[1996] OLRB Rep. November/December 938
2021-96-U de Havilland Inc. and Bombardier Regional Aircraft Division, Applicants v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local Unions 673 and 112 and those persons named in Appendix "A", Responding Parties
BEFORE: M. A. Nairn, Vice-Chair, and Board Members S. C Laing and D. A. Patterson.
APPEARANCES: L. Bertuzzi and C. Robertson for the applicants; B. Chercover for the responding parties.
DECISION OF THE BOARD; December 2, 1996
This was an application brought pursuant to section 100 of the Labour Relations Act, 1995 (the "Act") alleging that the responding trade union parties had “called or authorized or threatened to call or authorize an unlawful strike" (see section 81 of the Act) and that named officers, officials, of agents of the trade unions or persons had "counselled or procured or supported or encouraged... or threatened an unlawful strike" when they knew or ought to have known that, as a probable and reasonable consequence of their actions, others would engage in an unlawful strike (see sections 8 I and 83 of the Act).
After a short hearing and by decision dated October 17, 1996 the Board issued certain declarations and directions without providing reasons. Both parties have since requested written reasons and we provide them here.
Paragraph 2 of the October 17, 1996 decision notes as follows:
This application arises in connection with plans for the holding of Metropolitan Toronto Days of Protest" on October 25 and 26, 1996. The facts giving rise to the application were not seriously in dispute and the matter proceeded on the basis of particulars pleaded with certain explanations and caveats provided by counsel. There was no dispute that a collective agreement is in place in respect of each bargaining unit affected, which agreements, consistent with the terms of the Act, prohibit strikes during the term of that agreement. The particulars also disclose that the responding trade union parties and officials or officers or agents of the trade unions have, at the very least, threatened to call and have counseled and supported and encouraged the holding of an illegal strike against de Havilland on October 25, 1996.
- Paragraph 4 of that decision sets out the Board's remedial determination as follows:
(1) declares that the responding party trade unions have each called or authorized or threatened to call or authorize an unlawful strike contrary to section 81 of the Act;
(2) declares that the individual responding parties have counselled or procured or supported or encouraged an unlawful strike or threatened an unlawful strike, which they knew or ought to have known, as a probable and reasonable consequence of their action, would cause others to engage in an unlawful strike, contrary to sections 81 and 83(1) of the Act:
(3) declares that a refusal to work by employees on October 25, 1996 as part of a concerted effort to disrupt production at de Havilland in Metropolitan Toronto would constitute an unlawful strike, contrary to section 79 of the Act:
(4) directs the responding party trade unions and anyone acting on their behalf to cease and desist from calling, authorizing, or threatening to call or authorize an unlawful strike;
(5) directs the individual responding parties to cease and desist from counseling. procuring, supporting, encouraging or threatening an unlawful strike;
(6) directs that CAW-Canada Local 673 and CAW-Canada Local 112 respectively, forthwith provide notice of the declarations and directions contained in this decision to their members who are employed by de Havilland in Metropolitan Toronto;
(7) directs that the responding parties or anyone having notice of this direction refrain from engaging in an unlawful strike against de Havilland and refrain from any act which they know or ought to know will prompt other persons to engage in an unlawful strike;
(8) directs that a copy of this decision be posted in the workplace for thirty (30) days.
The applicants (referred to collectively as "de Havilland") were concerned about production which had been scheduled for Friday, October 25, 1996. Local 112 of the National Automobile, Aerospace Transportation and General Workers Union of Canada (CAW-Canada) (the "CAW") represents the employees in the "plant" unit at de Havilland and Local 673 of the CAW represents employees in the "office" unit at de Havilland. It was common knowledge that October 25, 1996 had been targeted as a general day of protest in the Metropolitan Toronto area and there was no real dispute, based on the pleadings. that Locals 112 and 673 were supporting the position of their parent union, the CAW, in support of the holding of the "Days of Protest".
