Reasons for decision
Teamsters Local Union 938,
applicant,
and
Transpro Freight Systems Ltd.,
respondent.
Board File: 27027-C
CITED AS: Transpro Freight Systems Ltd.
Neutral Citation: 2008 CIRB 422
November 3, 2008
This is an application pursuant to section 19.1 of the Canada Labour Code, Part I (the Code).
Application for interim relief–Coercion and intimidation by employer–Remedies–Practice and procedure–Application arising out of an earlier unfair labour practice complaint alleging that the employer interfered with the union’s organizing activities–Union argued that the employer violated the Code by telling a union organizer he was fired, and by telling other employees that the business would close if a union came in–Union argued that the owner-operators at the heart of the organizing campaign have suffered a decrease in income since the campaign became public–“Objectives” of Part I of the Code as that term is used in section 19.1?–An employer is not obliged to remain silent during an organizing campaign and can express a personal point of view–But another clear objective of the Code is to prevent employers from using coercion, intimidation, threats, promises or undue influence when employees are considering their basic freedoms as set out in section 8–The extensive unfair labour practices set out at section 94, and the Board’s remedial powers at sections 99 and 99.1, reinforce that employers cannot penalize employees for examining and exercising their basic freedoms under the Code–Board has not developed a definitive test for an application under section 19.1–Board appreciates, where material facts are in dispute, that issuing an order could have the unintended consequence of giving a privilege or an advantage to one party–Doing nothing where interim relief is justified prejudices a party which finds itself on an uneven playing field, while awaiting a hearing and a decision on the merits of its case–Employer does not deny that its owners expressed views to key employee organizers and the union’s representatives, which would cause a reasonable person to believe their employment was in jeopardy and that the business would be closed if they continued on their organizing path–The purpose of an interim order is to ensure “the fulfillment of the objectives” of Part I of the Code–Union has persuaded the Board that it is appropriate to issue interim relief which ensures that the employees know of their freedoms under the Code and that they can explore these basic freedoms without fear of reprisal–Board orders that the employer post a notice to employees and owner-operators concerning their rights under the Code; distribute a copy of this decision to all employees and owner-operators; and, refrain from using coercion, intimidation, threats, promises or undue influence with regard to the employees’ and owner-operators’ right to determine whether or not they want to belong to a trade union.
This matter was heard by a panel of the Board composed of Mr. Graham J. Clarke, Vice-Chairperson, sitting alone pursuant to section 14(3) of the Canada Labour Code (Part I–Industrial Relations) (the Code). A hearing was held in Toronto, Ontario, on October 8, 2008.
Appearances
Ms. Marisa Pollock, for the Teamsters Local Union 938;
Mr. Hugh R. Dyer, for Transpro Freight Systems Ltd.
These reasons for decision were written by Mr. Graham J. Clarke, Vice-Chairperson.
I–Nature of the Application
[1] On August 29, 2008, the Canada Industrial Relations Board (the Board) received an application for interim relief under section 19.1 of the Code from the Teamsters Local Union 938 (Teamsters). Section 19.1 reads as follows:
19.1 The Board may, on application by a trade union, an employer or an affected employee, make any interim order that the Board considers appropriate for the purpose of ensuring the fulfilment of the objectives of this Part.
[2] The Teamsters’ application for interim relief arises out of their earlier unfair labour practice complaint (file 26994-C) against Transpro Freight Systems Ltd. (Transpro) alleging, inter alia, that Transpro interfered with the Teamsters’ organizing activities. In that complaint, the Teamsters asked for remedial relief, including automatic certification pursuant to section 99.1 of the Code. Transpro is a broker of general commodities freight services.
