1478-00-U;1479-00-U Canadian Union of Operating Engineers and General Workers, Applicant v. Brookfield Management Services Ltd. (BCE Place), Responding Party.
BEFORE: R. O. MacDowell, Chair.
DECISION OF THE BOARD; August 21, 2000
This is a combined application under sections 96 and 101 of the Labour Relations Act. Section 96 is the general “unfair labour practice” provision through which applicants launch allegations of any breach of the Act. Section 101 is narrower: it is designed to deal with an unlawful lockout or threat of an unlawful lockout.
In the instant case, the applicant alleges that the responding party has violated a number of sections of the Act: 5, 17, 70, 73, 76 and 82 of the Act. Section 82 is the only one that pertains to an unlawful lockout. The other provisions relied upon by the union, are general “unfair labour practice” sections; and section 17 deals with the duty of the bargaining parties to “bargain in good faith and make every reasonable effort to make a collective agreement”.
For present purposes, it is unnecessary to review the union’s allegations in any detail – not least because there has, as yet, been no hearing to establish those assertions, or to consider what remedy might flow if they are proven to be true. Nor has the Board received the employer’s reply – confirming, denying, or explaining the situation which the union complains about. It suffices to say that the present dispute between the parties has its origins in an employer decision, many months ago, to “contract out” work ordinarily performed by members of the bargaining unit. The union says that such “contracting out” was contrary to the terms of the collective agreement then in effect, and has invoked the grievance-arbitration process in order to seek a remedy for this alleged breach of the collective agreement. According to the trade union, this arbitration process is still ongoing, and is scheduled to continue on September 5 and September 6, 2000.
In the meantime, though (according to the union): the collective agreement has expired; the parties have completed the conciliation process; and the parties have been in a “lawful” strike/lockout position since midnight August 17, 2000. The above-mentioned arbitration process is therefore scheduled to continue after the legal strike/lockout date.
The union asserts that, in the course of bargaining, the employer has insisted that the union abandon the contracting-out grievance and abort the ongoing arbitration proceeding. The union asserts that the employer has pressed this issue to impasse, and has threatened to “lock out” the employees if the union does not accept this proposal or put it to the membership for ratification. But, in the union’s submission, such proposal is “unlawful”: it is not a matter which can be pressed to impasse. Schedule B of the union’s application puts it this way:
CUOE submits that in bargaining to impasse over, and presenting as part of a final offer, proposals which restrict the statutory rights of the union and its members, Brookfield [the employer] is bargaining in bad faith, interfering with the administration of the union, failing to recognize the union and otherwise violating the Act. Furthermore, in locking the bargaining unit out because of CUOE’s refusal to take illegal proposals back to the membership, Brookfield has violated section 82 of the Act.
It is not entirely clear whether at this point the employer has locked out the employees in the bargaining unit or has simply threatened to do so. Whichever may be he case – and despite the hybrid quality of this complaint – the application raises a matter which should be addressed by the Board expeditiously.
The normal rules respecting the time limits for responding to unlawful lockout and unfair labour practice complaints are hereby suspended.
The responding party must file its reply with the union and the Board by the close of the business day on Wednesday, August 23, 2000.
Pursuant to section 96 of the Act, the Board hereby appoints Labour Relations Officer Wayne Davis to meet with the parties to inquire into the complaint and to endeavour to effect a settlement of the matters complained of. Such meeting will take place at the Board offices, at 505 University Avenue, Toronto, on Friday, August 25, 2000.
Failing resolution of the dispute, the matter is hereby set down for hearing on an expedited basis. The hearing will take place at the Boardroom, 2nd floor, 505 University Avenue, Toronto, on Monday, August 28, 2000, beginning at 9:30 a.m. If the case is not resolved on that date, it will continue on consecutive days, from day to day thereafter, until completed, or the Board otherwise directs.
“R. O. MacDowell”
for the Board