1354-00-U Owens Corning Canada Inc. c/o/b Owens Corning Canada, Guelph Glass Plant, Applicant v. Union of Needletrades, Industrial and Textile Employees AFL-CIO, CLC Local 1305, John Mifsud, Randy Conway, Tom (a.k.a. 'Gus') Cuthbert, Dave French, Pat Baccin, David Nemes, Roger Nightingale, Tom Cunningham, Rob Tosh, Jim Waechter, Steve Bowers, Dave Turple, Dennis Charbonneau, Laveen Parker, Jim Gregory, George Baggio, Mike Guess, Harold Parsons, Dan Mclaughlin, Larry Leisti, Greg Williams, Giovanni Baccin, Wally Kane, Doug Stone, Dave Hewitt, Ed Balaban, Gord Trask, Greg Broeckel, Eugene Gromczynski, Mark Krusky, Eric Peterson, Rob Kuyf, Erwin Ellen, Steve Hitchcock, Gary Jessome, and Frank Mattucci, Responding Parties.
BEFORE: Bram Herlich, Vice-Chair.
DECISION OF THE BOARD; August 11, 2000
- On the day scheduled for hearing into this matter, the parties executed the following Memorandum of Settlement (attachments are not reproduced here):
MEMORANDUM OF SETTLEMENT Board File No. 1354-00
BETWEEN
OWENS CORNING CANADA INC. c.o.b. as OWENS CORNING CANADA, GUELPH GLASS PLANT
Applicant
- and -
UNION OF NEEDLETRADES, INDUSTRIAL AND TEXTILE EMPLOYEES, AFL-CIO, CLC, LOCAL 1305
- and -
John Mifsud, Randy Conway, Tom (a.k.a. 'Gus') Cuthbert, Dave French, Pat Baccin, David Nemes, Roger Nightingale, Tom Cunningham, Rob Tosh, Jim Waechter, Steve Bowers, Dave Turple, Dennis Charbonneau, Laveen Parker, Jim Gregory, George Baggio, Mike Guess, Harold Parsons, Dan Mclaughlin, Larry Leisti, Greg Williams, Giovanni Baccin, Wally Kane, Doug Stone, Dave Hewitt, Ed Balaban, Gord Trask, Greg Broeckel, Eugene Gromczynski, Mark Krusky, Eric Peterson, Rob Kuyf, Erwin Ellen, Steve Hitchcock, Gary Jessome, and Frank Mattucci
Responding Parties
The parties agree that the following shall be issued as an Order of the Board:
WHEREAS employees in the skilled trades classifications of the Local 1305 bargaining unit have been refusing to work overtime;
WHEREAS some of these refusals were a collective action by members of the bargaining unit in response to concerns about the workplace;
WHEREAS the Union does not condone or authorize employees to engage in behaviour which amounts to an unlawful strike;
WHEREAS the Union acknowledges that arbitrators and the Ontario Labour Relations Board have held that a concerted, collective refusal to perform overtime during the term of a collective agreement is an unlawful strike;
AND WHEREAS the parties agree that the Responding Parties have engaged in an unlawful strike as alleged in the Application.
On agreement of the parties, the Board makes the following declarations and directions:
A) The Board declares the individual named Responding Parties have violated the Act as alleged in Schedule "A" to the Application.
B) The Board Orders the Responding Parties to cease and desist from violating ss. 81, 83(1), 79(1) and 79(2) and all other sections of the Act based on the definition set out the Ontario Labour Relations Board decision of R. MacDowell, dated August 8, 2000.
C) The Board Orders anyone having notice of this decision to cease and desist from:
(i) engaging in an unlawful strike, authorizing, threatening to call, encouraging, counseling or procuring an unlawful strike.
(ii) doing any act, the probable and reasonable consequence of which is that another person or persons will engage in an unlawful strike at or in relation to any work covered by the Collective Agreement.
The Board notes that section 100 of the Labour Relations Act gives the Board power to declare an unlawful strike if the Board is satisfied that a trade union or employees have authorized or called or counselled or encouraged actions tat threaten or cause an unlawful strike and it will so declare in the appropriate circumstances.
The types of activities covered by the term unlawful strike include threats, coercion or intimidation designed or intended to influence an employee's decision on whether or not to accept overtime.