[3] Pending the hearing of the unfair labour practice complaint, the Teamsters requested the following interim relief at paragraph 27 of their application:
(a) An order that the employer maintain all terms and conditions of employment, including job functions and duties, for all members of the bargaining unit, at least until the unfair labour practice complaint is determined by the Board;
(b) An order that the employer cease and desist from intimidating, threatening, and coercing drivers with messages that their involvement with the union will result in the loss of their jobs;
c) An order that the employer cease and desist from harassing union organizers sitting near the employer’s premises;
(d) An order that the employer provide a copy of the Board’s decision to each of its employees, together with a summary of the employees’ rights to organize pursuant to the Code;
(e) An order that the employer post in the workplace a copy of the Board’s decision, together with a summary of the employees’ rights under section 94 of the Code;
(f) An order allowing employees to attend three, one-hour meetings with the union, on paid company time, on dates and at locations to be selected by the union;
(g) Such other order or declaration that the complainants may request and that the Board deems appropriate.
[4] The Teamsters also asked for costs for their interim relief application.
[5] Transpro requested that the Board dismiss the application for interim relief on several grounds. Transpro raised questions about the quality of the Teamsters’ affidavit evidence under the Canada Industrial Relations Board Regulations, 2001 (the Regulations). Transpro further argued that, even if the Teamsters had an arguable case, the balance of convenience favoured Transpro since no employees had been terminated or lost any work.
[6] Transpro further submitted that, even if some actions by its representatives may have given rise to an arguable case, Transpro remedied those actions by changing its conduct and sending a letter to its employees about their rights under the Code.
II–Facts
[7] Each party submitted numerous affidavits with regard to the facts in this case. The Board will summarize the background to this application.
[8] In or about May 2008, Mr. Bill Harrigan, a Transpro owner-operator, contacted Mr. John Hull, a Teamsters representative, in order to commence an organizing campaign. Mr. Hull and Mr. Harrigan began collecting cards from drivers in June/July 2008.
[9] In late June or early July, another owner-operator, Mr. Faizudden Mohammed, who employs two other drivers for his vehicles, joined in the effort of speaking to other drivers and collecting signed cards.
[10] In early August 2008, the Teamsters made their organizing campaign at Transpro more public by stationing a Teamsters representative, Mr. Joe Castellano, near Transpro’s operation in order to collect more membership cards.
[11] The Teamsters alleged that the two owners of Transpro, Mr. Frank Prosia and Mr. Joe Carusi, reacted to the now public organizing drive by speaking to a number of drivers and indicating that those supporting the union would be fired and that Transpro would close its doors if it became unionized.
[12] While Transpro does not accept the characterization of the facts as put forward by the Teamsters, it did produce candid affidavit material about the actions of Mr. Prosia and Mr. Carusi.
[13] For example, Mr. Prosia’s September 8, 2008 affidavit indicates at paragraph 8 that, on August 13, 2008, “I told Mr. Shiwprasad that the company would terminate all the brokers and close down the business if the union was certified”. Mr. Shiwprasad is a Transpro employee who was speaking to Mr. Castellano at the time Mr. Prosia made his comment.
[14] Mr. Joe Carusi, in his September 8, 2008 affidavit, agreed that he spoke to Mr. Shiwprasad on August 13, 2008, and said that “if the Applicant were to be successful the Respondent would not be able to remain competitive in a primarily non-unionized industry and would probably have to close its business as a result.”
[15] Mr. Prosia also confirmed comments Mr. Carusi made at another meeting on August 13, 2008, with Mr. Mohammed that Mr. Harrigan “was probably going to be fired as a result of his involvement with the Applicants’ organizing drive and that there may be other individuals terminated as a result of involvement in the organizing drive.” Mr. Prosia swore in his affidavit that Mr. Carusi “made statements to the effect that Mr. Mohammed’s trucks would not be dispatched if he was involved with the Applicant.”
[16] Mr. Carusi confirmed in his September 8, 2008 affidavit that when he met with Mr. Mohammed on August 13, 2008, he advised him that Mr. Harrigan, “was probably going to be fired as a result of his involvement with the Applicant’s organizing drive and that there may be other individuals terminated as a result of involvement in the organizing drive.” Mr. Carusi further stated “that Mr. Mohammed’s trucks would not be dispatched if he was involved with the Applicant.” Mr. Carusi advised Mr. Mohammed to provide Mr. Prosia with information about the Teamsters’ organizing activities or “he could start looking for a new job.”
