The Association of Major League Umpires v. The American League and The National League of Professional Baseball Clubs and The Toronto Blue Jays Baseball Club

[1995] OLRB Rep. April 540

0298-95-U The Association of Major League Umpires, Applicant v. The American League and The National League of Professional Baseball Clubs and The Toronto Blue Jays Baseball Club, Responding Parties V. Major League Baseball Players Association, Inter'venor

BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members R. W. Pirrie and B. L. Arm­strong.

APPEARANCES: David Elenbaas, Michelle Gage, Richard G. Phillips, Jerry Crawford and Don Denkinger for the applicant; Roy C. Filion, Gene Budig, Robert Kheel, Bill Schweitzer, Brian Har­vey, Daryn Jeffries and Marty Springstead for The American League and The National League of Professional Baseball Clubs; Gordon Kirke and Paul Beeston for The Toronto Blue Jays Baseball Club; Paul Cavalluzzo for the intervenor.

DECISION OF THE BOARD; April 28, 1995

1. This is an unfair labour practice complaint that raises a number of novel and difficult tssues. Some of those issues involve the application of new legislation that was passed in 1993. Oth­ers involve longstanding provisions of the Labour Relations Act which the applicant seeks to apply to a rather special commercial context: professional sport. But in both cases, the principles that emerge may have application beyond the particular situation under review.

2. That situation is easy enough to describe, and to make this decision easier to read, we will refer to the parties in abbreviated form.

3. For many years the "American League", the "National League", and the "Umpires' Organization" have bargained together to settle the salaries and working conditions of professional umpires. This collective bargaining has taken place from time to time over at least the last 20 years, and has resulted in an agreement that is uniformly applied whenever and wherever umpires work in the United States and Canada. When umpires come to Toronto, as they have on a regular basis since 1977, they are paid in accordance with that agreement. Members of the Umpires' Organiza­tion are regularly and routinely working in Toronto, whenever the Blue Jays have a home game.

4. This year the Leagues and the Umpires' Organization are engaged in collective bargain­ing for a new collective agreement. That agreement, when concluded, will also apply in the United States and Canada. However, negotiations are at an impasse and, as a result, the Leagues have "locked out" the umpires at all locations at which they would customarily work, including the Sky-dome in Toronto.

5. The lock-out that was imposed by the Leagues is effective in Toronto. It is preventing umpires from working in Toronto as they normally would, and, as we understand it, there has been picketing in Toronto in connection with this collective bargaining dispute. The lock-out is a collec­tive bargaining tactic. In order to put economic pressure on the umpires to agree to the Leagues' bargaining proposals, the Leagues have locked out the umpires and have also engaged "replace­ment umpires" to work in the United States and Canada where the locked out umpires normally work - including at the Skydome in Toronto.

6. It is common ground that: the Umpires' Organization is a "trade union" under United States law; any resulting agreement between the Leagues and the Umpires' Organization will be a "collective agreement" under American law; the parties intend to apply that "collective agree­ment" in Canada to "employees" who work in both the United States and Canada; and the lock­out has been imposed by the Leagues in respect of umpires in the United States and Canada.

7. The question is whether any of these employment relationships and collective bargain­ing activities are subject to Canadian law - which may mean Ontario legislation because, in Canada, employment and collective bargaining matters are largely subject to provincial regulation. The Umpires' Organization says that they are. The Leagues say that they are not.

8. The Leagues' primary submissions are that: the Umpires' Organization is not a "trade union" under Ontario law; the Umpires' Organization has no collective bargaining rights under Ontario law for umpires working in Ontario; there are no employment or collective bargaining relationships in Ontario to which the Ontario law could apply; the agreement that is struck in the United States is not a collective agreement under Ontario law; there is in fact no "lock-out" in Ontario at all to which the Ontario law can apply; and, of course, the new legislation barring replacement workers can have no application either.

9. Simply put, the Leagues maintain that the ongoing employment and collective bargain­ing relationships - including the lock-out - are American activities which may have commercial con­sequences in Ontario, but are in no way subject to Ontario collective bargaining law. The Leagues further argue that this and every other panel of the Board are prohibited from hearing this applica­tion because of a reasonable apprehension of bias, (stemming from a newspaper report, in which counsel for the Umpires' Organization is quoted as saying that some unknown person from the Labour Relations Board told him the statute applied to his situation). In the alternative, the Leagues maintain that if any Canadian law applies at all, it is the Federal Canada Labour Code. In the further alternative the Leagues submit that if Ontario law applies and there has been a breach of that law no remedy should be given.

