[1996] OLRB Rep. May/June 488
0246-96-U Sarnia Construction Association and Mechanical Contractors Association of Sarnia, Applicants v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 663 and Robert J. Humphreys, Responding Parties
BEFORE: G. T Surdykowski, Vice-Chair.
APPERANCES: David Cowling and Andrew Pilat for the applicants; James Fyshe and Robert Humphreys for the responding parties.
DECISION OF THE BOARD; May 14, 1996
This application for relief under section 144 of the Labour Relations Act, 1995 was heard on April 22, 1996. By decision dated April 23, 1996, the Board granted the application and made the following declarations and orders:
The Board therefor declares that:
(a) The United Association of Journeymen and Apprentices of the 'Plumbing and Pipe Fitting Industry of the United States and Canada. Local Union 663 has violated section 81 of the Labour Relations Act, 1995; and that
(b) Robert J. Humphreys has violated sections 81 and 83(l) of the Labour Relations Act, 1995.
The Board orders that the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 663 and Robert J. Humphreys cease and desist from violating sections 81 and 83(l) of the Labour Relations Act, 1995, and specifically that they cease and desist from threatening employees of Lamsars Mechanical Contractors and Chemfab Mechanical Contractors with internal trade union discipline if they accept transfers to the Imperial Oil job site in Sarnia.
The Board further orders that everyone who receives notice of this decision, either directly or indirectly, cease and desist from engaging in any unlawful strike activity at the Imperial Oil job site.
The applicants are associations of employers which represent certain employers in the construction industry in Lambton County. There was no challenge to their right to bring this application.
Section 144(l) of the Act provides that:
(1) Where, on the complaint of an interested person, trade union, council of trade unions or employers' organization, the Board is satisfied that a trade union or council of trade unions called or authorized or threatened to call or authorize an unlawful strike or that an officer, official or agent of a trade union or council of trade unions counselled or procured or supported or encouraged an unlawful strike or threatened an unlawful strike, or that employees engaged in or threatened to engage in an unlawful strike or any person has done or is threatening to do any act that the person knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike, it may direct what action, if any, a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike.
The applicants alleged that the responding parties had breached sections 81, 83(1) and 85 of the Labour Relations Act, 1995. They also relied on section 107(2) of the Act. These provisions prohibit unlawful strike activity as follows:
No trade union or council of trade unions shall call or authorize or threaten to call or authorize an unlawful strike and no officer, official or agent of a trade union or council of trade unions shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike.
(I) No person shall do any act if the person knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike or an unlawful lock-out.
No trade union shall suspend, expel or penalize in any way a member because the member has refused to engage in or to continue to engage in a strike that is unlawful under this Act.
(2) Any act or thing done or omitted by an officer, official or agent of a trade union or council of trade unions or employers' organization within the scope of the officer, official or agent's authority to act on behalf of the union, council or organization shall be deemed to be an act or thing done or omitted by the union, council or organization.
In section 1 of the Act, a "strike" is defined as being conduct which:
1.(l) In this Act,
"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;
Section 48(1) of the Act provides that:
- (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.
Section 79(1) of the Act prohibits strikes or lock-outs where a collective agreement is in operation as follows:
(1) Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out such an employee.
The material facts were not really in dispute. The conduct complained of by the applicants concerned the employees of Lamsars Mechanical Contractors ("Lamsars") and Chem-Fab Mechanical Contractors ("Chem-Fab"), which are employer members of the applicants who are engaged in certain work at Imperial Oil in Samia, and centres around a dispute between the parties concerning the ability of employers like Lamsars and Chem-Fab to transfer employees to job sites like the one at Imperial after the "shut-down start-time" (which is considered to be after the battery limit blanks have been installed).