[17] Mr. Prosia affirmed that he consulted with an experienced labour lawyer for the first time after the meeting with Mr. Mohammed and received legal advice with respect to his obligations under the Code. After receiving legal advice, Mr. Prosia advised that Mr. Carusi contacted Mr. Mohammed, apologized for the statements made earlier in the day and reassured Mr. Mohammed that he would continue to receive work, notwithstanding his earlier comments.
[18] Mr. Carusi, in his affidavit, indicated he spoke to Mr. Prosia later that same day about the comments from legal counsel. His affidavit indicates he apologized to Mr. Mohammed for the statements he had made and reassured Mr. Mohammed “that he and his employees would continue to receive work notwithstanding his earlier comments.”
[19] The Teamsters’ legal counsel sent a letter on August 13, 2008, contesting Mr. Mohammed’s treatment. Transpro alleged it did not receive this letter until after Mr. Carusi’s apology to Ms. Mohammed. On or about August 15, 2008, Transpro sent letters to all its owner-operators and employees setting out, inter alia, their right to choose to join a trade union.
[20] The Teamsters’ affidavit evidence differs in many ways from that put in by Transpro. For example, whereas Mr. Carusi and Mr. Prosia alleged that Mr. Mohammed said that he had been coerced by Mr. Harrigan into signing a union card, Mr. Mohammed denies that statement.
[21] The Teamsters also filed other affidavits, including one from Mr. Harrigan, suggesting that his income had been negatively affected since August 13, 2008. Mr. Harrigan believes the decrease resulted from his organizing activities. This explains the Teamsters’ interim request that the employees’ terms and conditions of employment be maintained.
[22] Transpro, by contrast, has alleged in its affidavit material that all dispatching has been done exactly as it occurred previously.
III–Parties’ Submissions
A–Teamsters
[23] The Teamsters relied on two main positions in their request for interim relief. First of all, they argued that Transpro had essentially admitted violating the Code, inter alia, by telling a union organizer he was fired, and by telling other employees that the business would close if a union came in.
[24] Secondly, the Teamsters argued that the owner-operators at the heart of the organizing campaign have suffered a decrease in income since the campaign became public.
[25] The Teamsters argued that interim relief protecting income was necessary since the decrease in revenue for the owner-operators means they may have to leave Transpro in order to search for other, more remunerative employment. That would effectively gut the effectiveness of the organizing campaign.
[26] While Transpro maintains that business has been conducted as before, the Teamsters take issue with that explanation and argue there has been no specific response to the allegation that income has decreased to the detriment of those involved in the organizing campaign.
[27] The Teamsters argued that the Board must remedy what they characterize as the current “starving” of the employees or else the entire unfair labour practice complaint could become academic.
B–Transpro
[28] Transpro argued that the application was really an attempt by the Teamsters to prop up an organizing campaign that had not succeeded. Secondly, Transpro argued that the Teamsters wanted the Board to issue a punitive order such as that related to maintaining the employees’ past earnings, regardless of economic challenges that might be affecting the business.
[29] Transpro argued that employees have been dispatched as they have been in the past, without change. Any change to the employees’ earnings resulted from a decrease of work at Transpro.
[30] Transpro contested what they termed the “draconian order” being sought by the Teamsters, given the difficult economic times. An interim order which provided employees with a guaranteed income, while ignoring the fact that volumes had gone down, would be highly detrimental to Transpro.
[31] Transpro also argued that the Teamsters’ anecdotal affidavit evidence, including evidence where the source of the information is not disclosed, should not be preferred to the clear affidavit evidence from Transpro with regard the to current state of the business and how work has been assigned. Transpro examined the requirements of section 18 of the Regulations and noted that an affiant must provide the source of his or her information. Transpro argued that there were too many examples of anonymous sources of information in the Teamsters’ affidavits.
[32] Transpro also commented on the balance of convenience analysis that it proposed the Board undertake. In Transpro’s submission, forcing them to guarantee the earnings of employees, based on heavily contested evidence, would be completely inappropriate. Transpro argued that most cases of interim relief deal with the reinstatement of a key individual who had been fired. Transpro alleged this is not a case of terminating a key union individual, but a case of a company saying inappropriate things but reversing those errors immediately.
