. al v. Doinglas Ltd. et. al (1978), 1978 CanLII 1625 (ON HCJ), 19 O.R. (2d) 353:
- The definition of strike as found in the Labour Relations Act appears broad enough to encompass the kind of work stoppage that is the subject matter of this application. On its face, the statutory definition appears to require only that the work stoppage, or other disruption of work, result from the combined or concerted action of employees. The two essential conditions for conduct to be characterized as a strike, therefore, appear to be 1) concerted employee activity; 2) some disruption of the employer's operation. The question is whether we should read into this definition a further condition that the conduct be carried out for the purpose of obtaining concessions from the employer, or some other employer. (emphasis added)
41However, the union urged the Board to be cautious in applying the Doinglas test in light of the wording of the Act which refers to activity designed to restrict or limit output. The union argued that the test of whether a strike occurred is not only whether the employer's operation was disrupted but also, in some cases, whether it was designed to be disrupted. The union noted that it did not dispute that where the employer's operation was actually disrupted, intention is irrelevant. However, where the union's activity is designed to limit or restrict output or to disrupt an employer's operation, purpose or motivation is relevant.
42The union relied on the case of The Art Gallery of Ontario, [1989] OLRB Rep. June 537 for the argument that motivation may be relevant in determining whether picketing activity amounts to a strike. At paragraph 12, the Board stated:
The mere existence of picketing by employees will almost always amount to concerted activity by them. While it may be, having regard to the ejusdem generis doctrine, that not all picketing by employees will constitute "concerted activity" within the meaning of section 1(l)(o) of the Act, it was not argued before me that the picketing in this case did not amount to such concerted activity. In any case, the existence of picketing will not, by itself, mean that a strike is in progress or is likely to result. In order for a strike to exist there must be some concerted activity which was designed to restrict or limit output. (See, for example, Horton CBI, Limited, [1985] OLRB Rep. June 880, where the Board prohibited picketing because it was designed to and did put economic pressure (by restricting and limiting its output) on the employer to change an assignment of work, not because of the informational component of the picketing). Consequently, the motivation for picketing (in the sense of its purpose) may be relevant to the issue of whether or not it constitutes an unlawful strike or other unlawful conduct. (See Bay Tower Homes Company Ltd. [1988] OLRB Rep. March 29). (emphasis added).
43The union argued that the union's activities did in fact disrupt the employer's operations. The union asked the Board to take note of the nature of the business affected by this application. In the taxi business, the employer's "business" is getting taxis on the road to service customers so that the employer can collect rental fees from its drivers. The union argued that by engaging in picketing activity, the employees interrupted that business in that some employees left their normal driving duties and picketed for a couple of hours on the days in question. The union compared its activities to an industrial setting where employees strike by stopping work during working hours.
44To the extent that the employer might argue that these employees did not work regular hours and therefore there was no disruption to the employer's business, the union noted that the Board had rejected the idea that a strike does not occur if employees are not required to work regular hours. Rather, the Board has found that the refusal to work overtime hours does constitute a strike (Cambridge, Corporation of the City of [1989] OLRB Rep. Nov. 1095 at paragraph 5.)
45In the alternative, the union argued that on the evidence before the Board, the Board must find that the union's activities were designed to disrupt the employer's operations.
46The union argued that to refuse to acknowledge this situation as a strike would be to subject employees in the taxi industry to a different labour relations regime. To deny that these employees were engaging in a rotating strike, would be to prohibit any type of rotating strike action by taxi employees. Taxi employees would be in a position of having to choose between a complete work stoppage versus no work stoppage at all. The further implication of that decision would be to deny taxi workers the protection offered by section 62(3) of the Act, which protects trade unions from decertification applications for six months after the commencement of the strike.
47The union argued that there is a distinction between no strike versus a weak strike. The union conceded that this Was a weak strike and that the union had hoped that more drivers would picket and that therefore more disruption to the employer's business would occur. However, that was not the case. The union compared the situation to the industrial setting in which, for example, a manufacturing operating is able to stockpile produce and thereby defeat, for a short time, the effect of a strike. Similarly, where replacement workers are permitted, they may seriously undermine any intended disruption on the employer's production.
