0529-00-U Domtar Inc., Applicant v. Local 2995 I.W.A. Canada, Local 1-2995, I.W.A. Canada, Damien Roy, Roland Laurin, Lucien Boucher, Desmond Larocque, Tony Mattuissi and Maurice Demers, Responding Parties.
BEFORE: R. O. MacDowell, Chair.
APPEARANCES: Michael Hines, Samara Kaplan, Jim Rennie and Jim Ramsay for the applicant; Jim Fyshe and Damien Roy for the responding parties.
DECISION OF THE BOARD; November 22, 2000
I – What this case is about
This is an application under section 100 of the Labour Relations Act, 1995 (the “Act”), that was filed with the Board on May 17, 2000.
The applicant employer asserts:
that on May 16, 2000, a number of “employees” were engaging in an unlawful strike;
that the responding union and its officials have called, authorized and threatened to call that unlawful strike;
that those officials took steps to counsel, procure, support or encourage the unlawful strike; and finally
that various persons were doing acts which they knew or ought to have known would induce employees to engage in an unlawful strike.
Briefly put, the employer says that employees and union officials from its Chapleau mill, where there was an ongoing lawful strike, were picketing at the Domtar mill in Timmins, thereby causing an unlawful strike at the Timmins facility.
In other words, lawful activity in Chapleau was “spilling over” into unlawful activity in Timmins.
According to the employer, union supporters from Chapleau set up a picket line at the Timmins facility, and in response to that picket line, employees at the Timmins mill were refusing to cross the picket line of their sister local, or to go into work as they were required to do by their subsisting collective agreement.
The employer says further that the respondents “visiting from Chapleau” were perfectly well aware that picketing in Timmins would have that effect. Indeed, the employer contends that Roland Lauren, the Business Representative of Local 2995 and Local 1-2995, was present on the picket line in Timmins, and was urging employees of the Timmins mill (members of the same union) not to cross the picket line.
In other words, according to the employer, Mr. Lauren was actively encouraging an unlawful strike at the Timmins mill.
In short, from the employer’s perspective, this was not simply “informational picketing”, intended to inform the workers in Timmins about what is going on with their fellow workers in Chapleau. Rather, it was a deliberate attempt by the union and its officials to instigate an unlawful strike at a location where no strike is permitted.
II – The Board’s decision of May 17, 2000
On May 17, 2000 the Board issued a short decision setting the matter down for hearing on an expedited basis . The Board also took the opportunity to explain the legal framework applicable to the situation described in the employer’s application.
The Board noted that a concerted refusal to cross a picket line “in solidarity” with fellow workers amounts to a “strike” within the meaning of the Labour Relations Act, and that such strike would ordinarily be unlawful if the employees respecting the picket line were themselves bound by a collective agreement. It is not open to a trade union (in its collective agreement or in its constitution) to “contract out” of the “no strike prohibition” contained in the Labour Relations Act.
Once a collective agreement is in place, there can be no strikes at all, for any reason. And, of course, if trade union officials were actively counselling or encouraging this illegal activity, then that would amount to an independent violation of the Act. Union officials have an obligation to ensure that the “no strike pledge” is honoured.
The Board noted that if an unlawful strike does occur, an employer can seek a number of remedies:
(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 can seek damages at arbitration for any lost profits or economic losses resulting from the unlawful work stoppage.
(3) An employer can discipline employees who cause or engage in an unlawful strike, because engaging in a strike is a breach of their employment obligations which warrants discipline; and, an employer might be justified in imposing more serious discipline on those who actually initiate such unlawful activity.
(4) The employer may seek a consent to “prosecute” employees or union officials for their breach of the law.
An employer has a number of alternatives to ensure that employees and union officials comply with the law – just as a union does if the employer breaches its contractual or statutory obligations.
Finally, the Board made the following direction so that persons potentially interested in the dispute would be informed of the Board’s decision:
“the applicant and the responding parties are both directed to take all reasonable steps to bring this decision to the attention of any employee or union official who may be affected by the situation under review, or the remedies which the applicant seeks”.