There was a collective agreement which covers the two employers involved and the employees who they wanted to transfer from other work locations to the Imperial Oil job site in effect at all material times; that is, the provincial collective agreement between the Mechanical Contractors Association Ontario, and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada. That collective agreement contains a management rights article which contains the following clause:
10.03 To hire, discharge, transfer, promote, assign or reassign, demote, lay-off, or discipline employees for just case.
- There is nothing in either the principal portion of the collective agreement or in the applicable Local Appendix which on its face limits an employers "right" to transfer employees. The collective agreement also has the requisite no strike or lock-out provision as follows:
ARTICLE 14- NO STRIKE, NO LOCK-OUT
No employee bound by this Agreement shall strike and no employer bound by this Agreement shall lock-out such an employee.
The responding trade union ("Local 663") is the affiliated bargaining agent of the employee bargaining agency party to the collective agreement which is the trade union "party" (pursuant to section 163(3) of the Act) under that collective agreement which has territorial jurisdiction in Lambton County, which includes the Imperial Oil job site in question. The responding party Robert J. Humphreys is Local 663's Business Manager.
By letter dated April 15, 1996 with respect to a different shutdown, and Shell Oil, the responding parties wrote to the Mechanical Contractors Association of Sarnia as follows:
Recently Shell Oil went into a shutdown mode. Three local contractors bid on the work and initiated work on April 8 at 7:30 a.m. A representative from Shell Oil faxed us a notice that this was the starting time and date of the shutdown.
You are aware that we have a by-law on the books prohibiting the transfer of workers to a jobsite after the shutdown starts. The question that has been raised is when would a shutdown be considered to have started, it is the feeling of our Executive Board that when the first perimeter or safing blank is installed, then the shutdown has been deemed to have started. When the flow of raw materials to be used in the process has been interrupted, then the unit is ready for shutdown work.
This situation is being exacerbated by the fact that the employment situation is getting very tight and we do need to gain employment for our members and spread the work around. We have to deal with this now and not put if off for the next couple of months and in light of this, I would ask that you convene a meeting of the M.C.A.S. Executive Board as soon as possible. We will bring a couple of our Executive members and between us we should be able to come up with an understanding on wording to correctly interpret the definition of when a shutdown starts.
- The responding parties took the same position with respect to the Imperial Oil shutdown, and by letter dated April 18, 1996, wrote to "All Contractors Involved In The Upcoming A & V Shutdown (at) Imperial Oil" as follows:
The understanding of Local 663 is that the feed to the unit is out tonight. The battery limit blanks will be installed by the end of the work day on Thursday with equipment blanking proceeding on the weekend. In light of this situation, in reviewing the by-law on transfers to shutdowns and in acknowledging past practices with contractors in the valley, the following will be the position of Local 663 on transfers to the A & V.
If a collective agreement does not specifically address the timing of a shutdown start time, when the timing on the battery limit blanks being installed will be the point at which transfers will not be allowed onto the shutdown. With the by-law in effect, any member contravening this understanding without the written permission of the Business Manager or Business Agent, will unfortunately be charged by this office. We trust in the cooperation of all members of this organization in promoting the brotherhood concept contained in our Constitutional Pledge.
(emphasis added)
In addition, Mr. Humphreys told Andy Pilat, General Manager of the Samia Construction Association and Executive Director of the Mechanical Contractors Association of Sarnia, that Local 663 would not allow any of its members to transfer to the Imperial Oil jobsite after 4:00 p.m. on April 18, 1996. "I will not let them work" said Humphreys.
This application was filed the next day, on April 19, 1996. When it came on for hearing on April 22, 1996, the responding parties had not taken any action further to their April 1 8, 1996 letter. However, Mr. Humphreys declined to say that they would not, and it was apparent on the evidence that they still intended to do so but were awaiting the outcome of this application before taking any action. It appeared that the employees of Lamsars and Chem-Fab had become aware of the responding parties' position and that this was causing some concern.
The responding parties submitted that they were justified in taking the "position" as expressed in the correspondence and Mr. Humphreys' discussion with Mr. Pilat, which they asserted was all that they had done, in order to achieve a more equitable distribution of available work among Local 663 members. They claimed that there is an applicable past practice which prohibits the transfer of employees to a job site like the Imperial Oil site after a shutdown begins, and they relied upon Local 663 "by-law" which they said applied in that respect. This "by-law" is in the form of a resolution dated August 26, 1975 which is recorded as follows:
Companies want the right to transfer Local men on shutdowns. As this point was discussed with the contractor during negotiations, it was agreed that there would be no transfers of men once the shut down was started.