The CAW, through its President, Basil Hargrove, and others, had made it clear that they sought to have employees represented by the CAW withdraw their labour on October 25, 1996. News reports identifying de Havilland and other workplaces where employees are represented by the CAW as being intended subjects of this action went undisputed in these proceedings. Local CAW officials at de Havilland met with representatives of de Havilland in the weeks prior to October 25, 1996 but the parties were unable to reach any kind of accommodation that would allow the employees involved to participate in the organized action without affecting de Havilland production. One object of the protest was clearly the disruption of production at de Havilland (along with other workplaces). Further, it was clear from a review of the pleadings that the trade union responding parties had threatened a work stoppage and that various individual persons, including officers and officials of the trade unions, had counselled and/or threatened a work stoppage.
At the hearing of this matter then, there was no real dispute as to the actual conduct and intentions of the responding parties. There was also no dispute that, in accordance with the terms of the collective agreements in place and the terms of the Act, that a work stoppage at de Havilland would, in the normal course, be an illegal strike, in violation of sections 81 and 83 of the Act, as any such work stoppage would occur during the life of those collective agreements.
In the first instance the responding parties argued that a total ban on “strikes" during the life of the collective agreement, regardless of the purpose, motives, duration, or circumstances of the action is not proportional to the legislative objective of the Act. The responding parties asserted that the Act must be read in a way to allow for political activity in accordance with the constitutionally protected right of freedom of expression in the Charter of Rights and Freedoms.
The result in this case, they argued, was to conclude that the encouraged or counseled activity would not constitute an illegal strike because of its political overtones and consequently no remedy would be available pursuant to sections 81 or 83 of the Act. This argument, as acknowledged by the responding parties, was heard and dealt with at length by the Board in General Motors of Canada Limited, [1996] OLRB Rep. May/June 409.
The responding parties acknowledged that on this view, relief would arguably be available in some cases but not others depending on the facts. De Havilland noted that the effect of such an interpretation would be to introduce exceptions into an otherwise clear provision, with the effect that one would be unable to assess in advance whether certain activity would constitute an illegal strike or protected political expression; a result not conducive to good labour relations.
The decision in General Motors, supra. is currently the subject of a judicial review application. We saw no basis for drawing any different conclusion in the circumstances of this case. Consistent with that decision we were of the view that, even having regard to the provisions of the Charter, the intended interference with de Havilland production on October 25, 1996 through a concerted work stoppage would be an illegal strike. Consequently the conduct complained of, that is, the counseling or threatening etc. of such a work stoppage was, in our view, in violation of sections 8 1 and 83 of the Act.
The issue which the parties then addressed was the extent of any exercise of remedial discretion on the part of the Board. De Havilland sought a wide range of remedies set out at paragraph 6 of its application, including both declaratory and directory relief. The responding parties argued that it was inappropriate in the circumstances to provide any remedy, or at most, only declaratory relief.
The responding parties pleaded certain matters in respect of de Havilland's intention to close down on October 25, 1996 in any event. De Havilland, although disputing some of those particulars filed by the responding parties, did acknowledge that it had taken a decision that, in the event that it was picketed on October 25, 1996, it would shut down for the day. That decision was characterized as a kind of "plan B" and de Havilland argued that it should not be limited in asserting its legal rights simply because it had made a decision which would minimize the effect of, and its losses, in the event of an illegal strike.
The responding parties argued that the conclusion as to the illegality of the action was the subject matter of judicial review and that the Board ought to exercise remedial restraint in order to protect against any inappropriate interference with constitutionally protected rights. They relied on the decision of the Board in Domglas Ltd., [1976] OLRB Rep. Oct. 569 at paragraph 26 to argue that declaratory relief would be sufficient in that any disruption to production that might occur could be compensated for in damages through the collective agreement, whereas no adequate remedy was available for interference with constitutionally protected rights. Moreover they argued there was no evidence in this case that de Havilland would suffer any damages, as it had made a decision to shut down in any event.