48The union suggested that to declare that this situation did not amount to a strike would fly in the face of established Board practice to define strikes broadly so as to maintain industrial peace and stability. To adopt a narrow definition of strike would be to cause uncertainty in the taxi industry, with respect to what would be permissible activity during the life of a collective agreement. For example, could drivers refuse to work during the life of the collective agreement as long as they continue to pay their fees? Could drivers picket the company office at any time during the life of the collective agreement?
Employer's Arguments
49The employer noted that the words "designed to restrict or limit output" in the statutory definition of strike in section 1(1) of the Act, have been given a special interpretation by the Board. The Board in Domglas, as affirmed by the Divisional Court, has closed the door on reading in a subjective element into the definition of strike. The employer submitted that the Board has not incorporated a subjective element into the definition of strike, but rather the test set down by the Board has been objective. The employer argued that to open the door to a subjective element would be to open the door to uncertainty in this matter.
50The employer relied on the cases of the Toronto Transit Commission, [1984] OLRB Rep. Dec. 1781 and the Art Gallery of Ontario, [1989] OLRB Rep. June 537 for the proposition that work stoppages must relate to work that the employees are assigned to do during their scheduled hours of work. In this case the employees in question have no assigned or scheduled hours. Since drivers employed by Capital Taxi are not required to drive their cabs during the entire period for which they pay fees, their failure to do so for a couple of hours each day does not amount to a strike.
51The employer argued that the nature of the taxi industry, whereby the employees pay the employer a fee in order to earn income, must be taken into account in this decision. Since the employees paid all fees owed, there was no strike. The employer argued that its position does not deprive the employees of their right to strike, but simply requires them to do so differently than they have on the facts of this case. The employer noted that the concerns of the negotiating committee regarding the impact of the strike on business and the concern that the strike might hurt employees more than the employer, are concerns that are equally applicable to trade unions in most industrial settings.
52The employer argued that accepting the union's position would have implications on the right of these employees with respect to picketing during the life of the collective agreement. The employer hypothesized that if two or more employees in concert got out of their vehicles and protested outside the employer's premises during the life of the collective agreement, this would constitute an illegal strike. The employer noted that it is not the function of this Board to regulate pickets but rather to regulate strikes.
Applicant's Arguments
53The applicant adopted the employer's argument and made the following additional argument. The applicant argued that even if one were to accept the union's position that the test of whether a strike has occurred is whether the activities were designed to restrict or limit output, the union has nonetheless failed to meet this test. The applicant emphasized that the evidence of Mr. Ghadban was that the purpose of the strike was to put pressure on the employer to come back to the negotiating table. At no point in his evidence did Mr. Ghadban suggest that the purpose of the strike was to disrupt the employer's business. The applicant argued that while this union did not actively encourage members of the public to use Capital taxi, they did not discourage them from doing so. He referred the Board to the union's circular in which they emphasized that the union intends to "minimize any inconvenience to our customers." That statement was repeated by Mr. Ghadban and quoted in the Ottawa Sun.
The Decision
54This is an extremely unusual situation. The parties did not provide the Board with any case law, nor is the Board aware of any, in which the union asserts that they were on strike and the employer asserts that they were not. The issue of whether a strike occurred must be determined in the context of the statutory definition and in accordance with the Board's jurisprudence, regardless of which party asserts the existence of a strike. A strike is a strike regardless of the implications it has with respect to the timeliness of a termination application.
55The Board's jurisprudence on the definition of strike is well established. We adopt the Board's test set out at paragraph 12 of the Domglas case and quoted in paragraph 40 above.
56We accept that, where there is actual disruption of the employer's business, then an inquiry into the purpose of the work stoppage or the motives of the participants is unnecessary.