In its decision of May 17, the Board made no findings of fact with respect to the employer’s allegations. Nor did the Board make any determination of whether an unlawful strike was in fact occurring. At that stage, all the Board had before it, was the employer’s application. Nevertheless, the Board considered it appropriate to remind the parties of their legal rights and responsibilities.
In accordance with its usual practice, the Board set the matter down for hearing on an expedited basis. The hearing was scheduled to take place, in Toronto, on Friday May 19, 2000.
However, as it turned out the matter did not proceed. Instead, the case was adjourned on terms - including an acknowledgement by the union that the employer could communicate directly with employees in an effort to resolve the situation.
III - What has happened since May 17, 2000?
So far as I can determine from the material before me, there has been no repetition of the conduct complained of. The work stoppage in Timmins was confined to a single day, May 16, 2000 - now more than four months ago. There have been no further problems at the Timmins mill, and the underlying cause – the Chapleau strike – has now been settled. In addition, the union has agreed to “make up” the production lost on May 16 (although the employer points out that there are still financial losses because the pricing of its product is time sensitive, so that the “made-up production” is not as valuable as production produced in a more timely matter).
In summary, then: the work stoppage came to a speedy end, the collective bargaining dispute at Chapleau has now been resolved, and, having reviewed the applicant’s representations, there is no persuasive evidence that any repetition is likely, let alone imminent.
However, the employer is still concerned that there will be a repeat of the events of May 16, 2000, and with that in mind, brought the matter back on for hearing before the Board on October 31, 2000.
IV – Things the union agreed to at the hearing before the Board on October 31, 2000
At the hearing before the Board on October 31, 2000, the union acknowledged the state of the law as recorded in the Board’s decision of May 17, 2000.
The union accepts that a concerted refusal to cross a picket line, “in solidarity” with the picketers from another mill, amounts to a “strike”, which would be unlawful if those “respecting the picket line” are themselves bound by a collective agreement.
Whatever expressions of “solidarity” may require, they cannot involve or justify an unlawful strike at a facility where a valid collective agreement is in place.
The union also accepted the general thrust of a letter sent by Jim Ramsay, Director of Human Resources, to Damien Roy, President of Local 2995 and Local 1-2995. Mr. Ramsay’s letter reiterates some of the observations contained in the Board’s decision, and reminds both employees and union officials that untimely strike activity is unlawful and exposes them to a variety of remedies.
Counsel for the I.W.A. also acknowledged on the union’s behalf, that union officials have a positive obligation not to cause unlawful strikes, and also to take affirmative action to bring any unlawful strike activity to an end.
The I.W.A. further concedes that if an official of the union was urging employees bound by a collective agreement not to cross a picket line in support of workers elsewhere, such conduct would be unlawful for the union official and for the employees who heeded his call.
The responding union does not admit that Mr. Lauren actually engaged in any unlawful activity. However, counsel does concede that if Mr. Lauren actually did what the employer asserts that he did, then such conduct would be unlawful; and thus not conduct which the union could properly encourage or condone.
V - The employer’s concerns and the union’s response
The employer contends that despite the cessation some months ago of the behaviour complained of, and despite the union’s various concessions at the hearing on October 31, 2000, the Board should nevertheless proceed with this case, hold a hearing, make a finding that unlawful conduct did indeed occur, then issue a declaration to that effect.
Counsel contends that a formal hearing and declaration are necessary to effect the “educational purpose” for which the declaration power was provided. Without such formal process to “drive home the point”, the conduct is likely to be repeated.
The Board’s approach to situations such as this has been consistent for more than 30 years. In Acme Building and Construction Limited, [1975] OLRB Rep. Nov. 810, former Chair T. E. Armstrong Q.C. put it this way (at paragraph 15):
It has often been said that the declaration is not meant to be punitive. One of its main purposes is to impart information and by informing to induce a cessation of the unlawful activity. This purpose and rationale is well-known in the industrial relations community. Moreover, the practical success of the declaration, as a technique for bringing an end to unlawful activity, is well-established. In the majority of cases, the mere prospect of an adverse declaration is sufficient to prompt a return to work. If declarations were to be issued in all cases, regardless of the return to work, the inducement to avoid a pronouncement and to return to work voluntarily might well be diminished. This is one of the reasons why the Board is reluctant to issue an affirmative declaration, except in limited circumstances: namely, where the strike continues, or where, although the strike is over, there is a pattern of past unlawful conduct, or there is a reasonable apprehension of a resumption of unlawful conduct, or where the activity complained of is part of a deliberate and planned defiance of a public statute.