10. A hearing in this matter was held, in Toronto, on April 26 and 27, 1995. All of the par­ties were represented by counsel; and we are grateful to counsel for their thorough and thoughtful submissions. As it turned out, most of the facts were not in dispute - although (not surprisingly) counsel had very different views on the legal characterization of the situation, and how the statute could or should be applied.

11. We are mindful of the dynamics of the current collective bargaining situation, and the parties' desire for a quick decision concerning their respective statutory rights; moreover, since we are all in agreement as to the disposition of the case, we think that it is appropriate to release this relatively brief "bottom line summary" with formal reasons to follow.

12. We might note that, strictly speaking, it may not be necessary to answer all of the legal questions that the parties have put before the Board. However, each one was vigorously argued, and said to be necessary to their particular positions or ongoing legal relationship. In the circum­stances, we consider it appropriate to address them in the way that the parties did.

13. Having regard to the evidence and representations of the parties, and the provisions of the Labour Relations Act, the Board makes the following findings, declarations and determina­tions:

14. There is no reasonable apprehension of bias respecting the Board as a whole or this particular panel which would preclude this panel or the Board as a whole from adjudicating the legal issues raised in this case, or from granting the remedies requested. There is no sugges­tion that this panel is biased in any way, nor is there any evidence that any member of the Board expressed any view to the applicant or its counsel. We put no weight on the quote in the newspaper.

15. The labour relations, collective bargaining, and alleged employment relationships that are the subject of this application are regulated provincially by the Ontario Labour Relations Act, and not federally by the Canada Labour Code.

16. The Umpires' Organization is a trade union within the meaning of the Ontario Labour Relations Act.

17. The umpires regularly and customarily work in Toronto at the Sky-dome and are "employees" within the meaning of the Labour Rela­tions Act and, therefore, individuals to whom the statute applies.

18. The Umpires' Organization is entitled to represent these individuals in Ontario, and the Umpires' Organization has bargaining rights for them in accordance with the Labour Relations Act.

19. The employer of these umpires is the American League and the National League of Professional Baseball Clubs not the Toronto Blue Jays Baseball Club.

20. The agreement negotiated between the Leagues and the Umpires' Organization is (or was) a collective agreement in accordance with the Labour Relations Act.

21. Any lock-out of umpires, at this time, in the Province of Ontario would be unlawful in Ontario because neither the Leagues nor the Umpires' Organization have triggered the compulsory conciliation process which is mandatory in this province before a lawful strike or lock-out can occur. Similarly, any strike of umpires in Ontario would be unlawful at this time. (See section 74 of the Labour Relations Act).

22. The engagement or employment of replacement umpires is likewise unlawful, being contrary to section 73.1 of the Labour Relations Act.

23. As we will discuss below, we are not persuaded that as a matter of discretion the Board should refuse to make any declaration or reme­dial direction respecting the ongoing collective bargaining activity, insofar as it occurs in and is regulated by Ontario law.

24. As we have indicated in the preceding paragraph, we are satisfied that the Ontario Labour Relations Act applies to the circumstances under review, that provisions of the Ontario Labour Relations Act have been contravened, and that a remedy should issue. However, we are more troubled by the Leagues' alternative submission that even if Ontario Law does apply and has been breached, no remedy should issue. There is considerable force to the Leagues' submission that the collective bargaining process (of which the "Toronto lock-out" is only a small part) is occurring lawfully in other jurisdictions, and that the application before us is an opportunistic attempt to gain a tactical advantage from local collective bargaining law, that no one has sought to apply in the past. But, by the same token, there has been no need for anyone to consider the appli­cation or Ontario law before, collective bargaining includes the use of the law for tactical advan­tage, and there are certainly instances where employers have sought the application of provincial law for their tactical advantage, and to the potential detriment of broader extra-provincial collec­tive bargaining structures.