57This is consistent with the Divisional Court's decision in Domglas at page 375:
Mr. Cavalluzzo submitted that the work stoppage does not constitute a strike because it was not, as the definition requires, "designed to restrict or limit output" but was designed as an expression of political protest. This point does not appear to have been put in these terms to the Board as none of the majority or minority reasons mention it. The argument is that the purpose must be distinguished from the effect. In the circumstances of this case I cannot agree. The dissenting member in his very able reasons said that employees going fishing together could not be construed as a strike. No doubt this would be true if done by a relatively small number of employees whose absence has a negligible effect on production. But where the labour force is withdrawn (referred to by the dissenting member as a "shut-down") this act must be viewed quite differently. The effect of the work stoppage cannot in my opinion be divorced from its political purpose. In closing down the employer's business the union must be taken to have intended the necessary consequence which is to limit production. To cease to produce is to restrict or limit output and in my opinion that by overwhelming inference was part and parcel of the objective of the national day of protest as a show of economic as well as political power.
[emphasis added]
58The Court concluded that the purpose of the work stoppage cannot be divorced from its effect. In other words, where there is actual disruption of the employer's business, one of the presumed purposes must have been to cause that disruption regardless of whether there are other, more dominant, purposes.
59Thus, where there is 1) concerted employee activity and 2) some disruption of the employer's operation, there is a strike. The disruption will be presumed to have been designed or intended. Where there is actual disruption of the employer's operation, there need be no further inquiry into motive or purpose.
60Neither the Domglas case nor the Board cases following it address the converse situation. Where there is no disruption of the employer's business, does intention or purpose or motivation have any role to play? We think they do. The Board must return to the statutory definition of strike set out in the Act.
1.-(1) "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.
[emphasis added]
61The word designed implies a purposive component. The Board notes that there may be situations where, although there is no disruption of the employer's operations, the intention or motive of the participants may be relevant. We adopt the reasoning of the Board in The Art Gallery of Ontario, [1989] OLRB Rep. June 537 at paragraph 12:
Consequently, the motivation for picketing (in the sense of its purpose) may be relevant to the issue of whether or not it constitutes an unlawful strike or other unlawful conduct. (See Bay Tower Homes Company Ltd., [1988] OLRB Rep. Mar. 259).
62We emphasize that we are not detracting in any way from the traditional approach taken in Domglas. An inquiry into whether a strike has occurred will generally begin with an inquiry into whether there has been concerted employee activity and some disruption of the employer's operation. When the latter is answered in the negative there might then arise an inquiry into whether the participants nonetheless engaged in activity "designed to restrict or limit output".
63To begin with the traditional approach, has there been concerted employee activity and some disruption of the employer's operation in this case? We think not. It is not in dispute that the picketing activity engaged in by fifteen to twenty-five bargaining unit members for one to three hours per day, amounts to concerted employee activity. However, the parties disagree whether there was any disruption of the employer's business. We find there was not. We accept the evidence of the Capital Taxi's general manager that it was business as usual during the picketing. The company received approximately the same number of calls from potential clients, dispatched the taxis in the usual manner and received rental fees as owed. They received no customer complaints and, to the best of their knowledge, there were no delays in service. The Board finds as a fact that there was no disruption to the employer's business during the period in question.
64We must now turn to the question whether the union in this case intended to restrict or to limit the employer's output or, in other words, intended to disrupt the employer's operation. This employer is in the taxi business. The business can be described as providing taxi service to members of the public through corporate accounts, direct lines, taxi stands, and on the street flags. The employer makes money from the rental fees paid to it by drivers. The employer is not directly affected by the number of customers who use their taxi cabs. However, the employer is indirectly affected, in that if a lack of customers causes drivers to switch to another taxi company, the employer will lose rental or stand fees. Accordingly, the employer advertises its services to the general public (by taxi roof signs, direct lines, taxi stands, and general telephone lines) in an effort to attract customers.