[emphasis added]
The employer contends that the Board should proceed with the case because its situation fits the parameters set out in Acme Building - in particular, that it has a reasonable apprehension that similar unlawful conduct will occur in the future if the Board does not make a formal declaration that what happened on May 16th was unlawful.
In the employer’s submission, there are reasonable grounds to believe that the problems encountered on May 16, 2000 will resurface in future bargaining between these parties (or other I.W.A. locals).
The employer points out that in a few months there will be new rounds of collective bargaining at several other facilities, so the employer is concerned that the same kind of “spill over effects” will occur again: if there is a lawful strike at one of these locations, picketers will cause an unlawful shutdown at other employer operations in northern Ontario.
The employer submits that if the setting of May 16, 2000 is recreated, members of the I.W.A. will behave as they did before, unless there is a hearing into the earlier incident and a formal declaration warning employees (and union officials) that such behaviour is unlawful.
Domtar further submits that the restrained approach described in cases such as Acme Building and Construction Limited does not in fact produce the desired result. Far from encouraging compliance with the law, the reluctance to proceed with litigation actually has the opposite effect – at least with respect to this union in its northern Ontario setting. It encourages “hit and run” tactics of the kind that the employer claims occurred in the spring.
In Domtar’s submission, the respondent union, its officials and sister locals, have all come to believe that they can “get away with” a short unlawful strike, provided that they end the unlawful activity before the Board’s processes can be engaged. So long as they use these short “hit and run tactics” they can break the law with impunity.
The employer also urges the Board to consider the frequency with which problems of this kind have arisen as between related unions/union locals, as well as comments allegedly made on May 16 that the employer “had other plants” which might be the subject of unlawful pressure. Such did not occur in this instance – at least not yet. But the employer does have other operations and relationships with this union across northern Ontario, and in counsel’s submission, Domtar is legitimately concerned that the problems encountered on May 16, 2000 will be repeated elsewhere unless the Board hears the case and makes a declaration that the behaviour complained of is unlawful.
To put the matter colloquially: union officials (especially Mr. Lauren) will not “get the message” unless there is a formal proceeding and an affirmative finding of illegality.
Counsel also notes the I.W.A.’s reluctance to give any positive assurance that this kind of incident – acknowledged to be illegal (if it happened as the employer describes) – will not happen again.
The I.W.A. responds that the problem that the employer complains of, was confined to a single day some months ago, and was quickly resolved; moreover, there is no firm evidence that it is likely to recur. In fact, in the shadow of the company’s complaint, the union not only facilitated employer communication to employees of their rights and responsibilities, but also agreed to make up any lost production associated with the short work stoppage. The positive labour relations result described in the Acme Building case, is exactly what happened in the instant case.
In the I.W.A.’s submission, the union has acted in good faith in an effort to repair any damage to the collective bargaining relationship, and no valid labour relations purpose would now be served by bringing witnesses down from Timmins for a hearing in Toronto about a problem that was resolved some months ago. If anything, the exercise would exacerbate the parties’ relationship.
Accordingly, counsel urges the Board to follow the approach outlined in Acme Building, (and many other cases), and exercise its discretion not to inquire further into the employer’s complaint, now that the alleged work stoppage is over.
VI – Decision and additional directions
The Board has considered the parties’ representations and the material before it; and in all the circumstances, I am not persuaded to depart from the Board’s well-established approach in these matters as outlined in Acme Building.
It appears to me that there is no real labour relations purpose to be served now by engaging in the litigation exercise urged upon the Board by the applicant.
I do not think that the evidence to date warrants the conclusion submitted by the employer, nor that a hearing is necessary to reinforce the purposes of the Act.
That said, I do not doubt the reality of the employer’s fears; moreover the Board would be troubled if a union (or unions) came to believe that the Board’s historical restraint could be exploited in the manner suggested by the applicant here.
