Livent Inc. v. The International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local #58, Toronto, 1996 CanLII 11189

Livent Inc. v. The International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local #58, Toronto

[1996] OLRB REP. SEPTEMBER/OCTOBER 870

2081-96-U Livent Inc., Applicant v. The International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local #58, Toronto and James C. Fuller, Responding Parties

BEFORE: R. O. MacDowell, Chair.

APPEARANCES: Angela Rae and Dan Brambilla for the applicant; James Fuller and William Hamil­ton for the responding parties.

DECISION OF THE BOARD; October 22, 1996

I

What this case is about

1. This is an application under section 100 of the Labour Relations Act, 1995 that was filed with the Board on October 17, 1996.

2. The applicant employer asserts that certain employees have threatened to engage in an unlawful strike on October 25 and October 26, 1996 - the so-called "Days of Action" sponsored by organized labour and various social action groups.

3. The employer further asserts that the responding trade union has called or authorized or threatened to call or authorize that unlawful strike, and that the President, James C. Fuller, has counselled, procured, supported or encouraged or threatened the unlawful strike.

4. Finally, the employer asserts that Mr. Fuller has "condoned" the threatened work stoppage, has done acts which he should know will cause employees to engage in an unlawful strike on October 25 and October 26, 1996, and has certainly done nothing to discourage that work stoppage.

5. It might be noted that the union and its President are the only named responding parties. No employees have been named as respondents, nor, so far as I know, have any employees been given formal notice of this proceeding.

6. A hearing in this matter was held on October 22, 1996. There is really no dispute about the applicable law. The only question is whether the facts establish that the responding parties (or either of them) has breached some provision of the Labour Relations Act, 1995.

7. On this point, the parties sharply disagree. Mr. Fuller maintains that neither he nor the union have threatened an unlawful strike. Nor have they counselled, procured, supported or encouraged employees to engage in an unlawful strike. Indeed Mr. Fuller not only denied the employer's allegations but maintained (and told the Board) that the union or its officials would not and do not support or encourage an unlawful strike by employees whom the union represents. The employer replies that the facts establish support or encouragement for the work stoppage, and by its silence, the union is encouraging its members to disobey the law.

8. I will turn to the facts in a moment. First, it may be useful to sketch in the legal framework applicable to this kind of situation. I will then consider how the statute applies to the evidence adduced at the hearing.

II

The Law Regulating Strikes in Ontario: Responsibility of Employees, Trade unions, and Trade union officials.

9. The Labour Relations Act, 1995 contains a number of provisions respecting unlawful strikes. The main ones read as follows:

[Strike Definition]

1. (1) 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.

46. Every collective agreement shall be deemed to provide that there will be no strikes or lock-outs so long as the agreement continues to operate.

[Employee Prohibition]

79.-(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.

(2) Where no collective agreement is in operation, no employee shall strike and no employer shall lock out an employee until the Minister has appointed a conciliation officer or a mediator under this Act and,

(a) seven days have elapsed after the day the Minister has released or is deemed pursuant to subsection 122(2) to have released to the parties the report of a conciliation board or mediator; or

(b) 14 days have elapsed after the day the Minister has released or is deemed pursuant to subsection 122(2) to have released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board.

(6) No employee shall threaten an unlawful strike and no employer shall threaten an unlawful lock­out of an employee.

[Trade Union/Union Official Prohibition]

81. 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.

[Prohibition against persons causing strikes]

83.- (1) 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.

(2) Subsection (1) does not apply to any act done in connection with a lawful strike or lawful lock­out.

[No Reprisals]

85. No trade union shall suspend, expel or penalize in an)' 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.

(emphasis added)

10. As will be seen, the statute contains a comprehensive code that prohibits unlawful strikes, threats of unlawful strikes and behaviour intended to encourage unlawful work stoppages. Strikes are permitted only where there is no collective agreement in force, and the bargaining parties have completed the compulsory conciliation process contemplated by the statute. At any other time, strikes are absolutely prohibited.