The responding parties denied that they had done anything wrong, and more specifically, they denied that anything which Local 663 or Mr. Humphreys did constituted a unlawful strike or a threat to call or authorize an unlawful strike. They objected to anything which they had done being characterized as being a "threat". They argued that they had merely advised the employers of their position that the transfers were contrary the collective agreement as interpreted in accordance with past practice, was also in violation of a Local 663 by-law which had existed for more than twenty years, and which they expected Local 663's members to comply with. The responding parties said that they did not intend to prevent any work from being done or to limit the employers efficiency in that respect. They asserted that Local 663 stood ready to ready to refer any number of competent employees from its hiring hall which the employers required.
In the alternative, Local 663 and Mr. Humphreys argued that the Board should dismiss this application in the exercise of its discretion, because to allow it would in effect would be telling Local 663 that it could not enforce its by-laws and this would constitute an unwarranted interference in internal trade union affairs, and also because the employers had alternatives which they had refused or failed to avail themselves of; that is, that it was within the employers' ability to avoid the situation if they had acted reasonably. Further, they submitted that the employers could file a grievance with respect to the transfer issue and have the matter determined under the grievance arbitration provisions of the collective agreement.
I saw no merit to either the main or alternative arguments of the responding parties. The message which they had sent to the employers, and which they continued to send even at the hearing of this application was clear: "If you attempt to transfer your employees we will tell them not to report for work and we will discipline them if they do so." In the construction industry in this province, members generally pay close attention to and heed the instructions of their union. Consequently, telling the employers that their employees would not work if they were transferred was a meaningful threat that such employees would not work. This constitutes a clear threat to tell or authorize the employees to cease or refuse to work, in this case, unless the employer is acquiesced to the responding party's view of the collective agreement and their view of how the employers should staff the job.
I accepted that the responding parties were motivated by a desire to try to spread the available work among a greater number of Local 663's members, and that they were undoubtedly under some pressure to do so from unemployed members. That is legitimate concern. However, and notwithstanding the comments in McMillan-Bathurst Inc., [1987] OLRB Rep. Dec. 1568 (request for reconsideration dismissed [1988] OLRB Rep. Mar. 312), the ultimate motive in that respect is irrelevant (see, for example, The Art Gallery of Ontario, supra, Monarch Fine Foods Company Limited, [1986] OLRB Rep. May 661, Doing/as Ltd., [1976] OLRB Rep. Oct. 569; Application for judicial review dismissed 78 CLLC p. l4J3S (Divisional Court)). What is important was the immediate intent; that is, to limit the ability of the employers involved to perform the shutdown work at the Imperial Oil job site unless they accepted the responding parties' view of who the employers should employ to do that work, and the responding parties' apparent willingness and ability to make good under at threat to refuse to allow transferred employees to perform that work (Horton CBI, Limited, [1985] OLRB Rep. June 880; Bay Tower Homes Company Ltd., [1988] OLRB Rep. Mar. 259). In the circumstances, such a threat was unlawful.
Even Local 663 and Mr. Humphreys agreed that the real dispute between the parties concerns the right of employers under the collective agreement to transfer employees to a shutdown job after the shutdown has begun. Indeed, the union argued that that dispute concerns an interpretation of the collective agreement which is properly dealt with through the grievance arbitration process, and not by the Board in an unlawful strike application.
With respect, I agree with that latter point, which demonstrates that the position of the responding parties in this application was misconceived. It is clear that the dispute between the parties is contractual; that is, they disagree on whether Lambton County employers bound by the collective agreement can transfer employees to perform shutdown work after the shutdown has commenced. This does not mean that anyone bound by the collective agreement, in this case Local 663. can resort to self-help in an attempt to force another party to accept its view of the issue by threatening to impede the work at the job site, in this case by threatening to require employees assigned to do that work to withhold their services. Indeed, one of the reasons why the expedited arbitration process for construction industry grievances in what is now section 133 of the Act was put into the legislation in the first place was to eliminate such job action through respective collective agreement disputes.
