0409-00-U Service Employees International Union and its Locals 101, 183, 210, 220, 268, 528, 639 and 777, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Responding Party.
0410-00-U Service Employees International Union and its Locals 101, 183, 210, 220, 268, 528, 639 and 777, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Responding Party.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; August 30, 2000
Board File 0409-00-U is a complaint pursuant to section 96 of the Labour Relations Act (the “Act”). The applicant (the SEIU) alleges that the responding party (the CAW) has violated sections 73(2) and 76 of the Act. Those section provide as follows:
(2) No trade union council of trade unions or person acting on behalf of a trade union or council of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.
No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
Board File 0410-99-U is a request by the SEIU for the consent of the Board to bring a criminal prosecution against the CAW for allegedly committing the above offences.
The context for the complaint is a rivalry between the SEIU and the CAW over the right to represent a large number of bargaining units, which have been represented to this date by the SEIU. This is but one piece of the litigation, which is being played out in both the courts and through the Board, most notably through displacement certification applications.
In a decision dated June 5, 2000, I dismissed the applications because I determined that the applicant had failed to make out a prima facie or arguable case that there had been a breach of the Labour Relations Act or entitlement to the remedies sought. I undertook the review of the applications at the request of the responding party. I made the determination without first seeking submissions from the applicant.
I determined that the Board should have given the applicant an opportunity to make submissions before it made its determination, and so, granted the applicant’s request for reconsideration. I gave the parties an opportunity to make submissions, which they did. In addition, by letter dated August 11, 2000, the applicant raised new allegations. The responding party submits that the new allegations, similarly, fail to make out a prima facie case.
In my June 5, 2000 decision, I set out in three paragraphs why the unfair labour practice complaint failed to make out a prima facie or arguable breach of the statute:
Essentially, the first number of paragraphs of the complaint (which are identical in both files) set out how the CAW allegedly planned its campaign; recruited SEIU officials; disseminated information; then removed from SEIU offices information pertaining to collective agreements and bargaining rights. The application goes on to set out how the CAW has attempted to interfere in the SEIU's bargaining rights. Although the SEIU alleges that the CAW had "intimidated and coerced" in its efforts to win the campaign, the details provided would not, if proven, constitute coercion and intimidation.
It is also significant to note that in a previous decision (see Woodall Construction Co. Ltd., [1979] OLRB Rep. June 597), the Board held that since a trade union is not a "person" under the Act, it could not seek a remedy for coercion and intimidation pursuant to section 76. It is interesting that no individual has come forward alleging that he or she has been intimidated.
There is not a single allegation that would even remotely lead to a conclusion that there had been a violation of section of section 73(2). That section requires a fact situation involving a trade union, or its representative, engaging in bargaining activity with an employer. There are no allegations that the CAW has engaged in any activity with an employer. I conclude, therefore, that the application in Board File 0409-00-R should be dismissed for failure to make out a prima facie breach of the Act.
In its submissions, the applicant argued that the Board ought to give a broad and purposive interpretation of the Act that is responsive to both labour relations reality, and sensitive to the novel situation before it. It asks the Board to interpret “bargaining” in section 73(2) in a manner that encompasses not only negotiations towards a collective agreement, but the ongoing negotiations that occur with an employer, as, for example, when negotiating a resolution of a grievance. One of the applicant’s allegations is that a representative of the responding party approached an employer, with whom the applicant holds bargaining rights, to seek to negotiate the resolution of an employee termination. That kind of “bargaining” the applicant, submits, ought to be included in the conduct protected by section 73(2). The Board disagrees. When section 73(2) is read as a whole, it is clear that it focuses only on prohibiting another union from seeking to bargain a collective agreement “…designed or intended to be binding upon the employees in the bargaining unit or any of them”. Even if the Board were to accept the applicant’s assertion that “bargaining” should be generally interpreted to include the full range of discussion that employers and bargaining agents carry on over the life of a collective agreement, the prohibitions in section 73(2) focus only on negotiations towards a collective agreement. Since the applicant has made no allegations that the responding party has sought to negotiate a collective agreement with an employer for whom the applicant holds bargaining rights, I conclude that the applicant has not made out a prima facie case for a breach of section 73(2).
Turning now to the allegations of a breach of section 76, the applicant again asks the Board to give a broad and purposive approach to the Act, and not to take a narrow view of what is coercion and intimidation:
A pattern of conduct that is designed to isolate, demean, attack and undermine a union and the individuals associated with that union, in an effort to enhance the membership of a rival trade union, may in extreme cases, amount to intimidation and coercion. It is the Applicant’s submission that this is such an extreme case.
For example, when a rival trade union seeks to condemn or discredit the representatives of the union, then employees who might otherwise seek the advice and assistance of the representatives of the union will not. This is interference with the bargaining rights of the union, because of the impact on the employment relationship that such actions give rise to, however, it is also coercive. By its very nature, an attack on the representatives and the trade union is designed to make those members who the representatives are employed to serve withhold their support, out of fear or association.
The difficulty, though is that even if the Board were to entertain such a possibility, with respect, the material facts alleged do not amount to the pattern of conduct described in the applicant’s submissions. In reaching that conclusion, I have also considered the new allegations, set out in applicant counsel’s letter to the Board of August 11, 2000.
It is also interesting to note, that as I set out in my June 5, 2000 decision, no individual has come forward to allege that he or she has been intimidated. Further, the applicant has not made any submission addressing the Board’s decision in Woodall Construction Co. Ltd. [1979] OLRB Rep. June 597, which held that since a trade union is not a “person” under the Act, it cannot seek a remedy for intimidation and coercion pursuant to section 76.
Having reviewed the applicant’s submissions, the Board is not satisfied that it has pleaded a prima facie or arguable breach of section 76 of the Act.
The applicant made no submissions with respect to the responding party’s argument that the applicant had not made out a prima facie or arguable case for consent to prosecute. I see no reason to change the conclusion I reached in my June 5 decision, at paragraph 8:
Turning to the request for consent to prosecute, Board jurisprudence has consistently held that a party seeking the Board's consent must establish that moving a labour relations issue into the realm of the criminal is necessary to advance labour relations in the province or because the remedies that the Board can provide are not adequate (see for example A.A.S. Telecommunications Ltd., [1976] OLRB Rep. Dec. 751). To put it kindly, neither standard is met. Even if all the allegations made by the SEIU were proven, the Board would decline to exercise its discretion and give consent to prosecute.
For the reasons set out above, both of these applications are dismissed.
“Mary Ellen Cummings”
for the Board