Also, the Board has found that conceded job action with respect to calling in sick, refusing to work overtime (even when such overtime is voluntary), slowdowns, and any job actions designed to pressure an employer with respect to a grievance or bargaining objective, or workplace concern is not permitted while a collective agreement is in force or during the conciliation process. Employees who act in concert in any of the above activities (as well as others) would be included in any remedial orders issued by the Board.
Employees covered by the Labour Relations Act are prohibited from striking, including concerted overtime refusal, at any time during the term of a collective agreement.
The Board may impose any or all of the following as penalties when it declares a job action to be an unlawful strike:
A) a cease and desist order enforceable in the Ontario Superior Court of Justice, enforceable as an Order of that Court, disobedience of which can result in fine or imprisonment;
B) an employer may seek damages against the Union or individual employees at arbitration for lost profits or expenses;
C) an employer can seek to discipline employees engaged in any such acts, up to and including termination;
D) if the employer obtains consent to prosecute, and is successful in a prosecution, the penalties set forth in the Act are up to $2,000.00 per day for individuals and $25,000.00 per day for Trade Unions. These amounts are in addition to those that may be awarded to the employer at arbitration for lost profits and expenses.
The Board can also order the posting of any award or order at the workplace, naming any and all individuals involved in the unlawful activity.
The Trade Union and the Employer agree that it is in everyone's best interest to avoid this type of situation and its repercussions.
The collective agreement sets out mechanisms to resolve disputes which arise in the workplace. One example would be union management meetings where both parties agreed to engage in meaningful discussions.
The parties agree that these are the fora to discuss or raise any concerns touched on by issues raised in this application and any other issues.
The parties agree that this Order be posted in the workplace in a conspicuous location as an Order of the Board for not less than sixty (60) days. The parties agree that the Trade Union shall deliver a copy of this decision to every named Responding Party.
In addition, the letter attached as Schedule "A" to this Decision, from the Union Local on its own letterhead and signed by its executive, shall be posted in the workplace, in a conspicuous location, along side the Order of the Board. The parties agree that the Union Local will provide a copy of the letter to the Employer not later than August 14, 2000 and that the Employer shall deliver a copy of the letter to all bargaining unit employees.
The Parties agree that this matter shall be adjourned sine die but may, if the Employer takes the position that concerted overtime refusal or any other form of collective job action are recurring, be brought back on with 24 hours' notice to counsel and to the Board.
The Employer agrees that it will not seek damages arising from this Application at this time. However, should the Employer bring this matter back on for hearing pursuant to Paragraph 16, supra, the parties agree that it may ultimately seek to recover the damages arising from the unlawful activity described in the Application, and reserves its right to argue the issue of damages, including quantum.
The parties agree that the Employer shall convene a meeting on August 24, 2000 for a duration of up to two hours to discuss the concerns of the Skilled Trades Employees. Present at that meeting shall be Ron Speight, John Hassel, and Candy King on behalf of the Employer, as well as one (1) member of the Union Executive, and up to three (3) representatives of the Skilled Trades Employees. The Union agrees that this meeting does not constitute a violation of the Ontario Labour Relations Act.
The Union agrees that it will not file any grievances concerning the contracting out of work for the period covered by this Application, and that if any such grievances have been filed, they will be withdrawn, and further that this Settlement shall act as a full bar to any such grievances. The parties agree that this is without prejudice to the contracting out grievance which is currently in the midst of litigation, and to the parties' positions therein.
In order to facilitate clearing any backlog of work that has resulted from the concerted overtime refusal, should the Employer not be able to complete the work primarily through the assignment of overtime, the Union agrees further that it will not cause to be filed, or allow to be filed, any grievances respecting contracting out of work arising from the concerted overtime refusal, up to an including August 31, 2000. The parties agree that this is without prejudice to the Employer's right to contract out in any event, subject to the terms of the Collective Agreement.
The Employer hereby withdraws its grievance pursuant to Articles 7.03 and 33.05 of the Collective Agreement, filed on or about August 8, 2000, without prejudice to its right to refile the grievance should the unlawful conduct recommence.
The Union warrants that it has the full legal authority to execute this Settlement on its own behalf and on behalf of its members.
Dated at Toronto this 10th day of August, 2000.
("Ron Speight") "John Mifsud"
For the Employer For the Union
"(Dennis Charbonneau)"
For the Intervenors (the Skilled Trades Employees)
- Having regard to the agreement of the parties, the Board hereby makes the findings, declarations and orders agreed to by the parties and as set out above. The parties are otherwise directed to comply with the terms of their Memorandum of Settlement.
"Bram Herlich"
for the Board