65The union's activities had all the elements of a strike, albeit, a very weak one. The union committee decided to call a strike, they notified the employer of the strike, they circulated a flyer to bargaining unit members requesting all members to join in the strike, they organized a picket line for one to three hours per day, the picketers carried signs stating they were on strike, and the picketers were paid strike pay for the periods they picketed. The drivers who picketed stopped work and lost the opportunity to collect fares during the time they picketed.
66Having regard to all the evidence, we are persuaded that the union intended to disrupt the employer's business, albeit minimally. The union called upon all bargaining unit members to cease working and to attend at the employer's office. In asking the employees to attend at the company's office, they were asking the employees to stop working and to stop providing the service the employer provides, namely, taxi service to the general public. Had more employees responded, and actual disruption occurred, there would be no question this would be a strike. We do not find it appropriate to decide whether a strike occurred based on the number of people who respond to the strike call. The number of employees who respond may make the difference between a weak strike and a strong strike, but a poor turnout does not negate the fact that a strike was called.
67The employer and the applicant relied heavily on the case of The Art Gallery of Ontario, alleging that the facts were very similar. In The Art Gallery of Ontario, the Board found that informational picketing, which did not and was not intended to disrupt the employer's operations, carried on during non-paid lunch hours or by employees not scheduled to work, did not amount to illegal strike activity. The information conveyed the union's dissatisfaction with the employer's monetary offer during collective bargaining negotiations. The picketing employees did not attempt to dissuade anyone from entering the employer's premises, rather they encouraged people to do so. The employer and the applicant argued that in this case the drivers had no assigned hours or schedules and were not penalized in any way for failing to drive during the hours they had access to their cars. Therefore, as in the Art Gallery of Ontario case, they urged the Board to find that the drivers were simply engaging in picketing on their own time.
68The union emphasized that the workers who picketed ceased working their "assigned" hours in the sense that the drivers had access to the cabs but did not carry out their duties in the normal way by driving around soliciting fares, waiting at taxi stands, or answering calls from dispatch. The union argued that this distinguished this case from the facts of The Art Gallery of Ontario.
69The Board has determined that the case does not depend on whether there were assigned or scheduled hours, express or implied. The nature of the taxi industry is such that drivers have access to cabs (or roof signs, as the case may be) during defined periods. There can be no doubt that a refusal by many drivers to drive for long periods would amount to a strike, where it disrupts the employer's business, regardless of the fact that drivers do not have assigned or scheduled hours. The only distinction in this case is that the number of drivers who turned out for the picketing was so small that it caused no immediate impact on the employer's operations. However, the union clearly intended, through its invitation to all bargaining unit members, to disrupt the employer's business.
70In conclusion, the Board finds that the union's activities were designed to restrict or limit output, or in other words, designed to disrupt the employer's operations, during the period of May 25 to June 16, 1995. Accordingly, there was a strike during that period. Therefore, the application for termination of bargaining rights filed on May 30, 1995 is untimely by virtue of section 62(3) of the Act. The application is dismissed.
71Subsequent to the hearing of this matter, and before this decision was issued, the Labour Relations Act, 1995 ("the new Act") has come into force. The Board will therefore apply the provisions of the new Act to its determinations. In the opinion of the Board, the new Act does not affect the disposition of this application.
DECISION OF BOARD MEMBER O. R. MCGUIRE; November 21, 1995
1I agree with the conclusion reached by my colleagues at paragraph 63 which reads:
The Board finds as a fact that there was no disruption to the employer's business during the period in question.
I must however, with respect, dissent from their final conclusion that the union intended "... to disrupt the employer's business".
2I would have held that the union did not intend to disrupt the business, based on its flyer of May 24th, where members were told of their union's intention "... to put maximum pressure on the company, while at the same time minimizing any inconvenience to our customers." The flyer also stated that "We are not requesting the company to shut down the dispatch system". Mr. Ghadban testified of the continuing detrimental effect of a strike which shut down another taxi firm in Ottawa. Under those circumstances, I believe that not only did the union not intend to disrupt the business, but they did not want the business disrupted.
3In the result, I would have decided that because no strike occurred, the application for termination was timely and should be set for hearing.