[33] Transpro also argued that allowing the Teamsters to meet with employees on paid company time would go against the spirit of section 95(d) of the Code and also ignored the fact that owner-operators are paid based solely on the mileage they drive.
[34] Transpro disagreed with all of the remedies being requested and further argued that labour relations boards do not award costs, especially for applications for interim relief.
C–Teamsters’ Reply
[35] The Teamsters argued that Transpro was giving its own evidence about the success of the Teamsters’ organizing campaign. There was no basis for the conclusions they were asking the Board to draw.
[36] The Teamsters advised there was uncontested evidence that the campaign had been going along well until the events of August 13, 2008 unfolded.
[37] The Teamsters reminded the Board that it had significant remedial authority and maintaining the employees’ income was the only way to level the playing field, given what had occurred.
[38] The Teamsters also argued that there was no evidence from Transpro to contradict the affiants they put forward who confirmed that their income had decreased since the campaign had become public.
[39] In the Teamsters’ view, the Board can order that the employees’ wages be maintained and can then supervise the impact of its order.
IV–Analysis and Decision
[40] For ease of reference, section 19.1 of the Code provides:
19.1 The Board may, on application by a trade union, an employer or an affected employee, make any interim order that the Board considers appropriate for the purpose of ensuring the fulfilment of the objectives of this Part.
[41] Unlike section 98 of Ontario’s Labour Relations Act, 1995, which provides significant guidance to the Ontario Labour Relations Board on when and how it can issue interim relief, the Code preferred giving this Board the wide discretion found in section 19.1.
[42] What are the “objectives” of Part I of the Code as that term is used in section 19.1?
[43] The Preamble to the Code helps identify some of Part I’s objectives such as the encouragement of free collective bargaining and the freedom of association:
WHEREAS there is a long tradition in Canada of labour legislation and policy designed for the promotion of the common well-being through the encouragement of free collective bargaining and the constructive settlement of disputes;
AND WHEREAS Canadian workers, trade unions and employers recognize and support freedom of association and free collective bargaining as the bases of effective industrial relations for the determination of good working conditions and sound labour-management relations;
AND WHEREAS the Government of Canada has ratified Convention No. 87 of the International Labour Organization concerning Freedom of Association and Protection of the Right to Organize and has assumed international reporting responsibilities in this regard;
AND WHEREAS the Parliament of Canada desires to continue and extend its support to labour and management in their cooperative efforts to develop good relations and constructive collective bargaining practices, and deems the development of good industrial relations to be in the best interests of Canada in ensuring a just share of the fruits of progress to all;
NOW THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: ...
[44] Section 8 of the Code confirms every employee’s basic freedom to join a trade union. Employers have a similar right to join an employers’ organization:
8.(1) Every employee is free to join the trade union of their choice and to participate in its lawful activities.
(2) Every employer is free to join the employers’ organization of their choice and to participate in its lawful activities.
[45] While the Code encourages free collective bargaining and the freedom of association, it also requires that a trade union have majority support in an appropriate bargaining unit in order to gain access to the rights and privileges the Code grants a certified bargaining agent:
28. Where the Board
(a) has received from a trade union an application for certification as the bargaining agent for a unit,
(b) has determined the unit that constitutes a unit appropriate for collective bargaining, and
c) is satisfied that, as of the date of the filing of the application or of such other date as the Board considers appropriate, a majority of the employees in the unit wish to have the trade union represent them as their bargaining agent,
the Board shall, subject to this Part, certify the trade union making the application as the bargaining agent for the bargaining unit.
[46] An employer is not obliged to remain silent during an organizing campaign and can express a personal point of view. But another clear objective of the Code is to prevent employers from using coercion, intimidation, threats, promises or undue influence when employees are considering their basic freedoms as set out in section 8. Section 94(2)c) recognizes an employer’s limited freedom of speech, but also emphasizes its limits:
94.(2) An employer is deemed not to contravene subsection (1) by reason only that they
...
c) express a personal point of view, so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
[47] The extensive unfair labour practices set out at section 94, and the Board’s remedial powers at sections 99 and 99.1, reinforce a key objective of the Code that employers cannot penalize employees, such as through termination, layoff, discipline or other intimidation, for examining and exercising their basic freedoms under the Code.