11. These provisions are part of a comprehensive regulatory scheme that has been in place for about 50 years. Under that scheme, collective bargaining is given a statutory framework which it lacked at common law, and trade unions are relieved of many of the common law disabilities which might inhibit the bargaining process. Strike regulations are only part of the overall scheme, and cannot be read in isolation from it.

12. The statute involves a balance. On the one hand, it supports collective bargaining, recognizes a freedom to strike, and immunizes lawful strike activity from both common law disabilities and certain forms of employer reprisal. But, at the same time, the statute regulates the manner and time in which such economic pressure can be exerted. In particular, the statute guarantees that once a collective agreement is signed, it becomes a "peace pact": there can be no strike or lock-out during its term of operation. This is not just a matter of contract or private agreement with the union. The law requires it.

13. This is not the first time that the Board has had to deal with work stoppages that arise in connection with the "Days of Protest" that have been organized by the labour movement (and others) in various cities in Ontario over the last few months. In two recent cases, the Board has declared that the "no strike prohibition" applies with equal force to so-called "political protest strikes" of this kind. (See: Re General Motors of Canada Limited, [1996] OLRB Rep. May/June 409; and Re de Havilland Inc. and Bombardier Regional Aircraft Division and CAW-Canada et al., Board File No. 2021-96-U decision issued October 17, 1996. See also: Domglas Ltd., [1976] OLRB Rep. Oct. 569; affirmed by the Divisional Court (1978) 1978 CanLII 1625 (ON HCJ), 19 O.R. (2d) 353 where the Board reached the same result in respect of a work stoppage to protest federal wage controls.) The Board has ruled that "political protest strikes" are still "strikes ", and if they occur during the term of a collective agreement, they are unlawful.

14. If an unlawful strike does occur, an employer can seek a number of remedies. In Monarch Fine Foods Limited, [1986] OLRB Rep. May 661, the Board outlined the options:

(1) Under section 100 an employer can seek a cease-and-desist order enforceable in the Ontario Court of Justice (General Division) as an Order of that Court. Disobedience can result in fine or imprisonment.

(2) An employer may seek damages at arbitration for any lost profits or economic losses [see section 103 of the Act].

(3) An employer can discipline employees who engage in unlawful concerted activity because engaging in a strike is a breach of their employment obligations which warrants at least some discipline, depending on the circumstances. (See for example: Re Oshawa Group Ltd. and Teamsters Union Local 419 (1988), 1988 CanLII 9224 (ON LA), 33 LAC. (3d) 97 where the arbitrator upheld a 14-day suspension with consequent loss of pay for an employee engaging in an illegal strike.)

(4) The employer may seek a consent to prosecute and subsequently prosecute employees or the trade union for their breach of the law. An unlawful strike is not just a private protest. It is contrary to the Labour Relations Act, 1995. A successful criminal prosecution may result in fines of up to $2,000 per day for employees and $20,000 per day for the Union.

A variety of remedies may also be available to interested parties who are injured by an unlawful strike, or in respect of picketing in connection with an unlawful strike. Those remedies need not be elaborated here.

15. With this background, then, I turn to the facts in the instant case. Since the employer's evidence was not really disputed, the question becomes one of characterization; and, in particular, whether the facts adduced by the employer demonstrate a breach of the statute by the responding parties, or any of them.

The Evidence

16. The applicant, as its name suggests, stages performances at various theatre locations in

Metropolitan Toronto. Among those locations is the Pantages Theatre at 244 Victoria Street in Toronto and the North York Performing Arts Centre ("the Ford Centre") located at 5040 Yonge Street in North York.

17. Performances of the "Phantom of the Opera" are scheduled for the Pantages Theatre on

October 25 and 26, 1996. On October 25 and 26, 1996 the company will also be preparing the Ford Centre for a presentation of "Ragtime". In both cases, the company will be employing workers represented by IATSE Local 58.

18. The applicant and IATSE Local 58 are parties to collective agreements that apply to the Pantages Theatre and to the Ford Centre. Both collective agreements are in full force and effect. In accordance with section 46 of the Labour Relations Act, 1995 each collective agreement must have a "no strike clause". The clauses in the IATSE collective agreements read as follows:

ARTICLE SIX

STRIKE AND LOCK-OUT

6.1 The Union agrees that for the duration of this Agreement, neither the Union nor any stage employee shall take part in or call or encourage or threaten any strike or picketing which shall in any way affect the operations of Live Entertainment, nor shall there be any sympathy strikes or secondary boycotts. Live Entertainment agrees that it will not engage in any lock-out for the duration of this Agreement.