It is no answer to an application like this one to say that the employers could file a grievance. Perhaps they could, but the employers had not acted outside of the collective agreement (although they may have breached it; that is what is in dispute between the parties). On the other hand, the responding parties had clearly acted outside of the collective agreement and the grievance arbitration process, and it was not open to them to seek to justify their conduct by suggesting that the employers could have capitulated and grieved.
Nor did either of the cases cited by the responding parties assist them in that respect. The Art Gallery of Ontario, supra, was a picketing case in which the Board was satisfied that the particular picketing being engaged in, while a collective agreement was in effect but while the trade union and employer were engaged in collective bargaining for a new collective agreement, was not designed to have any impact on the employer and did not actually or have the real potential to do so.
In The Corporation of Massey Hall and Roy Thompson Hall, supra, the employer had suspended two employees without pay and requested that the unions apply two replacements from its hiring hall in accordance with the collective agreement in effect between the parties. The union took the position that the employers had no right to suspend the two employees and refused to refer any replacements from its hiring hall. The employer allowed the suspended employees to continue to work and brought an unlawful strike application in which its primary request for relief was that the union be directed to supply replacement workers as required by the collective agreement. The Board concluded that there had been neither an unlawful strike, nor threat of one, and dismissed the application as follows:
Similarly here, the Board cannot conclude that there has either been an actual threat of an illegal strike, or the circumstances are such that there is a real or strong likelihood that an illegal strike will occur, if the employer uses management personnel to perform the work of head electrician and head soundman. The Board does not suggest that an employer must first induce an unlawful strike in order to obtain relief. To the contrary, the statutory language and the Board's approach to these matters is to prohibit any unlawful strike before it starts, provided the Board is satisfied that there is a threat of such a strike or a real likelihood of it. But a mere fear of a strike by the employer is not sufficient to lead the Board to interfere. Here, the union made no comments suggesting that the other employees would strike if management did the work of Still and Saunders. Past practice evidence was not sufficient to indicate a strike would occur. All the work in question was still being performed by bargaining unit employees, with the employer's full knowledge. On this evidence, the Board cannot conclude that there is a threat or real likelihood of a work interruption if management performs the two jobs. If an unlawful interruption did then result, management could of course apply forthwith to the Board. The application fails on this ground.
The Board turns next to the employer's primary argument, that the refusal of the union to refer replacement employees as required by the terms of the collective agreement, constituted an illegal strike, and amounted to a refusal to work by the employees or members of the union. The Board assumes, for purposes of this ruling, that a refusal of a union to refer union members as required under a collective agreement could constitute an illegal strike (in this regard, see International Longshorement’s Association, Local 273 et al v. Maritime Employers' Association et al (1978) 1978 CanLII 158 (SCC), 89 D.L.R. (3d) 289; The Ottawa Board of Education [1983] OLRB Rep. May 694.) But even assuming such activity could constitute, in appropriate circumstances, an illegal strike, it does not do so here.
Employers and unions often engage in power struggles, each flexing their labour relations muscles, and each convinced that the other's authority or power is significantly less than it believes. In the instant case, the employer and the union take significantly different views of the powers each enjoys under the collective agreement. The employer, understandably, takes the view that it is entitled to impose discipline (including suspending employees) without the requirement that it first obtain the union's agreement that the discipline is proper. The employer believes that the union's right to object to a suspension is the customary right enjoyed by unions, to file a grievance. From the employer's perspective, to accede to the union's position would be to provide the union with a right of veto over any discipline imposed; if the union doesn't approve of the action, it will simply refuse to refer replacement employees and the employer will not be able practicably to enforce the suspension. The union, on the other hand, takes the view that the employer cannot discipline employees as it has. The union believes that the referral clause effectively gives it the sole right to staff the bargaining unit with replacement employees, so it declines to refer replacement employees. It can thereby in effect ignore the suspensions. The parties clearly have significant differences of opinion as to the correct meaning and application of several articles or clauses of the collective agreement.