[48] The Board has not developed a definitive test for an application under section 19.1. The Board must be very careful in exercising its interim power. The Board appreciates, where material facts are in dispute, that issuing an order could have the unintended consequence of giving a privilege or an advantage to one party. Each party argued that either granting an order, or declining to do so, would give the other an unfair advantage.
[49] In the Board’s view, doing nothing where interim relief is justified prejudices a party which finds itself on an uneven playing field, while awaiting a hearing and a decision on the merits of its case.
[50] In the instant case, the Teamsters have persuaded the Board that some interim relief is appropriate.
[51] While the extent and degree of Transpro’s comments and actions remain to be determined when hearing the unfair labour practice complaint on the merits, Transpro does not deny that its owners expressed views to key employee organizers and Teamsters representatives which would cause a reasonable person to believe their employment was in jeopardy and that the business would be closed if they continued on their organizing path.
[52] While Transpro appears to have benefitted from the advice of experienced labour law counsel, and took some steps to modify its actions, the bell cannot be unrung. Even if Mr. Mohammed was not fired de jure once legal counsel had been consulted, the reality is that Mr. Mohammed was told he was fired by the owners of the company. The August 15, 2008 letter to employees about their rights goes beyond merely summarizing the employee’s rights under the Code. That does not mean, however, that the Board has found that it violates the Code.
[53] The purpose of an interim order is to ensure “the fulfillment of the objectives” of Part I of the Code. The Teamsters have persuaded the Board that it is appropriate to issue interim relief which ensures that Transpro’s employees know of their freedoms under the Code and that they can explore these basic freedoms without fear of reprisal.
[54] However, the Board has not been convinced to order that terms and conditions of employment be maintained given that the issue of whether there has been a change has been hotly contested. It will be examined when the complaint is heard on the merits. The Board retains extensive remedial authority depending on its conclusion as to the Teamsters’ complaint on the merits. The Board, consistent with its past practice, will not award costs in this application for interim relief.
V–Order
[55] Accordingly, after considering the parties’ materials and submissions, the Board orders, pursuant to section 19.1 of the Code, that Transpro:
1. Post the attached notice (Appendix A) in a conspicuous place at its establishment where it is most likely to come to the attention of Transpro’s employees and owner-operators;
2. Distribute a copy of this decision to all of Transpro’s employees and owner-operators; and
3. Refrain from using coercion, intimidation, threats, promises or undue influence with regard to the employees’ and owner-operators’ right to determine whether or not they want to belong to a trade union.
Appendix A
Canada Labour Code
Notice to Employees
Posted by order of the Canada Industrial Relations Board
The Canada Industrial Relations Board has ordered Transpro to post this notice and to refrain from using coercion, intimidation, threats, promises or undue influence with regard to employees’ and owner-operators’ right to determine whether or not they want to belong to a trade union.
The Board has not yet held a hearing into the merits of the Teamsters’ unfair labour practice complaint and has made no findings in that regard. However, the Board did issue this interim order because certain actions of Transpro may have impacted upon the Teamsters’ right, and that of Transpro employees and owner-operators, to examine and exercise their rights under the Code.
Every employee and owner-operator is free to join the trade union of their choice and to participate in its lawful activities.
Employees and owner-operators have the right not to be discriminated against or penalized by an employer because they seek to exercise rights under the Code.
Section 94(2)c) of the Code permits an employer or a person acting on behalf of an employer to express a personal point of view regarding a trade union, so long as the employer does not use coercion, intimidation, threats, promises, or undue influence.
The Board has an extensive remedial authority to counteract violations of the Code.
This is an official notice of the Board and must not be removed or defaced.
This notice must remain posted at Transpro for 60 consecutive working days in a place where it is most likely to come to the attention of Transpro’s affected employees and owner-operators.
Dated this 3rd day of November, 2008.
(s)Graham Clarke
Vice-Chairperson