25. We are troubled that the situation in Ontario is only a small slice of the collective bar­gaining pie, that is largely driven and regulated by forces outside Ontario. But the fact is: it is not unusual for business activity to span several provinces, or exist between Canada and the United States, yet for constitutional reasons, collective bargaining in this country is largely a provincial responsibility - whatever detrimental effects that may have to broader based collective bargaining processes. Fragmented collective bargaining is a consequence of the Canadian constitution. Indeed, as counsel pointed out, Ontario Hydro is subdivided between Federal and Provincial juris­diction with obvious consequences for collective bargaining that takes place wholly within Ontario; moreover, it is not at all unusual for the local branches of an economically integrated operation to have to comply with local provincial regulation for employment or other purposes. And even if federal law were to apply in this case (which we find that it does not) the Canadian facet of the industry would still be governed by much broader American-based collective bargaining impera­tives.

26. Fragmentation is endemic in our constitutional scheme, and we do not think that the adverse collective bargaining consequences to broader based bargaining are sufficient, in them­selves, to prompt the Board as a matter of discretion not to apply Ontario law to collective bargain­ing activity in Ontario. Notions of "comity" may make some sense between jurisdictions where the rights are generally congruent, but where there are different legal regimes (here in different coun­tries) questions of "sovereignty" also come into play.

27. In any event, we do not think that we should decline to apply Ontario law simply because it is novel to do so, or because there may be collective bargaining consequences, or because one side may reap a temporary tactical advantage - any more than we would be inclined to exempt a local branch plant from the application of Ontario law where the same arguments might be made. It may be that the inability to strike, lock-out, or use replacement umpires in Ontario at this time has an effect on the ongoing collective bargaining, or introduces a new "wrinkle" into the collective bargaining process. However, we see no obvious reason why this should be an impedi­ment to settlement, nor should it create an obstacle that cannot be overcome by bargaining in good faith - an obligation that the parties have in all jurisdictions. Certainly it is no reason not to apply the law at all.

28. There is however, a question of how to apply the Ontario law in this particular case, so as not to unnecessarily cause collective bargaining difficulties or commercial consequences - where, as here, it can be fairly said that none of the parties have had much of an opportunity to consider the application of Ontario law, or seek compliance with it prior to the commencement of this pro­ceeding. Until the filing of this proceeding on April 21, 1995, it was reasonable for the responding parties to expect that collective bargaining would proceed on the understandings that the parties have heretofore shared. With this in mind, we think that it is reasonable at this stage to merely make declarations of rights, which will be effective as at the conclusion of the baseball game cur­rently scheduled for May 3, 1995. This will give the parties an opportunity to consider their legal and collective bargaining positions prior to the Blue Jays return to Toronto later in May.

29. We therefore repeat the declarations that:

(1) the lock-out of umpires in Toronto is unlawful and contrary to the Labour Relations Act at this time;

(2) the engagement of replacement umpires is likewise unlawful at this time and contrary to section 73.1 of the Labour Relations Act.

20. It was suggested in argument that one of the consequences of the ruling we are making might be a League or Blue Jays' decision to cancel baseball games in Toronto. We wish to make it clear that nothing in our ruling requires that result. On the contrary. Ontario law requires that the parties conduct business as usual until the provisions of the Ontario Labour Relations Act are com­plied with.

21. We repeat: nothing in our ruling prevents the League and the Blue Jays from conduct­ing games in Toronto as usual, using regular umpires as usual. If games are cancelled, it is because the League or the Blue Jays or the umpires themselves consider it to be in their collective bargain­ing interest to do so, in order to "raise the stakes" of the conflict, or put pressure on the other side in their ongoing collective bargaining dispute. But as things now stand, the umpires are not allowed to strike in Ontario, the Leagues are not allowed to lock-out in Ontario, the use of replacement workers is prohibited (but is a secondary question), and there is no reason whatsoever why baseball games cannot proceed in the normal course while the collective bargaining process continues.

22. We will of course issue detailed written reasons for these various findings and conclu­sions set out in the decision. As we have already indicated, we think it is important to issue a decla­ration of the parties' rights so they may govern themselves accordingly. That is all that is necessary at this point.

23. The Board will remain seized as necessary with respect to this matter.