What they don't have, however, is a scenario which involves an unlawful strike or raises mischief of the sort encompassed by the prohibition on illegal strikes contained in the Labour Relations Act. There has been no actual work stoppage, nor threat of a work stoppage. As discussed above, the evidence does not suggest that a stoppage is either imminent or a real likelihood if management personnel perform the work. The rehearsals and shows have all been fully performed. Still and Saunders remain willing and able to continue to perform all their duties and responsibilities and they continue to report for work. In effect, the employer has accepted that Still and Saunders can continue to work. While it maintains the position that they are under suspension without pay, it acquiesces (grudgingly) in their continuing the full performance of their jobs. Unlawful strike applications deal with work interruptions, threatened or actual. Because of the conduct of both parties, there does not appear to be any such interruption or real likelihood of one. There is no doubt that Still and Saunders will continue to show up as scheduled and to perform their Jobs. Assuming, as we have, that a refusal to supply any replacement employees as required under a collective agreement can constitute an unlawful strike, in the unique circumstances before the Board, it does not.
The Board is being asked, through the expedited procedures for dealing with unlawful strikes, and in the absence of any work interruption or threat thereof, to rule upon the correct interpretation of particular clauses in the collective agreement, and then to direct the specific manner in which the union must fulfil its obligations under those clauses. The activity of real complaint is the union's refusal to comply with (what the employer asserts are) its obligations of referral under the collective agreement. The main remedy sought by the employer underscores this: a direction that the union refer replacement employees other than Still or Saunders. An order that directs that the respondent’s cease and desist from calling an unlawful strike, or that requires them to supply replacement employees, would not resolve the dispute. In response, the union might still refer Saunders or Still as the temporary replacement employees, on the basis suggested at the hearing, that they would be the two most senior, available members. The real disputes between the parties are not over an unlawful work stoppage, but over whether the employer has the right to discipline or suspend employees, whether the union must refer replacement employees in such circumstances, and whether it can refer employees on suspension. These are disputes for which arbitration is the appropriate resolution mechanism. Unlawful strike applications are expedited proceedings which deal with untimely interruptions in work, or threats of such interruptions. In the course of considering whether such unlawful activity has occurred and whether the Board ought to interfere, it may be necessary to interpret and apply numerous clauses in a collective agreement. But the Board will do so in these applications only when it is necessary in order to deal with the unlawful work
interruption. Here, there has been no such interruption or threat of one, and in these circumstances the dispute between the parties is best dealt with in a different context.
(emphasis added)
This application was not a case in which the responding parties were refusing to refer Local 663 members to work. On the contrary, their position was that that was what should happen, and they stood ready, able and anxious to do so. But, as the Board recognized in The Corporation of Massey Hall and Roy Thompson Hall, supra, a party bound by a collective agreement can neither ask the Board to deal with the collective agreement dispute in the guise of an unlawful strike application, nor threaten a work stoppage or other job action in an attempt to get its way under a collective agreement.
Further, a trade union "by-law" like the Local 663 resolution relied upon by the responding parties in this case, is no more than a unilateral declaration of internal union policy or procedure. It cannot trump a collective agreement or the Labour Relations Act, 1995, and it is completely appropriate for the Board to intervene in what would otherwise be a internal trade union matter in circumstances where the internal proceedings are being used to engage in, or as a threat to engage in or induce unlawful conduct.
Indeed, it appears that this "by-law" was Local 663's response to the refusal of Lambton County employers to agree with the trade union's position in collective bargaining, and could be viewed as an attempt to create a practice which it was unable to obtain the employer's agreement to in collective bargaining, although what in fact happened is for a board of arbitration to determine.
In the result. I was satisfied that the responding parties had threatened to call or authorize an unlawful strike contrary to section 81 of the Act, and that the responding party Humphreys had acted in a manner which he knew or ought to have known that, as a reasonable and probable consequence of which, employees of the two employers in issue would engage in an unlawful strike. In my view, section 85 did not apply, because that provision relates to the rights of members of trade unions vis-a-vis their trade union, which is something in which employers have no say or right to participate.
Accordingly, I issue the declarations and orders as aforesaid.