6.2 The word "strike" and the word "lock-out" as used in this Article shall have the same meaning given to those words in the Ontario Labour Relations Act, R.S.O. 1990, c.L.2.

6.3 The Union and the stage employees acknowledge that any violation of Article 6.1 will cause Live Entertainment and its patrons irreparable damage and, therefore, the Union and the stage employees agree that, in addition to any damages or other relief Live Entertainment would be entitled to receive under the Labour Relations Act or this Agreement, as a result of any violation of Article 6.1, Live Entertainment is entitled to an interim injunction without notice enjoining the Union, its officers, agents, members and the stage employees from violating Article 6.1.

19. The contractual language parallels the provisions in the Labour Relations Act, 1995 repro­duced above. The agreement makes it clear that there can be no lawful strike at this time. Nor can the union nor employees take part in, or call, or encourage, or threaten an unlawful strike, or cause an unlawful strike to occur by picketing or otherwise.

20. On October 9, 1996 Daniel Brambilla, Executive Vice-President of the employer, received a telephone call from James Fuller, President of IATSE Local 58. Mr. Fuller said that he was calling to inquire whether the company "would have a problem" if "his boys didn't show up for work on October 25 or October 26". Fuller explained that the Labour Movement was sponsoring "Days of Action" protests for those days, and that his members had indicated that they wanted to participate in those protests. Similar protests - including work stoppages - have already occurred in London, Kitchener, and Peterborough. Toronto is the current target.

21. Mr. Brambilla was concerned about the proposed withdrawal of workers from the two theatres. He advised Fuller that there was a "no strike provision" in each of the collective agreements, so that any work stoppage would be unlawful. Fuller responded that his members nevertheless wanted to participate in the protest scheduled for those days.

22. Brambilla then asked Fuller whether he (Brambilla) should provide the union with a written statement of the employer's position, which the union could share with its members. Fuller replied that he thought this was a good idea. However, Fuller was not prepared to give the company any written or verbal assurances that the union would not condone a work stoppage. Nor was Fuller prepared to say that the union would take any positive steps to discourage a work stoppage. Fuller merely said, once again, that "the boys want to do this and we will have to talk about it internally and decide what is going to happen".

23. On October 10, Brambilla wrote to Fuller setting out the company's concerns, pointing once again to the "no strike clause" in the collective agreement, and requesting assurances that "neither the union nor any stage employees will withhold their services on October 25th or October 26th ...". At the hearing Brambilla explained that he sought those assurances because a work stoppage at the Pantages Theatre would make it impossible to put on a show - causing losses of at least $100,000.00. A work stoppage at the Ford Centre would derail the timetable for "Ragtime". In both cases, bargaining unit employees were necessary to do work in connection with lighting, sound, property and other stage work.

24. By letter dated October 10, 1996, (but sent by ordinary mail, received on October 15, 1996) Fuller responded:

October 10, 1996

Re: Ontario Labour Movement's "Days of Action"

Dear Mr. Brambilla;

In reply to your letter of October 10, 1996, 1 strongly believe that you have completely misconstrued our conversation. There was in no way a threat to withhold services on October 25th and October 26th rather I was asking your permission to support the "Days of Action".

In any event the response with your letter gives us an indication of what your answer to our request is and will be duly noted.

25. In a follow-up letter dated October 16, 1996, Brambilla once again sought Fuller's commit­ment that the employees would report to work as scheduled, and as required by the terms of the collective agreement. This time there was no reply; however, as I have already mentioned in the course of the hearing before me, Mr. Fuller assured the company that neither he nor the union would counsel, procure, encourage or support an unlawful work stoppage on October 25th or October 26th. Mr. Fuller said that he thought he had made that clear in his letter of October 10,1996, and that any suggestion to the contrary was a "misunderstanding" of his position.