The responding parties argued that injunctive relief was inappropriate as the Board ought not to assume in advance that declaratory relief would be inadequate. There was the suggestion that, given the employer's plan B, and the fact of discussions between the parties, a simple declaration might assist the parties without the need for injunctive relief. On that point we feel it fair to say that there appeared to be no doubt from the pleadings or in the minds of anyone in the hearing room as to the inevitability that de Havilland would be affected by the October 25 protest. The responding parties in effect relied on that inevitability by relying on de Havilland's decision to shut down in any event in support of their arguments. Finally, it was argued that limiting relief to a declaration would extend some recognition to the argued countervailing Charter rights.
The responding parties also suggested, in response to a question from a member of the panel, that if the day of protest is inevitable then it was bad labour relations for de Havilland to bring this application and it would be bad labour relations for the Board to become involved, asserting that these parties were small players in the overall scheme of things. In response, de Havilland noted the undisputed pleadings which included a news report that the President of the CAW had identified de Havilland as the largest one-site manufacturing operation in the Metropolitan Toronto area and the largest CAW bargaining unit and therefore important to the protest.
We had no reason to believe that simple declaratory relief would result in any accommodation of de Havilland's concerns by the responding parties. The CAW, among others, was a party to the dispute in General Motors. Supra, wherein the Board restricted itself to a declaration in respect of the same kind of action as complained of here. That related to the day of protest held in London, Ontario, a forerunner to the action in question here. In confining itself to declaratory relief after the fact, the Board in that case commented on General Motors failure to attempt to accommodate its employees' participation in the planned action. Here, de Havilland had made considerable efforts to attempt to reach some accommodation in advance of the action. The responding trade union parties had refused to agree, confirming their intention of engaging not only in political protest, but also interference with de Havilland's scheduled production.
The responding parties argued that injunctive relief ought not to be available unless de Havilland could establish that it would suffer irreparable harm and it had not. De Havilland responded by noting that had it merely remained silent as to its intended plan B, there would be no issue hut that production was scheduled for October 25, 1996 and damages would tiow. However, counsel also noted that the question of damages was not something the Board considered under section 100 in assessing injunctive relief.
Absent the particular circumstances leading up to this dispute, that is, the fact that it was but one aspect of a much larger and broader political action, there would be no doubt that de Havilland would be entitled to relief, including injunctive relief. Section 100 (and section 101) clearly contemplates the kind of injunctive relief sought by the use of the words, "may direct what action ... a person,..(or) trade union...shall do or refrain from doing... with respect to...the threat of an unlawful strike". This relief is entirely consistent with the general prohibition against strikes or lock-outs during the life of the collective agreement and the statutory requirement for a grievance procedure, designed to maintain industrial stability in the face of disputes between the parties to the collective agreement. It is not necessary to affirmatively establish that irreparable or other harm will flow in order to obtain injunctive relief. The provisions recognize the inherent harm to the collective bargaining relationship and seek to avoid the consequences that might erupt as a result of either a concerted disruption of production or an illegal suspension of work by firstly making the nature of one's obligations clear in advance, and by restraining any illegal action.
We saw no reason not to grant both declaratory and directory relief in the particular circumstances, particularly in light of the attempt by de Havilland to accommodate the planned action and the responding parties' inability or unwillingness at that point to reach some agreement. In effect, the intention of interfering with production was an ongoing aspect of the activity complained of. See for example, Hickeson-Langs Supply Company, [1991] OLRB Rep. May 625, particularly paragraphs 32 to 35.
However, at the same time, the fact that de Havilland had decided to shut down for October 25, 1996 in any event also meant that some of the subtleties in the issue surrounding the granting of injunctive or directory relief were not dealt with. While de Havilland was entitled, in our view, to assert its legal position and obtain relief, we recognized that, regardless of any order of the Board, in all likelihood there would be no consequences arising from any injunctive or directory order as the plant would not be operating. Therefore issues concerning the extent of any injunctive or directory relief were not addressed by the parties nor by the panel and the remedial orders ought not to be taken out of context as a result. (We also note that no attention was directed by the parties to whether or not there were sufficient facts pleaded in respect of each named responding individual, and the declarations and directions issued in a similarly "generic" way.)