Ontario Labour Relations Board
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; June 5, 2000
Reasons for Decision
- 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.
The CAW has asked the Board to dismiss both applications because they fail to make out a prima facie breach of the Act or entitlement to the remedies sought. The Board has thoroughly reviewed the lengthy pleadings of the SEIU, and concludes that a prima facie breach of the substantive provisions of the Act has not been made out.
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.
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, the applications in Board Files 0409-00-R and 0410-00-R are dismissed.
“Mary Ellen Cummings”
for the Board