26. The company is not comforted by this response. Its understanding (not denied by Mr. Fuller) is that the employees are still thinking about engaging in a work stoppage on October 25 and October 26. In the employer's submission, it is also reasonable to infer that the union is condoning and covertly supporting the planned work stoppage. The employer asks: why else would Fuller refuse to give the assurances requested, or take any positive steps to ensure compliance with the terms of the collective agreement?

Decision

27. If a group of employees engages in a work stoppage as a show of solidarity with organized labour, or to participate in an outside "political protest", that work stoppage is an unlawful strike within the meaning of the Labour Relations Act, 1995 (see the two "CAW cases", General Motors and de Havilland mentioned above). It is clear, therefore, that on October 9, Mr. Fuller was advising the company that employees were considering, contemplating, planning or threatening a strike for October 25 and October 26, 1996. Such work stoppage would be prohibited under both the Labour Relations Act, 1995, and the terms of the parties' collective agreement; moreover, as of October 22nd, the strike threat remains a possibility - which has neither been denied nor discouraged by the trade union. On the contrary, the best evidence before the Board is that the employees are still considering whether they will engage in a work stoppage on October 25 and October 26 - which is to say, they are threatening to engage in an unlawful strike on those days.

28. But the employees are not named parties to this proceeding; and it is much less clear that the union or its officials have contravened the Labour Relations Act, 1995.

29. 1 do not minimize the employer's concern or its suspicion that the union's inaction or studied ambiguity masks a real intention to support (or at least not oppose) the actions being contemplated by its members. But it is one thing to be suspicious of the union's motives. It is another to conclude that the union has contravened the Labotir Relations Act, 1995 in some positive way. And, on balance, I am not persuaded that it has.

30. The first part of section 81 prohibits a trade union from calling or authorizing or threatening to call an unlawful strike. It contemplates some form of action by the trade union in conjunction with the work stoppage. However, there is no indication on the evidence before me that the union has done any of those things. The union did report upon its members' intentions, and, on the evidence, has done nothing to discourage them from engaging in such behaviour. But I do not think that I can conclude that the union, as such, has "called" or "authorized" or "threatened to call or authorize" an unlawful strike.

31. Nor can I conclude that Mr. Fuller has done anything to "counsel, procure, support, or encourage" a work stoppage by employees. Indeed, there is no evidence that he has communicated with employees at all about these matters. The only evidence is that the situation will be discussed at some point in the future. In the circumstances, I am not persuaded that this kind of activity triggers liability under section 81. Nor am I prepared to conclude that the union's inaction or non-committal response falls within the ambit of section 83 (which contemplates an "act~~ which a per son knows will prompt others to engage in an unlawful strike"). Again, there is no indication of any communication between the union and its members on this point; and I am not, on the evidence before me, prepared to infer a positive act to encourage unlawful behaviour from the absence of any overt actions to discourage it.

32. This is not to say that inaction is irrelevant. Under the collective agreement the union may be held liable in damages if an unlawful work stoppage occurs (or is imminent) and the union does not take positive steps to rectify the situation (see generally Brown & Beatty, Canadian Labour Arbitration, (3d) C. 9, paras. 9:2430, 2432, and 2434). But I do not think that, in this case, the union's refusal to give the employer the assurances it seeks fits within section 83 of the Act or can be construed as a positive signal to employees that will induce them to engage in an unlawful strike. As I have already noted, there is no evidence that the interchanges between Mr. Fuller and Mr. Brambilla have been communicated to the employees at all.

33. For the foregoing reasons, this application is dismissed as against the responding union and its President - the named responding parties.

34. Such dismissal is, of course, without prejudice to the employer's right to bring a new application, on short notice, if the strike threats becomes more concrete. It is also without prejudice to any rights that the employer may have in this forum or elsewhere if employees do engage in the work stoppage that they are contemplating.

35. Finally, it is obvious that this is a matter of controversy in the workplace and may be the subject of further discussion within the trade union or among its members. Accordingly, it appears to me to be in both the public interest and the interests of the parties in this matter, if this decision is posted in the workplace so that all employees will understand their rights and obligations. It is so ordered.