Accordingly, and in keeping with the labour relations purpose that animated the decision of May 17, I think it may be appropriate to make some further procedural directions, so that employees and union officials with knowledge of this case will be aware of the situation and the problems to which the proceeding relates.
In particular, I think that it is important for the union, its members, and officials to be aware of the concessions made by the I.W.A. in the course of its submissions to the Board:
(1) that union officials have an obligation not to promote unlawful conduct, and to take affirmative steps to bring any such conduct to an end;
(2) that if a union official was encouraging employees bound by a collective agreement not to cross a picket line, such behaviour amounts to encouraging an unlawful strike.
The Board therefore directs that a copy of this decision and the decision of May 17 be posted in Domtar workplaces, in prominent places where they will come to the attention of any employees or union officials who may have an interest in the subject matter of this proceeding. The decision should be posted in close proximity to the “Notice” which accompanies this decision, and which the Board also directs be posted.
The Board further directs that the employer and the responding trade union take reasonable steps to provide a copy of these two decisions to all trade union officials associated with Local 2995 and I-2995 (i.e. business representatives, elected officials, shop stewards, and so on).
It is the behaviour of their organization that was the subject of complaint, and they should therefore be informed of the way in which this complaint has been resolved.
The union is further directed to send a copy of these two decisions to the officers of I.W.A. Local 2693 for their information, and to any I.W.A. official responsible for administering collective agreements in northern Ontario.
Again, the purpose of this last direction is simply to ensure that union members and union officials are aware of the situation and concerns to which this proceeding relates.
In my view, one of the ways to avoid further misunderstandings and prevent future litigation is to ensure that the institutional actors in the labour relations field know the legal rules by which they are bound. And, of course, it is also in the Board’s institutional interest to minimize the likelihood of litigation to which it must necessarily respond so quickly.
Finally, I think that it is appropriate to draw the responding parties’ attention to the emphasized portion of the Board’s decision in Acme Building and Construction Limited (see paragraph 30 above). As will be seen: in exercising its labour relations discretion to make a declaration, issue a cease and desist direction, or grant consent to prosecute, the Board may take into account whether “the activity complained of is part of a deliberate and planned defiance of a public statute” – which is to say, whether a party has knowingly and intentionally broken the law.
Obviously, a calculated and deliberate violation of the law would be looked at differently than some spontaneous action by a group of employees in response to local circumstances.
For the foregoing reasons, and subject to compliance with the procedural directions outlined above, the Board exercises its discretion not to inquire further into this application.
It seems to me that those directions are sufficient to accommodate the employer’s concerns about the future.
And, of course, if the employer’s concerns do indeed materialize and a further application is made to the Board, the Board panel hearing that case may take into account the observations and result in the present one.
“R. O. MacDowell”
for the Board
Appendix "A"
The Labour Relations Act, 1995
NOTICE TO EMPLOYEES
Posted by order of the Ontario Labour Relations Board
WE HAVE BEEN DIRECTED BY THE ONTARIO LABOUR RELATIONS BOARD TO POST THIS NOTICE ADVISING EMPLOYEES OF CERTAIN OBLIGATIONS UNDER THE LABOUR RELATIONS ACT, 1995.
(1) UNDER THE LABOUR RELATIONS ACT THERE CAN BE NO STRIKE BY EMPLOYEES WHILE A COLLECTIVE AGREEMENT IS IN EFFECT.
(2) THE BOARD HAS REGULARLY RULED THAT THE REFUSAL BY A GROUP OF EMPLOYEES TO CROSS A PICKET LINE IN SYMPATHY OR SUPPORT FOR THE PICKETERS, CONSTITUTES A “STRIKE” UNDER THE LABOUR RELATIONS ACT.
(3) IT IS UNLAWFUL FOR A TRADE UNION OR ITS OFFICIALS TO ENCOURAGE OR SUPPORT AN UNLAWFUL STRIKE.
(4) MORE INFORMATION ON EMPLOYEE RIGHTS AND RESPONSIBILITIES CAN BE FOUND IN THE BOARD’S DECISION WHICH IS BEING POSTED ALONGSIDE THIS NOTICE.
DOMTAR INC.
PER:_______________________________
(AUTHORIZED REPRESENTATIVE)